THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: D62/25
In the matter between:
CATALER SA Applicant
and
DISPUTE RESOLUTION CENTRE
First Respondents
COMMISSIONER LEON PILLAY
Second Respondent
NUMSA obo CHUNILAL ZUBAIR CAMERON
Third Respondent
Heard: 19 February 2026
Delivered: 13 March 2026
JUDGMENT
MAESO AJ
(1) Reportable: NO
(2) Of interest to other Judges: No
Signature Date
Page 2
1. This is an application in terms Section 145 of the Labour Relations Act to review
and set aside the rescission ruling handed down by the second respondent on the 2
February 2025.
2. The applicant seeks an order substitut ing this ruling with an order granting the
rescission of the default award dated 17 December 2024 and directing that t he
matter be set down for arbitration before an arbitrator other than the second
respondent.
BACKGROUND
3. Section 144 of the Labour Relations Act allows an arbitration award or ruling to be
rescinded on specific grounds. These include where the award was erroneously
sought or, erroneously made in the absence of any party affected by that award or,
where the award is made in the absence of a party, on good cause shown.
4. The arbitration in this matter was scheduled for the 12 December 2024. The
applicant failed to attend. I n the absence of the applicant , the second respondent
proceeded with the arbitration and issued a default award in which he found the
dismissal of Mr Cameron to be substantively unfair. In terms of that order, Mr
Cameron was reinstated into the employ of the applicant.
5. On the 19 December 2024, two days after becoming aware of the default award,
the applicant launched an application for rescission in terms of Section 144 of the
Labour Relations Act.
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6. In the application for rescission, the applicant explained that it had attended
conciliation on the 11 September 2024 and after conciliation failed and the matter
was referred to arbitration, it instructed its attorney to prepare an application for
legal representation.
7. The deponent to the founding affidavit in support of the rescission application
concedes that she “missed” the notice of set down emailed to the applicant on the 7
November 2024. The deponent alleges that she only became aware that the
dispute had been set down when she received the default award on the 17
December 2024. It was at that time that a search of her inbox was performed, and
the unopened email containing the set down date was located.
8. The deponent records that she is normally a very organized employee and that it
was very unusual for her to overlook a set down date. When describing this event to
the court, Mr Kirby -Hirst representing the applicant, did not add any frills to the
explanation and openly described the explanation as “it is what it is”.
9. In his ruling, the second respondent accepted that the deponent may have missed
the email to which the notice of set down was attached. He goes on to conclude
that
“unfortunately, however, any employer that fails to attend an arbitration can state the
same as an explanation for non-attendance”.
10. It was for this reason that the second respondent considered that the deponent
should have provided “evidentiary support” for the oversight and dismissed the
rescission application.
APPLICABLE LEGAL PRINCIPALS
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11. Section 144 of the Labour Relations Act permits rescission of an arbitration award
that was erroneously sought or erroneously made in the absence of any party
affected by that award, or in which there is ambiguity or an obvious error or
omission or if granted as a result of a mistake common to the parties or if made in
the absence of any party, on good cause shown.
12. It is accepted that the test for good cause in rescission applications involves a
consideration of two factors. The first being the explanation for the default and this
must be assessed whether the explanation is a reasonable one and bone fide .
The second factor is whether the applicant has on the face of it, a prima facie
defense. In other words, the applicant in a rescission application, must show
prospects of success in the main application must be considered.
13. In Shoprite Checkers (Pty) Ltd v CCMA and Others [2007] 10 BLLR 917 (LAC)
(918), the court confirmed the following:-
“The test for good cause in an application for rescission normally involves the consideration
of at least two factors. Firstly, the explanation for the fault and secondly whether the
applicant has a prima facie defense”
14. The court went on to refer to Northern Province Local Government in the
Association v CCMA and Others1 which stated:-
“An applicant for the rescission of a default judgment must show good cause and prove
that he at no time denounced his defense, and that he has a serious intention of
proceeding with the case. In order to show good cause, an applicant must give a
reasonable explanation for his default, his explanation must be made bone fide, and he
must show that he has a bone fide defense to the plaintiff’s claims”.
1 [2001] 5 BLLR 539 (LC) at 545, para 16
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15. Th Labour Appeal Court in MM Field Construction CC v Steel Engineering and
Allied Workers Union of SA and Others2 said:-
“Those two essential elements ought nevertheless to be assessed mechanistically and in
isolation. Whilst the absence of one of them would usually be fatal, where they are present,
they are to be weighed together with relevant factors in determining whether it would be fair
and just to grant the indulgence.”
16. Dealing with willful default, the court in Harris v ABSA Bank Limited t/a
Volkskas3 confirmed:-
“Before an application in rescission of judgment application can said to be “willful default”,
he or she must bear knowledge of the action brought against him or her and of the steps to
required to avoid the default. Such an applicant must deliberately being free to do so, fail
or omit or take the step which avoids the default and must appreciate the legal
consequences of his or her actions”.
17. There is no evidence that the applicant was male fides or willfully defaulted. It was
not disputed that the application to rescind the default award was made two days
after the deponent became aware of the default award. This is an indication of
someone who is a serious litigant and who immediately puts steps in place to right
the wrong caused by an oversight. This is not the case of the deponent being aware
of the date but ignoring same. Given that she had attended conciliation, there was
every indication that the matter was proceeding to arbitration.
18. Overlooking the email to which the set down was attached was a mistake. This
was conceded by Mr Kirby-Hirst in addressing the court. Mistakes of this nature are
not unusual. The deponent to the founding affidavit is not the first employee to
2 [1994] 15 ILJ 1310 (LAC)
3 [2006] 4 (SA) 527 (T)
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overlook an email containing correspondence from a bargaining council. It is highly
unlikely that the deponent will be the last employee to do so. These are practical
considerations that the court must consider taking into account today’s modern
electronic communication environment. The facts of this matter point to it being
unduly harsh to bar the applicant from defending its position at arbitration.
19. The second respondent raises the point that accepting the defense of oversight
allows for abuse. I am satisfied that if the facts of each case are carefully assessed
to determine the veracity of an explanation to ensure that it is not male fides or
willful conduct , the concerns raised by the second respondent will be adequately
addressed.
20. No explanation was given why the first respondent sent an sms notification to the
third respondent confirming the date of the arbitration but did not offer the same
courtesy to the applicant. Had it elected to do so, this entire issue would have been
avoided. The very reason that a practice has been adopted to notify parties of
hearings by way of sms is to avoid set down dates being lost in a trail of emails that
make their way into an employee’s inbox on any given day.
21. When dealing with the prospects of success, the second respondent acknowledges
that the third respondent was found guilty of the charge of insolence and not guilty
of the charge relating to the refusal to obey a lawful instruction.
22. In his ruling, the second respondent confirms that the applicant provided a copy of
the chairperson’s findings as an annexure to the application for rescission. The
application for rescission included a copy of the chairperson’s notes summarizing
the evidence placed before him. The second respondent makes no reference to
these notes. The chairperson’s reasons confirmed that Mr Cameron had emailed a
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response to the applicant’s management shift patterns in disrespectful terms. Mr
Cameron understood the email to be disrespectful of applicant’s management as he
offered to apologize for this communication. The chairperson finds that the
language used by Mr Cameron was highly disrespectful and constituted a disregard
for management’s authority. Furthermore, the chairperson finds that Mr Cameron
knew “full well whom he was addressing” in his emails and that the email was sent
at the time when he was tired and disorientated did not lack any merit.
23. It is the court’s view that the combined assessment of the explanation for
overlooking the set down date and the prospects of success in the main application,
leaves the conclusion that good cause was established.
24. For this reason, it required the second respondent to grant rescission and to allow
the matter to be properly ventilated in arbitration. This would have been the logical
and fair decision to make as it would allow the applicant to explain its position and
at the same time would afford Mr Cameron an opportunity to state his case before a
commissioner.
25. Refusing to grant the rescission was in these circumstances unreasonable, and the
ruling must be set aside.
ORDER:
(i) The application for review succeeds.
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(ii) The rescission ruling issued by the second respondent is reviewed and set
aside.
(iii) The ruling is substituted with an order granting rescission of the default
arbitration award dated 17 December 2024.
(iv) There is no order as to costs.
MG MAESO
_______________________________
Acting Judge of the Labour Court of South
Africa
Appearances:
Applicant: Mr Kirby-Hirst
McGregor Erasmus
First Respondents : Ms S Mbotho
NUMSA obo Chunilal Zubair Cameron