THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2026-049354
In the matter between:
MAKANYA ANNA MTHINI Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
SEELE MOKWENA N.O. Second
Respondent
STANDARD BANK (PTY) LTD Third Respondent
Heard: 12 March 2026
Delivered: 19 March 2026
Labour law – Review in terms of s 158(1B) of the LRA – Urgent intervention in
incomplete arbitration proceedings - Exceptional circumstances – Applicant failing to
show exceptional circumstances - Review grounds – Errors of law and gross irregularity
alleged – no irreparable harm, illegality, grave injustice or unattainable substantial
redress established – Application dismissed with costs on punitive scale.
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
MAKHURA, J
Introduction
[1] The applicant, a former Branch Manager employed by the third respondent at its
Rustenburg and Brits branches, approaches this Court on an urgent basis to
review a ruling issued by the second respondent, a commissioner appointed by
the Commission for Conciliation, Mediation and Arbitration (CCMA) to arbitrate
her unfair dismissal dispute. In terms of that ruling, the commissioner dismissed
the applicant’s application in terms of rule 29 of the CCMA rules 1 to compel the
third respondent to disc lose the investigation report, including emails, recordings
and transcripts generated during the investigation process.
[2] The review application is brought in terms of section 158(1B) of the Labour
Relations Act2 (LRA) and is opposed by the third respondent.
Factual background
[3] The factual matri x giving rise to the dispute is largely common cause. T he
applicant faced charges of gross negligence for allegedly failing to conduct
monthly surprise checks, neglecting to inspect the recyclers during quarterly
audits, and not verifying a discrepancy of R748 490.00 identified and allocated by
her subordinate. According to the third respondent, these omissions enabled the
applicant’s subordinate to misappropriate funds without detection, ultimately
resulting in a financial loss of R1 880 310.00.
[4] The applicant was dismissed on 8 February 2023 and referred an unfair
dismissal dispute to the CCMA in March 2023. The arbitration was set down for
12 February 2026, after delays which are irrelevant for the purpose of this
application. At the commencement of the arbitration, the applicant applied in
1 Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration,
GG48445 of 21 April 2023.
2 Act 66 of 1995, as amended.
3
terms of r ule 29 of the CCMA rules for disclosure of the investigation and
associated material, which was allegedly relevant to the dispute. 3 The applicant
submitted that the report was central to the deliberations leading to her being
charged and that it contained further material, including audio recordings and
witness statements. The third respondent opposed the application, contending
that it neither relied on the report during the disciplinary hearing nor intended to
rely on it during arbitration, that the report contained privileged information, and
that the arbitration, being a de novo process, would focus on the fairness of the
dismissal based on evidence actually led before the commissioner , where it
bears the onus of proof.
The ruling
[5] From the facts above, the commissioner was required to determine whether the
investigation report was relevant to the issues before him. Specifically, he had to
consider whether the third respondent’s reliance on the report when deciding to
charge the applicant entitled her, in the arbitration, to its disclosure, and
particularly where the third respondent expressly disavowed any reliance on the
report in the arbitration proceedings.
[6] In his analysis of the application, the commissioner noted that the parties had
identified in their pre- arbitration minute the relevance of the investigation report
as a factual issue in dispute. The pre-arbitration minute recorded:
‘That the investigation report is indispensable to any proper determination of
whether there is a rational connection between the deliberations to charge the
Applicant with misconduct and the decision and the reasons to “slap the wri sts”
of Ms Monokwa and Ms Mokgal e with final written warnings. The Respondent
3 Rule 29(1) and (3) provides that:
‘(1) At any time after the certificate of outcome is issued or the expiry of the 30- day conciliation
period but not less than fourteen (14) days prior to the hearing date, either party may, on
period but not less than fourteen (14) days prior to the hearing date, either party may, on
application, request the other party to disclose any documents or material relevant to the dispute…
(3) A commissioner may either before or during the proceedings at the commissioner’s own accord,
or on application, make an order as to the disclosure of relevant documents or material relevant to
the dispute.’
4
contends that the investigation report is not relevant or necessary in these
proceedings.
That the deliberations contained in the investigation report are relevant and
essential for the exercising of the applicant’s fair process rights in terms o f rule
29 in the ongoing arbitration proceedings. The request for the i nvestigation report
is a legitimate endeavour “to determine objectively what considerations were
probably operative in the minds of the Bank (the decision-maker) when they
passed the resolution in question” to charge the Applicant with misconduct. The
Respondent contends that the investigation report is not relevant or necessary in
these proceedings.’
[7] The commissioner referred to the legal principles, emphasising that the key test
is whether the information sought is relevant to the dispute. He held that the
applicant’s request was speculative, resting on what the report might contain,
and that such speculation fell short of the threshold required under r ule 29. He
also found that the alleged deliberations in the report, which the applicant
believed could expose an improper motive for charging her, were irrelevant,
particularly as no substantive basis for alleging an ulterior motive had been
provided.
[8] The commissioner then turned to the applicant’s further submission that the
investigation report would demonstrate inconsistency in the disciplinary action
taken by the third respondent. He held that the third respondent bears the onus
of proving the fairness of the dismissal, which includes providing a reasonable
explanation for any alleged differential treatment of employees. The
commissioner further emphasised that arbitration proceedings constitute a de
novo inquiry where the third respondent must justify the fairness of the dismissal.
He then dismissed the disclosure application.
The section 158(1B) review application
[9] Dissatisfied, the applicant now challenges that ruling on an urgent basis under
section 158(1B) of the LRA, which provides that:
5
‘The Labour Court may not review any decision or ruling made during conciliation
or arbitration proceedings conducted under the auspices of the Commission or
any bargaining council in terms of the provisions of this Act before the issue in
dispute has been finally determined by the Commission or the bargaining council,
as the case may be, except if the Labour Court is of the opinion that it is just and
equitable to review the decision or ruling made before the issue in dispute has
been finally determined.’
[10] Section 158(1B) discourages piecemeal litigation, and only in limited
circumstances may the Court intervene in ongoing arbitration proceedings. In this
matter, the applicant seeks not only to review the interlocutory ruling, but she
wants to do so on an urgent basis and to obtain final relief. This raises the bar
considerably. The enquiry is no longer confined to whether intervention would be
just and equitable; the applicant must demonstrate the existence of exceptional
circumstances justifying immediate judicial interference.
4 Such an assessment
necessarily includes whether the matter is genuinely urgent and whether the
applicant will be deprived of substantial redress if she waits until the arbitration is
finalised.
[11] Although section 158(1B) refers to intervention if it is “just and equitable” , in
Moolman v Commission for Conciliation, Mediation and Arbitration and Others
5
(Moolman), the Labour Appeal Court (LAC) adopted the position from its
previous judgments and the judgments of this Court that judicial interference in
incomplete arbitration proceedings is warranted only in exceptional
circumstances. The LAC held that section 158(1B) seeks to prevent piecemeal
litigation and to ensure that challenges to interlocutory rulings are deferred until
the conclusion of the main dispute. This approach, so the LAC emphasised, is
grounded in the legislative imperative for the swift resolution of labour disputes,
grounded in the legislative imperative for the swift resolution of labour disputes,
4 Booysen v The Minister of Safety and Security & others [2011] 1 BLLR 83 (LAC); (2011) 32 ILJ 112
(LAC) at para 54.
5 [2024] ZALAC 339.
6
which favours allowing arbitration proceedings to run their full course before the
Court intervenes.6
[12] The LAC further held that intervention in pending arbitration proceedings may be
justified only where allowing the ruling to stand would cause irreparable harm to
the applicant and where such harm could not be remedied after the arbitration
has been finalised. The Court also reaffirmed that r ule 29 affords commissioners
a broad procedural discretion, consistent with the LRA’s purpose of achieving
expeditious and informal dispute resolution.
[13] In Moolman, this Court had reviewed and set aside an interlocutory ruling
granted in favour of the employee in a dispute concerning the alleged reasonable
expectation of renewal of a fixed- term contract, where the employee bore the
onus of establishing dismissal. The LAC overturned that decision. In its most
recent decision on section 158(1B), South African Cabin Crew Association obo
Members v South African Airways (SOC) Ltd and Others
7 (SA Cabin Crew ), the
LAC upheld this Court’s urgent intervention in respect of jurisdictional and
condonation rulings and emphasised the narrow circumstances that may justify
judicial interference in ongoing arbitration proceedings . In SA Cabin Crew , this
Court heard the matter on an urgent basis and granted relief. The LAC,
upholding that outcome, reaffirmed that section 158(1B) embodies the principle
that judicial intervention should generally await the final determination of the
underlying dispute. The LAC emphasised that only in truly exceptional cases ,
such as those involving “ illegality”, “grave injustice”, or circumstances “where
justice could not otherwise be achieved”, will early intervention be warranted. The
LAC further underscored that intervention is particularly justified where the
impugned ruling rests on a material error of law, given the constitutional right to
lawful, reasonable, and procedurally fair administrative action.
8
6 Ibid at paras 42 - 45.
lawful, reasonable, and procedurally fair administrative action.
8
6 Ibid at paras 42 - 45.
7 [2025] ZALAC 45; [2025] 10 BLLR 1048 (LAC).
8 Ibid at paras 27 – 28.
7
[14] In City of Johannesburg Metropolitan Municipality v Mphefo and others 9
(Mphefo), this Court granted interim relief pending the determination of a review
application against a jurisdictional ruling that effectively disposed of the dispute.
Similarly, in South African Sports Confederation and Olympic Committee
(SASCOC) v Commission for Conciliation, Mediation and Arbitration and
Others
10, this Court intervened and set aside the commissioner’s ruling
compelling disclosure of an investigation report that was patently irrelevant. In
SASCOC, as in the present case, the employer had expressly disavowed
reliance on the investigation report during both the disciplinary hearing and the
arbitration. The Court held that, because arbitration is a de novo inquiry
concerned with the fairness of the dismissal based on evidence led before the
commissioner, the employer’s internal investigation report was irrelevant to that
enquiry and therefore not subject to disclosure.
Analysis of the application
[15] Against th e above jurisprudential backdrop, the question in the present
application is whether exceptional circumstances exist that justify the Court’s
intervention at this stage - specifically, whether urgent review proceedings are
necessary to prevent irreparable harm, an illegality, or a grave injustice, and
whether substantial redress would be unattainable if the arbitration proceeds
without interruption.
[16] In her attempt to persuade the Court that intervention is warranted at this stage,
the applicant advances three grounds of review, as set out in her founding and
supplementary affidavits. Apart from the commissioner’s ruling, the only other
document before the Court is the pre- arbitration minute. The review must
therefore be determined on the basis of that minute and the summary of the
parties’ submissions as recorded in the commissioner’s ruling.
9 [2024] ZALCJHB 287.
10 [2021] ZALCJHB 23.
8
[17] The applicant’s first ground is that the commissioner committed an error of law by
misapplying the test for relevance, particularly by reaching a conclusion on
relevance without having sight of the investigation report. She submits that this
rendered the ruling unreasonable
11. Intertwined with this is the third ground of
review, raised in the contested supplementary affidavit 12, in which the applicant
contends that the commissioner exceeded his powers and committed a gross
irregularity by proceeding to determine the disclosure application without first
having sight of and examining the report.
[18] The second ground of review concerns the applicant’s allegation that the
commissioner improperly relied on what she describes as the third respondent’s
“arbitrary submissions”. Her argument is that the third respondent should not be
permitted to determine unilaterally what material ought to be disclosed, nor to
shield itself behind assertions of irrelevance. She contends that the investigation
report contains the reasons and findings underlying the decision to charge her,
and that this necessarily renders it relevant to the issues in dispute.
[19] At the core of all three grounds of review lies the complaint that the
commissioner erred in finding that the investigation report was irrelevant to the
arbitration. The applicant argues that he reached this conclusion without sight
and examination of the investigation report and therefore could not properly
assess its contents or potential value. She contends that this approach resulted
in an improper rejection of her disclosure application.
[20] In Moolman, the LAC reaffirmed the well- established test for relevance adopted
from the English jurisprudence. It held that:
‘The test to apply in determining whether a document called upon to be disclosed
or discovered is relevant to any matter under consideration was set out in the
English case of Compagnie v Finance et Commerciale du Pacifique v Peruvian
English case of Compagnie v Finance et Commerciale du Pacifique v Peruvian
11 Reasonableness has no place in a section 158(1B) review application.
12 I have decided to permit the supplementary affidavit in the interest of justice and having considered that
the third respondent would suffer no prejudice, particularly because the supplementary affidavit did not, in
my view, raise any new issue.
9
Guano Co (1882), which was subsequently adopted and accepted as part of the
South Africa law.
The test to apply in determining the relevancy of a document called upon to be
disclosed is set out in Peruvian Guano as follows:
“It seems to me that every document relates to the matters in question in the
action, which not only would be evidence upon any issue, but also which, it is
reasonable to suppose, contains information which may – not which must –
either directly or indirectly enable the party requiring the affidavit (the document)
either to advance his own case or to damage the case of his adversary. I have
put in the words “either directly or indirectly,” because, as it seems to me, a
document can properly be said to contain information which may enable the party
requiring the affidavit either to advance his own case or to damage the case of
his adversary, if it is a document which may fairly lead him to a train of inquiry,
which may have either of these two consequences.”
The process underlying the discovery and disclosure of relevant documents is
underpinned by the consideration of ensuring a fair trial…’ 13
[21] It was accordingly incumbent upon the applicant to demonstrate that the
investigation report, and/ or the material it allegedly contains, could assist her in
advancing her case or undermining that of the third respondent , or lead to a train
of inquiry that may advance her case or undermine the third respondent’s.
However, her submission rested largely on irrelevant conjecture. She asserted
that the report might reveal deliberations leading to the charges against her, or
that it might contain other material such as audio recordings or witness
statements, yet there is no record before this Court to suggest that she identif ied
the nature of the alleged information, the witnesses involved, or how such
material could support her defence or weaken the third respondent’s case. The
commissioner, therefore, correctly characterised the disclosure request as
commissioner, therefore, correctly characterised the disclosure request as
speculative and short of meeting the rule 29 relevance threshold.
13 Moolman at paras 58 – 60.
10
[22] The applicant’s reliance on the alleged deliberations contained in the
investigation report, which are said to reveal the motive behind the decision to
charge her, was also correctly rejected by the commissioner. The issue before
the CCMA is not why the third respondent charged the applicant, but whether the
applicant’s dismissal was substantively and procedurally fair. That enquiry is
conducted de novo, and the third respondent bears the onus of proving fairness
based on the evidence it elects to present during arbitration. The reasons for the
dismissal are set out in the disciplinary outcome and/or the dismissal letter, and it
is on that basis that the fairness enquiry proceeds . To the extent that the
applicant suggests an ulterior motive on the part of the third respondent to
charge her, that case was not made out before the commissioner, or at least on
the record before this Court.
[23] Similarly, the applicant’s contention that the investigation report might contain
audio recordings or statements from unnamed witnesses was not supported by
any detail. She did not identify the witnesses in question, explain what
information their statements might contain, or demonstrate how such material
could assist her defence or undermine the third respondent’s case. She also
failed to articulate her defence to the allegations of misconduct. On this basis, the
commissioner was correct in dismissing the application.
[24] The applicant further argued that the report was relevant to her claim of
inconsistent discipline. This argument, too, was fully addressed by the
commissioner. Since the applicant has raised inconsistency as a defence, it is
the third respondent that must provide a reasonable explanation for any
differential treatment of employees involved in comparable misconduct. The
applicant did not explain the roles played by the two colleagues to whom she
compared herself, nor did she demonstrate that they faced simil ar allegations ,
compared herself, nor did she demonstrate that they faced simil ar allegations ,
and how the investigation report will assist her case or undermine the third
respoindent’s. Ultimately, the third respondent bears the onus of justifying any
alleged inconsistent treatment of its employees , and the applicant retains her
11
right during arbitration to challenge that explanation through cross -examination
and by putting her version to the third respondent’s witnesses.
[25] During argument, Mr Kufa, who appeared for the applicant, submitted that the
commissioner ought to have directed the third respondent to provisionally
disclose the investigation report to him alone so that he could examine it for the
limited purpose of assessing relevance. Although the applicant raised in her
papers a complaint that the commissioner had not had sight of the report, the
request for provisional disclosure was advanced for the first time from the bar. It
did not feature in either the submissions or applicati on before the commissioner
nor the founding or supplementary affidavits. On this basis alone, the argument
cannot succeed. In any event, the submission lacks a legal foundation and is
untenable.
[26] To support this argument, Mr Kufa relied on paragraph 68 of the LAC judgment in
Moolman, which states that:
‘There is no dispute that the documents in question did not serve before the
commissioner or the Labour Court. Instead of allowing the issue of the
documents’ relevancy to be fully ventilated during the arbitration hearing, the
Labour Court prematurely and erroneously found the documents to be irrelevant
without seeing the contents or hearing evidence as to their relevancy.’
[27] In Moolman, the employer opposed disclosure on grounds of confidentiality, not
relevance. That distinction is material and dispositive of the argument . In any
event, I do not understand the LAC’s reasoning in Moolman to establish a
general rule requiring provisional disclosure to commissioners or judges of the
requested information for the purpose of determining every application brought
under rule 29 or the Court’s discovery rules.
[28] Accepting the applicant’s submission would lead to an untenable conclusion that
all disclosure applications should be provisionally granted, obliging
all disclosure applications should be provisionally granted, obliging
commissioners to examine documents (which could be voluminous ) in order to
determine relevance, regardless of whether the applicant has made out a prima
12
facie case for disclosure. Such an approach would undermine the evidentiary
principles underpinning rule 29, impose unwarranted burdens on commissioners,
and promote speculative fishing expeditions.
[29] Rule 29 requires that an application for disclosure be directed at material that is
relevant to the dispute, and empowers the commissioner to order disclosure only
where such relevance is established. It was therefore incumbent upon the
applicant, considering the nature of the dispute before the CCMA, to demonstrate
relevance through, among other things, the reasons for dismissal advanced by
the third respondent, her defence to the allegations, and the third respondent ’s
intended evidence. These factors (the list is not exhaustive), together with the de
novo nature of arbitration proceedings and the issue of the onus of proof , form
essential components of the relevance enquiry. For the reasons already outlined,
I am unable to agree that the commissioner committed any procedural irregularity
or material error of law in refusing the disclosure application.
[30] Mr Kufa further submitted that the Court should offer general guidance to
commissioners on how disclosure applications ought to be approached. This
submission is misplaced. It effectively invites the Court to provide abstract
advisory opinions on matters already governed by the CCMA Rules. The Court’s
function is to adjudicate live disputes, not to issue general directives where there
is no live dispute. There is no issue before the Court that requires such guidance,
and the rules already provide a clear framework for addressing disclosure
application. This invitation is rejected.
[31] The dispute concerns the fairness of the dismissal, a matter in which the third
respondent bears the onus of proof. The arbitration proceedings will be
conducted afresh, with evidence led and interrogated a fresh, and the third
respondent has expressly disavowed reliance on the investigation report,
respondent has expressly disavowed reliance on the investigation report,
maintaining that it is irrelevant for the purpose of discharging its onus. That
stance should bring the matter to an end.
13
[32] Although I have decided that the application must fail, it is necessary to address
what is plainly a misinterpretation of section 158(1B) on the applicant’s part. She
contends that the matter is urgent because a review under section 145, brought
in the ordinary course, would not be finalised before the arbitration proceedings
concluded. She argues further that such a delay would infringe her constitutional
right of access to courts under section 34, as she would be “denied the remedy”
of properly ventilating the rule 29 ruling before the CCMA. The applicant also
asserts that by the time a section 145 review is heard, the arbitration will already
have been finalised and she may have been deprived of the opportunity to obtain
reinstatement or, alternatively, that the matter may need to be remitted for a
rehearing at the CCMA, causing what she characterises as significant prejudice.
She concludes that she would not obtain substantial redress if the r ule 29 ruling
is left unchallenged until the arbitration ends.
[33] This reasoning reflects a fundamental misunderstanding of section 158(1B). as
already stated above, the provision discourages interlocutory, piecemeal litigation
in ongoing arbitration proceedings and requires parties to defer challenges to
preliminary rulings until the final determination of the main dispute. It does not
contemplate a fragmented litigation process in which each interlocutory ruling
becomes the subject of a stand- alone review. The applicant’s interpretation
would undermine the statutory obj ective of expeditious dispute resolution and
cannot be sustained.
[34] Indeed, she will not be left without substantial remedy or reinstatement as she
seeks to argue. Should the third respondent fail to discharge its onus and her
dismissal is found to be substantively unfair , reinstatement remains the primary
available remedy under the LRA. I f she is reinstated, she would have no reason
available remedy under the LRA. I f she is reinstated, she would have no reason
to challenge a favourable award. Conversely, if the award goes against her and
she challenges it and the Court finds that there are sustainable grounds for
review, she will have adequate redress through the review process , where the
award may be substituted with an order of reinstatement. On this reasoning, the
issue is resolved without intervention in the pending arbitration.
14
[35] There are, accordingly, no exceptional circumstances warranting the Court’s
intervention in the uncompleted arbitration proceedings. The applicant will not
suffer irreparable harm if the arbitration is allowed to proceed; nor is there any
suggestion of illegality or grave injustice that would justify disrupting the statutory
scheme regulating such proceedings. The application falls to be dismissed.
Costs
[36] In her founding papers, t he applicant sought costs on attorney and own client ’s
scale, including the costs of two counsel , in the event of opposition. She
maintained this position in her heads of argument , after she had considered the
opposition by the third respondent . The third respondent in turn sought costs on
a punitive scale, including that of senior counsel.
[37] Although the applicant argued in her papers that the importance of the matter
justified the employment of two counsel and s ought costs on that basis, she
submitted later at the stage of oral argument that each party should bear its own
costs. The third respondent, however, persisted in seeking a punitive costs order
during the hearing.
[38] The matter was plainly without merit and constitutes, in my view, an abuse of the
court process. The issue for determination was neither novel nor complex, and
even on the applicant’s interpretation of Moolman, any argument regarding
provisional disclosure could properly have been advanced after the arbitration
had run its course, rather than in medias res . The parties’ original wishes, for
costs to be granted on a punitive scale, should prevail.
[39] In the premises, the following order is made:
Order
1. The application is dismissed.
2. The applicant is ordered to pay the costs of the third respondent on
attorney and own client’s scale, including the costs of a senior counsel.
15
____________________
M. Makhura
Judge of the Labour Court of South Africa
16
Appearances:
For the Applicant: Mr M. Kufa with Mr E. Jacobus
Instructed by: Machaba Attorneys
For the Respondents: Mr L.M. Malan SC
Instructed by: Webber Wentzel