(1) Reportable: No
(2) Of interest to other Judges: No
3) Revised
')_< "J ~ 'k)
Signature Date
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWtf '
In the matter between:
NORTHERN CAPE GAMBLING BOARD
and
CHARLES HENRY FREDERICKS
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
HENDRICK OLIPHANT
BOITUMELO BOQIGELO
LUCKY SELOMI •••
ITUMELING SELOMI
,. GAOPALELWE MOTLHABANE
NADINE BERNADO SMITH
Heard: 19 February 2026
Delivered: 25 June 2026
Gase; No: 1C533/2022
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
2
JUDGMENT
MACROBERT, AJ
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Introduction
' [ 1] This is an opposed rescission application in which the Applicant seeks an order
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rescinding the judgment of my brother, Acting Judge De Kock, handed down on
11 August 2025, in the absence of the Applicant,-. in ac9oraance with the
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provisions of section 165 (a) of the Labour Relations Act,1 (LRA) and Rule 16A
of the Rules for the Conduct of Proceedings· in the _La~0ur Court2 .
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[2] The application for rescission was filed late, for which the Applicant has sought ..
condonation, which Respondent(s) have not ·opposed.
[3] Condonation is duly granted.,
Background facts
[4] De Kock A~'s judgment concerned a review application decided in the
Applicant's absence.in which he reviewed and set aside the arbitration award
issued by thei Commission for Conciliation, Mediation and Arbitration (CCMA)
on 23 September 2022, and ordered the First Respondent's retrospective
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promotion .of Compliance Inspector with backpay.
[5) As will be seen below, Applicant contends that the judgment was erroneously
•sought and granted3 in the absence of the Applicant's legal representative, the
State Attorney, Kimberley on 7 August 2025, which was occasioned due to
unforeseen flight cancellations and delays of flights due to inclement weather.
1 Act 66 of 1995, as amended.
2 Now Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the
Labour Court. Published 3 May 2024 (GN 50608) . Effective 17 July 2024.
3 See section 165 (a) of the LRA
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[6] After the issuance of De Kock AJ's judgment on 11 August 2025, Applicant
lodged an urgent application_ to the Labour Court to stay enforcement of the
judgment on review pending the outcome of this application for rescission of
that judgment.
[7] The urgent application was heard by La Grange J on 23 September 2025, and
he handed down judgment thereon on 30 September 2025, granting the
application, the reasons for which are set out briefly below.
.
[8] The reasons for Applicant's representative , Ms Zilwa's, non.,appeariance on 7
[9]
f
August 2025 are exhaustively set out in Applicant's founding ,~ffidavit, some of
which were conceded in Respondent's answering affiaavit.
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This explanation and the reasons given are cqntained 'iri1detail' in La Grange J's I !
judgment in the urgent application, and ar!3 .. s.et out in full ih Applicant's Founding . .· _,·
affidavit and in paragraph 36 of Applicant's Heads; all of which do not bear
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repetition here, save only to record that it is apparent from the judgment of De
Kock, AJ, that he was unawar~. of and liact··not been informed of all the facts
and circumstances surrounding Ms Zilwa's non-appearance at the hearing on
7 August 2025, which I 'set out' in brief below.
[1 0] There were two flight delays from Kimberly (where Ms Zilwa is based) on 6
August 2025· which Ms ,Zilwa had intended to take, ensuring that she would
arrive timeously the day before the hearing. These two flights were cancelled
due to inclement weather.
[11] This resulted1in Ms Zilwa having to book a flight on 7 August 2025 which would
only arrive1 in Cape Town at 09h55. She advised Respondent's attorney of this
and requested that the matter be stood down until 11 h00.
[12] This was agreed to by First Respondent's attorney, confirming that the matter
would be stood down until 11 h00 that morning. Upon being advised of this De
Kock AJ stood the matter down until 11 h00. However, as it turns out, it never
rains but it pours.
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[13] Ms Zilwa's flight that morning was yet again delayed due to inclement weather
and she only landed at Cape Town International at 12h30.
[14] She immediately informed First Respondent's Attorney of this on landing and
that she was on her way to Court, but was advised that the matter had already
been heard in her absence, with judgment reserved. Upon her arrival at the
Labour Court, this was confirmed by the Registrar.
[15] The above facts are either admitted, common cause or ,p'ndisputed qy,
Respondents.
[16] First Respondent's quarrel is that Ms Zilwa could have•1 doneq nore- eg
[17]
.
contacting her office to advise First Respondent's .Attorne¥ of hen predicament, .. . ~ .
f I t ~ • t
alternatively the Registrar. Ms Zilwa and her Qounsel G.0.ncede·that she did not
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do this and erred in not so doing. However, she was in 1a panic driven by her
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circumstances and has apologised therefor. ,.
There is no doubt, from the incontrovertiole eyidence that Ms Zilwa made every ,. . ,
reasonable attempt to get to!Court well in time, and had endeavoured to keep
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First Respondent's Attorney ·inferir.l~d and abreast of her plight and
predicaments as they unfolded . . i.
Analysis, including t-he· law as·applied to applications for rescission of judgment
[18] It is not _clear from De Kock AJ's default judgment as to exactly what he was
advised, nor in·whatidetail, as to Ms Zilwa's predicament on the date of hearing.
The papers before me do not make this clear.
[19] • I can·al~o·take judicial notice of the scarcity of flights from Kimberley to Cape
Town as I too, have been subject to such delays over time, resulting in late
arrivals etc. There are very few flights if one is missed for whatever reason.
[20] La Grange J's judgment in the urgent application referred to above, shows
sympathy for and empathy with, Ms Zilwa's predicament and her attempts to
get to Court on time, and hence stayed the execution of De Kock Aj's judgment
get to Court on time, and hence stayed the execution of De Kock Aj's judgment
pending the outcome of the rescission application.
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[21] I am convinced that had De Kock AJ been apprised in full of all the facts, set
out in detail in the Applicant's founding and replying affidavit, and thus fully
aware thereof when he decided the review application in Applicant's absence,
that he would not have done so, and would have had understanding of, and
empathy for Ms Zilwa's position and circumstances, as Applicant's Attorney of
record on the day in question, and the facts and circumstances leading up to it.
' [22] As to the law on rescission of judgments, which is trite, I as~,.ttie follm,yi~g
questions: <1
23.1 Was there a reasonable explanation as to why Ms Zilwa. was not at Court
at the stood-down time of 11 h00? I believe that there is on •all that is
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before me;
23.2 Had De-Kock AJ been advised of the full facts and circumstances and
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efforts Ms Zilwa made to get to Court'on ti.me;J!:believe that he would not
have proceeded as he did; ,. '
23.3 The prospect of success 6n1the merits of Applicant's case on review play
' a role in the Court's decis'ion: rhis was also considered by La Grange J
' in his Ruling on the. urge'nt application and dealt with therein, as I have
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also done, and. I do not propose to deal with this in detail here.
23.4 Suffice it to sa1/ that after considering the copious authority presented to
me in. C9unsel's respective Heads in relation to the facts, I am of the
view that there are at least prima facie prospects of success in the review
application brought by Applicant and it is in the interests of justice and
•. fairness that the review application be allowed to proceed and that De .
Kock AJ's default judgement be set aside to allow this to take place.
[23] As to costs, there is no doubt that there was some default on the part of
Applicant's attorney as admitted, and therefore I do not believe it to be in the
interests of justice and fairness that an adverse order as to costs be made
against First Respondent.
against First Respondent.
[24] In the premises and for the reasons set out above, the following order is made:
Order
1. The default judgment ordered by De Kock AJ in his judgment of 11
August 2025 is hereby set aside;
2. The review application may be set down for hearing by the Registrar
for hearing on an opposed basis, on the opposed roll, on the p91?!3rs
and pleadings as they stand;
3. There is no order as to costs made.
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JMJ MacRobert
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Acting Judge of tl:ie laoour Court of South Africa
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Appearances:
For the Applicant
Instructed by
For the First Respondent
Instructed by
Adv Chandre Brown
Ms P. Zilwe of the State Attorney, Kimberley
Adv F. Rodrigues
A. Mukkadam of SIA Incorporated Attorneys
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