THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
CASE Number: 2026 – 103960
In the matter between:-
DEPARTMENT OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT Applicant
and
ELVISO ADAMS N.O First Respondent
GENERAL PUBLIC SERVICE SECTORAL BARGAINING
COUNCIL Second Respondent
DANIEL DUMISA LUDIDI Third Respondent
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO
OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
12 June 2026
2
Summary: Urgent application by applicant to stay arbitration – principles
relating to urgency considered – applicant satisfying requirements of urgency
– application urgent
Practice and procedure – stay of arbitration pending determination of review
application – principles considered – interests of justice and fairness decisive
– applicant failing to establish proper basis for stay of arbitration – substantial
redress available to applicant in due course – interests of expedition
paramount – application to stay arbitration refused
Review jurisdiction – review application in medias res – s 158(1B) considered –
meaning of just and equitable considered in context of review application as
basis to stay further proceedings – review application competent – however
still requires exceptional circumstances for intervention – applicant failing to
establish exceptional circumstances – applicant’s review in medias res not
justifying stay – application to stay dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1] This judgment concerns an urgent application brought by the applicant on 7
May 2026 , in which the applicant seeks relief interdicting the second
respondent from continuing with arbitration proceedings, involving an unfair
dismissal dispute between the applicant and the third respondent, pending the
determination of a review application brought by the applicant on 29 April 2026
to review and set aside a condonation ruling issued under the auspices of the
second respondent. In terms of this condonation ruling , the third respondent’s
late referral of his unfair dismissal dispute to the second respondent was
condoned. The application has been opposed by the third respondent, on the
basis that it would not be appropriate to intervene in arbitration proceedings
that are not finalised, and also on the basis that the matter was not urgent.
3
[2] I will first deal with the issue of urgency. The applicant received the
condonation ruling on 15 April 2026. The review application followed on 29
April 2026. Whilst it is true that the arbitration sought to be interdicted was set
down for 18 and 19 June 2026 by way of a notice of set down on 10 April
2026, the applicant had not even received the condonation ruling when this
happened. It is the service of the condonation ruling on the applicant that
serves as the catalyst for bringing the stay appl ication. It was also only
appropriate to have brought the current urgent proceedings once the review
application was filed, as this would serve as the basis for the stay . It only took
the applicant some two weeks after receipt of the condonation ruling to
complete and file the review application, which I consider to be prompt action.
[3] In addition, the applicant, immediately after filing the review application, also
acted responsibly by first seeking an undertaking on 30 April 2026 from the
third respondent to hold the arbitration in abeyance pending the deciding of
the review application, which would have removed the need for the current
application. The third respondent was not willing to agree to such a stay by
way of an answer provided on 4 May 2026. The urgent application followed
three days later. I consider this to be sufficiently expeditious action on the part
of the applicant . I further believe that it is in the interest of all parties that the
matter be disposed of on the merits on an urgent basis. I am therefore
satisfied that the applicant gave proper effect to the principles of urgency as
set out in Association of Mineworkers and Construction Union and Others v
Northam Platinum Ltd and Another
1, and I will therefore decide this matter as
an urgent application.
[4] After hearing argument by both parties on 5 June 2026, and considering the
pleadings and heads of argument filed, I granted the following order on the
same date:
pleadings and heads of argument filed, I granted the following order on the
same date:
1. The application is heard as one of urgency in terms of Rule 38.
2. The application is dismissed.
3. There is no order as to costs.
4. Written reasons for this order will be provided on 12 June 2026.
1 (2016) 37 ILJ 2840 (LC) at paras 21 – 26.
4
[5] This judgment now constitutes the written reasons referred to in paragraph 4
of my order, above, starting with an exposition of the relevant background
facts.
The relevant background
[6] The facts of this matter are straight forward, and largely undisputed. The t hird
respondent commenced employment with the a pplicant on 1 December 2012
as a Project Manager within the Western Cape Directorate of Rural
Infrastructure Development. On 17 July 2024, the third respondent resigned
from his employment, contending he was constructively dismissed, in that the
applicant rendered his continued employment intolerable.
[7] The third respondent however only referred an unfair dismissal dispute to the
Commission for C onciliation, Mediation and Arbitration (CCMA) on 8 October
2024. Because such referral was obviously out of time, the third respondent
also subsequently filed an application for condonation with the CCMA on 23
January 2025. Further, and since the second respondent has jurisdiction in
this matter, the dispute was ultimately transferred to the second respondent in
terms of section 147 of the Labour Relations Act (LRA)
2. But it seems the
condonation application was never transferred to the second respondent along
with the dispute referral itself.
[8] There was also another dispute referral made by the third respondent to the
second respondent directly on 27 May 2025. There are a number of further
dealings between the parties relating to this referral, but this does not need to
concern this judgment.
[9] The third respondent’s unfair dismissal dipsute (constructive dismissal) came
to be set down for arbitration on 9 March 2026, for a period of two days. The
applicant raised a preliminary point that the third respondent’s dispute referral
had been filed out of time, and the third respondent had not brought a
condonation application. The third respondent in answer referred to the earlier
condonation application filed in the CCMA. After considering submissions by
condonation application filed in the CCMA. After considering submissions by
both parties, the presiding arbitrator directed that the condonation application
be re- filed by the applicant before the b argaining council (the second
2 Act 66 of 1995 (as amended).
5
respondent). The third respondent immediately complied and filed the
condonation application with the second respondent on 10 March 2026. The
grounds for seeking condonation were the same as the grounds contained in
the condonation application filed in the CCMA. The applicant opposed the
condonation application and filed opposing papers.
[10] The condonation application was then considered by the first respondent on
the papers, and in a comprehensive condonation ruling dated 25 March 2026,
the first respondent granted condonation. The applicant, as set out earlier,
only received this ruling on 15 April 2026. The review application challenging
this condonation ruling followed on 29 April 2026.
[11] In the interim, and on 10 April 2026, the second respondent set the matter
down for arbitration on the merits for 18 and 19 June 2026. The current urgent
application is aimed at interdicting these arbitration proceedings, pending the
final determination of aforesaid review application.
Analysis
[12] In deciding this matter, there is a particular imperative that squarely comes
into play. This imperative is that unfair dismissal and unfair labour practice
proceedings conducted under the auspices of the CCMA and the relevant
bargaining councils must be finally determined with expedition and without
undue delay. The relevant time limits prescribed by the LRA for this to be done
clearly speaks to this imperative. 3 The Constitutional Court has made a
number of firm pronouncements on this as well. In Khumalo and A nother v
Member of the Executive Council for Education: KwaZulu- Natal4, it was said:
‘… The importance of resolving labour disputes in good time is thus central to
the LRA framework …’. Similarly, and in Aviation Union of SA and A nother v
SA Airways (Pty) Ltd and Others5, that Court held: ‘… Speedy resolution is a
distinctive feature of adjudication in labour relations disputes …. ’ The following
sentiment was expressed in National Education Health and Allied Workers
sentiment was expressed in National Education Health and Allied Workers
Union v University of Cape Town and O thers6 : ‘… By their very nature labour
disputes must be resolved expeditiously and be brought to finality so that the
3 See for example the short time limits in section 191 of the LRA.
4 (2014) 35 ILJ 613 (CC) at para 42.
5 (2011) 32 ILJ 2861 (CC) at para 76.
6 (2003) 24 ILJ 95 (CC) at para 31.
6
parties can organize their affairs accordingly. They affect our economy and
labour peace. It is in the public interest that labour disputes be resolved
speedily …’. And finally, in Food and Allied Workers Union on behalf of
Gaoshubelwe v Pieman’s Pantry (Pty) Ltd
7 it was decided: ‘ … Our courts
have, on occasion, pronounced on the importance of labour disputes to be
conducted with expedition. For example, in National Research Foundation the
Labour Court held: ‘[15] It is now trite that there exists a particular requirement
of expedition where it comes to the prosecution of employment law disputes.
…’. This imperative is unfortunately often overlooked where it comes to
deciding whether or not to intervene in incomplete arbitration proceedings.
[13] It is my experience that especially the CCMA has been quite effective in giving
effect to this imperative, with the average matter, from beginning to end, being
resolved in less than six months. Proper car e should be taken by this Court to
ensure that what is in effect interlocutory proceedings should not unduly
interfere with this core notion, and the CCMA should, barring truly exceptional
circumstances, should be left to finishing its job before this Court comes into
play.
[14] It is of course true that one of the functions of the Labour Court is to supervise
proceedings conducted in the CCMA or bargaining councils . This was made
clear in Minister of Correctional Services v Mashiya and Others
8 where the
Court said: ‘… it has to be stated that this court has a supervisory duty over
the CCMA and bargaining councils, their functions, and of the arbitration
proceedings conducted under their auspices. If the applicant is prohibited from
raising an irregularity of the kind that occurred in casu, then this supervisory
duty would be compromised … ’. To this end, the Labour Court is inter alia
bestowed with review jurisdiction. There can be no argument with the general
bestowed with review jurisdiction. There can be no argument with the general
proposition that any party to the dipsute resolution processes under the LRA
being entitled and having the right to challenge any decision, ruling or
determination made in the course of such process on review to the Labour
Court, even before the particular proceedings are completed, pursuant to such
7 (2018) 39 ILJ 1213 (CC) at para 187.
8 (2023) 44 ILJ 1536 (LC) at para 87. See also Satani v Department of Education, Western Cape and
Others (2016) 37 ILJ 2298 (LAC) at paras 21 – 22; ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman
No and Others (2013) 34 ILJ 2347 (LC) at para 37; Deutsch v Pinto and Another (1997) 18 ILJ 1008
(LC) at 1011 and 1018; Van Rooy v Nedcor Bank Ltd (1998) 19 ILJ 1258 (LC) at para 17; Pep Stores
(Pty) Ltd v Laka NO and Others (1998) 19 ILJ 1534 (LC) at para 23.
7
duty of supervision by the Labour Court . But this right and entitlement may
have an unforeseen consequence, which is what would then happen to the
arbitration proceedings that were still not concluded and where the merits of
the case still had to be decided. Does this mean that everything must stop until
the Labour Court has first discharged its supervisory duty? This issue is
particularly crucial in the context of the imperative of the expeditious resolution
of employment disputes, dealt with earlier.
[15] It is to resolve the aforesaid tension that section 158(1B) of the LRA was
adopted in 2015.
9 It was adopted because an unfortunate pattern of
obstruction, be it deliberately or innocently, had emerged. It is tri te that in the
course of proceedings before them, CCMA and bargaining council arbitrators
may be required to make a number of rulings / determination s that do not
finally di spose of the case on the merits , but may have an impact on the
conducting of the proceedings . This would be, for example, rulings relating to
discovery of documents and legal representation. But it would also include, as
is the case in casu, a ruling in which condonation is granted. 10 When a
litigating party then seeks to review such rulings upon it being made, that
review would then serve as a basis for seeking that further proceedings be
stayed until the review is decided. This inevitably causes significant delays in
the finalisation of the proceedings, and increases the administrative burden on
the dipsute resolution bodies in having to manage and deal with these pending
processes. And all the while the imperative of expeditious dispute resolution is
compromised. This difficulty was succinctly summarized in Trustees for the
time being of the National Bioinformatics Network Trust v Jacobson and
Others11, as such:
'There are at least two reasons why the limited basis for intervention in
criminal and civil proceedings ought to extend to uncompleted arbitration
criminal and civil proceedings ought to extend to uncompleted arbitration
proceedings conducted under the auspices of the CCMA, and why this Court
9 Section 158(1B) reads: ‘ 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 A ruling refusing condonation obviously finally deposes of the merits of the matter , and reviewing
this ruling will not be in medias res.
11 (2009) 30 ILJ 2513 (LC) at para 14. See also EOH Abantu (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others (2010) 31 ILJ 937 (LC) at para 16.
8
ought to be slow to intervene in those proceedings. The first is a policy related
reason — for this Court routinely to intervene in uncompleted arbitration
proceedings would undermine the informal nature of the system of dispute
resolution established by the Act. The second (related) reason is that to permit
applications for review on a piecemeal basis would frustrate the expeditious
resolution of labour disputes. In other words, in general terms, justice would
be advanced rather than frustrated by permitting CCMA arbitration
proceedings to run their course without intervention by this Court.'
[16] Therefore, the very purpose of adopting section 158(1B) of the LRA was that
litigating parties are statutorily discouraged from instituting review applications
in medias res. This was made clear by the LAC in Moolman v Commission for
Conciliation, Mediation and Arbitration and Others12 as follows:
‘When section 158 (1B) of the LRA was introduced in 2014, the legislative
policy considered was to regulate and avoid piecemeal processing of
arbitration and mediation proceedings through reviews of interlocutory rulings
made by commissioners during those proceedings. This section guides
litigants to delay their challenges to interlocutory rulings pending the
finalisation of the hearing. In other words, review applications are not
encouraged until the award is issued and the arbitration proceedings are
finalised. This consideration bears significant weight when the Labour Court
considers the exercise of discretion to intervene in uncompleted proceedings.’
[17] The only exception to the general rule of review applications in medias res
generally not being competent, by virtue of section 158(1B), is that the Court is
given the discretion to nonetheless permit such applications being brought, if
the Court considers it ‘ just and equitable’ to do so. This was explained in
Cibane and Another v Premier of Province of Kwazulu- Natal13 in the following
manner:
Cibane and Another v Premier of Province of Kwazulu- Natal13 in the following
manner:
‘… the appellants sought to review the second respondent’s ruling in medias
res. There is a general rule against a review court entertaining a review
application in these circumstances. Specifically, in a labour context, s 158(1B)
expresses the general rule applicable in the Labour Court in respect of the
review of rulings issued during the course of any conciliation or arbitration
proceedings conducted under the LRA. The Labour Court may not review any
12 (JA98/22) [2024] ZALACJHB 339 (22 August 2024) at para 42.
13 (2025) 46 ILJ 2587 (LAC) at para 31.
9
decision or ruling until a final determination has been made, except where the
court is of the opinion that it would be just and equitable to do so before the
stage of final determination.’
And further, in recent judgment of the LAC in South African Cabin Crew
Association obo Members v South African Airways (Soc) Ltd and Others 14, the
Court succinctly held that:
‘Although the Labour Court may review interlocutory rulings made by
commissioners under section 158(1)(g) of the LRA, sound reasons underpin
the Labour Court's reluctance to intervene in incomplete arbitrations. The first
reason is policy -related: such intervention in medias res would undermine the
informal nature of the dispute resolution process. The second reason is that
piecemeal reviews would hinder the prompt resolution of labour disputes. This
legislative policy was confirmed in Trustees for the time being of the National
Bioinformatics Network Trust v Jacobson & others as follows. 'In other words,
in general terms, justice would be advanced rather than frustrated by
permitting CCMA arbitration proceedings to run their course without
intervention by this Court
.'
Section 158(1B) of the LRA gives effect to the policy consideration that judicial
intervention would generally be deferred until the issue in dispute had been
finally determined. To this end, this section provides that the Labour Court
may not review any decision or ruling made during consideration or arbitration
proceedings before final determination of the issue in dispute by the CCMA,
except if the Labour Court is of the opinion that it is just and equitable to
review the decision or ruling. …’
[18] So, the general rule under section 158(1B) is clear. N o review application in
medias res, prior to the final completion of the arbitration proceedings on the
merits, is allowed. The exception to this rule is that a review applicant must
convince the Court that it is just and equitable to permit that application. There
convince the Court that it is just and equitable to permit that application. There
is a reason these considerations are important in deciding whether or not to
stay arbitration proceedings still to follow. This is because if the review
application in medias res should not have been brought in the first place, then
how can it serve as a basis to stay the pending arbitration proceedings.
Therefore, whether the review application is competent in the first instance is
14 [2025] 10 BLLR 1048 (LAC) at para 26.
10
dispositive of the entitlement to any relief seeking to stay the pending
arbitration. In other words, if the review application in medias res is not
permitted in the particular circumstances in the first place, then the application
to stay the arbitration proceedings must necessarily fail.
[19] I do not intend to set out a detailed exposition of what could be considered to
be just and equitable in order to permit a review application in medias res . For
the purposes of deciding the current mater, I do accept that the notion of just
and equitable would include where the substance of the review application
brought in medias res would finally dispose of the merits of the matter, without
such merits having to be actually ventilated in arbitration. A prime example of
this would be where the jurisdiction of the CCMA or bargaining council is at
stake. It is trite that a finding on jurisdiction, where it is found that no
jurisdiction exists, finally disposes of the matter without deciding the merits .
And further, the CCMA or bargaining councils are not at liberty to finally
determine their own jurisdiction, can only make preliminary findings in this
regard for convenience purposes, and it is always up to the Labour Court to
finally decide the issue of jurisdiction.
15 I accept that a condonation ruling,
which is at stake in casu, resorts in this category , and it would be just and
equitable to permit the applicant to bring the review application. The fact that
the applicant therefore has a competent review application means that it has
passed the first hurdle to obtaining the stay relief it seeks.
[20] But what simply cannot be forgotten in the current case is that this Court is
not, at this juncture, dealing with the substance of review application relating to
the condonation ruling. The Court is being asked to stay the arbitration hearing
set down later in June 2026 pending the final determination of this review
set down later in June 2026 pending the final determination of this review
application. This is an entirely different matter, and involves an entirely
different decision. In conducting this enquiry, the consideration shifts to what is
generally called ‘exceptional circumstances’, which is a far higher burden than
‘just and equitable’. It means that even if there is a competent pending review
application, there is a second and further enquiry, wherein the applicant must
15 As held in SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others (2008) 29
ILJ 2218 (LAC) at para 40: ‘….The CCMA is a creature of statute and is not a court of law . As a
general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. … ’. See
also Qibe v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others (2015) 36 ILJ 1283 (LAC) at para 5; Universal Church of the
Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC) at para 27.
11
demonstrate that ther e exist s truly exceptional circumstances that would
necessitate the stay of the arbitration proceedings pending the determination
of the review application. In Ethekwini Municipality v South African Local
Government and Others16 the Court opined:
‘… the existence of a proper and competent review application is not per
se determinative of the applicant's entitlement to interdictory relief. It is simply
a possible basis for it. But more is needed to justify urgent intervention to
interdict / stay pending arbitration proceedings. In this context, the
determination moves beyond the consideration of what is just and equitable,
and into the realm of what is truly exceptional circumstances. Or differently
put, the applicant must also prove that there exists truly expectational
circumstances that justify the suspension of the pending arbitration proceeding
until the review is decided, which is more than the just and equitable
consideration. Having due regard to several of the primary objectives of the
LRA, especially those relating to a simplified dispute resolution process and
the imperative of expeditious dispute resolution, this is a hefty burden to
discharge
.’
The Court in Moolman supra17 similarly decided, where the Court had the
following to say:
‘It should be noted that the legislature did not introduce a total prohibition on
reviews of interlocutory rulings in arbitration and mediation proceedings but
rather allowed for an exception to the general rule. As a matter of principle,
interference in uncompleted arbitration proceedings through review is only
permissible in exceptional circumstances. The requirement to intervene in
exceptional circumstances is underpinned by the legislative policy requiring
speedy finalisation of labour disputes, which dictates that the court should not
interfere with incomplete proceedings but allow a hearing to run its course.
This underscores the importance of the Court's role in ensuring a fair and just
This underscores the importance of the Court's role in ensuring a fair and just
resolution, which should strike a balance between the interests of all parties
involved.’
16 [2025] JOL 71860 (LC) at para 30.
17 Id at para 43. See also Department of Agriculture, Land Reform and Rural Development v Kayster
NO and Others [2025] JOL 73973 (LC) at para 8, where the Court, with reference to Moolman,
described these considerations as ‘stringent’. See further Tswai v Commission for Conciliation,
Mediation and Arbitration and Others [2025] JOL 71807 (LC) at para 2; Independent Development
Trust v Commission for Conciliation, Mediation and Arbitration and Another [2025] JOL 71801 (LC) at
paras 11 – 12.
12
[21] I conclude in this respect with reference to the following pertinent dictum in SA
Broadcasting Corporation SOC Ltd v Commission for Conciliation, Mediation
and Arbitration and Others18 where the Court decided:
‘… In the present instance, the application has been brought in circumstances
where the clear legislative policy, reflected in the introduction of s 158(1B) in
2014, is that reviews of rulings made by commissioners ought not to be
brought piecemeal. A case must be truly exceptional to warrant a departure
from the norm that a review is appropriate only once the dispute has been
finally determined in a completed arbitration hearing. This is consistent with
the statutory purpose of expeditious dispute resolution which the LRA seeks to
achieve. … ’
[22] It is where it comes to the requirement of truly exceptional circumstances that I
have difficulty with the applicant’s case. In deciding what is meant by
exceptional circumstances in the context of a stay of arbitration proceedings, I
take guidance fr om what the former LAC in Zondi and O thers v President,
Industrial Court and Others19 decided, being as follows:
‘There is no universal or absolute test governing the question when a court will
interfere in uncompleted proceedings, but one thing is clear from the cases
and that is that a court will only interfere in medias res in exceptional
circumstances, or when there is very good reason to do so. In ordinary
circumstances the time to take any proceedings on appeal or review is at the
termination thereof. The reasons for this attitude are equally clear. To permit
interference in unterminated proceedings delays the continuation and
completion of such proceedings. If such termination were to be readily
permitted the proceedings might be interrupted at various times, and to deal
with reviews or appeals piecemeal is clearly not practicable. In any event, the
irregularity, even if it is allowed to stand, will not necessarily affect the result
irregularity, even if it is allowed to stand, will not necessarily affect the result
which might otherwise have followed. The tribunal concerned might
for example in any event come to a conclusion favourable to the party
otherwise affected by the irregularity. Even if the irregularity does in the end
18 (2020) 41 ILJ 493 (LC ) at para 14. See also Ntombela and Others v United National Transport
Union and Others (2019) 40 ILJ 874 (LC) at para 31.
19 (1991) 12 ILJ 1295 (LAC) at 1300D -G. The aforesaid dictum in Zondi supra has been consistently
applied by this Court, and I refer, as examples, to the judgments in Magoda v Director -General of
Rural Development and Land Reform and Another (2017) 38 ILJ 2795 (LC) at paras 12 – 13; Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and Others (2016) 37 ILJ 1704 (LC)
at para 13; Ramthlakgwe v Modimolle -Mookgopong Local Municipality and Another (2023) 44 ILJ
2297 (LC) at paras 18 – 19.
13
lead to a conclusion adverse to the person affected thereby, the time to put it
right, as I have already said, is at the termination of proceedings.’
[23] Further, and in seeking to establish what ‘ exceptional circumstances’ would
mean, the Court in South African Cabin Crew Association supra20 described it
as: ‘… Exceptional circumstances justifying judicial intervention in incomplete
proceedings have been found to exist where such intervention was necessary
to prevent illegality, to prevent grave injustice, or where justice could not
otherwise be achieved …’. In the same vein, the Court in Spar Group Ltd t/a
Spar South Rand Distribution Centre v CCMA and Others 21 said: ‘… This
Court may in exceptional cases where a grave injustice might otherwise result
or where justice might not by other means be attained, interdict uncompleted
proceedings …’. And lastly, I refer to Marule v Nonceba NO and
Others
22 where it was held: ‘… The precise meaning of the "just and equitable"
depends on the circumstances of each matter. However, given the purpose of
the amendment, it makes sense that the Court will only intervene in
'exceptional circumstances,' in the 'interests of justice' or to avoid a 'grave
injustice …' .
[24] Thus, and what we have when deciding to stay pending arbitration
proceedings off the back of a competent review application in medias res , is a
further exceptionality enquiry, which goes far beyond just deciding what may
be just and equitable. Simply put, whilst i t may be just and equitable to bring
the review, it simply does not follow that this per se establishes exceptional
circumstances needed to stay the pending arbitration proceedings. At the
heart of this latter exceptionality enquiry lies the essentialia of the expeditious
resolution of employment disputes and the prevention of piecemeal review
applications, which must always be given proper effect to. This was neatly
articulated in Mthini v Commission for Conciliation, Mediation and Arbitration
and Others
articulated in Mthini v Commission for Conciliation, Mediation and Arbitration
and Others
23 in the following manner:
‘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
20 Id at para 27.
21 2010] JOL 26397 (LC) at para 8.
22 [2025] JOL 71805 (LC) at para 12.
23 [2026] JOL 74791 (LC) at para 10.
14
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. 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.’
[25] Turning then to the merits of the application to stay in casu, and applying the
aforesaid principles thereto, the applicant has argued that because the review
application concerns a condonation ruling, it is an issue that goes directly to
the jurisdiction of the bargaining council to arbitrate the matter. According to
the applicant, it would always be competent to being a review application in
medias res where it comes to the issue of the jurisdiction of the CCMA or
bargaining councils to arbitrate a matter, because such bodies cannot finally
decide their own jurisdiction, and then it must necessarily follow that the
incomplete arbitration proceedings be stayed based on such review. The
applicant then further argues that attached to this, it must equally follow that
the existence of this review application satisfies the requirement of exceptional
circumstances justifying intervention. For the reasons to follow, I cannot agree
with these arguments.
[26] I accept that there are instances where the Labour Court entertained, and then
actually granted, urgent applications to stay further arbitration proceeding
spending a review application challenging the jurisdiction of the CCMA /
bargaining councils, in the form of seeking to review condonation rulings. For
example, in City of Johannesburg Metropolitan Municipality v Mphefo and
Others24 it was reasoned: ‘ … The applicant seeks to challenge the ruling
which determined that the SALGBC has jurisdiction and that the dispute be
which determined that the SALGBC has jurisdiction and that the dispute be
enrolled for arbitration. The reality is that the review application could be
dispositive of the matter and could bring an end to the respondent's unfair
dismissal claim. Should the review court find that the respondent was not
dismissed, the underlying causa (namely, unfair dismissal) would be removed
and the jurisdiction of the SALGBC to adjudicate the dispute will be ousted
and the matter will go no further …’ And in Payne v Department of Transport
24 [2024] JOL 66075 (LC) at para 27.
15
and Public Works Western Cape Provincial Government and O thers25 it was
held: ‘… I n my view, in this case it is just and equitable for this Court to
intervene because the matter relates to a ruling on jurisdiction and because
the CCMA decides such matters for convenience. Whether or not the CCMA
has jurisdiction is a matter for this Court to decide …’.
[27] I take no issue with these judgments where it comes to the competence of
review applications in medias res under section 158(1B) in the case of
challenging condonation rulings. However, and as I have said above, whether
the review application is competent and whether the arbitration proceedings
should be stayed, are two entirely different matters. I believe that in the
judgments of Payne and Mphefo, this distinction was not properly drawn, and
what was considered to be just and equitable was misconstrued as also
constituting exceptional circumstances, per se. But this cannot be correct, and
I would respectfully differ from any such construction. In Sebibeng Diamond
Mine (JV) t/a Frontier Mining Project v NUMSA obo Phekoantoa and
Others
26 the Court specifically dealt with a stay application pending a review
application in medias res concerning a condonation ruling, and held that it
could not be granted without exceptional circumstances being shown. The
Court in Workforce Group (Pty) Ltd v National Textile Bargaining Council and
Another27 also dealt with an urgent application to stay arbitration proceedings
pending jurisdictional rulings and held that: ‘… In order to establish a prima
facie right for the urgent interim relief sought, the applicant has to show that
this is one of those exceptional circumstances where the court should
intervene in uncompleted arbitration proceedings …’. And finally, as pertinently
said in Ethekwini Municipality supra:28
‘I accept the proposition that should it ultimately be found that the third
respondent committed a material error of law in finding that the second
respondent committed a material error of law in finding that the second
respondent had jurisdiction, this could lead to an outcome that the entire
arbitration proceedings that followed would be effectively vitiated without
more, with all the time and expense wasted as a result of such outcome. It is
indeed a factor to consider. However, I do not believe this would constitute a
25 2024 JDR 3117 (LC) at para 45.
26 [2021] JOL 53841 (LC) at para 19.
27 (2011) 32 ILJ 3042 (LC) at para 18. See also South African Broadcasting Corporation (supra) at
para 9.
28 Id at para 32.
16
grave injustice or illegality necessary to establish exceptional circumstances.
The point always remains that the jurisdictional ruling stands until set aside,
and any consequences flowing from it will remain valid and binding if not set
aside.’
[28] In Mphefo supra and Payne supra, a material consideration to the Court in
those instances, in deciding to urgently intervene and stay the arbitration
proceedings, was that the parties would be prejudiced if the arbitration
proceedings were to continue before the issue of jurisdiction has been
decided, as the parties will spend time, money and resources to participate in
a process before a body which might not have had jurisdiction to adjudicate
the dispute in the first place and the outcome of such process, would inevitably
lead to further litigation and would contribute to the burden of the Labour
Court. Whilst this reasoning is undoubtedly correct, I have difficulty in
understanding how it is different from any other ruling / determination that
leads to a possible successful in medias res review application. To illustrate,
surely if a review application concerning the refusal of legal representation
succeeds, the entire arbitration will be voided, the mat ter will be remitted back
for arbitration de novo, and all the expense and effort will equally be wasted,
with further litigation to follow . Yet it has been said that such a ruling would
ordinarily not satisfy the requirement of exceptional circumstances.
29 The
same applies to challenges relating to discovery rulings made by arbitrators. If
a party was for example wrongfully deprived of documents essential to present
a case as a result of a ruling by an arbitrator , then the same result will follow.
All said, every successful review with regard to these kinds of rulings or
determinations will result in an arbitration being voided. As said in Sasol
Infrachem v Sefafe and Others30:
‘… The hearing must not only be fair, but must also be seen to be fair.
‘… The hearing must not only be fair, but must also be seen to be fair.
Anything less than that would not suffice. The remedy employed must cure the
irregularity; it must restore the right. Generally, nothing less than a complete
rehearing would be required. The hearing must not only be fair, but must also
be seen to be fair. Anything less than that would not suffice. The remedy
29 See Bojanala Platinum District Municipality v Fourie and Others [2025] JOL 74518 (LC) at para 34;
Emfuleni Local Municipality v Taunyane and Others [2025] JOL 71858 (LC) at para 11.
30 (2015) 36 ILJ 655 (LAC) at para 54. See also para 62 of the judgment.
17
employed must cure the irregularity; it must restore the right. Generally,
nothing less than a complete rehearing would be required.’
[29] The aforesaid is why , barring true exceptionality or grave injustice, the
imperative of expeditious resolution of employment disputes must carry the
day. Ordinarily, financial prejudice alone would not qualify in this context. In
Moolman supra31 the Court found as follows:
‘In general, the Labour Court can intervene in incomplete arbitration
proceedings where, if allowed to stand, the ruling would cause irreparable
harm to the other party. The intervention would be justified if it is shown that
the damage caused by allowing the ruling to stand could not be adequately
remedied after the finalisation of the arbitration proceedings …’
[30] In my view, the applicant will not suffer undue or irremediable prejudice (harm)
should arbitration on the merits continue. It will still be fully able to present its
case on the merits. The continued existence of the condonation ruling will
have no impact on this. The applicant has complained that the case concerns
a constructive dismissal, is extensive, with more than a thousand pages of
documentary evidence, and will likely last a number of days at arbitration.
According to the applicant, it means that it will have to incur substantial
expenditure in having to defend a case which it should not be expected to
defend in the first place. But this consideration is simply not exceptional . It is,
all considered, a financial consideration, which, as I have said, cannot serve to
establish the kind of prejudice that would justify a stay in the proceedings.
[31] In fact, I venture to say that possible prejudice in the conduct of the
proceedings considered, it would, considering the scope of the case
complained of by the applicant, rather be in the interest of justice that the case
be disposed of now without delay. Imagine all the difficulties that may result
be disposed of now without delay. Imagine all the difficulties that may result
from preparing for such a substantial case , having witnesses available , the
recollection of such witnesses, and continued availability of documentary
evidence, if this case ultimately comes back to arbitration in two years’ time ,
being the average time it takes to complete a review. And all this time, the
third respondent would be languishing in an unresolved dispute. This state of
affairs is far more prejudicial tha n having to spend money on arbitration now
31 Id at para 46. See also Mthini (supra) at para 12.
18
that may ultimately, in the case of a successful review of the condonation
ruling, be considered to have been wasted. And further, if the applicant is
successful at arbitration on the merits, then the current review application may
well be rendered moot, and those costs would be saved. All said, it is not in
the interest of justice to stay the arbitration proceedings , as no grave injustice
or irreparable harm will result if it continues . The following dictum in S outh
African Broadcasting Corporation supra32 is illustrative in this respect:
‘In short, the SABC has failed to establish a prima facie right to the relief that it
seeks. To the extent that the SABC contends that it will suffer irreparable harm
should the relief not be granted, this is simply not the case. The SABC has
invested significant energy and effort (and no doubt substantial legal fees) in
delaying the determination of this dispute. Any irreparable harm that there may
be is that suffered by the employee, who will face yet further delay in the
determination of her dispute. Given the current backlog in the opposed motion
court roll, it is unlikely that the review will be heard within the next 12 months.
For the same reason, the balance of convenience favours the continuation
and conclusion of the arbitration hearing
.’
And in Ethekwini Municipality supra33 the Court decided:
‘One also cannot ignore the prejudice to the first respondent. The fact is that
he would have to wait for years for the review to be heard. In the meantime,
the fifth respondent would remain in the position and become entrenched in it,
which would be a formidable obstacle in the way of the first respondent
obtaining the relief of being considered for the position should he ultimately
establish that he was unfairly treated in not being shortlisted for the position.
The point is that this is an issue that must be resolved with expedition, and the
only way to achieve this is to allow the arbitration to proceed. Again, it must be
only way to achieve this is to allow the arbitration to proceed. Again, it must be
emphasised, in the context of the prejudice consideration, that the applicant
always retains the backup of the right to challenge of any finding on the merits
on review, without even compromising the current review application. I believe
there is little prejudice to the applicant to just proceed with the arbitration.’
[32] Added to the above, and since the applicant has filed the review application,
nothing would stand in the way of the applicant, should it be successful at
arbitration, to only persist with the current review if it believes it has such good
32 Id at para 13.
33 Id at para 38. See also EOH Abantu (supra) at para 16.
19
merits where it comes to expunging the condonation ruling. The applicant was
at pains to impress upon me how bad the condonation ruling was. But I
believe this is not a basis for establishing exceptionality, in particular because
even if the condonation ruling is so bad, nothing that will happen in the
arbitration will detract from that. That case can always be presented to a
review Court, in the ordinary course, should the applicant ultimately lose the
arbitration. And even better for the applicant, it would also be entitled to seek
the review of the arbitration award on the merits, and consolidate it with the
review of the condonation ruling, if it loses the arbitration. This all means that
the applicant can obtain full and complete redress in the ordinary course, even
if the arbitration proceedings continue to finality. The following dictum in Mthini
supra
34 is apposite in this respect:
‘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. If 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
.’
[33] I wish to conclude by referring to examples of what may well be considered to
constitute truly exceptional circumstances. A pertinent example is found in
Minister of the Department of Correctional Services v Mpiko NO and Others35,
albeit in the context of the Court deciding what is ‘just and equitable’ under
section 158(1B) . In that case, the employer raised a preliminary point that
section 158(1B) . In that case, the employer raised a preliminary point that
certain issues the arbitrator was called on to decide had already been the
subject of a judicial decision by the Labour Court which took those issues
specifically off the table and thus rendered the same res judicata. The Court
held:36
34 Id at para 34.
35 (2018) 39 ILJ 2038 (LC).
36 Id at para 25.
20
‘The arbitrator failed to appreciate and understand that the issues as identified
in the preliminary objections were correctly regarded in law as res judicata
given the content of a judgment handed down by this honourable court. The
court’s findings are binding on the arbitrator. There is, therefore, no legal basis
for the arbitrator’s finding that it is only the LAC which was empowered to
decide whether the issues raised in the preliminary point were res judicata.’
[34] Why I refer to aforesaid example is because a res judicata jurisdictional
challenge is quite different to challenging a condonation ruling. In a
condonation ruling, an arbitrator is called upon to exercise a discretion 37, and
the exercise of that discretion in favour of granting condonation is what clothes
the CCMA with jurisdiction. A challenge of jurisdiction relating to a condonation
ruling would thus involve determining if the discretion was judicially exercised,
and that in turn involves a factual determination in respect of which it is
feasible that one adjudicator may consider condonation to be justified, whilst
another may not. That is why interference with such discretion is
circumscribed.38 As said in National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others 39: ‘… it may interfere only
when it appears that the lower court had not exercised its discretion judicially,
or that it had been influenced by wrong principles or a misdirection on the
facts, or that it had reached a decision which in the result could not reasonably
have been made by a court properly directing itself to all the relevant facts and
principles …’. But in the case of res judicata, as the saying goes, it is what it is,
and jurisdiction is disposed of without more once it exists. The same applies to
issues like prescription, or where a matter has been settled. Under these kinds
of instances, I would accept that it can be said that exceptional circumstances
of instances, I would accept that it can be said that exceptional circumstances
dictate intervention, before the arbitration proceeds. These examples are not a
closed list, but simply an illustration. In the end in this respect, I venture to say
that where an arbitrator exercises a true discretion when making the ruling
subject to a review challenge in medias res , it would seldom be warranted to
intervene in incomplete arbitration proceedings.
37 See Mabaso v Law Society, Northern Provinces, and Another 2005 (2) SA 117 (CC) at para 20.
38 In Coates Brothers Ltd v Shanker and Other (2003) 24 ILJ 2284 (LAC) at para 5 these grounds
when interference is warranted is described as ‘… the court a quo 'acted capriciously, or acted upon a
wrong principle, or in a biased manner, or for insubstantial reasons, or committed a misdirection or an
irregularity, or exercised its discretion improperly or unfairly …’. See also Plsmidth Buffalo (Pty) Ltd v
Hlakola (2019) 40 ILJ 527 (LAC) at para 16.
39 2000 (2) SA 1 (CC) at para 11.
21
[35] In summary, in order for the applicant to succeed in obtaining the interim
interdict it sought, it needed to show the following, as articulated in National
Council of Societies for the Prevention of Cruelty to Animals v Openshaw:40
‘… (a) A prima facie right. What is required is proof of facts that establish the
existence of a right in terms of substantive law; (b) A well -grounded
apprehension of irreparable harm if the interim relief is not granted and the
ultimate relief is eventually granted; (c) The balance of convenience favours
the granting of an interim interdict; (d) The applicant has no other satisfactory
remedy.’
[36] Whilst it may be true that the applicant established the existence of a prima
facie right in the form of a competent review application, it is equally true, for
the reasons discussed above, that there is no irreparable harm to the
applicant, nor does the balance of convenience favour it. And finally , there
remains a satisfactory remedy available to the applicant in the ordinary course.
The applicant has not satisfied all the requirements for obtaining the interim
interdict it seeks. The application thus falls to be dismissed.
Costs
[37] This then only leaves the issue of costs. The fact is that this Court always
retains a discretion, as contemplated by section 162(1) of the LRA, with regard
to mak ing a costs award against a party. In Union for Police Security and
Corrections Organisation v SA Custodial Management (Pty) Ltd and Others 41
the Court said:
‘In the labour context, the judicial exercise of a court’s discretion to award
costs requires, at the very least, that the court must do two things. First, it
must give reasons for doing so and must account for its departure from the
ordinary rule that costs should not be ordered. Second, it must apply its mind
to the dictates of the fairness standard in s 162, and the constitutional and
statutory imperatives that underpin it … ’
statutory imperatives that underpin it … ’
[38] In exercising my discretion in line with the aforesaid, I was tempted to make a
costs award against the applicant. However, I decide not to do so, as it is clear
that deciding whether or not truly exceptional circumstances exist could be a
40 2008 (5) SA 339 (SCA) at para 20.
41 (2021) 42 ILJ 2371 (CC) at para 35.
22
difficult horse to saddle. The proposition advanced by the applicant is certainly
arguable and there is support for it. As the review application concerns the
jurisdiction of the bargaining council, it was competently brought in medias res,
which is a factor to be considered when deciding whether or not to make a
costs award. Overall, I do not think the litigation was entirely unfounded, nor
do I think bring ing it was mala fide conduct on the part of the applicant and
simply as a tactic to delay the arbitration. And lastly, the parties are still to
engage each other in the upcoming arbitration proceedings, and I do not
believe it would be appropriate to mulch any party with a costs order in such
circumstances. All this considered, I do not think it is fair that no order as to
costs be made.
[39] For all the aforesaid reasons, I thus believe it is appropriate to exercise my
discretion with regard to costs by making no order as to costs.
Order
[40] It is for all the aforesaid reasons as set out above, that I made the order that I
did as set out in paragraph 4 of this judgment, supra.
_____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate S Mahlangu together with
Advocate B Maphosa
Instructed by: TBN Attorneys
23
For the First Respondent: Advocate K Manqo
Instructed by: Herold Gie Attorneys