THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JS673/22
In the matter between:
POLOFIELDS CROSSING SUPER SPAR Applicant
and
THAPELO ANDREAS SELELA Respondent
Heard: 04 March 2026.
Delivered: 09 June 2026.
This judgment was handed down electronically by circulation to the parties'
legal representatives by email and publication on the Labour Court’s website.
The date for hand-down is deemed to be 09 June 2026.
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VARIATION: JUDGMENT
____________________________________________________________________
MALULEKE, AJ
Introduction
[1] In these proceedings, the applicant seeks rescission of the order granted by
this Court (per Madam Justice Phehane) on 7 March 2023, which found the
employee’s dismissal, based on operational requirements, to be substantively
unfair. The Court further ordered the employee be reinstated. In addition, the
(1) Reportable Yes
(2) Of interest to other Judges: No
(3) Revised
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Signature Date
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respondent applies for condonation for the late filing of the rescission
application by one day. Both the rescission and condonation applications are
opposed by the employee.
[2] The employee commenced employment as a manager. After the matter was
conciliated and referred to the labour court, the applicant alleged he had no
knowledge of the statement of claim. Therefore, it did not oppose the claim
until it received a default judgment only on 14 March 2023. This was the
reason of filing the rescission, and he has an interest to proceed to oppose the
statement of claim , therefore, seeks the order to rescind the judgement of 7
September 2025.
[3] Rule 16A(2)(b) of the Rules for the Conduct of Proceedings in the Labour
Court
1 stipulates that a rescission application, as outlined in r ule 16A (1)(b),
must be submitted within 15 days of the applicant's awareness of the order
intended for rescission. Therefore, based on submission and period the
applicant became aware of, there was no need for the condonation application
to be filed. Therefore, the court accepts the applicant’s explanation.
Analysis of respondent’s submission
[4] It is worth stating that the applicant has demonstrated on various occasions
that it does not have an interest in this matter, not once but twice. The initial
order was granted in default on 7 March 2023. Subsequent to that date it has
been three years without litigating the rescission. It is worth noting that at the
date of this rescission hearing, the applicant was not in attendance. there is no
explanation or notice as to what could have been transpired.
[5] The respondent argued prejudice and lack of interest from the applicant. The
court accepts the respondent’s frustration.
[6] The applicant has failed to establish good cause for its default. The concept of
good cause requires that a party seeking rescission must provide a reasonable
and acceptable explanation for the default and must also demonstrate the
and acceptable explanation for the default and must also demonstrate the
existence of a bona fide defence to the main claim, which carries some prospect
of success. In this instance, from the papers, even if not in attendance, the
1 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.
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applicant has not satisfied either requirement. A failure to satisfy either the
requirement of providing a reasonable explanation for the default or demonstrating
a bona fide defence with prospects of success may result in the rescission
application being refused.
Conclusion
[7] On the issue of a bona fide defence, the respondent correctly notes that the
inquiry centres on whether the defence advanced may, if proven, constitute a valid
and acceptable basis for success in the dispute. It is acknowledged that the
applicant may have had a substantial reason for the dismissal; however, they are
not in court to argue their case. This conduct cannot outweigh the interests of
justice in ensuring the speedy resolution of disputes, particularly where the
applicant failed to attend to argue its case as a dominus litis.
[8] The applicant's failure to provide a bona fide, reasonable, and acceptable
explanation for the default, as evidenced by the papers, renders the application
unsustainable. Additionally, this conduct is prejudicial to the employee.
Consequently, the rescission application is to be dismissed.
[9] The court initially was of the view that the applicant deserves an opportunity by
striking the matter from the roll. After respondent’s argument and submission of
the prejudice suffered, the court was persuaded to dismiss the rescission
application. The respondent appeared in court twice, on both occasions, the
applicant did not show respect to the court’s proceedings and the court order.
[10] In the premises, the following order is made:
Order
1. The applicant’s application for rescission is dismissed.
2. The applicant in this application is to pay the agreed or taxed
disbursements incurred by the respondent in opposing these rescission
applications.
3.
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Z. D. Maluleke
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : No Appearance
For the Respondent : Adv Itumeleng Pila
Instructed by : MM Miti.Inc Attorneys