IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1798/23
In the matter between:
AVBOB MUTUAL ASSURANCE SOCIETY (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION, First Respondent
MEDIATION AND ARBITRATION
COMMISSIONER MUKOVHE RAVHURA N.O Second Respondent
MEGAREE NARAIDOO Third Respondent
Heard: 28 August 2025
Delivered: 29 May 2026
JUDGMENT
SIDZUMO, AJ
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] The applicant seeks condonation for the late delivery of the review
application. The applicant not only seeks condonation but also seeks to
review and set aside two rulings dated 3 July 2023 and 25 August 2023 under
case number GATW 3506-23.
[2] The impugned ruling of 3 July 2023 concerns the refusal of a postponement
by the second respondent. In this ruling, t he second respondent also found
that the applicant committed an unfair labour practice within the meaning of
section 186(2)(b) of the Labour Relations Act1 (LRA). It was further the finding
of the second respondent that the suspension of the third respondent was
unfair.
[3] The second respondent directed the applicant to compensate the third
respondent in the amount of R940,293.69 (Nine Hundred and Forty
Thousand, Two Hundred and Ninety ‑Three Rand and Sixty ‑Nine Cents),
payable no later than 17 July 2023.
[4] The second respondent in the ruling of 25 August 2023 , dismissed the
rescission application and confirmed his finding of 3 July 2023.
Condonation
[5] Section 145(1A) of the LRA provides that this Court may condone the late
filing of a review application. Rule 42(3) of the Rules Regulating the Conduct
of the Proceedings of the Labour Court 2 (the rules) provides that this “court
may, on good cause shown, condone non -compliance with any period
prescribed by these rules’.
[6] The applicant at the hearing of this review application, sought condonation for
the late filing of the review application of both findings of 3 July and 29 August
2023.
[7] The condonation application is unopposed. In the absence of any opposition,
the application falls to be determined on the papers as they stand, and the
Court is entitled to proceed on the basis that the relief sought is uncontested.
1 Act 66 of 1995, as amended.
2 Published 3 May 2024 (GN 50608). Effective 17 July 2024.
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[8] The applicant’s explanation for the late filing of its review application rests on
the chronology of the rescission proceedings. It contends that it had initially
sought the rescission of the impugned award delivered on 6 July 2023. The
ruling on rescission was only communicated to the applicant on 29 August
2023. The applicant submits that, mindful of the six -week period prescribed
for lodging a review application, it elected to pursue the internal remedies in
full before approaching this Court. In its view, piecemeal reviews are
undesirable and should be avoided, hence the delay in filing.
[9] The applicant further submits that it was only able to arrange a consultation
on 11 September 2023 and gave instructions to prepare an application for
review.
[10] Although the applicant submits that that the delay in the delivery of this review
application in respect of the postponement ruling and the default arbitration
award is not excessive and that a reasona ble explanation has been provided,
the application for review was filed on 9 October 2023.
[11] The LRA makes it clear that a review application must be filed within six
weeks of the date the award was served on the applicant. Should the
applicant fail to file its review application within the six week’s period it is trite
that the applicant should seek condonation.
[12] The applicant’s explanation on its decision to pursue rescission of the award
before instituting review proceedings was prudent and consistent with the
principle that litigants should exhaust available remedies before approaching
this Court. The explanation for the delay is reasonable and no prejudice has
been demonstrated. I also cannot find that the applicant has engaged in any
dilatory conduct and good cause has been shown by the applicant.
Factual background
[13] Prior to her resignation on 10 May 2023, the third respondent was employed
by the applicant on 1 December 2019 in the capacity of Enterprise Architect,
by the applicant on 1 December 2019 in the capacity of Enterprise Architect,
classified at Paterson Code D2 level. In or about July 2020, the third
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respondent applied for the position of Application Development Manager and
was subsequently promoted to that role.
[14] On 13 February 2023, the third respondent was placed on precautionary
suspension following her final written warning of 5 December 2022.
[15] On 2 March 2023, the third respondent referred an unfair labour dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA), which dispute
remained unresolved, the arbitration was set on 20 June 2023.
[16] On the day of the arbitration, 20 June 2023, present at the hearing was the
third respondent and her representatives, but there was no representative for
the applicant.
[17] The second respondent took it upon himself to call the applicant’s
representative Ms Prudence Ndlovu (‘Ms Ndlovu’) about the non -attendance.
The second respondent was informed by Ms Ndlovu that she is attending a
compulsory class for the Advanced Management Programme for Future
Leaders at Wits Business School.
[18] Ms Prudence Ndlovu informed the second respondent that an application for
postponement was filed on 5 June 2023. However, it was discovered that in
fact the email that was sent on the 5 June 2023 was a notice of set down and
not an application for postponement.
[19] The second respondent discovered that the attached application in the papers
before him for postponement was filed on 13 June 2023 and not on the 5th as
alleged by the Ms Ndlovu. The third respondent on 14 June filed her papers
opposing the application for a postponement. T here was no response from
the applicant.
[20] The second respondent proceeded to determine the matter before him in the
absence of the applicant.
Test for review
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[21] The test for review is whether the decision reached is one that no reasonable
decision‑maker could have made. In terms of section 145 of the LRA, an
arbitration award or ruling may be set aside if it contains a defect
contemplated by the section, rendering the outcome so unreasonable that it
falls outside the bounds of reasonableness.
[22] In Herholdt v Nedbank Ltd3, the Supreme Court of Appeal (SCA) made it clear
that the review of an arbitration award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of the LRA.
The following was stated:
“The height of the bar set by the provisions of s 145(2)(a) of the LRA is
apparent from considering the approach to reviews of arbitral awards under
the corresponding provisions of the Arbitration Act 42 of 1965. The general
principle is that a ‘gross irregularity’ concerns the conduct of the proceedings
rather than the merits of the decision. A qualification to that principle is that a
‘gross irregularity’ is committed where decision -makers misconceive the
whole nature of the enquiry and as a result misconceive their mandate or their
duties in conducting the enquiry.”
[23] The question before this Court is whether the second respondent
misconceived the nature of the enquiry before him and consequently made an
arbitration award so unreasonable that no reasonable decision -maker could
have reached the same conclusion.
Postponement ruling
The award to the postponement ruling
[24] The second respondent's reasoning of the evidence concerning whether to
postpone the arbitration hearing of 20 June 2023 is captured as follows:
‘9. Subsequent to Ms. Ndlovu noticing that that the application was never
served on the 05 June 2023 as she stated, she advised that it would
appear that the application (file 13 June 2023) was not in line with the
CCMA rules and thus the proceedings can continue as the application
3 (2013) 34 ILJ 2795 (SCA) at para 10.
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was not properly before the Commission. Based on that advise, the
application was not even considered as it did not comply with the
rules.
10. I must also add that I expressed a view that the respondent could
have also acted differently when they received the opposing
submissions. The opposing submissions outright pointed out the
shortcomings of the applications that had been filed by the
respondent. Now, for the respondent to simply ignore such, and still
harbor a view that their application was proper, such was
unreasonable. A reasonable official would have gone back and
checked whether their application was in order. If that was done, then
the respondent would have seen that they had not served the
application and probably made arrangements or applied to condone
the non-compliance with the time frames in terms of the rules.
11. To this end, the application was disregarded / dismissed for want of
compliance with the rules.’
Analysis
Postponement ruling
[25] Rule 23 of the Rules for the Conduct of Proceedings before the Commission
for Conciliation, Mediation and Arbitration (CCMA rules) regulates the
postponement of arbitration proceedings. It provides that a postponement
may be secured either by written agreement between the parties or, failing
that, by way of a formal application on notice in terms of subrule (3).
[26] Subrule (3) stipulates that, where the conditions of subrule (2) are not met,
any party may apply in terms of Rule 31 to postpone an arbitration by
delivering such application to the other parties and filing a copy with the
Commission prior to the scheduled date of the arbitration. Further , the
application for a postponement must be brought at least 14 days prior to the
date of the hearing on notice to all persons who have an interest in the
application.
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[27] Section 138 (5) of the LRA provides that where a party to the dispute fails to
appear or to be represented at arbitration proceedings, the commissioner is
empowered either to dismiss the matter if the absent party was the referring
party, or, if the absent party is not the referring party, to continue with the
arbitration in that party’s absence or to adjourn the proceedings to a later
date. This rule embodies the principle that proceedings must not be unduly
delayed by non -attendance, while at the same time preserving the
commissioner’s discretion to ensure fairness in the conduct of the arbitration.
[28] Rule 23(5) of the CCMA rules, provides that there is no right to postponement
and arbitration will proceed as scheduled unless the Commission or
Commissioner notifies the parties that the matter has been postponed.
[29] In Free State Gambling and Liquor Authority v Motane NO and others 4 the
Court held:
‘In Carephone (Pty) Ltd v Marcus NO and Others , Froneman DJP (as he then
was) reiterated that an application for postponement was not a matter of right.
It is an indulgence granted by the court to a litigant in the exercise of a judicial
discretion… Emanating from the above and other jurisprudence, it is apparent
that:
a) postponements at arbitration hearings are not to be readily granted.
b) postponements in arbitrations should be granted on “less generous
basis.” This approach is informed by the recognition that the LRA
requires that labour disputes need to be resolved expeditiously and
thus arbitrators have a wide discretion in granting or refusing to grant
a postponement;
c) where fundamental fairness and justice justifies a postponement, the
arbitrator may in appropriate cases, allow such an application even if it
was not timeously made;
d) the Labour Court sitting in review will adopt a stringent and restricted
approach to interfering with the refusal to grant postponements by
arbitrators;
approach to interfering with the refusal to grant postponements by
arbitrators;
4 (JR1130/16; J23/15) [2017] ZALCJHB 88 (10 March 2017) at paras 15 and 16.
8
e) it is only when a compelling case has been made for interfering with
the exercise of the discretion of the arbitrator, will the court interfere
with the refusal to grant a postponement. This can be in instances
where the arbitrator was influenced by wrong principles or misdirection
on the facts, or where the decision reached could not reasonably have
been made by an arbitrator properly directing him/herself to all the
relevant facts and principles.’
[30] It is clear from t he facts before the second respondent, that t here were
circumstances that ought to have alerted the applicant to the likelihood that
the application for a postponement will be decided upon by the second
respondent at the hearing. Thus , attending the proceedings and seeking a
postponement was pivotal in ensuring that the em ployer’s version could be
heard. These circumstances include:
30.1 The second respondent had not notified the applicants regarding the
postponement in terms of rule 23 (5) of the CCMA rules.
30.2 By her own admission, Ms Ndlovu made several follow -up calls and
visits to the CCMA seeking the Commissioner’s ruling on the
application for postponement, but received no response from the first
respondent.
30.3 The filing of opposing papers by the third respondent on 14 June 2023
should have indicated to the applicant that the application for
postponement was contested and likely to proceed as anticipated.
30.4 The applicant being aware of the late filing of the application for
postponement failed to serve a condonation application. The applicant
could not have relied on the email of 5 June that an application for
postponement was made as it had a wrong attachment on it.
30.5 Commissioners receive bundles on the day of arbitrations when parties
exchange bundles.
30.6 Ms Ndlovu acknowledges in her founding affidavit to the rescission
application that ‘ the respondent is aware that an application for
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postponement is not a right but an indulgence granted by the CCMA in
the exercise of its judicial discretion’.
[31] These factors, taken together, ought to reasonably have prompted the
applicant to arrange for an alternative represe ntative to attend in her place . It
must be observed that the consequences now complained of are of the
applicant’s own making. On the facts presented, the second respondent
correctly noted that the applicant could have acted differently upon receipt of
the opposing submissions, which clearly identified the deficiencies in the
application for postponement filed.
[32] The second respondent was vested with a discretion to grant or refuse a
postponement. I am satisfied that such discretion was properly exercised. The
record does not reveal that the second respondent failed to consider all
relevant facts. The refusal to postpone was a decision that a reasonable
commissioner, properly directing himself to the facts and applicable CCMA
Rules, was entitled to make. Nothing before him suggests that a reasonable
arbitrator would have reached a different conclusion, nor is there evidence of
any misdirection on the facts
The rescission ruling of 25 August 2023
[33] Rule 31 and 32 of the CCMA rules provides amongst others for the rescission
of arbitration rulings. Section 144 of the LRA provides for the variation and
rescission of arbitration awards and rulings. It is stated that:
‘any commissioner who has issued an arbitration award or ruling, or any other
commissioner appointed by the director for that purpose, may on that
commissioner's own accord or, on the application of any affected party, vary
or rescind an arbitration award or ruling-
(a) erroneously sought or erroneously made in the absence of any party
affected by that award;
(b) in which there is an ambiguity, or an obvious error or omission, but
only to the extent of that ambiguity, error or omission;
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(c) granted as a result of a mistake common to the parties to the
proceedings; or
(d) made in the absence of any party, on good cause shown.
[34] It is common cause that the applicant’s representatives were absent from the
arbitration proceedings. The application for rescission therefore arises from a
ruling made in the applicant’s absence and, in terms of section 144 (d) of the
LRA, can only succeed if the applicant establishes good cause.
[35] The Labour Appeal Court in Mohube v CCMA and others5 stated that:
‘there is no precise definition of the term "good cause", but it is accepted that
this entails that the applicant for such relief must show at least the following:
(a) an absence of wilfulness; (b) that it has a reasonable explanation for the
default; (c) that the application for rescission is bona fide and not made with
the intention to delay; and that (d) (i.e. as in the case of the appellant here
who referred the dispute) that it has a bona fide claim against the other
party/ies. All these elements must be considered and weighed and for
example, proof of a bona fide claim may make up for a weaker explanation’
[36] The explanation tendered to the second respondent does not establish good
cause for the applicant’s failure to attend the arbitration. An applicant cannot
assume that proceedings will not continue merely because a postponement
application has been lodged, in this matter it was filed late and not in
compliance with the CCMA Rules.
[37] There was no evidence presented of an uncontrollable emergency, in this
instance the attendance at the Wits Business school with the timetable known
by Ms Ndlovu well in advanced cannot be said to fall under such emergency.
nor was there any suggestion that the notice of set ‑down from the CCMA was
not received. In these circumstances, I cannot fault the second respondent’s
decision to proceed with the matter after having looked at all the facts before
him.
5 (JA 18/2022) [2023] ZALCJHB 162 (18 May 2023) at para 25.
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[38] The conduct of the applicant amounts to negligence . The second respondent
recorded that a grace period of thirty minutes was afforded to the applicant’s
representatives to present themselves. Upon the lapse of that period, the
second respondent initiated a call. It is evident that, but for this call, Ms
Nldovu would have continued with her attendance at the business school
without making any effort to ascertain whether the arbitration was proceeding.
This underscores the applicant’s disregard for the process and supports the
conclusion that no bona fide explanation was advanced for the failure to
attend.
[39] Further, it is recorded by the second respondent that Ms Ndlovu, upon
realising her non -compliance with the prescribed timeframes for the
postponement application, requested an opportunity to take instructions and
revert. She subsequently returned and confirmed that the arbitration could
proceed in her absence, which constitutes a wilful absence.
[40] This raises the question of what the second respondent was expected to do
after being expressly authorised to continue. It is p articularly concerning that
Ms Ndlovu, at that juncture, neither sought condonation for the late filing of
the postponement application nor pursued any procedural remedy available to
her, but instead accepted the proceedings and later sought rescission of the
ruling. Such conduct demonstrates a lack of good faith.
[41] Therefore, the application for review of the rescission application fails.
Whether the applicant committed an unfair labour practice in terms of section
186(2)(b) of the LRA
[42] I now turn to deal with the second leg of the impugned award of July 2023 .
The issue before the second respondent was whether the applicant, by
suspending the third respondent, committed an unfair labour practice as
contemplated in section 186 (2)(b) of the LRA.
[43] The second respondent had to consider the third respondent submission that,
[43] The second respondent had to consider the third respondent submission that,
upon being issued with a letter of suspension, the applicant failed to afford her
an opportunity to respond or to provide reasons why she should not be
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suspended. It is contended that the applicant’s policy prescribes that the third
respondent ought to have been granted such an opportunity prior to the
suspension being effected.
[44] The second respondent placed reliance on the Constitutional Court’s
judgment of Long v South African Breweries (Pty) Ltd and others 6. According
to the second respondent, this authority clarified that the making of prior
representations is not a prerequisite for the imposition of a precautionary
suspension, save where such a requirement is expressly stipulated in a
disciplinary policy or collective agreement . The second respondent reasons
this further and state that ‘in the employer’s Disciplinary Code and Procedure
at clause 10.3 there is a requirement to afford an employee some form of an
opportunity to make representations, which was clearly not done’.
[45] Clause 10.3 provides as follows:
‘Prior to any decision to suspend an employee, the employee shall be given
an opportunity to make submissions regarding the employer's intention to
suspend. Should management find that there is still cause to suspend after
such submissions have been made by the employee, the employee shall be
informed of the suspension in writing.’
[46] The second respondent also considered the applicant’s letter, dated 13
February 2023, suspending the third respondent, which document expressly
records the following:
“You are hereby suspended from work on full pay pending investigation into
allegations of improper behaviour in your capacity as a manager and bringing
the company’s name and image into disrepute.”
[47] In his consideration of the letter, the second respondent took issue of the fact
that Ms Ndlovu was responsible for drafting the suspension letter, which was
to be signed by N Nxumalo, both of whom were also the authors of the
Disciplinary Code and Procedure. The second respondent contended that, in
doing so, they disregarded and acted in contravention of their own policy.
6 [2019] 6 BLLR 515 (CC).
13
[48] The second respondent concluded that the code required the employee to be
given an opportunity to make representations before being suspended which
were clearly not done. Further, that the letter of suspension does not say what
the third respondent is accused of. He found the suspension to be unfair and
amounted to an unfair labour practice as contemplated in section 186(2)(b) of
the LRA.
[49] The applicant submits that t he second respondent committed a gross
irregularity, or alternatively misconceived the nature of the enquiry, by
importing a requirement of compliance with a disciplinary policy or collective
agreement into the Constitutional Court’s decision in Long v SAB . The
Constitutional Court held unequivocally that where a suspension is
precautionary and not punitive, there is no obligation to afford the employee
an opportunity to make representations. This principle was not qualified.
Accordingly, an employer is not required to provide such an opportunity prior
to imposing a precautionary suspension.
[50] The Constitutional Court made it clear that an employer is under no obligation
to afford an employee an opportunity to make representations when effecting
a suspension, unless the suspension is punitive in nature. This is clear ly due
to the fact that precautionary suspension is a holding operation which does
not generally require a pre-suspension hearing.
[51] In the present matter, the applicant’s Disciplinary Code expressly provides
that an employee must be afforded an opportunity to make representations
prior to suspension. As the Code forms part of the employment contract, the
employer is bound to comply with its provisions. Accordingly, the third
respondent was entitled to be heard before any precautionary suspension
could be imposed. While the Constitutional Court held that prior
representations are not generally a prerequisite for precautionary suspension,
that principle cannot be interpreted as permitting an employer to disregard its
that principle cannot be interpreted as permitting an employer to disregard its
own binding disciplinary framework. To hold otherwise would render the
Disciplinary Code ineffectual and undermine the very purpose of such
policies, which is to regulate the employment relationship with fairness and
consistency.
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Compensation
[52] The second respondent awarded compensation equivalent to seven months’
remuneration, reasoning that the suspension of the third respondent was
procedurally unfair. This conclusion was drawn from the circumstances
surrounding the suspension, particularly the evidence and submissions
advanced by the third respondent. It was contended that the line manager,
dissatisfied with being overruled in relation to both the final written warning
previously issued and the performance rating, acted in a manner that reflected
this discontent.
[53] The second respondent observed that the suspension was affected
immediately after the grievance meeting in which the final written warning and
performance rating had been overturned, with the third respondent being
instructed to wait in the boardroom before being informed of her suspension.
In the view of the second respondent, these events demonstrated that the
suspension was tainted by improper motive and thus unfair.
[54] Section 193 (4) of the LRA provides that an arbitrator may determine any
unfair labour practice dispute referred to the arbitrator in terms that the
arbitrator may deems reasonable which may include ordering, reinstatement,
re-employment or compensation.
[55] It is trite that compensation for unfair suspension is a solatium designed to
compensate employees for non-patrimonial loss. It must be just and equitable
and certain factors have to be considered. What is considered by the court
amongst others, is whether the suspension was malicious, whether the award
was punitive, whether was for a valid reason and unduly prolonged.
[56] The court in IMATU obo Senkhane v Emfuleni Local Municipality and Others 7
when considering whether to award compensation or not said that it was not
7 (JR1871/14) [2016] ZALCJHB 296 (29 July 2016).
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unreasonable to take into account, t he employee’s failure to pursu e her rights
expeditiously and thus attempt to or mitigate the adverse impact of
suspension. In essence, the second respondent should take into account all
relevant facts including whether the suspension adversely affected the dignity
of the employee.
[57] In Daniels v Eskom SOC Ltd 8, the CCMA awarded five months’
compensation, having found that the suspension had adversely affected the
employee’s dignity. By contrast, in the present matter no evidence was led to
demonstrate that the suspension impacted the third respondent’s reputation
or dignity, yet compensation of seven months was awarded.
[58] The second respondent confined his reasoning to the circumstances
surrounding the suspension. The third respondent, in her third month of
suspension, elected to resign rather than acting p romptly to challenge her
suspension. In these circumstances, I am satisfied that the award of seven
months’ compensation was neither just nor equitable , as the relevant
considerations outlined above were not taken into account. The suspension
was effected with pay, having regards to Long, supra, the suspension was
precautionary in nature and the third respondent has not suffered any
patrimonial loss.
Conclusion
[59] Having read and considered the submissions made, pleadings and the record
filed herein and in the absence of evidence that the first respondent’s
discretion was arbitrary or unreasonable, I am therefore satisfied that the first
respondent’s award was reasonable in light of the evidence that was placed
before her by the parties in the arbitration proceedings.
[60] Consequently, I make the following order.
Order
8 (GAJB21883-17) [2018] ZACCMA 1 (6 March 2018).
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1. The late delivery of the review application is hereby condoned.
2. The application for review is dismissed.
3. The award of seven months’ compensation made by the second
respondent is reviewed and set aside.
4. There is no order as to costs.
___________________
W. N. Sidzumo
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Adv. Riaan Grundlingh
Instructed by : Bester & Rhoodie Attorneys
For the third Respondent: Adv. D Moodliyar
Instructed by : Moodliyar & Bedhesi Attorneys