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[2026] ZALCCT 144
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Smit v CCMA and Others (C106/2023) [2026] ZALCCT 144 (28 August 2026)
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LATE
JUDGMENT
THE LABOUR COURT
OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No:
C106/2023
In the matter between:
Dr
MULLER SMIT INC
Applicant
and
CCMA
First
Respondent
LAMEESAH
JOOMA
N.O.
Second Respondent
YOLANI
LOUBSER
Third
Respondent
Heard
:
27 August 2026
Delivered
:
28 August 2026
JUDGMENT
JACOBS
AJ
Introduction
[1]
This is an opposed review application.
[2]
The Applicant seeks an order:
2.1
Reviewing and setting aside the rescission
ruling dated 24 January 2023, issued by the Second Respondent under
case number WECT6086-22;
2.2
Substituting the rescission ruling with an
order that:
2.2.1
The Second Respondent’s arbitration
award dated 23 November 2022 is rescinded; and
2.2.2
The matter is referred back to the First
Respondent to appoint an arbitrator, other than the Second
Respondent, to arbitrate the
Third Respondent’s dispute under
CCMA case number WECT6068-22.
2.3
In the alternative
:
2.3.1
The Second Respondent’s arbitration
award dated 23 November 2022, and issued under case number
WECT6068-22, is reviewed and
set aside in terms of section 145 of the
LRA;
2.3.2
Remitting the matter to the First
Respondent and directing that the First Respondent enrol the matter
for arbitration before an
arbitrator other than the Second
Respondent.
2.4
That those Respondents who oppose this
application be ordered to pay the costs of this application; and
2.5
Further and/or alternative relief as the
court deems fit.
Historical context
[3]
The Third Respondent was employed by the
Applicant on 1 February 2019.
[4]
On 6 March 2022 the Applicant confronted
the Third Respondent by WhattsApp with serious concerns relating to
her conduct. Mr De
Lange, an attorney acting for the Applicant,
subsequently contacted the Third Respondent and advised her that the
Applicant hopes
to dispose of issues amicably, and that he was asked
to facilitate discussions in this regard.
[5]
The Third Respondent was suspended with pay
on 6 March 2022.
[6]
On 14 March 2022, Mr De Lange again
contacted the Third Respondent to pursue facilitation. She advised
that she had been booked
off from 14 to 18 March 2022 for issues
relating to her pregnancy.
[7]
On 5 April 2022, Mr De Lange again inquired
from the Third Respondent whether she was available. He was referred
to the Third Respondent’s
attorney, and on 7 April 2022 Mr De
Lange advised the Third Respondent that he had left a message for the
attorney.
[8]
On 8 May 2022 the Third Respondent referred
a dispute in term of sec 73A BCEA to address the non-payment of her
salary for March
and April 2022.
[9]
The Third Respondent’s maternity
leave commenced on 25 May 2022.
[10]
During June 2022, some communication was
exchanged between Mr De Lange, the Third Respondent and her attorney
regarding issues such
as UIF and an IRP5 certificate.
[11]
The dispute referred in May 2022, was
enrolled for con-arb by the CCMA, and the Applicant objected to
arbitration proceeding immediately
after conciliation. On 19 July
2022 a conciliation meeting took place. The Third Respondent and Mr
De Lange, on behalf of the Applicant,
attended.
[12]
The certificate of outcome issued after the
conciliation process indicated that the matter related to an unfair
labour practice.
[13]
On 21 September 2022, the dispute before
the CCMA was set down for arbitration on 9 November 2022.
[14]
The Third Respondent’s maternity
leave ended on 25 September 2022.
[15]
On 26 September 2022 Mr De Lange advised
the Third Respondent’s attorney that the Applicant would
proceed with a disciplinary
hearing.
[16]
On 9 November 2022, the Applicant failed to
attend arbitration proceedings, but Mr De Lange attended as his
representative to apply
for postponement. No written application was
brought. Mr De Lange explained that until the previous day, the
Applicant was not
aware that he had to appear at the CCMA in person
because Mr De Lange attended the previous process on his behalf.
Because of this
misunderstanding, the Applicant had diarised a number
of medical procedures and consultations which could not be cancelled
on short
notice.
[17]
The Second Respondent (the Commissioner)
declined the Applicant’s request for postponement and continued
with the arbitration
hearing in the absence of the Applicant.
[18]
On 23 November 2022, the Commissioner
rendered a default award in which she found that the Applicant’s
conduct amounted to
an unfair labour practice and a violation of the
Third Respondent’s right to submit a maternity benefits
application.
[19]
The Applicant was ordered to pay statutory
remuneration to the Third Respondent in the amount of R190 927.71.
This amount included
basic salary and a calculated average monthly
commission component for the 9-month period from March to November
2022.
[20]
On 7 December 2022 Mr De Lange, on behalf
of the Applicant, submitted a rescission application supported by
unsigned affidavits.
In correspondence accompanying the application,
Mr De Lange advised that the affidavits were not signed due to
logistical problems
and that the signed versions would be submitted
soon. Copies of the affidavits, signed and commissioned on 7 December
2022, were
delivered at 07:22 on 8 December 2022. Mr De Lange
explained that he could not forward the signed affidavits on 7
December due
to unexpected loadshedding.
[21]
In the Applicant’s affidavit it was
pointed out that commission calculations as reflected and used in the
default award, were
incorrect. It was also pointed out that the
period from March to November 2022 included 4 months of unpaid
maternity leave.
[22]
The rescission application was opposed by
the Third Respondent on 12 August 2022. In her answering affidavit
the Third Respondent
pointed out that the rescission application was
one day late.
[23]
On 15 December 2022, a replying affidavit
by Mr De Lange and a supporting affidavit by the Applicant were
filed, explaining the
brief delay. In paragraph 12 of Mr De Lange’s
affidavit condonation was sought. On the same day a notice to attend
a disciplinary
hearing was also served on the Third Respondent.
[24]
On 20 December 2022 the disciplinary
hearing took place, and on 21 December 2022 the Third Respondent was
dismissed.
[25]
On 24 December 2022 the Commissioner
considered the rescission application on the papers and dismissed the
application. In her ruling
the Commissioner found that no formal
application for the late filing of the rescission application was
brought and that there
was merely an explanation for the delay.
[26]
The Commissioner lambasted the Applicant
for leaving the application until the 11
th
hour and opined that they should have taken the matter more seriously
and ought to have attended to the application long before
the
deadline. The Commissioner also insisted that loadshedding cannot be
used as a convenient excuse. She concluded that despite
the delay
being negligible, condonation was not granted and she dismissed the
rescission application.
The parties’
submissions
[27]
In this application the Applicant seeks to
review and set aside both the arbitration award of 23 November 2022
and the rescission
ruling of 24 January 2023. It was also submitted
on behalf of the Applicant that the Commissioner failed to recognise
that an application
for postponement may be brought orally in
pressing circumstances and that the Commissioner was empowered to
consider such an application
by virtue of the provisions of CCMA Rule
31(10).
[28]
The Applicant argued that good cause was
shown for not complying with the rules applicable to postponement
applications and that
the Commissioner acted unreasonably by not
weighing all relevant considerations.
[29]
The Applicant submitted that the rescission
ruling issued by the Commissioner is reviewable because the
Commissioner did not consider
all factors relevant to such an
application. In was submitted that the Commissioner failed to give
any consideration to the Applicant’s
prospects of success and
the fact that the Applicant had presented a prima facie defence.
Calculation of commission amounts included
in the amount awarded, was
incorrect. It was not considered that the Third Respondent may not
have earned any commission during
the applicable period, and the
award did not account for the four months of unpaid maternity leave
that fell within the period
for which the Applicant was ordered to
pay outstanding remuneration to the Third Respondent.
[30]
The Applicant further argued that the
arbitration award was also reviewable due to the Commissioner’s
failure to hear evidence
and to carefully scrutinise the quantum of
the Third Respondent’s claim for remuneration due to her.
[31]
The Third Respondent opposed the
application on the grounds that the failure to attend the arbitration
hearing was grossly negligent
and that good cause for the failure to
attend could not be shown.
[32]
The Third Respondent also submitted that
the arbitration award falls well within the band of reasonableness
that serves as measure
and is therefore not reviewable.
[33]
For the Third Respondent it was further
submitted that the rescission application was brought out of time,
that condonation was
not sought and that good cause was once again
not shown.
The rescission
application and condonation
[34]
The rescission ruling will be dealt with
first. If the rescission ruling is reviewed and set aside, the main
dispute will automatically
require reconsideration by a different
arbitrator, as is provided for in the first prayer in the notice of
motion.
[35]
The rescission ruling was not made after a
consideration of the explanation for default or a determination
whether good cause was
shown. The rescission application was
dismissed because the Commissioner did not grant the Applicant’s
application for condonation.
[36]
In her ruling, the Commissioner indicated
that there was no formal application for condonation. This is not
correct. When the Third
Respondent, in her answer submitted that
condonation was required, the Applicant addressed condonation briefly
in the replying
affidavit, explaining the brief delay and seeking
condonation therefor. The prospects of success were addressed in
detail in the
rescission application, and the delay of less than a
day was also dealt with. A specific plea for condonation to be
granted was
included. There was in fact a condonation application
before the Commissioner. This is also confirmed by her ruling that:
“
The
Respondent’s application for condonation of the late submission
of the rescission application is not granted
.”
[37]
The
test on review of a rescission ruling, requires an evaluation of the
reasonableness of the ruling – the well-known Sidumo-test.
[1]
[38]
The
determination of a condonation application also involves the exercise
of a wide judicial discretion,
[2]
and
a decision can only be arrived at after a consideration of all
relevant considerations.
[3]
[39]
The
Commissioner failed to consider any other factor besides the lateness
of less than a day. The requirements for the proper consideration
of
a condonation application are trite.
[4]
A failure by the Commissioner to consideration any other factor but
the lateness, which she in any event regarded as negligible,
is
unreasonable.
[40]
As result of the Commissioner’s
dismissal of the condonation application, her rescission ruling did
not deal with the merits
of the rescission application at all. The
rescission ruling stands to be reviewed and set aside for the
unreasonable ruling relating
to condonation and the failure to deal
with the merits of the rescission application.
[41]
There is sufficient material before this
court to substitute the rescission ruling.
[42]
The rescission application was brought less
than 12 hours late and some diligence was shown by the Applicant in
attempts to submit
the papers in time. The unsigned papers were
submitted and the signed copies, signed and commissioned on 7
December, were filed
before 08:00 on 8 December 2022.
[43]
Although
there is no right to a postponement in CCMA processes, the discretion
whether or not to grant a postponement must be exercised
with
reference to the questions whether the applicant shows good cause for
the postponement to be granted, whether it is in the
interests of
justice that the postponement be granted, and a consideration of all
further relevant factors.
[5]
[44]
Although the failure of the Applicant to
attend the arbitration hearing may be criticised, the Applicant did
not completely disregard
the process. Mr De Lange was sent to request
a postponement based on the misunderstanding that arose between the
Applicant and
Mr De Lange.
[45]
On the day of the arbitration hearing, the
Commissioner did not consider Mr De Lange’s submissions as a
proper application
for postponement. She ruled that the application
was “defective, unsupported and not considered.” This was
a misdirection.
CCMA Rules 31(10) and 35(1) & (2), read with sec
138(1) & (2) LRA empowers a commissioner to consider an
application, even
if the strict prescripts of CCMA Rule 31 were not
adhered to.
[46]
In
determining a rescission application, all relevant factors must be
taken into account in determining whether the applicant can
show good
cause. The applicant must give a reasonable explanation for his
default, and he must show that he has a bona fide defence
to the
plaintiff’s claim.
[6]
[47]
These
two essential elements (the explanation for default and a bona fide
defence) cannot be assessed mechanistically and in isolation.
While
the absence of one of them could be fatal, they are to be weighed
together in determining whether it should be fair and just
to grant
the indulgence.
[7]
[48]
The enquiry into a possible defence to the
employee’s claim was not considered at all, despite there being
some obvious merit
to the Applicant’s case.
[49]
A consideration of the merits of the matter
raises an obvious question concerning the quantum of the award. This
goes to the heart
of the inquiry into good cause relevant to both the
request for postponement, and the rescission application.
[50]
The Commissioner did not award compensation
but ordered payment of statutory monies owing for a period of 9
months. “Statutory
monies” implies payment that the
employee is legally entitled to. This in turn implies that the amount
involved, must be
determined accurately, accounting for all relevant
entitlements and deductions.
[51]
The amount of statutory remuneration the
Commissioner ordered the Applicant to pay, amounts to R190 927.71.
This includes an
average monthly commission component. The legal
entitlement to commission and the correct calculation thereof remains
to be determined.
[52]
A further glaring concern regarding the
calculation of outstanding remuneration to be paid in terms of the
award, is the failure
to consider and account for the period of
unpaid maternity leave.
[53]
The Applicant therefore has disclosed a
bona fide defence to the plaintiff’s claim, which shows
sufficient good cause.
[54]
In the result, the following order is made:
Order
1.
The rescission ruling dated 24 January 2023, issued by the Second
Respondent under case number WECT6086-22 is reviewed and set
aside;
2.
The rescission ruling is substituted with an order that:
2.1 The delay in
filing the rescission application is condoned;
2.2 The arbitration
award dated 23 November 2022 is rescinded; and
2.2 The matter is
referred back to the First Respondent to appoint an arbitrator, other
than the Second Respondent, to arbitrate
the Third Respondent’s
dispute under CCMA case number WECT6068-22.
3. There is no
order of cost.
W
Jacobs
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
- A de
Lange of De Lange Attorneys
For the Third
Respondent: - E Geldenhuys of Macgregor Erasmus
Attorneys
[1]
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others (2007) 28
ILJ 2405 (CC
);
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29 ILJ 964 (LAC)
.
[2]
Nature's
Choice Products (Pty) Ltd v Food & Allied Workers Union &
others
(2014) 35
ILJ
1512 (LAC) at [11].
[3]
Motloi
v South African Local Government Association
(JA3/04)
[2005] ZALAC 12
;
[2006] 3 BLLR 264
(LAC); (2006) 27 ILJ 982 (LAC) (9
December 2005); Bosch v Seynhaeve NO (159/2023) [2024] ZALCCT 25 (27
June 2024)
[4]
See
eg
:
Melane
v Santam Insurance Co. Limited
1962 (4) SA 531
(A);
Aspen
Holdings Pty Ltd and Another v Phelane and Another
(JA
71/23)
[2025] ZALAC 4
;
[2025] 4 BLLR 409
(LAC);
Moodley
v Umzinto North Town Board
[1997]
ZASCA 95
;
1998 (2) SA 188
SCA;
Potgietersrus
Platinum Limited v CCMA
(1999) 20 ILJ 2679 (LC).
[5]
National
Police Services Union and Others v Minister of Safety and Security
and Others
[2000] ZACC 15
;
2001
(8) BCLR 775
(CC).
Also
see
:
Mobile
Telephone Networks (Proprietary) Limited v Commission for
Conciliation Mediation and Arbitration and Others
(JA21/25)
[2025] ZALAC 59
;
[2026] 2 BLLR 114
(LAC); (2026) 47 ILJ 1081 (LAC)
(24 November 2025).
[6]
Northern
Province Local Government v CCMA and others
(2001) 22 ILJ 1173 (LC).
[7]
See
eg
:
Shoprite
Checkers v Commission for Conciliation Mediation and Arbitration
(2005) 26 ILJ 828 (LC);
Total
Facilities management Company (Pty) Ltd (T. F. M C) v Commission for
Conciliation, Mediation and Arbitration and Others
[2007] ZALC 53
;
[2008] 1 BLLR 73
(LC).