THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR2001/23
In the matter between:
TUV SUD PRO TEC (PTY) LTD Applicant
and
NUMSA OBO MAHLOBO SS First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER MAGAELE ALFRED MASHEGO N.O. Third Respondent
Heard: In Chambers
Delivered: 24 August 2026
JUDGMENT – LEAVE TO APPEAL
MKWIBISO, AJ
Introduction
[1] On 27 June 2025, I handed down an ex -tempore judgment dismissing the
applicant’s review application. The said review application sought to have a
rescission ruling by the third respondent reviewed and set aside. The
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
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Signature Date
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rescission ruling had dismissed an application for rescission of a default
award, which had been rendered in circumstances where the third respondent
had refused to postpone an arbitration hearing despite the applicant having
produced a medical certificate showing that its representative was ill.
[2] The applicant seeks to appeal against the decision dismissing its review
application. It seems the transcript of my ex -tempore judgment was received
in September 2025 and the leave to appeal was filed in October 2025. I am
not aware of the application for leave to appeal being opposed by the first
respondent.
Relevant facts and evidence
[3] The first respondent (Mr Mahlobo) had been dismissed by the applicant for
misconduct. Mr Mahlobo had referred an unfair dismissal dispute to the
second respondent (the CCMA).
[4] The transcript of the arbitration proceedings reveals the following. The CCMA
scheduled the matter for con/arb on 26 June 2023 at 1pm. Twenty minutes
before the hearing, the applicant sent an email to the CCMA advising that its
representative, Mr Mahlangu, was ill and could not attend the hearing. A
medical certificate was attached to that email and a postponement was
requested as a result.
[5] The employer had sent Mr Kok to the hearing for purposes of requesting a
postponement and he introduced himself as “just an HR Recruiter”.
[6] The Commissioner refused to postpone the hearing and Mr Kok excused
himself, after which the hearing proceeded in the absence of the applicant.
[7] The Commissioner rendered an award in favour of Mr Mahlangu, ordering that
his dismissal was substantively unfair and that he should be reinstated by the
applicant with full retrospective effect from the date of dismissal. The applicant
contends that the decision to not postpone the arbitration in light of its
representative’s illness meant that the default award was made erroneously in
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its absence as envisaged in section 144(a) of the Labour Relations Act 66 of
1995 (the LRA).
[8] The applicant contends that I erred by not upholding its review application.
Analysis
[9] The test for granting leave to appeal is contained in section 17 of the Superior
Courts Act 10 of 2013. Section 17(1)(a) provides that:
“(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that –
(a) (i) the appeal would have a reasonable prospect of success;
or
(ii) there is some other compelling reason why the appeal
should be heard, including conflicting judgements on the
matter under consideration”.
[10] In Seatlholo and Others v CEPPWAWU,
1 the Court made it clear that the new
test for leave to appeal was higher than it used to be:
“[3] The traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may
come to a different conclusion to that reached in the judgment
that is sought to be taken on appeal. As the respondents
observe, the use of the word “would” in s17(1)(a)(i) are
indicative of a raising of the threshold since previously, all that
was required for the applicant to demonstrate was that there
was a reasonable prospect that another court might come to a
different conclusion (see Daantjie Community and others v
Crocodile Valley Citrus Company (Pty) Ltd and another
(75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a
1 Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others
(2016) 37 ILJ 1485 (LC).
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test to be applied lightly – the Labour Appeal Court has recently
had occasion to observe that this court ought to be cautious
when leave to appeal is granted, as should the Labour Appeal
Court when petitions are granted. The statutory imperative of the
expeditious resolution of labour disputes necessarily requires
that appeals be limited to those matters in which there is a
reasonable prospect that the factual matrix could receive a
different treatment or where there is some legitimate dispute on
the law (See the judgment by Davis JA in Martin & East (Pty) Ltd
v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1)
SACR 369 (SCA) and the ruling by Steenkamp J in Oasys
Innovations (Pty) Ltd v Henning & another (C 536/15, 6
November 2015)” (emphasis added).
[11] Subsequent to the judgment of 27 June 2025 in this current matter, the
Labour Appeal Court has handed down a judgment dealing with similar facts
in Mobile Telephone Networks (Pty) Ltd v CCMA And Others .2 The
employer’s appointed representative in that matter had fallen ill and was
hospitalised the afternoon before the arbitration hearing and a medical
certificate was submitted by the employer at the arbitration hearing when a
request for postponement was made. The employer’s representative had
excused himself immediately after the Commissioner’s decision to refuse a
postponement in that case. Under these circumstances, the Labour Appeal
Court held that the Commissioner should have granted the postponement and
the court a quo had erred by not reviewing and setting aside the
Commissioner’s decision to not do so. In reaching this conclusion, the Labour
Appeal Court made the following statements:
“[11] In National Police Services Union and Others v Minister of
Safety and Security and Others1 the Constitutional Court
affirmed that parties to a dispute do not have a right to a
postponement, and that the court retains a discretion on whether
or not to grant a postponement. That discretion is to be
or not to grant a postponement. That discretion is to be
2 Mobile Telephone Networks (Pty) Ltd v CCMA and Others (2026) 47 ILJ 1081 (LAC).
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exercised by reference to 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 relevant factors. The requirement for good
cause entails the furnishing of a full and satisfactory explanation
of all the relevant circumstances. The interests of justice require
a balance of any genuine need for more time, against the need
to finalise the matter without further delay. Relevant factors
include whether the application was timeously made, the extent
of any prejudice to any of the parties, and whether the
application is opposed.
[12] In the present instance, it was not in dispute that Lotter’s illness
and subsequent hospitalisation were sudden, could not have
been predicted, and posed a danger to others in the context of
the prevailing Covid 19 pandemic. Further, the authenticity of
the medical certificate submitted on Lotter’s behalf was not in
dispute. Neither the appellant nor the employers’ organisation
acting on its behalf could have foreseen that Lotter would fall ill
on the hearing date, to the extent that he would be hospitalised.
It follows that neither could have foreseen any need to make any
prior or contingency arrangement to replace Lotter.
…
[14] The commissioner’s ruling makes no attempt to balance the
interests of the parties. The appellant manifestly satisfied the
requirement of good cause, having proffered a full and
satisfactory explanation for its absence. The ruling comprises
little more than a one-sided castigation of the appellant. Had the
commissioner dismounted his high horse and reflected on the
facts and the manifest prejudice that would be caused to the
appellant were the postponement to be refused, a different
outcome would have resulted. The commissioner failed to
appreciate that the appellant was of right, entitled to
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representation by an employers’ organisation and by a person
sufficiently well- versed in the dispute. The time period within
which the commissioner expected the appellant to replace Lotter
was simply unrealistic. This is particularly so where the standard
form for the referral of disputes for arbitration contains little if
anything in the way of facts and conclusions of law on which the
referring party intends to rely. There is no record of any pleaded
case, or pre- trial minute that might have assisted a seasoned
practitioner quickly to discern the case to be met. The
commissioner’s assumption that standing the matter down from
9:00 to 12:00 provided an alternative representative with
sufficient time both to acquaint him or herself with the matter
and prepare for an arbitration hearing, is simply not tenable”.
[12] Based on this judgment by the Labour Appeal Court, there are reasonable
prospects that a higher court would find that the applicant’s request for
postponement ought to have been granted due to the sudden nature of the
employer’s representative’s illness and inability to attend to the arbitration on
26 June 2023. The applicant’s application for leave to appeal ought to be
granted as a result, in the interests of justice.
Costs
[13] There is no basis to make a costs order in this matter.
[14] In the premises, the following order is made:
Order
1. The applicant is granted leave to appeal to the Labour Appeal Court.
2. There is no order as to costs.
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VG Mkwibiso
Acting Judge of the Labour Court of South Africa