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[2026] ZALCCT 155
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OCA Testing and Certification South Africa (Pty) Ltd ta OCA Global v Commission for Conciliation, Mediation and Arbitration and Others (2026/211671) [2026] ZALCCT 155 (14 September 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no:
2026-211671
(1)
Reportable: Yes
(2)
Of interest to other Judges: Yes
(3)
Revised: Yes
In
the matter between:
OCA
TESTING, INSPECTION AND CERTIFICATION
SOUTH
AFRICA (PTY) LTD T/A OCA GLOBAL
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
CHITANE SOZA N.O.
Second Respondent
SOLIDARITY
OBO TJ SAUNDERS
Third Respondent
Heard
:
8 September 2026
Delivered
:
14 September 2026
Summary:
(Urgent application – Urgent application for interim interdict
pending finalisation of review application of incomplete
arbitration
proceedings in terms of Section 158(1B) of the LRA -
the
Court may interdict uncompleted proceedings in exceptional cases -
determining exceptional
circumstances requires a consideration of whether the traditional
grounds for an interim interdict have
been shown together with a
prima facie
consideration
of the underlying premise of the review application – stay of
proceedings granted
)
JUDGMENT
MAY,
AJ
Introduction
[1]
Applicant approaches this Court on an
urgent basis for an interim interdict pending the review of a
jurisdictional ruling made by
the second respondent and thus pending
a review of incomplete arbitration proceedings contemplated in
Section 158 (1B) of the Labour
Relations Act 66 of 1995 (the LRA).
Background
[2]
The third respondent’s member, Mr
Saunders, was employed, in 2024 and again in 2025 on written
fixed-term contracts for varying
durations as a QC Level 1 Inspector.
His fixed-term contract for 2025 commenced on 1 March 2025 and
terminated on 14 December 2025.
On 24 December 2025, the Applicant
offered a short-term agreement for the month of January 2026, which
was accepted by Mr Saunders.
Discussions were held between Applicant
and Mr Saunders in terms of which the Applicant had proposed that Mr
Saunders be retained
post January 2026 as an independent contractor.
Applicant alleges that the offer was rejected by Mr Saunders and that
he demanded
to remain an employee of the Applicant. In the meantime,
a further extension of his contract was offered until the end of
March
2026, which offer was withdrawn of the same day prior to
acceptance thereof.
[3]
Mr Saunders referred an unfair dismissal
dispute to the CCMA and, at arbitration, was represented by the third
respondent. On 8
June 2026, the Applicant raised a jurisdictional
objection to arbitration, submitting that the CCMA had no
jurisdiction to arbitrate
the dispute. The Second Respondent was
appointed to arbitrate the dispute on 24 June 2026.
[4]
Second Respondent requested the parties to
make oral submissions on the issue whereafter he would make a
determination based on
the oral submissions, the written objection
and the contents of the parties’ respective evidence bundles.
[5]
Applicant contends that despite numerous
disputes of fact, the commissioner did not request, or insist, that
the parties call witnesses
or lead evidence and instead he made
factual findings and drew inferences based on the oral submissions.
The commissioner issued
his ruling on 29 June 2026 and found that the
true reason for the termination of Mr Saunders’ services was
not the natural
end of a project or the simple withdrawal of an
unaccepted offer but rather a unilateral reaction to allegations of
misconduct
by the Applicant’s client who demanded Mr Saunders’
removal. The point
in limine
was
accordingly dismissed.
[6]
Applicant contends that the ruling is
reviewable and had launched review proceedings in the above
Honourable Court under case number
2026-210108 on 31 August 2026.
These proceedings are pending. The arbitration proceedings before the
First Respondent are scheduled
to proceed on 16 September 2026.
Applicant sought to procure an undertaking from the third respondent
to agree to stay the arbitration
proceedings on 25 August 2026.
Instead, the third respondent replied on 25 August 2026 that the
arbitration would proceed and that
if the Applicant seeks to suspend
the arbitration it should launch these proceedings. It did so on 1
September 2026.
[7]
Applicant explains the delay in launching
these proceedings at paragraphs 101 to 115 of the Founding Affidavit.
These contentions
are not disputed by the Third Respondent (see
paragraph 102 of the answering affidavit). Applicant only became
aware of the ruling
on 20 August 2026; attorneys were instructed and
Counsel’s opinion obtained on 23 August 2026. The review
application was
drafted and ready to be launched on 28 August 2026
and launched on 31 August 2026. This application followed shortly
after the
launch of the review application.
Urgency
[8]
The Third Respondent disputes that urgency
has been shown herein. The Third Respondent contends that the
arbitration can be allowed
to proceed, oral evidence can be lead, and
the arbitrator can make a decision thereafter which could also
include the jurisdictional
objection. Alternatively, the Applicant
could seek a postponement of the arbitration.
[9]
It
is trite that whether a matter is urgent involves two considerations,
whether, in terms of Rule 38, the reasons for urgency and
why urgent
relief is necessary has been set out and whether the Applicant will
not obtain substantial relief at a later stage.
The consideration
requires an application to explain that unless relief is granted as a
matter of urgency, something is likely
to happen, the possible
prejudice to the parties, that urgency was not self-created and that
the applicant acted expeditiously
[1]
.
[10]
Third
Respondent contends, with reference to
Ethekwini
[2]
that Applicant can obtain substantial redress in due course
particularly through the leading of oral evidence at arbitration
which
could also lead to the reconsideration of the jurisdictional
objection and/or the postponement of the arbitration proceedings. The
contentions are without merit. The Second Respondent already made a
ruling on the jurisdictional objections and the CCMA, with
reference
to
Dairybelle
[3]
and Driveline Technologies
[4]
,
is
functus
officio.
[11]
The jurisdictional objections cannot
therefore be reconsidered. As to the postponement, Rule 23 of the
CCMA Rules usually requires
written confirmation or an agreement to
postpone at least 7 days before the arbitration. Failing an
agreement, an Applicant must
apply in terms of Rule 31 to postpone
and advance a reason to do so. This may be done with or without a
hearing being scheduled
however the prevailing practice at the CCMA
currently is that the application just be argued on the day that the
arbitration is
scheduled.
[12]
I
agree with the Applicant that the review application could be
dispositive of the entire matter and could bring an end to Mr
Saunders’
unfair dismissal claim alternatively, at the very
least, the jurisdictional issue may be revived and either determined
or sent
back to an alternative arbitrator to determine. It is more
likely that the reviewing Court will determine the jurisdictional
issue
as
the
Court is enjoined to decide the issue of jurisdiction
de
novo
on the basis of the record filed in the review proceedings.
[5]
[13]
Proceeding
with the arbitration and/or arguing the postponement on the day of
the hearing, causes the Applicant the exact harm it
seeks to guard
against as listed in paragraph 75 of the answering affidavit. In
addition, it would non-suit the Applicant in the
pending review
proceedings as those proceedings would effectively become moot. In
In
Emalahleni
Local Municipality v Phooko NO and others
[6]
,
it
was held that irreparable harm will invariably result if there is a
possibility that the underlying
causa
may
ultimately be removed, i.e. where the underlying
causa
is
the subject matter of an ongoing dispute between the parties.
[14]
For the above reasons, I am satisfied that
urgency has been established.
Grounds
of interdict and evaluation
[15]
An
interim interdict is a court order preserving or restoring the status
quo pending the final determination of the rights
of the
parties. It does not involve a final determination of these rights
and does not affect their final determination.
[7]
[16]
The
requirements for interim relief are trite
[8]
:
10.1
a
prima
facie
right;
10.2
a well-grounded apprehension of irreparable
harm if interim relief is not granted and the ultimate relief is
eventually granted;
10.3
the balance of convenience in favour of the
granting of the interim relief; and
10.4
the absence of any other adequate ordinary
remedy.
[17]
In
an application for a temporary interdict, applicant’s right
need not be shown by a balance of probabilities; it is sufficient
if
such right is
prima
facie
established,
though open to some doubt. The proper manner of approach is to take
the facts as set out by the applicant together
with any facts set out
by the respondent which applicant cannot dispute and to consider
whether, having regard to the inherent
probabilities, the applicant
could on those facts obtain final relief at a trial. The facts set up
… in contradiction by
respondent should then be considered,
and if serious doubt is thrown upon the case of applicant he could
not succeed. In considering
the harm involved in the grant or refusal
of a temporary interdict, where a clear right to relief is not shown,
the Court acts
on the balance of convenience. If, though there is
prejudice to the respondent, that prejudice is less than that of the
applicant,
the interdict will be granted, subject, if possible, to
conditions which will protect the respondent
[9]
.
[18]
The
dispute in an application for an interim interdict is not the same as
that in the main application to which the interim interdict
relates.
In an application for an interim interdict the dispute is whether,
applying the relevant legal requirements, the status
quo should be
preserved or restored pending the decision of the main dispute. At
common law, a court’s jurisdiction to entertain
an application
for an interim interdict depends on whether it has jurisdiction to
preserve or restore the status quo. It does not
depend on whether it
has the jurisdiction to decide the main dispute
[10]
.
[19]
The
Third Respondent contends that the existence of a proper and
competent review application is in and of itself not determinative
of
the Applicant’s entitlement to interdictory relief, more is
needed to justify urgent intervention. The Third Respondent
cites
paragraphs 30 to 40 from
Ethekwini
[11]
in
support of its contention. It is trite that the Court may interdict
uncompleted proceedings in exceptional cases and that the
threshold
is that a grave injustice might otherwise result or justice might not
by any other means be attained.
[12]
[20]
Exceptional
circumstances have been found to exist where such intervention was
necessary to prevent illegality.
[13]
The
LAC in
Sa
Cabin Crew
further
underscored that intervention is particularly justified where the
impugned ruling rests on a material error of law, given
the
constitutional right to lawful, reasonable, and procedurally fair
administrative action.
[14]
[21]
In
order to determine therefore whether exceptional circumstances have
been shown, a consideration of whether the traditional grounds
for an
interim interdict have been shown together with a
prima
facie
consideration
of the underlying premise of the review application is necessary. In
Ethekwini
the
Court stated that if the applicant fails to convince the Court that
bringing the review application was just and equitable,
then this
would have been the end of the interdict application as it would have
no foundation for the relief sought.
[15]
The
Section 158(1B) application
[22]
158(1B) of the LRA, provides that:
‘
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.
’
[23]
In
Moolman
v Commission for Conciliation, Mediation and Arbitration and
Others
[16]
(Moolman)
,
the Labour Appeal Court (LAC) held that judicial interference in
incomplete arbitration proceedings is warranted only in exceptional
circumstances. The LAC held that section 158 (1B) seeks to prevent
piecemeal litigation and to ensure that challenges to interlocutory
rulings are deferred until the conclusion of the main dispute. The
LAC further held that intervention in pending arbitration proceedings
may be justified only where allowing the ruling to stand would cause
irreparable harm to the applicant and where such harm could
not be
remedied after the arbitration has been finalised.
[24]
In
City
of Johannesburg Metropolitan Municipality v Mphefo and others
[17]
(Mphefo),
this Court granted interim relief pending the determination of a
review application against a jurisdictional ruling that effectively
disposed of the dispute.
[25]
In
Ethekwini
the
Court ultimately found that the review application was permissible
and competent as the Applicant had satisfied the requirement
of just
and equitable but that the applicant failed to show exceptional
circumstances because there will be no illegality or grave
injustice
if the arbitration were to continue as the applicant, on the facts
before the Court, had several options to secure its
rights. This was
a factual consideration of the facts as it presented itself before
the Court in
Ethekwini
[18]
.
[26]
The
facts in
casu
are
distinguishable from the facts in
Ethekwini.
Here
the effect of the jurisdictional ruling, unlike as in
Ethekwini¸
effectively means the CCMA is
functus
officio
as
it relates to the jurisdictional objection whereas in
Ethekwini
the
arbitrator specifically reserved the issue for determination at
arbitration. In
Ntombela
the
Court held that a legal issue that would in fact dispose of a matter
on the merits thereof if successful, is what was contemplated
in
Section 158 (1B)
[19]
.
[27]
Unlike
Ethekwini
therefore, the ruling without having
considered any evidence bars the Applicant from raising the objection
again and the ruling
therefore constitutes a grave injustice or
illegality necessary to establish exceptional circumstances for this
Court to intervene.
A
prima facie
right
[28]
In
National
Treasury and others v Opposition to Urban Tolling Alliance and others
(OUTA),
the
Constitutional Court held that:
‘
Under
the Setlogelo
test
the prima facie right a claimant must establish is not merely the
right to approach a court in order to review an administrative
decision. It is a right to which, if not protected by an interdict,
irreparable harm would ensue. An interdict is meant to prevent
future
conduct and not decisions already made. Quite apart from the right to
review and to set aside impugned decisions, the applicants
should
have demonstrated a prima facie right that is threatened by an
impending or imminent irreparable harm.
[20]
’
[29]
The Applicant has a
prima
facie
right to approach the court to
review the jurisdictional ruling, but following
OUTA,
this is not enough, the Applicant must
show that the
prima facie
right
is threatened by imminent irreparable harm.
Apprehension
of harm
[30]
I have found above that pr
oceeding
with the arbitration and/or arguing the postponement on the day of
the hearing, causes the Applicant the exact harm it
seeks to guard
against as listed in paragraph 75 of the answering affidavit. In
addition, it would non-suit the Applicant in the
pending review
proceedings as those proceedings would effectively become moot. I
also referred to
Emalahleni
confirming
that irreparable harm will invariably result if there is a
possibility that the underlying
causa
may ultimately be removed.
[31]
The
review application may be dispositive of the matter; in addition the
ruling has the effect that the CCMA is
functus
officio
.
In
Mphefo
[21]
the Court confirmed that all parties would be prejudiced if the
arbitration proceedings were to continue before the issue of
jurisdiction
had been decided as they would all spend 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 this Court.
[32]
The arbitration is scheduled to continue on
16 September 2026. In my view therefore, imminent harm has been
established.
Balance
of convenience
[33]
In
assessing the balance of convenience, the Court must balance the
respective harms and assess which of the parties will be the
least
seriously affected or prejudiced by being compelled to endure what
may prove to be a temporary injustice until the just answer
can be
found at the end of the trial
[22]
.
[34]
In my view, the balance of convenience
favours the Applicant. The question as to the CCMA’s
jurisdiction to arbitrate the
unfair dismissal dispute should be
considered and decided before the dispute is arbitrated as this would
provide clarity and certainty
to the parties and would avoid the
wasting of resources and unnecessary litigation. The outcome of the
review application could
be dispositive of the entire matter.
The harm to the Third Respondent can be limited by
expediting the review application instituted by the Applicant.
Alternative
remedy
[35]
I have already determined that
proceeding
with the arbitration and/or arguing the postponement on the day of
the hearing, causes the Applicant the exact harm it
seeks to guard
against as listed in paragraph 75 of the answering affidavit. In
addition, it would non-suit the Applicant in the
pending review
proceedings as those proceedings would effectively become moot.
[36]
The Applicant made an attempt to get the
Third |Respondent to agree to postpone the arbitration which was
refused. I am of the view
therefore that there are no alternative
remedies available to the Applicant.
Conclusion
[37]
The Applicant has satisfied the
requirements for an interdict and is entitled to interim relief
pendente lite.
The
Applicant has shown that allowing the ruling to stand would cause
irreparable harm to the applicant and where such harm could
not be
remedied after the arbitration has been finalised. He has shown that
exceptional circumstances exist for the Court to intervene
in the
incomplete arbitration proceedings.
Costs
[38]
Applicant asks that the Costs of this
application be made costs in the pending review application. The
Court agrees that this appears
to be the most appropriate order.
[39]
In the premise the following order is made:
Order
1.
The Applicant’s failure to comply
with the Rules of this Honourable Court relating to service and time
periods be and is hereby
condoned and this application is dealt with
on an urgent basis in terms of Rule 38.
2.
The arbitration proceedings before the
First Respondent, scheduled for 16 September 2026, are interdicted
and stayed pending the
outcome of the Applicant’s review
application under case number 2026-210108.
3.
The relief granted in paragraph 2 above
operates as an interim interdict
pendente
lite
until the final determination of
the review application under case number 2026-210108.
4.
Once pleadings have closed, the Registrar
must enrol the review application on an expedited basis without
delay.
5.
The costs of the application will be costs
in the review application.
C.
May
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
AP Landman instructed by Mohamed
Randera & Associates,
Johannesburg
For
the third respondent:
Ms K Van Wyk, Solidariteit
[1]
Association
of Mineworkers and Construction Union and Others v Northam Platinum
Ltd and Another (2016) 37 ILJ 2840 (LC) paras
21 – 26.
[2]
[2025]
ZALCD 45.
[3]
Dairybelle
(Pty) Ltd v Lupondwana N.O. and others (C679/2001)
[4]
NUMSA & others v Driveline Technologies (Pty) Ltd and another
(2000) 21 ILJ 142 (LAC) at para 15.
[5]
See:
Moses
v Commission for Conciliation, Mediation and Arbitration and Others
(2019)
40 ILJ 2371 (LC) at paras 11 and 12 citing
SA
Rugby Players' Association and Others v SA Rugby (Pty) Ltd and
Others
(2008)
29 ILJ 2218 LAC at para 39 and
Phaka
and Others v Bracks NO and Others
(2015)
36 ILJ 1541 (LAC) at paras 29 and 31
.
[6]
[2021]
ZALCJHB 61; (2021) 42 ILJ 2196 (LC).
[7]
National
Gambling Board v Premier, Kwazulu-Natal and Others
[2001] ZACC 8
;
2002
(2) SA 715
(CC) at para 49.
[8]
Setlogelo
v Setlogelo
1914
AD 221
at 227.
[9]
Webster
v Mitchell
1948
(1) SA 1186 (W).
[10]
City
of Johannesburg Metropolitan Municipality v Mphefo and Others
[2024]
ZALCJHB 297 at para 42.
[11]
Ethekwini
Municipality v Mthethwa and others
[2025]
ZALCD 45.
[12]
Ethekwini
quoting
from
Spar
Group Ltd t/a Spar South Rand Distribution Centre v CCMA and Others
[2010]
JOL 26397
(LC)
at para 8.
[13]
South
African Cabin Crew Association v South African Airways (Soc) Ltd and
Others
[2025]
10 BLLR 1048
(LAC)
at para
at
para 27. See also
Ntombela and
Others v United National Transport Union and Others (2019) 40 ILJ
874 (LC) at para
31;
Workforce
Group (Pty) Ltd v National Textile Bargaining Council and Another
(2011)
32 ILJ 3042 (LC) at para 18.
[14]
Sa
Cabin Crew
at
paras 27 – 28.
[15]
Ethekwini
at
para 29.
[16]
[2024]
ZALAC 339
at paras 42 to 45.
[17]
[2024]
ZALCJHB 287.
[18]
At paragraphs 7 to 18.
[19]
Ntombela
supra a
t
para 42.
[20]
2012]
ZACC 18
;
2012
(6) SA 223
(CC)
at para 50.
[21]
Supra
at
para 31.
[22]
Prest, “
The
Law and Practice of Interdicts
”
at pp 72 – 73.