SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR1605-19
In the matter between:
BIDSERVE INDUSTRIAL PRODUCTS (PTY)
LTD T/A GFOX AND CO Applicants
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
BEN MTHUTHULEXI TAFANE N.O. Second Respondent
SIBUSISO CYNTHIA XABA Third Respondent
Heard: 14 May 2026
Delivered: 7 September 2026
Judgment
MOLOTSI, AJ
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Introduction
[1] This is an application for rescission in terms of section 165(a) of the
Labour Relations Act 1. The application was launched on 18 September
2024 to rescind and set aside the Court order issued on 7 August 2024.
The Applicant is, Bidserve Industrial Products (Pty) Ltd t/a Gfox and co, a
private company duly registered and incorporated in accordance with the
Company Laws of the Republic of South Africa. The First Respondent is
the Commission for Conciliation, Mediation and Arbitration (CCMA). The
Second respondent is Ben Mthuthulezi Tafane, a Commissioner
appointed by the CCMA to arbitrate the unfair dismissal dispute, which
was lodged by the third respondent, Sibusiso Cynthia Xaba.
[2] The Commissioner made a finding that the dismissal of the Third
respondent was substantively unfair and ordered the Applicant to
compensate the Third respondent with an amount of R107 523.00. The
Applicant aggrieved with the arbitra tion award, launched a review
application.
[3] The review application was set down on 7 August 2024. The Applicant
failed to attend the proceedings . The Court on 7 August 2024 made the
following order:
‘1. The condonation for the late filing of the answering affidavit is
granted.
2. The review application is dismissed for having no merit.
3. Applicant in the main review application, is ordered to pay costs of
the respondent, for this application.’
[4] The Applicant became aware of the date of the review hearing and the
Court order on 29 August 2024 after having received a letter of
correspondence from the attorneys of the Third respondent advising that
1 Act 66 of 1995 as amended.
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an order had been granted and seeking payment of the compensation
awarded in the arbitration award.
Grounds for rescission
[5] On 8 May 2024, this Court delivered a notice of set down for the hearing
scheduled for 7 August 2024.
[6] The email attaching the notice of set down was correctly delivered to the
attorneys of the third respondent at i[… ]. However, this Court used an
incorrect email address to notify the Applicant of the hearing date.
[7] The correct email is p […] , whereas the set down notice had been
delivered to p[…] . The email address p[… ], belongs to Ms. Petra Cooper,
a Director of Soldatos Cooper Incorporated Attorneys. The Applicant was
unaware of the fact that the hearing was set down on 7 August 2024 and
submitted that the Order issued on 7 August 2024 was erroneously made
by this Court.
Submission by the parties
[8] The Applicant submitted that the notice of set down was sent to a wrong
email address. The Applicant had no idea that the review was set down
on 7 August 2024. All the authorities relied upon by the Third respondent
support the Applicant’s case.
[9] The Third Respondent submitted that the Applicant failed to explain in
what respect this Court on 7 August 2024 erred. The review application
was dismissed on the merits. It is not enough for the Applicant to say that
the order was erroneously made in its absence. The Applicant is required
to demonstrate the absence and error . There was no error committed by
this Court on 7 August 2024. Matters cannot be rescinded merely
because of absence. The Third respondent conceded that the Applicant
did not receive the notice for the hearing.
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Evaluation
[10] It is common cause that the Applicant did not receive the notice of set
down and therefore it was absent on 7 August 2024. Consequently, the
order issued on 7 August 2024 was erroneously made in the absence of
the Applicant.
[11] Much was made by the Third Respondent that the Applicant failed to
show the error committed by the Court on 7 August 2024. It is simple, the
Court erroneously made an order in the absence of the Applicant . The
Applicant was unaware of the hearing as it did not receive the notice of
set down. The Third Respondent’s submission that the Applicant was
required to show both absence and error and that was not proven is with
respect without merits.
[12] The rescission application must therefore be granted.
[13] In the premises, the following order is made:
Order
1. The application for rescission is granted.
2. There is no order as to costs.
_______________________
H Molotsi
Acting Judge of the Labour Court of South Africa.
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Appearances:
For the Applicant: Mr Hutchison
Instructed by: SCI Attorneys Inc
For the Respondent: B Lukhele
Instructed by: Chelli Attorneys