Ngoy v Commission Conciliation Mediation and Arbitration & others [2026] ZALCJHB 385

Date of Judgment & Seat of Court: 16 October 2026, Labour Court, Johannesburg

Case No: 2025-126956

Name of Judge(s): Mohlahlo AJ

Summary of Factual Matrix:

The applicant referred an unfair dismissal dispute against his former employer to the CCMA. Neither party attended the arbitration on 3 April 2025 and the commissioner dismissed the matter under section 138(5) of the LRA. The applicant applied for rescission, stating that he had not received the notice of set-down, which had been served on his attorney, who was ill on the day; the employer did not oppose.

The commissioner refused rescission, finding that the attorney had received the notice and had neither informed the CCMA of his illness nor produced a medical certificate, that the CCMA had notified the applicant by SMS, and that the applicant was in wilful default; he also found that the CCMA was prejudiced by unnecessary delay. The applicant applied, unopposed, to review the ruling on the ground that the commissioner had failed to apply his mind to what had transpired. The issue was whether the ruling was one a reasonable decision-maker could reach under section 144(d) of the LRA.

Summary of Findings:

[18] ‘It is accepted that “good cause” requires an applicant for relief under section 144(d) of the LRA to show the following: (a) an absence of wilfulness; (b) a reasonable explanation for the default; (c) bona fide and the absence of an intention to delay the matter; and that (d) and a bona fide claim against the other party.[5]’

[22] ‘Turning to the rescission ruling itself, Commissioner Nyamezele addressed the Applicant's explanation for non-attendance and found it unjustified. The Commissioner correctly noted that although the Applicant denied receiving the notice of set down, his legal representative had received the notice. The Commissioner further noted that the legal representative failed to inform the CCMA of his alleged illness and did not provide a medical certificate as evidence thereof. Significantly, the Commissioner also found that the CCMA had sent the Applicant an SMS notification of the arbitration date, and that Rule 5A of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration permits notification by SMS. The Commissioner was therefore entitled to find, as he did, that the Applicant had been duly notified. The Applicant does not challenge this finding in the review application and, therefore, the finding must stand.’

[24] ‘I have noted that the Applicant did not allege in the rescission application what prejudice he would suffer if the rescission application was not granted. He simply made sweeping and generalised statements on the issue without properly engaging it. He failed to provide the Commissioner with any indication of the supposed harm that would result from a refusal of the relief sought. In the absence of such material, I am unable to fault the Commissioner's finding in this regard.’

[25] ‘Whilst the Commissioner addressed the explanation for the Applicant's non-attendance and the prejudice element, I must consider whether the Commissioner adequately applied his mind to all four requirements for good cause. In this regard, a careful reading of the rescission ruling reveals that the Commissioner expressly found that the Applicant was “in wilful default of the proceedings” having regard to the SMS notification, the legal representative's receipt of the notice of set down and the fact that the arbitrating commissioner had attempted to contact the Applicant telephonically before dismissing the dispute but his phone went to voicemail. These findings speak not only to the reasonableness of the explanation for the default but also to the question of wilfulness. I am satisfied that the Commissioner addressed these elements.’

[26] ‘However, the Commissioner does not appear to have expressly considered the Applicant's prospects of success or the existence of a bona fide defence. This notwithstanding, a Commissioner's failure to expressly address one element of the good cause test is not, without more, a reviewable irregularity where the applicant has failed to place any material before the Commissioner capable of sustaining that element. The present case is distinguishable from the scenario cautioned against in Martin v Commission of Conciliation Mediation and Arbitration[8], where the commissioner had taken into account only one aspect of the applicable test. Here, Commissioner Nyamezele engaged substantively with three of the four elements of the good cause enquiry, namely, the explanation for the default, wilfulness, and prejudice, and the fourth element, prospects of success, was not meaningfully placed in issue by the Applicant.’

[27] ‘The Applicant's assertion of prospects of success, in both the rescission application and in this review application, is bare and unsubstantiated. The Applicant merely alleges that he has great prospects of success because the Third Respondent has “no defence.” No factual or legal basis has been advanced to support this bare assertion. Where, as here, an applicant fails to place material before the commissioner or the Court from which prospects of success can meaningfully be assessed, the failure by the Commissioner to deal expressly with that factor cannot render the ruling reviewable. Commissioner Nyamezele cannot be faulted for not engaging with a factor that the Applicant himself failed to substantiate.’

[28] ‘In the final analysis, I am unable to find that Commissioner Nyamezele committed any reviewable irregularity or that his decision was one that a reasonable decision-maker could not reach. Commissioner Nyamezele applied his mind to the material factors placed before him and reached conclusions that were rationally connected to the evidence. The Applicant, who bears the onus of establishing a ground of review, has failed to discharge that onus. The Applicant's founding affidavit relies heavily on generalised invocations of the audi alteram partem rule and the right of access to courts under section 34 of the Constitution, but these submissions do not establish a defect in the Commissioner's decision-making process. The Commissioner was not called upon to determine the merits of the underlying unfair dismissal dispute; he was required only to determine whether good cause had been shown for the rescission. He found that it had not and that finding is reasonable based on the evidence that was before him.’

[29] ‘Accordingly, the review application falls to be dismissed’

Relief: The unopposed application to review the commissioner's refusal to rescind the dismissal of the referral was dismissed. No costs order was made.

Judgment on SAFLII