South African Post Office Soc Ltd & others v Fakude N.O & others [2026] ZALCJHB 395

Date of Judgment & Seat of Court: 23 October 2026, Labour Court, Johannesburg

Case No: 2026/249228

Name of Judge(s): Snyman AJ

Summary of Factual Matrix:

The South African Post Office (SAPO) has been in business rescue since July 2023. Six employees dismissed for misconduct in December 2025 referred an unfair dismissal dispute to the CCMA without obtaining the consent of the business rescue practitioners or the leave of the High Court under section 133(1) of the Companies Act, and without joining the practitioners. SAPO objected in limine that the moratorium deprived the CCMA of jurisdiction and that the practitioners had not been joined. The commissioner dismissed the objection, relying on a purported Constitutional Court judgment, cited as [2023] ZACC 40, which does not exist, and the arbitration was set down for 15 October 2026.

After an abortive rescission application in the CCMA, SAPO and its practitioners brought a review application under section 158(1)(g) of the LRA and then applied urgently to stay the arbitration and interdict the CCMA from proceeding pending the review. The Court granted the order on 15 October 2026; these are its reasons. The issues were urgency, whether a review in medias res was competent under section 158(1B), whether exceptional circumstances justified a stay, the application of the section 133(1) moratorium to CCMA proceedings, non-joinder, the interdict requirements, the alleged lateness of the review, and costs.

Summary of Findings:

[10] ‘In casu, I must accept that if this case of the application of section 133(1) of the Companies Act advanced by SAPO has substance, then there would be no redress available to it in the ordinary course, as it would be required to participate in arbitration proceedings that is simply not lawful nor competent, due to specific legal prescripts. This issue goes to the very heart of the current arbitration proceedings pending before the CCMA. It is an issue that must, generally, establish urgency, so this question can then be decided.’

[11] ‘I must agree. To allow the arbitration proceedings to continue will completely defeat, as I will address later in this judgment, the very objective of section 133(1) of the Companies Act, and that objective, simply described, is to place a moratorium on the arbitration to give SAPO ‘breathing space’. What is the point of a moratorium if the arbitration nonetheless is allowed to happen, only to then successfully enforce the moratorium after the fact. This is the kind of case where the only realistic and proper basis to obtain the relief contemplated by section 133(1) is to have intervention beforehand. I am convinced that SAPO has no substantial redress available in the ordinary course.’

[13] ‘Dealing with the first part of the delay, I am of the view that there is some merit in the criticism by the individual respondents with regard to the delayed conduct of SAPO. Whilst it is true that SAPO did pursue a rescission application to the CCMA in this period, it should have known better. Pleading ignorance of law relating to the correct process to follow in challenging the ruling is no excuse[8], especially considering the duty that rests on BRPs when conducting the affairs of the entity under business rescue. […] The current application could and should have been brought when the notice of set down was first issued. But at least, in the context of urgency, it is not as if SAPO did nothing and simply left the matter unattended until shortly before the arbitration date. Filing a rescission is at least taking action, even if it is the wrong action. It is a plausible explanation, for a four weeks’ delay, and SAPO should not be non-suited on the basis of urgency just because of this error in approach. If the delay has been somewhat longer, I may have had a different view.’

[14] ‘At least, when SAPO realised after about four weeks that nothing was happening with regard to the rescission application before the CCMA, it properly reconsidered its position and then sought to obtain stakeholder approval for Labour Court litigation. I do not believe the time taken to secure the same, in the context of this case and the fact that SAPO is under business rescue, is unreasonable. It is also clear that immediately when approval was obtained on 21 September 2026, counsel was engaged, and the review application followed in less than two weeks, which is prompt and expeditious action. Before pursuing the urgent application itself, SAPO first attempted to resolve the need for such urgent intervention by seeking an undertaking from the individual respondents on 2 October 2026 not to proceed with the immanent arbitration, which is a proper and justified course action to take.[10] When the individual respondents refused to provide the undertaking on 6 October 2026, the urgent application followed in two days, which is undoubtedly immediate action. All considered, it is my view that the period between 10 September 2026 and 8 October 2026 is properly explained, and satisfies this leg of the urgency requirements.’

[15] ‘The individual respondents have not been prejudiced in being able to answer anything SAPO raised in the application, due to truncated time allowed in the urgent application. In particular, all the facts were straight forward, simple and undisputed and this entire matter in reality revolves around succinct legal issues. It is undeniable that the individual respondents were afforded sufficient time to answer to the application, a complete set of pleadings were exchanged, and the legal issues at stake have been fully ventilated. And in the end, if there is any doubt about urgency, the absence of substantial redress being available in the ordinary course must carry the day. There is simply no reason why this matter cannot be decided as one of urgency. I am therefore satisfied to decide this matter as one of urgency in terms of Rule 38’

[25] ‘Therefore, and as far as possible, the dispute resolution fora established by the LRA should be left to do their jobs, and the finish the same with due expedition, before the Labour Court is approached with regard to complaints about proceedings in those fora.’

[26] ‘There can be no argument with the general proposition that any party to the dispute resolution processes under the LRA must be entitled and have the right to challenge any decision, ruling or determination made in the course of such processes on review to the Labour Court, even before the particular proceedings are completed, pursuant to such duty of supervision by the Labour Court. However, even though the Labour Court is generally entitled to intervene where it comes to rulings made in the course of ongoing arbitration proceedings, it certainly does not mean that the Labour Court always should. In simple terms, it must be said that this entitlement to intervene must be sparingly exercised.’

[28] ‘It is in this context that section 158(1B) of the LRA comes into its own. Its purpose is to determine when it would even be competent to bring a review application before the arbitration proceedings are concluded, or differently described, when a review in medias res is allowed in the first place. The point is that if a review in medias res is not allowed, then it can hardly serve as a basis for the stay of the pending arbitration proceedings until it is decided. Therefore, it is essential for any litigant that comes to this Court with an application to stay the further conducting of the arbitration proceedings until the review in medias res is decided, to first prove that the review is competent or permitted by virtue of section 158(1B). To use the words of the section, it must be proven that it is ‘just and equitable’ for the review application to be brought at this juncture. It thus serves to discourage review applications in medias res in general.’

[30] ‘Therefore, whether the review application is competent in the first instance is dispositive of the entitlement to any relief seeking to stay the pending arbitration. In other words, if the review application in medias res is not permitted in the particular circumstances in the first place, then the application to stay the arbitration proceedings must necessarily fail.’

[31] ‘I do not intend to set out a detailed exposition of what could be considered to be just and equitable in order to permit a review application in medias res, considering the wide discretion given to this Court in this regard. But I believe an important consideration that would ordinarily convince this Court that the review application in medias res is permitted on the basis of it being just and equitable is where the substance of that review application would finally dispose of the matter, without such merits having to be actually ventilated in arbitration. This is undoubtedly the case where the very jurisdiction of the CCMA or bargaining council is at stake. It is trite that a finding on jurisdiction, where it is found that no jurisdiction exists, finally disposes of the matter without deciding the merits. And further, the CCMA or bargaining councils are not at liberty to finally determine their own jurisdiction, can only make preliminary findings in this regard for convenience purposes, and it is always up to the Labour Court to finally decide the issue of jurisdiction.[22]’

[32] ‘In casu, it is undisputed that SAPO was subject to business rescue under the Companies Act. As will be dealt with in more detail later in this judgment, business rescue placed a moratorium on any legal proceedings against SAPO whilst it remained extant. This would obviously have a direct and material impact on the jurisdiction of the CCMA and the first respondent to convene and then conduct the unfair dismissal arbitration whilst business rescue exists. Because the very jurisdiction of the CCMA is at stake in this case, it would be just and equitable to permit SAPO to bring the review application at this juncture. The fact that SAPO therefore has a competent review application means that it has passed the first hurdle to obtaining the stay relief it seeks.’

[33] ‘Importantly, this Court is not at this stage called upon to finally decide the substance of review application relating to the jurisdictional ruling of the first respondent. This Court is being asked to stay the arbitration hearing set down on 15 October 2026, and then further to interdict the reconvening and / or the conducting of such arbitration going forward, until the review has been decided. Deciding this kind of relief sought by SAPO is an entirely different matter and involves a different decision that must be made. In arriving at a proper decision in this respect, the consideration shifts to what is called ‘exceptional circumstances’, which is a far higher burden than ‘just and equitable’. It means that even if there is a competent pending review application in medias res, there is a second and further enquiry, wherein SAPO must demonstrate that there exist truly exceptional circumstances that would necessitate the stay of the arbitration proceedings pending the determination of the review application.’

[37] ‘Thus, and what comes into play when deciding to stay pending arbitration proceedings off the back of a competent review application in medias res, is a further exceptionality enquiry, which goes beyond just deciding what may be just and equitable. Whilst it may be just and equitable to bring the review, it simply does not follow that this per se establishes the exceptional circumstances needed to stay the pending arbitration proceedings. To simply describe it, a justified review application in medias res on the basis that it is just and equitable is not per se exceptional, and therefore exceptional circumstances warranting urgent intervention in the form of the stay of further proceedings must also be shown to exist.[30]’

[38] ‘Turning then to the merits of the application to stay in casu, and applying the aforesaid principles thereto, I am convinced that SAPO has succeeded in establishing exceptional circumstances in this case, justifying immediate intervention. I am in fact confident in saying that to allow the arbitration proceedings to continue, under the circumstances of this case, would perpetuate an entirely unsustainable and materially wrong legal conclusion, and result in a grave injustice. The very jurisdiction of the CCMA is at stake, and in fact, any arbitration award flowing from it would simply not be legally competent.’

[40] ‘It is clear that section 133(1) imposes a moratorium on any legal proceedings to be instituted and / or prosecuted against a company whilst the company is under business rescue. The provision however does not expunge the right to sue or continue to sue, but it simply places the bringing of any suit, or proceeding with any suit already pending, on hold until business rescue is finally concluded.’

[43] ‘Where it comes to the nature of ‘legal proceedings’ as envisaged by section 133(1), this is not just litigation in a Court. It includes any legal proceedings in any forum, and in particular, where arbitration is the applicable mechanism for resolving the dispute that is the subject matter of the legal proceedings, such arbitration.’

[47] ‘The undeniable reality is that the ruling of the first respondent is squarely founded on purported reasoning contained in a judgment that does not exist. This would constitute a gross and material irregularity.’

[48] ‘Pursuant to what SAPO has contended in the founding affidavit, I have conducted my own research and could find no such case. In fact, the citation of ‘ 2023 ZACC 40’ belongs to a judgment of the Constitutional Court in Rayment and Others v Minister of Home Affairs and Others; Anderson and Others v Minister of Home Affairs and Others (CCT 176/22), which is actually reported under reference 2024 (2) SA 591 (CC). The case has nothing to do with business rescue and the rights of employees under the LRA with reference thereto.’

[49] ‘It appears that first respondent must have relied on AI in seeking to find substantiation for his reasoning that the moratorium under section 133(1) did not impact on the ability of the individual respondents to still pursue their unfair dismissal claims. That AI, based on the instructions provided, would then come up with the reasoning and reference to the authority then directly relied on by the first respondent. The first respondent obviously never sought to verify that this is even remotely correct. This is an untenable state of affairs and a complete failure on the part of the first respondent to lawfully and with the expected diligence and responsibility, discharge his duties as an arbitrator under the LRA. Considering that this non-existed legal authority lies at the heart of the conclusion that he ultimately came to, this is a fundamental failure of justice.’

[54] ‘Applying the aforesaid in casu, what the first respondent did would vitiate the ruling, per se, without more. An arbitrator conducting dispute resolution of an unfair dismissal dispute under the LRA must be held to the same standards of professionality, care, diligence and competence expected of Labour Court Judges. Whilst it is true that arbitration awards (and rulings for that matter) are expected to be brief and would not need to contain the same detail as judgments of this Court, the arbitrator is still expected to apply the aforesaid characteristics in penning the award / ruling. After all, an arbitrator has the same powers where it comes to affording relief in an unfair dismissal dispute, as this Court would have in also deciding such a dispute.’

[55] ‘Where an arbitrator decides to substantiate an award or ruling with reference to and relying on case law, is it in flagrant violation of the aforesaid standard to seek to rely on a judgment that does not exist. If an arbitrator wishes to use AI to conduct research, then the arbitrator is compelled to still verify if the judgment that the AI may come up with exists, and then the arbitrator must actually read the judgment to verify if what the AI says was decided, was in fact decided. The failure to do this can be nothing less than a complete failure to conduct the arbitration in a manner that is just and lawful. It is necessary, in order to properly discharge the supervisory duties of this Court over arbitration proceedings in the CCMA or bargaining council, to apply a zero-tolerance approach where these failures are found to exist. This is the only way in which trust and confidence in the dispute resolution process under the LRA can be protected and maintained. This conduct, or better put misconduct, would even be the kind of situation that would vitiate an arbitration award on review under section 145(2)(a)(i) of the LRA.[56]’

[56] ‘Even though such an award / ruling would continue to stand until set aside on review, it is certainly a case where immediate intervention would be required to stop any further arbitration proceedings that would continue as a result of the ruling. The continuation of the proceedings on that basis would simply be nothing short of a grave injustice. There is in any event a duty on this Court to intervene in proceedings that are tainted by illegality. The matter in casu is a direct case in point. The non-existent authority lies at the core of the first respondent decision to countermand the moratorium under section 133(1) of the Companies Act and direct that the arbitration proceeds. Whilst a review Court would ultimately decide the merits of this issue, there is certainly a proper prima facie case that continuing the arbitration proceedings under these circumstances, before the review itself is ultimately decided, will be nothing short of endorsing an injustice and condoning illegality. This cannot happen.’

[57] ‘In any event, I consider the first respondent’s conclusion that the moratorium under section 133(1) of the Companies Act not being an impediment to the arbitration to be materially in error.’

[59] ‘Identical considerations must surely apply to the case of the individual respondents in casu. The first respondent accepted, as it was actually undisputed, that SAPO was under business rescue when the individual respondents referred their unfair dismissal claim to the CCMA and that business rescue still existed. It is equally undisputed that there was no consent sought from the BRPs, nor from the High Court, to institute or continue the unfair dismissal proceedings. The pursuit of the unfair dismissal claim by the individual respondents are legal proceedings against SAPO. It does not matter that the proceedings before the CCMA are arbitration proceedings, as the term ‘legal proceedings’ in section 133(1) would encompass such arbitration proceedings. It also does not matter what the nature is of the relief sought, as, once again, the moratorium under section 133(1) applies to all legal proceedings, save for the exceptions under section 133(2), which do not apply in this instance. As such, the CCMA, and consequently also the first respondent, had no jurisdiction to entertain the unfair dismissal dispute, as the moratorium squarely found application. The ruling by the first respondent is consequently a nullity.’

[60] ‘What makes it even worse is that the first respondent even went so far as to apply section 133(1) in reverse, so to speak. His reasoning places an obligation on SAPO to produce some or other directive by the BRPs that permission is not granted for the legal proceedings or to provide a High Court stay order suspending the arbitration. This reasoning is entirely unsustainable and flies directly in the face of the clear wording of section 133(1). It is always the individual respondents that needed to satisfy the permission requirements under section 133(1). Without it, the moratorium applies, without more. There is equally no requirement, as found by the first respondent to be the case, that under section 133(1), SAPO had to place evidence before the first respondent that the continuation of the arbitration would materially frustrate or prejudice the implementation of the business rescue plan. It is the existence of a High Court order placing SAPO under business rescue that results in the moratorium, which remains in existence until the business rescue proceedings are concluded and the order revoked. It is not necessary to substantiate the moratorium by way of proving that the business rescue plan is somehow compromised if the moratorium is not applied.’

[61] ‘Lastly, and considering the reasoning of the first respondent that section 133(1) is somehow inconsistent with the LRA, and that under section 210 of the LRA the individual respondents must remain entitled to pursue their unfair dismissal dispute, this reasoning is equally without substance and materially in error.’

[62] ‘Again, identical considerations apply in casu. In particular, and in their unfair dismissal claim, the individual respondents are seeking retrospective reinstatement, with back pay to date of dismissal, and this would undoubtedly involve the ‘diversion of resources’ referred to in Anglo Black supra, and continuing with the proceedings would undermine and compromise the very purpose for the moratorium.’

[63] ‘It must also be remembered that, as discussed earlier, the moratorium is not permanent, nor does it compromise the individual respondents’ right and entitlement to ultimately pursue their unfair dismissal claim to finality once the business rescue of SAPO ends. Insofar as there are any applicable time limits relating to the prosecution of such dispute, those time limits are equally suspended.’

[65] ‘There can therefore be no doubt, on prevailing authority, that the moratorium under section 133(1) of the Companies Act applies to unfair dismissal proceedings instituted under the LRA, and that this is not inconsistent with the LRA or somehow in conflict with it. In the end, the rights of employees to pursue unfair dismissal claims are not compromised by section 133(1). Those rights are simply placed on hold until the objectives of business rescue have been achieved, and those proceedings end. Section 210 therefore cannot come to the assistance of the individual respondents, or serve as a basis for the CCMA and the first respondent to assume jurisdiction to decide the unfair dismissal dispute in the absence of one of the two conditions in section 133(1) having been first satisfied.’

[68] ‘Clearly, and in my view, the moratorium under section 133(1) is an issue similar to that considered in the above two authorities. There is no legal basis or substantiation for the first respondent’s ruling, which is the enabler for the arbitration to proceed. It is also an issue of jurisdiction, which effectively, if it does not exist, renders the arbitration proceedings null and void. The prospects of success on review, considering the discussion above, speaks for itself, and would dispose of the ruling. Without the ruling, the moratorium is decisive and the arbitration incompetent. And as also said, once business rescue is concluded, which on the facts appears to be at the point of wrapping up, the individual respondents can always re-institute their unfair dismissal claim. It would be a failure of justice to allow the current arbitration proceedings to continue.’

[69] ‘However, there is another reason why, even on a prima facie basis, the ruling of the first respondent cannot be allowed to stand, and as such, cannot legitimately form the basis to allow the arbitration proceedings to continue. This reason relates to material non-joinder. The individual respondents did not join the two BRPs to the unfair dismissal dispute referred to the CCMA. Despite this being raised in the hearing before the first respondent, he unfortunately made no ruling on it.’

[70] ‘There can be little doubt that the BRPs have a direct and substantial interest in the relief sought in the unfair dismissal dispute and to participate in those proceedings. This relief directly impacts on the operations and financial position of SAPO, for which the BRPs are directly responsible. They would have to give effect to any relief granted, and as such, should be parties to the proceedings, in order to render the order enforceable. In short, they are, for as long as business rescue exists, an integral part of the operations and decision making in SAPO. On this basis, the failure to join the BRPs is fatal to the legitimacy of the arbitration proceedings.’

[72] ‘As already ventilated in full, SAPO has undoubtedly established a prima facie right, if not more. This leaves the requirements irreparable harm, balance of convenience and the absence of a satisfactory alternative remedy. These requirements have to some extent been dealt with above. However, and to affirm, starting with the absence of a satisfactory alternative remedy, it is quite apparent that none exists. Deciding the review in the ordinary course will not resolve the untenable proposition of continuing with an arbitration that is materially tainted by illegality and misconduct of the first respondent. In fact, if the review is only considered and granted at some time in the future, after the arbitration proceedings are concluded, what is sought to be achieved by the moratorium in terms of section 133(1) will be entirely negated, and serve no purpose. There is no other remedy to prevent this anomaly. This Court in any event has a supervisory duty over proceeding in the CCMA, and must act positively to prevent illegality in such proceedings. Again, the current relief sought is the only way to achieve this.’

[73] ‘Turning then to the considerations of prejudice and balance and convenience, there is equally little doubt that this favours SAPO. The issues at stake are in essence purely legal, arise on common cause facts and is dispositive of the arbitration proceedings if the review succeeds. It must again be remembered that the moratorium is not permanent and does not dispose of the rights of the individual respondents to pursue an unfair dismissal dispute under the LRA. This can be done immediately upon business rescue at SAPO ending, which will happen in the immediate future, considering that the High Court has been approached to end business rescue. It should also be considered that the individual respondents had the option of seeking permission from the BRPs or the High Court to pursue their claim, so it was entirely in their hands to legitimise the legal proceedings. They chose not to, and did not even joint the BRPs to the proceedings. In this context, they simply cannot cry foul. Ultimately, any harm in this matter that accrues to SAPO, which is the very harm the moratorium seeks to avoid, cannot be undone after the arbitration proceedings have concluded and an arbitration award is issued.’

[74] ‘The argument is unsustainable. Sectio 133(1) applies to any legal proceedings ‘including enforcement action’. Enforcement is thus but one of the proceedings covered. In particular, the very legal proceedings that may give rise to an order or award that falls to be enforced is equally covered. The intentions of the individual respondents matter not, as the entire unfair dismissal proceedings, from inception, are covered by the moratorium. What the individual respondents also appear to ignore is that they seek reinstatement, and an order of reinstatement would require SAPO, under the BRPs' management, to take action affecting its affairs, which is itself a legal proceeding against SAPO covered by the moratorium.’

[75] ‘The prejudice to the Individual respondents is limited and temporary. As said, their unfair dismissal claims are merely suspended and not extinguished nor compromised. Once business rescue ends, they can pursue those claims again. And then, if they are ultimately successful following arbitration at the CCMA, they would be afforded full redress under the LRA, which includes reinstatement and back pay. Their claims can also not be compromised by the elapse of time, as business rescue suspends the operation of time limits. And even now, the individual respondents are free to approach the High Court to seek permission to proceed with their claims. Until the individual respondents’ unfair dismissal claim is decided, they cannot assert a loss of income as basis for alleging prejudice on their part. Such an argument would pre-empt the outcome the unfair dismissal claim. In any event, and as I have already said, any such harm can be fully ameliorated by an appropriate back pay award.’

[76] ‘All said, the arbitration proceedings relating to the unfair dismissal dispute referred by the individual respondents to the CCMA cannot be allowed to continue. It would constitute an illegality, undermine the objectives of section 133(1) of the Companies Act, and lead to a failure of justice. The review application enjoys substantial prospects of success, and illustrates, even on the undisputed facts as they now stand, that the ruling of the first respondent that forms the basis of the continued arbitration proceedings is fundamentally wrong in law and entirely irregular. SAPO would suffer material prejudice if the arbitration is allowed to continue. I am satisfied that SAPO has made out a proper case for urgent intervention by this Court, and that the arbitration proceedings should be stayed pending the final determination of the review application.’

[78] ‘The argument of the individual respondents in this regard labours under a material misapprehension, and misconstrues what SAPO is seeking to review. The ruling of the first respondent is not an arbitration award as contemplated by section 145(1). It does not decide the merits of the unfair dismissal claim. It is an interlocutory ruling concerning the jurisdiction of the CCMA, and the entitlement of the individual respondents to pursue their unfair dismissal claim before the CCMA. Such intersociety rulings are reviewed under section 158(1)(g) of the LRA’

[79] ‘It is accepted that generally, review applications brought under section 158(1)(g) concerning interlocutory rulings by CCMA arbitrators are what is termed legality reviews. As such, there is no prescribed time limit under section 158(1)(g). It is not proper nor appropriate to fix a time limit under which a legality review is to be brought. It is always about whether it is brought within a reasonable time, and whether a delay is unreasonable is always dependent on the facts and circumstances of a particular case.[80] Whilst the six weeks’ time limit in terms of section 145(1) can be considered as an indication of what is considered reasonable[81], this time limit cannot be applied as a jurisdictional fact, as is the case where section 145(1) finds direct application.[82] The Court would always retain the discretion to either refuse to entertain such an application under section 158(1)(g) because of an unreasonable delay, or to instead overlook the delay.[83]’

[80] ‘Therefore, the individual respondents are wrong where they say that a condonation application was required because SAPO took longer than six weeks to institute the review application. This Court is entitled to consider the entire time period it took for SAPO to bring the application, and to then decide, on the facts, whether the delay is reasonable or unreasonable. And even if the delay is unreasonable, this Court still has the discretion to overlook the delay, which very much involves considering the nature of the illegality at stake. In casu, and all considered, I do not believe the delay is even unreasonable. The period of approximately two months taken to institute a legality review, especially considering what is at stake in this matter and that SAPO always intended to challenge the ruling (albeit initially by way of a wrong process), is simply not unreasonable. I may say that in G4S Secure Solutions supra, a period of two months taken to institute a legality review was considered to be reasonable.[86] As such, SAPO cannot be non-suited based on the time taken to institute the review and then not applying for condonation. This contention by the individual respondents is thus rejected.’

[81] ‘In summary, this is a case that cries out for urgent intervention. SAPO has a proper review application before this Court, which enjoys substantial prospects of success. To continue with, or reconvene the arbitration proceedings in the future, pursuant to the ruling by the first respondent, would be an illegality and cause of a failure of justice. To not intervene will effectively condone an illegality and misconduct on the part of the first respondent as arbitrator. It will further undermine the very purpose of the moratorium under section 133(1) of the Companies Act. SAPO has no proper alternative remedy available to prevent or ameliorate the harm that could accrue to it as a result of the arbitration. As opposed to this, the individual respondents simply will suffer no irremediable prejudice if the arbitration proceedings are stayed and interdicted, because their right to pursue an unfair dismissal dispute has not been compromised and is just on hold until business rescue is concluded. The individual respondents are able to obtain full redress in due course. The application by SAPO must therefore succeed.’

[83] ‘In exercising my discretion in line with the aforesaid, I believe that making no order as to costs would be justified and fair, for a number of reasons. First and foremost, what happened in this case is largely attributable to the conduct and failures of the first respondent, and not because anything the individual respondents may have done. I accept that litigants not legally represented, as is the case in this instance with the individual respondents, could not appreciate all the consequences of business rescue, and thus I do not believe the individual respondents were mala fide in pursuing their unfair dismissal claim and opposing this case. The individual respondents at least advanced an arguable case. And lastly, the parties are still to engage each other in arbitration proceedings that would undoubtedly convene at some point in the future, and I do not believe it would be appropriate to mulch any party with a costs order in such circumstances.’

Relief: The application was heard as urgent. Pending final determination of SAPO's review application (case 2026-243236), the CCMA arbitration under case FSWK 2876-25 was stayed and the commissioner and the CCMA were interdicted from convening or proceeding with it. There was no order as to costs. (Order granted on 15 October 2026; written reasons delivered on 23 October 2026.)

Judgment on SAFLII