Opposing a Rescission Application at the CCMA

A rescission application at the CCMA is brought under section 144 of the Labour Relations Act 66 of 1995 (LRA) on “good cause shown” within the 14-day filing window in Rule 32 of the CCMA Rules, and the winning party in the original award has the right to oppose it under Rule 31 — a notice of opposition and answering affidavit within 5 days of being served, with a right to file a replying affidavit within 3 days thereafter. The commissioner deciding rescission applies the two-part enquiry from Northern Training Trust v Maake & Others (2005 JOL 16369 (LC)) — a notice enquiry (proof of sending creating a probability of receipt) and a reasons enquiry (no wilful default and reasonable prospects of success on the merits). Opposing a rescission is therefore not a re-argument of the original award; it is a focused attack on the founding affidavit and the four section 144 requirements, with the original award’s reasoning treated as a starting advantage.

What a Rescission Application Is, and Why You Are Now on the Receiving End

A rescission application is the mechanism by which a party who failed to attend a CCMA arbitration — or who lost in default — asks the CCMA to set aside the resulting award under section 144 of the LRA, read with Rule 32 of the CCMA Rules. The award is not automatically suspended: the rescission applicant must apply separately to stay execution if the award has already been certified and they want a halt to enforcement pending the rescission hearing.

If the rescission is granted, the original arbitration is re-heard on its merits. If it is refused, the only further recourse is review by the Labour Court under section 158 of the LRA. An opposing party is typically the side that won the original award, and therefore stands to lose the certainty of that award if rescission is granted — that is the lens through which the rest of this article is written. The procedural architecture is national, but the practical filing venues and review courts sit in the seat where the matter arose; in Gauteng, that is the Johannesburg Labour Court.

The Section 144 Test the Applicant Must Discharge

Section 144 of the LRA empowers a commissioner to rescind an arbitration award or ruling made in the absence of any party on good cause shown. The controlling test, after the Labour Appeal Court’s recalibration, requires the applicant to prove four legs in the founding affidavit:

1. No wilful default — the absence and failure to oppose were not deliberate.
2. A reasonable explanation for the absence — substantiated by proof where possible.
3. Substantial compliance with the relevant CCMA or panel rules leading up to the arbitration.
4. Reasonable prospects of success if the matter is re-heard (full merits are not required at this stage).

The commissioner reads these as a single composite “good cause” assessment, not a four-checkbox test. The opposing party’s job is to show that one or more of these legs is missing or unsupported on the founding papers — and the tighter the founding affidavit, the easier that attack is to land.

The Two-Part Enquiry from Northern Training Trust v Maake (2005 JOL 16369 (LC))

The Labour Court in Northern Training Trust v Maake & Others frames the matter as a two-part enquiry that the commissioner should work through:

Enquiry	What the commissioner looks at	Where the opposing party attacks
Notice enquiry	Whether the set-down notice was sent. A single fax slip or registered-post slip is enough on the sending side; proof of sending creates a probability of receipt.	Attack the chain of receipt — wrong fax number, changed address, undelivered registered slip — not just the bare fact that notice was sent.
Reasons enquiry	Whether the defaulting party has shown they were not wilful in defaulting and has reasonable prospects of success on the merits.	Show either wilfulness in the default or that the prospects of success are weak. You do not have to prove the applicant would automatically lose on the merits.

These two enquiries are independent — a winning notice case does not cure a deficient reasons case, and vice versa. The opposing party’s bundle needs to put pressure on both legs separately.

The Rule 32 Filing Window (The 14-Day Deadline)

Rule 32 of the CCMA Rules requires the rescission application to be filed within 14 days of the date the applicant became aware of the ruling. “Became aware” is the trigger — not the date of the award itself — so the deadline runs from when the absent party actually finds out about the ruling, not from when it was issued. Late filing is not fatal, but it forces the applicant to ask for condonation, which is a separate hurdle of explanation, prospects, and prejudice. That litigation within the litigation is itself a productive line of attack in opposition: a late-filed application that fails to explain the delay cleanly is one the commissioner can refuse on the condonation point alone.

The 14-day clock is also a hard strategic deadline for the opposing party: missing the right to file on the opposition side forfeits it entirely.

The Rule 31 Opposition Timelines (How to Put Up a Defence)

Under Rule 31, the opposing party’s deadline structure is:

Step	Party	Time-bar
Notice of opposition + answering affidavit	Opposing party (the original winner)	5 days from being served with the rescission application
Replying affidavit	Rescission applicant	3 days after the opposing party files
Decision on papers or oral argument	Commissioner	At the commissioner’s discretion

These are short timelines. The practical reality is that the first consultation, bundle preparation, and deponent re-confirmation all have to fit into a working week. The notice of opposition must be filed and served on the rescission applicant; the answering affidavit is the substantive defence responding to each of the section 144 requirements. The replying affidavit is the applicant’s last chance on paper before the commissioner decides on the papers or convenes oral argument.

What to Put in the Answering Affidavit (The Bundle That Wins)

The answering affidavit is the substantive defence, and its architecture is what carries the day. A focused bundle will do five things:

• Attack the founding affidavit point-by-point on each of the four section 144 legs — one paragraph per leg, citing the specific sentence in the founding affidavit that does not support the conclusion.
• Attach the original award as an exhibit so the commissioner sees the award that gave rise to the rescission application in its full reasoning, not just the relief granted.
• Attach the set-down or notice documents that went to the absent party and put the receipt up under pressure — fax transmission reports, registered-post tracking, signed acknowledging documents.
• Annex a short confirming affidavit from the deponent who handled the arbitration on the opposing side, confirming the merits and the prejudice to the original winner if rescission is granted.
• Confirm in the answering affidavit that the opposing party is bona fide — that the original award was defended in good faith and is not being used as a vehicle for an abuse of process.

For parties in Gauteng whose rescission matters turn on a disputed chain of receipt or on weak founding papers, a labour law practice that can turn a properly-paginated answering affidavit around inside the 5-day Rule 31 window is decisive. Burger Huyser Attorneys’ Labour Law practice, led through specialist consultant Marius Ferreira and the firm’s general litigation bench, is set up to receive instructions on a rescission defence at short notice — that is exactly the kind of timeline-driven work the firm’s Linden head office and its Gauteng branches are built for.

The Strategic Choice: Papers Alone, Oral Argument, or Both

Under Rule 31, the commissioner may decide on the papers alone or hold oral argument. The opposing party can request oral argument in the notice of opposition, but the commissioner has the discretion. The strategic decision is sometimes thematic:

• Oral argument is appropriate where the founding affidavit is brief or factually contested, where the notice enquiry turns on disputed receipt, or where the prejudice point needs to be argued.
• Papers alone is appropriate where the founding affidavit is internally complete and the four legs are either met or not met on the documents themselves.

A tight-paper applicant (short founding affidavit, vague explanation) usually wants oral argument; a long-paper applicant with a fully substantiated explanation often does not. Reading the founding papers early lets the opposition pick the right forum and prepare accordingly.

What Happens After the Commissioner Decides

Outcome	Effect	Next step for the opposing party
Rescission granted	The original award is set aside and the arbitration is re-heard on its merits.	Expect to re-lead evidence and re-cross-examine. Preserve your witness availability and bundle.
Rescission refused	The original award stands.	The applicant’s only further recourse is review by the Labour Court under section 158 of the LRA. The time-bar runs from the date of the rescission ruling, not the original award.

Where the original award has already been certified and the applicant is trying to enforce, the opposing party should also consider filing a stay of execution pending the rescission outcome — without a stay, a certified award can be executed even while the rescission is being heard.

Common Scenarios and How to Counter Them

The four most common rescission fact patterns, and the matching attack lines:

• The employee never received the set-down. Attack the CCMA’s service record by asking for the fax transmission log or registered-post slip. If the contact details the employee gave at the start of the case were wrong, also use that to attack the wilful-default finding.
• The company official was sick / travelling / could not get to the hearing. Distinguish good cause from a reasonable explanation. A sick note or travel record is an explanation, but the applicant must still show it was not wilful and that the prospects of success are real.
• The attorney was not briefed in time. Distinguish a procedural default from a wilful default. The commissioner will look at whether the firm had a reasonable internal process.
• The applicant’s prospects of success are weak. Attach the original award and the record of the arbitration to make the point that the prospects of success are weak on the existing record, not on speculation.

The Burkitt-Type Caution: Don’t Re-Argue the Original Award

The rescission hearing is not a re-hearing of the original arbitration — the merits are tested only at the prospects-of-success level, not at the level of the original award’s reasoning. A common mistake is to file an answering affidavit that responds to the merits of the underlying dispute and not to the four section 144 requirements. The commissioner is asking: did the applicant satisfy the four-leg test? — not “was the original award correct?”

Frequently Asked Questions

How long does the opposing party have to file a notice of opposition?

Under Rule 31 of the CCMA Rules, you have 5 days from being served with the rescission application to file a notice of opposition together with your answering affidavit. The rescission applicant then has 3 days to file a replying affidavit. These are short timelines — the practical effect is that the substantive defence has to be ready inside a working week.

What grounds can the opposing party raise to defeat a rescission application?

The opposing party attacks the founding affidavit on each of the four section 144 legs: no wilful default, a reasonable explanation for the absence, substantial compliance with the rules, and reasonable prospects of success on the merits. Attack the chain of receipt on the notice enquiry and demonstrate wilfulness, deficient reasons, or weak prospects on the reasons enquiry. The Northern Training Trust v Maake two-part enquiry is the framework commissioners work through.

Can the rescission application be refused on the papers alone, or will there be oral argument?

The commissioner has the discretion to decide on the papers alone or to convene oral argument. The opposing party can request oral argument in the notice of opposition. Oral argument is most useful where the founding affidavit is factually contested or where the notice enquiry turns on a disputed chain of receipt.

What happens to the original award if rescission is granted?

If rescission is granted, the original award is set aside and the arbitration is re-heard on its merits. The opposing party should expect to re-lead evidence and re-cross-examine. If rescission is refused, the only further recourse is review by the Labour Court, and the time-bar for the review application runs from the date of the rescission ruling, not from the date of the original award.

Does the opposing party need to file a separate stay of execution?

Where the original award has been certified and the applicant is seeking to enforce, the opposing party should consider filing a stay of execution under the LRA framework pending the rescission outcome. Without a stay, the certified award can be executed even while the rescission is being heard.

Can the opposing party recover costs from a rescission application that is refused?

Costs in rescission proceedings are largely in the commissioner’s discretion, and costs orders against applicants whose rescission is refused are not automatic. The right to costs is more firmly available in review proceedings in the Labour Court.

Does the time-bar for opposing align with the 14-day filing window?

No — the 14 days in Rule 32 is the applicant’s filing window; the opposing party’s 5-day window under Rule 31 runs from the date of service of the rescission application on the opposing party, not from the date of the original award. Missing the 5-day window on the opposition side forfeits the right to file.

If you have just been served with a rescission application at the CCMA and need to put up a defence within the 5-day Rule 31 window, contact Burger Huyser Attorneys’ Labour Law team on 011 888 0246 (after-hours 061 516 6878) or visit the head office at 49 First Avenue, Linden, Randburg, 2195. The firm handles CCMA appearances, rescission defences, and review applications to the Johannesburg Labour Court from the Linden office and its Gauteng branches. Specialist input is led through Labour Law consultant Marius Ferreira and the general litigation practice, and the firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”). Bring the rescission application, the original arbitration award, the set-down or notice that was served, and any proof of receipt or non-receipt to the first consultation.