In May 2025 the Constitutional Court held that, in truly exceptional circumstances, it will rescind its own earlier orders to cure a grave injustice. The employee in the case persuaded the Constitutional Court that the Labour Court had erred in failing to decide a key issue in his case.

The employee had been found guilty at a disciplinary enquiry of corruption in the workplace. He was dismissed. The employee challenged his dismissal and succeeded at arbitration in having the sanction replaced but failed to overturn the finding of guilt. The employer took the award on review, while the employee filed a cross-review attacking the corruption finding. The Labour Court set aside the award on review, reinstated dismissal and, crucially, ignored the cross-review entirely. Leave to appeal and a first rescission bid in the Constitutional Court failed.  The Court opined that this may have been due to the fact that the employee, being unrepresented, failed to accurately articulate the Labour Court’s procedural flaw.

With pro bono counsel on board, the employee tried again, arguing that the Labour Court’s omission violated his right of access to the courts in terms of section 34 of the Constitution. The Constitutional Court agreed. It rescinded its prior orders, found that the Labour Court had acted “grossly irregularly” by declining to adjudicate the cross-review, and ruled that a court may revisit its own orders when there are truly exceptional circumstances which demand recission in the interests of justice.

The Labour Court’s failure to determine the cross-review limited the employee’s constitutional right to a fair hearing before a court of law and accordingly constituted exceptional circumstances. The matter was remitted to a different Labour Court judge to decide the cross-review, with the ruling in favour of the employer on the sanction held in abeyance pending that outcome.

Why this case is noteworthy

  • Process first, merits later. Even a strong substantive case can unravel if the procedure, whether relating to internal discipline or subsequent litigation, is flawed. The Constitutional Court’s willingness to grant rescission underscores the premium placed on procedural fairness.
  • Expect greater scrutiny of review strategy. Employers who attack an arbitration award on sanction alone should anticipate that a court may insist on first deciding any outstanding challenge to the findings. Attempting to short-circuit the process risks delay and additional cost.
  • Representation counts. The employer in this matter candidly acknowledged that, had the employee been represented earlier, the outcome might have differed sooner. Employers should be alive to the fact that the courts are sympathetic to unrepresented litigants where procedural rights are at stake.
  • Courts can correct their own errors. The Constitutional Court’s willingness to revisit its own ruling reinforces the principle that even the highest court is not infallible, and that justice may require self-correction in certain cases. This is a reminder that that judicial power exists to ensure that the interest of justice is carried out.

The case is a cautionary tale: ensure disciplinary steps and subsequent litigation are procedurally impeccable, or be prepared for the possibility of rescission, remittal and renewed uncertainty.

Read the case here.

This blog was co-authored by Mehjubeen Karjieker, Candidate Attorney