IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 252/22
In the matter between:
SASBO, THE FINANCE UNION FIRST APPLICANT
MMAKGOSI MORUDU SECOND APPLICANT
And
THE STANDARD BANK OF SOUTH AFRICA LTD RESPONDENT
In re:
THE STAND ARD BANK OF SOUTH AFRICA LTD APPLICANT
And
SASBO, THE FINANCE UNION FIRST RESPONDENT
MMAKGOSI MORUDU SECOND RESPONDENT
THE COMMISSION FOR CONCILIATION, MEDIATION THIRD RESPONDENT
AND ARBITRTION
COMMISSIONER LEN DEKKER N.O FOURTH RESPONDENT
Decided: In Cham bers
Delivered: 13 January 2025
The judgement was handed down electronically by circulation to the parties’
representatives by email. The date for hand -down is deemed to be 13 January
2025.
_____________________________________________ ________ ______ ____________
JUDG EMENT : APPLICAT ION FOR LEAVE TO APPEAL
___________________________________________________________________ ____
MAFA -CHALI AJ
Introduction and judg ement (in summary)
[1] On 16 August 20 24, I handed down a judgement in the opposed review
application.
[2] I made the following order:
2.1 The arbitration award of the Fourth Respondent under CCMA case number
GATW11198 -21 dated 1 February 2022 is reviewed and set aside.
2.2 The dismissal of the Second Respondent was substantively fair.
[3] The Applicant s have filed an application for leave to appeal on 6 September 2014
and I entertained it on an unopposed basis and issued the judgement on 31
October 2024 , which I later rescinded on 11 November 2024 , on the basis that it
was erroneously made without considering the opp osing submissions by the
Respondent .
[4] The Respondent filed the submissions opposing the application for leave to appeal
to the Applicant on 30 September 2024, and subsequentl y delivered them at the
Court on 01 October 2024.
[5] I am now entertaining the application for leave to appeal afresh on an opposed
basis.
Grounds for application for leave to appeal
[6] The Applicant s have made an appl ication for leave to appeal on 6 September
2024, and subsequently filed the written submissions on 23 September 2024.
[7] The Applicant s raised 8 grounds of appeal as follows:
7.1 The C ourt erred in finding that the c ommissioner had failed to take into
account the totality of the circumstances.
7.2 The Court erred in finding that the pos ting of the video on Morudu’s WhatsApp
status breached the duty of trust and confidence which Morudu owed to the Bank.
7.3 The Court erred in finding that there was no restriction to those employees
circulating the video to outsiders and such WhatsApp circulation was in the social
media domain immediately upon its circulation.
7.4 The Court erred in finding without evidence to the contrary, tha t the video was
already circulated in the social media domain with the result consequence that the
contraventions of the government regulations on COVID -19 were not adhered to
by the Bank’s employees and thereby potentially ruining the Bank’s good name
and reputation.
7.5 The Court erred in finding that the breach by Morudu of the Bank’s COVID -19
protocols were serious to warrant dismissal.
7.6. The Court erred in finding that Morudu failed to provide information to build a
prima facie case on inconsistency in disciplining employees alleged to have
hosted parties in other branches of the Bank.
7.7 The Court erred in finding that Morudu failed to show genuine remorse.
7.8 The Court failed to find that the adj usted alert level 3 was in place from 16
June 2021 to 27 June 2021 and that social gatherings were indeed permitted in
terms of Government Gazette No.44715 of 15 June 2021, that the reason Morudu
hosted the party was to boost the morale of the employees, t hat Morudu’s
WhatsApp status containing the video was limited to a selected number of five
Bank employees and lastly tha t the c ommissioner is allowed a broad spectrum in
his decision -making and that the c ommissioner’s award fell within the band of
reasonab leness.
[8] The Respondent’s opposing submissions are as follows:
8.1 The case advanced by the Applicants in i ts submissions appears to be a
matter of linguistics on the use of the word ‘wrong’ in its court’s description of the
commissioner’s award appl ying the incorrect test of review. The Applicants, however
appreciates and conced es that the Court employed the language of reasonable ness
which is the correct test. Therefore, the Applicant’s complaint relates to linguistic rather
than substance .
8.2 The Court had set out the accepted test to be app lied and that the award of the
commissioner will be set aside on review if it is unreasonable; and the award that a
reasonable arbitrator could not reach on the material that was befor e him or her.
8.3 The usual approach when the court is faced with a review application is to consider
the material before the arbitrator and in considering the reasonableness of the arbitrator’s
decision, the court will assess whether the arbitrator’s decision is wrong i n the sense of
whether the arbitrator made any errors and if so whether the erroneous approach of the
arbitrator has distorted the award to the extent that its result is unreasonable.
8.4 The court has followed that approach and found that the commissio ner made a
number of errors in his assessment of the facts and a pplicable law and these errors led
to the conclusion which was not reasonable ba sed on the material before the
commissioner.
8.5 Details of those errors were shown by the Court with regar d to his assessment
of the inconsistency principle in paragraphs 29, 32 and 33 of the judgement a nd that the
commissioner should have found that Morudu’s conduct was extremely irresponsible in
the context of the pandemic and that she has committed gross misconduct warran ting
dismissal as set out in parag raph 34 of the judgement.
8.6 The judgement has explained the shortcomings of the commissioner’s
approach and sets out what a reasonable commissioner ought to have found. The court
reached the a ppropriate conclusion in the circumstanc es and there is no p rospect that
the LAC will reach a different conclusion.
8.7 This court would not be appropriately acting as a filter if it were to permit the
present application for leave to appea l and would b e burdening the LAC with a case
which is not truly deserving of its attention.
8.8 It is incontrovertible facts that Ms Morudu promoted and organised a party
during the period of the COVID restrictions, an action which was grossly irresponsible,
particularly from a senior manager. The decision by the Court to revi ew the
commissioner’s award is clearly correct and the applicati on for leave to appeal should b e
dismissed as the Applicants have not been able to effectively challenge that conclusion ,
or persuade the court that the LAC would find otherwise.
Legal considerations
[9] I have considered the application for leave to appeal and the written representations
in chambers.
[10] It is trite that there is no automatic right of appeal against a judgement of the
Labour Court. Section 166(1) of the Labour Relations Act1 (LRA) provides that any
party to any proceedings before the Labour Court may apply for leave to appeal to
the LAC against any final judgement or final order of the Labour Court. To be
entitled to leave to appeal, an applicant must satisfy this Court that there is a
reasonable prospect that another Court would come to a different conclusion2.
[11] The test is not whether there is a possibility that another court could come to a
different conclusion. The test is whether there is a reasonable prospect that
another court would come to a diffe rent conclusion.
[12] When considering the standard in applications for leave to appeal, section 17(1) of
the Superior Courts Act 2013 (the “Act”) ap plies. That section reads:
“Leave to appeal may only be given where the judge or judges concerned are of
the opinion that (a)(i) the appeal would have a reasonable prospect of success; or
(a)(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration .”
[13] The threshold to cross for an audience with an appeal court is a high one,
requiring a strong prospect that another court would come to a different decision,
or that there are compelling reasons justifying the attention of that court.
[14] In Seathlolo & o thers v Chemical Energy Paper Printing Wood & Allied Workers
Union & others3, Judge Van Niekerk, discussin g the test to be applied states:
“The traditional formulation of the test that is applicable …requires the court
to deter mine whether there is a reasonable prospect that another court may
come to a different conclusion to that reached in the judgment that is
sought to be taken on appeal. …the use of the word “would” in s 17(1)(a)(i)
1 Act 66 of 1995, as amended
2 See Woolworths Ltd v Matthews [1999] 3 BLLR 208 (LC)
3 (2016) 37 ILJ 1485 (LC)
is indicative of a raising of the threshol d since previously, all that was
required for the applicant to demonstrate was that there was a reasonable
prospect that another court might come to a different conclusion…Further
this is not a test to be applied lightly – the Labour Appeal Court has recen tly
had occasion to observe that this court ought to be cautious when leave to
appeal is granted…The statutory imperative of the expeditious resolution of
labour disputes necessarily requires that appeals be limited to those
matters in which that there is a reasonable prospect that the factual matrix
could receive a different treatment or where there is some legitimate
dispute on the law …”4
[15] In deciding this application for leave to appeal, I am also guided by the dicta of the
Supreme Court of Appeal where it held in Dexgroup (Pty) Ltd v Trustco Group
International (Pty) Ltd and Others5 that:
“The need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack merit.
It should in this case have been deployed by refusing leave to appeal”.
[16] In Smith v S6, the test was summarised as follows;
“What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that a court of appeal could reasonably
arrive at a conclusion different to t hat of the trial court. In order to succeed,
therefore, the appellant must convince this court on proper grounds that he has
prospects of success on appeal and that those prospects are not remote but have
a realistic chance of succeeding. More is required to be established than that there
is a mere possibility of success, that the case is arguable on appeal or that the
case cannot be categorised as hopeless. There must, in other words, be a sound,
rational basis for the conclusion that there are prospects o f success on appeal ”.
[17] The Applicant s submitted that the Court did not employ the correct review test, but
rather c ame to the conclusion that the c ommissioner had been ‘wrong’ to make
the award that he did, having regard to the evidence before him, and that such
5 [2013] 1 ALL SA 375 (SCA) (20 September 2013)
6 [2020] ZALCJHB 195 (7 May 2020)
approach is inconsistent with the jurisprudence setting a high bar for interfering
with CCMA on review and limited only to those cases where the bounds of
reasonableness had been breached.
[18] It was further argued t hat the Court considered that the c ommissioner downplayed
the impact of Morudu’s actions, and that conclusion is inconsistent with the
precedent in Lucerne Transport v TAWUSA and Others7 with regard to the
Respondent having an obligation to adduce evidence to show that its name was
brought into disrepute by showing a sufficient close link between the misconduct
and the business and the impact of the conduct on the Respondent’s business
must be sufficiently ser ious, and as such the Court was required to ask itself if the
finding that dismissal was an inappropriate sanction and harsh and was so
unreasonable that if falls outside of the band of reason within which two
reasonable people might reasonably disagree.
[19] It is the Applicant s’ further arguments that the question before the Court in the
review was whether, even if the c ommissioner had expressed himself upon
matters beyond the questions placed before him in the arbitration, his conclusions
concerning the harshness of the penalty fell beyond the band of reasonableness,
having regard to the full conspectus of the evidence before him .
[20] The Respondent on that other hand ar gued that the Court applied the correct
review test an d the Applicant s have not presented sufficient grounds to persuade
the court that there is a reasonable prospect of success or some compelling
reason why the appeal should be heard.
[21] Reasonable prospects of success means that the Applicant s have to show that
another Court, faced with the same material, could come to a different conclusion
or an appeal can succeed if there is a legitimate dispute of the law.
[22] I am not persuaded that there are good reasons for the Labour Appeal Court to
consider the factual matrix of Morudu’s case and to pronounce on some of the
issues raised by the Applicant s in how the Court erred in its findings. I find that
there are no compelling reasons why leave to appeal should be granted.
[23] Having has regard to the submissions made on behalf of the Applicant s in respect
of the application, these do not come to meeting the threshold referred above.
[24] In casu, applying the principles applicable to applications for leave to appeal, I am
7 (JR 284/2019) [2020] ZALCJHB 195 (7 May 2020)
not persuaded that there are reasonable prospects that the LAC would arrive at a
different conclusion than one arrived at by this Court. The Applicant failed to make
out a case for leave to appeal to be granted. The Applicant s have outlined its
grounds for leave to ap peal on its notice and also substantiated in its subsequent
submissions. I am satisfied that those issues were adequately canvassed and
dealt with in my judgment, and no purpose will be served in revisiting the same.
[25] In the light of the above, and ha ving regard to the submissions made in regard to
the application for leave to appeal, the o pposition thereto, and further
reflection of my judgement, I am of the view that the Applicant has failed to
demonstrate that there are r easonable prospects that t he LAC will come to a
different decision to that reached in my judgment.
[26] I am not persuaded that any appeal would have a reasonable prospect of success.
[27] Furthermore, there are no other compelling reasons why leave to appeal should
be granted.
[28] There is no reason why a cost order should be made in this application.
Order
[29] The application for leave to appeal to th e Labour Appeal Court is dismissed .
[30] There is no order as to costs.
G MAFA -CHALI
Acting Judge of the Labour Court of South Africa
Representation:
For the First and Second Applicants:
B J Erasmus Pieterse Attorneys
For the Respondent:
Tabacks Attorneys Inc