IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 1425/2022
In the matter between:
INDEPENDENT COMMUNICATIONS AUTHORITY OF
SOUTH AFRICA (ICASA) Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER DHELIWE MAVUMA N.O Second Respondent
NEHAWU obo MEMBERS Third Respondent
Decided in Chambers
Delivered: This ruling was handed down electronically by circulation to the
parties' legal representatives by email and publication on the Labour Court’s
website. The date for hand- down is deemed to be on 0 5 May 2025
RULING – APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE, J
2
[1] On 9 January 2025, this Court delivered a judgment and order in terms of
which t he arbitration award issued by the Second Respondent (Commissioner)
under Case Number GATW12895/21 wa s reviewed and set aside.
[2] The Commissioner’s award wa s substituted with an order that the failure by
the Applicant (ICASA) not to pay to the Third Respondents (Employees) a
performance bonus for 2019/2020FY, did not constitute an unfair labour practice as
contemplated in section 186(2(a) of the Labour Relations Act1.
[3] The Third Respondents seek leave to appeal against the whole judgment
and order of the Court. The application is opposed by the applicant in the review
application. For the sake of convenience, the parties will remain cited as they were in
the review application, since that is the manner of citation the third respondents
elected in bringing this application for leave to appeal .
[4] Section 17(1)(a) of the Superior Courts Act
2 governs applications for leave to
appeal. It provides that leave to appeal may only be given where the judge is of the
opinion that the appeal would have a reasonable prospect of success, or where
there is some other compelling reason why the matter should be heard.
[5] The test for leave to appeal is more onerous as reiterated in S v Smith3 as
follows;
‘What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that the Court of
Appeal could reasonably arrive at a conclusion different to that 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 success. 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
1 Act 66 of 1995, as amended.
2 Act 10 of 2013
3 2012 (1) SACR 567 (SCA)
3
as hopeless. There must, in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal.’
[6] The background to the dispute between the parties and the grounds for and
against the relief sought in the review proceedings are issues sufficiently dealt with in
the main judgment. Equally dealt with in that judgment are the reasons for the order.
[7] It is settled that appeals should be limited to those matters which are truly
deserving of the attention of the appeal courts.4 This is particularl y so in respect of
labour disputes, since the scheme of the LRA demands the expeditious resolution of
disputes . As such , leave to appeal in this Court ought to be limited to those disputes
which have a reasonable prospect that another court, (the Labour Appeal Court), would treat the factual matrix of the matter differently or there is a legitimate legal issue which deserves the attention of the Labour Appeal Court (LAC).
5
[8] Having h ad regard to the grounds for leave to appeal, and the submissions
made on behalf of the parties, it is my view that upon a reflection of the judgment
against which leave to appeal is sought, there is no basis for any conclusion to be
reached that the appeal would have a reasonable prospect of success, or that there
are some other compelling reasons why the matter should be heard. Effectively,
there are no novel or legitimate points of law requiring the attention of the Labour
Appeal Court .
[9] Accordingly,
Order:
1. The Third Respondent’s application for leave to appeal is dismissed.
2. There is no order as to costs
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa
4 Kruger v S 2014 (1) SACR 647 (SCA) at para 3.
5 Martin & East (Pty) Ltd v National Union of Mineworkers & others (2014) 35 ILJ 2399 (LAC) at 2405J
– 2406E.