THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not Reportable
Case No: PR133/23
In the matter between:
SYNCHRONISED LOGISTICAL
SOLUTIONS (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION & ARBITRATION First Respondent
NDZUNDZU, S N.O. Second Respondent
NUMSA Third Respondent
NJUNGWENI, N Fourth Respondent
Heard: Delivered: 19 May 2025
JUDGMENT
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MOLOTSI, AJ
[1] This is an application for leave to appeal against the whole of the judgment
and order handed down on 13 January 2025. The applicant is Synchronised
Logistical Solutions (Pty ) Ltd.
[2] The application for leave to appeal was filed on 31 January 2025.
Grounds for leave to appeal
[3] The applicant’s grounds for leave to appeal include, amongst others:
3.1. The Court erred in failing to appreciate, have regard to the fact that
each of the following, independently, constitutes gross irregularities on the
part of the arbitrator:
3.1.1. By adopting the view that rules at the workplace were limited to
express rules and failing to apply the Code of Good Practice: Dismissal, the
arbitrator was required to determine whether or not the fourth respondent
(employee) could reasonably be expected to have been aware of the rule or standard;
3.1.2. Failing to assess the conflicting versions in any manner whatsoever;
and
3.1.3. By failing to make any finding in respect of Charge 2.
3.2. The Court erred in failing to appreciate that each of the irregularities
referred to in paragraph 1 amounted to the arbitrator misconceiving the nature of the enquiry and its duties , which deprived the applicant of a full and fair
adjudication of the issues.
3.3. The Court erred in failing to appreciate and have regard to the law to
the effect that gross irregularities render awards reviewable regardless of the
reasonableness of the result.
3.4 The Court erred in failing to appreciate that, in South African law,
making a finding of procedural unfairness under the circumstances where that was not an issue between the parties, constitutes the arbitrator exceeding his powers.
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3.5. The Court erred in concluding that who started the discussion between
the employee and Mbelu (the ER Manager) was “ neither here no there” under
the circumstances where determining that fact was necessary for the
purposes of determining the probabilities.
3.6. The Court erred in concluding that the employee’s contract of
employment and clause 25 of the applicant’s Code of Conduct stood to be
interpreted to exclude salaries from confidential information.
3.7. The Court erred in failing to appreciate and draw the distinction
between an employee having the right to discuss his/her own salary (terms
and conditions of employment) with another, in accordance with the provisions
of s 78(1)(b) of the Basic Conditions of Employment Act1 versus the employee
having discussed the salary issues of other individuals.
3.8. The Court erred in finding, in the alternative, that even if discussing
salary issues constitutes confidential and/or secret information, the sanction of
dismissal was too harsh, under circumstances where that has never been an
issue between the parties.
3.9. The Court erred in failing to appreciate that it was not the employee’s
case that there was no rule against discussing salary issues with other
employees under the circumstances where the employee’s version was
merely that she did not know that rule.
3.10. The Court erred in concluding that the arbitrator’s finding i n respect of
Charge 2 was reasonable considering the evidence before him under
circumstances where there was no such finding to be reasonable or otherwise.
The test for leave to appeal
[4] The test for leave to appeal is not there for the taking. It is a stringent test.
Section 17(1) of the Superior Courts Act2 providers that:
‘Leave to appeal may only be given where the judge or judges concerned are
of the opinion that -
1 Act 75 of 1997.
2 Act 10 of 2013.
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(a)(i) the appeal would have reasonable prospect of success .’
[5] In MEC Health, Eastern Cape v Mk hitha and Another3, the SCA held that:
‘[17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be sound, rational basis to conclude that
there is a reasonable prospect of success on appeal .’
Evaluation
[6] On all the grounds for leave to appeal submitted by the applicant, the
applicant failed to establish that there are reasonable prospect s of success on
appeal. A regurgitation of authorities does not come close to showing that the
applicant has reasonable prospects of success on appeal. There was therefore no sound, rational basis that the applicant has reasonable prospects of success on appeal.
[7] The arbitrator did not commit gross irregularity in the proceedings. This Court
did not make any finding that the arbitrator committed gross irregularity. The
outcome reached by the arbitrator was not unreasonable. As it was indicated in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
4, the SCA
held that a material error of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set
aside, but are of any consequence if their effect is to render the outcome
unreasonable.
[8] A material error by the arbitrator in not making a finding in respect of charge 2
does not in itself make the outcome unreasonable. A finding on procedure by the
arbitrator was an irregularity , but it was not a gross irregularity , especially taking into
account that there was no evidence adduced by the parties in respect of the
procedure.
3 2016 ZASCA 176 at para 17.
4 (2013 ) 34 ILJ 2795 (SCA ); [2013] 11 BLLR 1074 (SCA) at para 25.
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[9] Consequently, the applicant’s application for leave to appeal failed to meet the
stringent test set out in section 17(1) of the Superior Court’s Act , and the application
must be dismissed.
[10] In the premises , the following order is made:
Order
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
H. Molotsi
Acting Judge of the Labour Court of South Africa
Appearances :
For the A pplicant: Mr G. Kirchmann
Instructed by: Kirchmanns Inc
For the Respondent: Ms N . Luthuli
Instructed by: NUMSA