THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JS 211/2024
In the matter between:
SOUTH AFRICAN MUNICIPAL WORKERS UNION obo MAHLANGU AND 44 OTHERS Applicant
and
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Respondent
Decided: In Chambers
Judgment: 26 May 2025
This judgment was handed down electronically by circulation to the parties'
representatives by email . The date for hand- down is deemed to be on 26 May 2025.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
PRINSLOO J
[1] The Applicant applied for leave to a ppeal against the whole judgment and
order , delivered on 31 January 2025 .
2
[2] The Applicant raised numerous grounds for leave to appeal and filed
submissions in support of its grounds for appeal.
[3] I have considered the grounds for appeal as well as the submissions made in
support and in opposition thereof. Both parties filed comprehensive submissions ,
which I have taken time to peruse and consider and I do not intend to repeat those
herein.
The test for leave to appeal
[4] It is trite that there is no automatic right of appeal against a judgment of the
Labour Court. This much is clear from section 166(1) of the Labour Relations Act
1
(LRA) which provides that any party to any proceedings before the Labour Court may apply for leave to appeal to the Labour Appeal Court (LAC) against any final judgment or final order of the Labour Court. To be entitled to leave to appeal, an applicant in an application for leave to appeal must satisfy this Court that there is a reasonable prospect that another court would come to a different conclusion.
2
[5] 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 different conclusion. [6] It is further trite that an applicant in an application for leave to appeal must
convince the court a quo that it has reasonable prospects of success on appeal.
Appeals should be limited to matters where there is a reasonable prospect that the
factual matrix could receive a different treatment or where there is some legitimate
dispute on the law.
1 Act 66 of 1995, as amended.
2 See Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).
3
[7] In Seatlholo and o thers v Chemical Energy Paper Printing Wood and Allied
Workers Union and others ,3 this Court confirmed that the test applicable in
applications for leave to appeal is stringent and held as follows:
‘The traditional formulation of the test that is applicable in an application such
as the present requires the court to determine 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. As the respondents observe, the use of the word “would” in s17(1)(a)(i) is indicative
of a raising of the threshold 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 (see Daantjie Community
and others v Crocodile Valley Citrus Company (Pty) Ltd and another
(75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be
applied lightly – the Labour Appeal Court has recently had occasion to
observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which there is a
reasonable prospect that the factual matrix could receive a different treatment
or where there is some legitimate dispute on the law (See the judgment by Davis JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and
also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in
Oasys Innovations (Pty) Ltd v Henning and another (C 536/15, 6 November
2015).’
[8] In Cook v Morrison and another
4 the SCA it was held that:
‘.. the existence of reasonable prospects of success is a necessary but insufficient precondition for the granting of special leave. Something more, by
way of special circumstances, is needed. These may include that the appeal
raises a substantial point of law, or that the prospects of success are so
strong that a refusal of leave would result in a manifest denial of justice, or
3 (2016) 37 ILJ 1485 (LC) at para 3.
4 [2019] 3 All SA 673 (SCA), 2019 (5) SA 51 (SCA) at para 8.
4
that the matter is of very great importance to the parties or to the public. This
is not a closed list.’
[9] In deciding this application for leave to appeal, I am also guided by the dicta
of the Supreme Court of Appeal (SCA) 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.’
This application
[10] I have considered the submissions made in support and in opposition of the
grounds for appeal and applying the applicable test, I am not convinced that the
Applicant has made out a case for leave to appeal to be granted.
[11] This matter concerns the application of established and trite principles
governing the position regarding condonation. There is no novel issue, nothing
unique or any legitimate dispute about the applicable legal principles involved. In short: there is no legitimate dispute on the law and the Applicant is unable to cross
this hurdle.
[12] There is also not a reasonable prospect that the factual matrix would receive
a different treatment by the LAC or that the LAC would come to a different
conclusion.
[13] I will refer to one of the grounds for leave to appeal to illustrate that there is no
prospect of success . The Applicant submitted that this Court erred and misdirected
itself when relying on the new Rule 24 of the Labour Court Rules to dismiss the application for condonation. The Applicant’s complaint is that Rule 24 came into operation on 17 July 2024, long after the statement of claim was filed and it is trite
5 2013 (6) SA 520 (SCA) at para 24.
5
that the said Rules do not apply retrospectively and ‘the application and reliance on
Rule 24 is misplaced.’
[14] This Court considered the issue of prejudice and held in paragraphs 67 and
68 of the judgment that:
In casu there are 45 employees before Court, seeking retrospective
reinstatement from their dates of dismissal in 2023, as per their statement of case. The Practice Manual previously provided and Rule 24 of the Labour Court Rules expressly provides that where the issue in dispute concerns the dismissal of 10 or more employees who seek reinstatement and a notice of intention to defend is filed, it must be brought to the attention of the Judge President, who may then appoint a Judge immediately to undertake t he case
management of the file, to ensure an expeditious hearing. This is to allow for hearing on an expedited basis where the matter involves a large number of applicants and where the relief sought is reinstatement, as the consequences and prejudice, if such a matter is only dealt with years later and reinstatement is ordered, are severe and obvious.
The delay is even more prejudicial considering that Rule 24 provides for an
expeditious hearing when a large number of applicants seek reinstatement . In
casu the Applicants were dismissed in August or September 2023 and in
January 2025 this matter is not one step closer to finality.
[15] A proper perusal of the aforesaid paragraphs shows that the reference to Rule
24 has been made in the context of what was previously provided for in the Practice Manual. Clauses 10.2.1 and 10.2.2 of the Practice Manual, which applied at the time the Applicant’s statement of case was filed and which applied until the new Rules for the Labour Court became effective, provided almost verbatim what is provided for in
Rule 24. The reference to Rule 24 was made in the context of what was provided for previously in the Practice Manual and there was no independent reliance on Rule 24,
nor was it applied as such. The Applicant’s submission that Rule 24 was relied on to dismiss the application for condonation is misconceived and ignores the context within which reference to Rule 24 was made.
[16] In the premises I make the following order:
6
Order
1. The application for leave to appeal is dismissed with no order as to
costs.
Connie Prinsloo
Judge of the Labour Court of South Africa