THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 991 / 22
In the matter between:
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant
and
K KLEINOT N.O. First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
SOUTH AFRICAN MUNICIPAL WORKERS
UNION Third Respondent
INDEPENDENT MUNICIPAL AND ALLIED
TRADE UNION Fourth Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION Fifth Respondent
AND:-
Case no: JR 1946 / 23
2
In the matter between:
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant
and
E HAMBIDGE N.O. First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
SOUTH AFRICAN MUNICIPAL WORKERS
UNION Third Respondent
INDEPENDENT MUNICIPAL AND ALLIED
TRADE UNION Fourth Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION Fifth Respondent
Decided: In Chambers
Delivered: 15 July 2025
This judgment was handed down electronically by circulation to the parties'
legal representatives by email. The date and time for hand- down is deemed to
be 15 July 2025
Summary: Application for leave to appeal – no proper grounds made out –
application for leave to appeal dismissed
JUDGMENT – LEAVE TO APPEAL
3
SNYMAN, AJ
Introduction
[1] In this case, there were two individual review applications brought by the
applicant. Both applications related to decisions made by exemption panellists
appointed by the South African Local Government Bargaining Council (SALGBC),
concerning two separate exemption applications brought by the applicant. The
exemption panellists refused exemption from the wage increase provisions contained
in a wage and conditions of employment collective agreement concluded in the
SALGBC in 2021. The review applications were brought by the applicant in terms of
section 158(1)(g) of the Labour Relations Act
1 (LRA).
[2] The matter came before me for argument on 28 and 29 N ovember 2024. After
hearing argument by all parties, I reserved judgment. I subsequently handed down
written judgment on 7 May 2025, in terms of which I granted both review applications,
and reviewed and set aside the rulings of both exemption panellists refusing the
respective exemptions. In the application under case number JR 991 / 22, I remitted
the exemption application back the SALGBC for determination de novo by an
exemption panellist other than the first respondent . In the application u nder case
number JR 1946 / 23, I substituted the exemption ruling with a ruling upholding the
exemption application and granting an exemption to the applicant from clauses 6.6,
6.7, 7.3, 8.1, 9.1.3 and 10.1.3 of the 2021 Wage Agreement of the SALGBC.
[3] The third and fourth respondents , being dissatisfied with the order s and
judgment granted against them in the review application under case number JR 1946
/ 23, filed individual applications for leave to appeal. The third and fourth respondents
have not sought leave to appeal in respect of the order granted under case number
JR 991 / 22. That order therefore stands, and will not be considered further. When I
make reference to the applications for leave to appeal in this judgment, it must be
make reference to the applications for leave to appeal in this judgment, it must be
considered to only refer to the order s I granted under case number JR 1946 / 23. I
shall also, in this judgment, refer to the third respondent as ‘SAMWU’ and the fourth
respondent as ‘IMATU’, for ease of reference.
1 Act 66 of 1995 (as amended).
4
[4] SAMWU and IMATU both filed their applications for leave to appeal on 30 May
2025. IMATU filed written submissions in support of its application for leave to appeal
on 13 June 2025. The applicant has opposed both these applications for leave to
appeal. In opposing the applications for leave to appeal, the applicant filed written
submissions on 8 July 2025. The leave to appeal applications are thus ripe for
determination.
[5] Rule 67(6) of the Labour Court Rules provides that an application for leave to
appeal will be determined by a Judge in chambers, unless the Judge directs
otherwise. I see no reason to direct otherwise and will therefore determine the leave
to appeal applications by SAMWU and IMATU in chambers.
Analysis
[6] Leave to appeal is not there for the asking. This is evident from section
17(1)(a) of the Superior Courts Act
2, which provides that:
‘(a) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that:
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on a matter under consideration.’
[7] In J & L Lining (Pty) Ltd v National Union of Metalworkers of SA and Others
(2)
3 the Court summarized the legal position that applies when a litigant seeks leave
to appeal from this Court, as follows:
‘Leave to appeal is not there for the asking. When deciding whether to grant
leave to appeal to the Labour Appeal Court, the Labour Court must determine
whether there is a reasonable prospect that another court would come to a
different conclusion to that of the court a quo, or in other words, whether the
appeal would have a reasonable prospect of success. This was summarised in
SA Clothing & Textile Workers Union & others v Stephead Military Headwear
CC, as follows:
2 Act 10 of 2013.
3 (2019) 40 ILJ 1303 (LC) at para 5.
5
‘It is trite that for an application for leave to appeal to be successful, it is
required of the party seeking such leave to demonstrate that there are
reasonable prospects that another court, in this instance, the Labour Appeal
Court, would come to a different conclusion to that reached in the judgment
that is sought to be taken on appeal.’’
[8] As to the meaning of ‘ reasonable prospects of success’ , the Court in Member
of the Executive Council for Health, Eastern Cape v Mkhitha and Another
4 said:
‘Once again it is necessary to say that leave to appeal, especially to this Court,
must not be granted unless there truly is a reasonable prospect of success.
Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that
leave to appeal may only be given where the judge concerned is of the opinion
that the appeal would have a reasonable prospect of success; or there is
some other compelling reason why it should be heard.
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 a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal.’
[9] Next, and as to what would constitute a compelling reason for another Court to
entertain the appeal, the Court in Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd
5
had the following to say:
4 [2016] JOL 36940 (SCA) at paras 16 – 17. See also Ramakatsa and Others v African National
Congress and another [2021] JOL 49993 (SCA) at para 10, where it was held: ‘ The test of reasonable
prospects of success postulates a dispassionate decision based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that of the trial court. In other words, the
appellants in this matter need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but there must exist a
reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospects
of success must be shown to exist …’.
5 2020 (5) SA 35 (SCA) at para 2. See also Qoboshiyane NO and Others v Avusa Publishing Eastern
Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA) at para 5; Minister of Justice and Constitutional
Development and Others v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA) at
para 23; Tshwane City and Others v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA) at para 6.
6
‘... A compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future disputes. But here
too, the merits remain vitally important and are often decisive. ...’
[10] I must say, from the outset, that the applications for leave to appeal by both
SAMWU and IMATU raise very little in the form of legal grounds . SAMWU and
IMATU both contend that the authorities I relied on when applying the exemption
principles i n this case only appl y to the private sector, and not the public sector.
There is no foundation for this submission. It simply does not matter if an industry (or
sector) level collective agreement applies in the public sector or private sector. The
LRA draws no distinction in this regard. It is trite that for any industry (sector)
collective agreement, there must be an exemption process as an essential
requirement thereof. It is then nothing short of artificial to draw some sort of
distinction between the public and private sector in this regard where it comes to
deciding such exemptions . This can per haps be best illustrated by the following
dictum in Chirwa v Transnet Ltd and Others
6: ‘… The LRA does not
differentiate between the State and its organs as an employer, and any other
employer. Thus, it must be concluded that the State and other employers should be
treated in similar fashion’ . It was affirmed in Khumalo and Another v Member of the
Executive Council for Education: KwaZulu-Natal7 as follows:
‘Historically, public sector employment and private employment were regulated
by distinct legal regimes in South Africa. Since the adoption of the LRA, public
sector employment has largely been synchronized with the legal regulation of
employment in the private sector. Section 23(1) of the Constitution further
provides that '[e]veryone has the right to fair labour practices'. There is thus
no longer a general distinction in principle between the protections afforded to
no longer a general distinction in principle between the protections afforded to
private and public sector employees.’
[11] IMATU, in seeking leave to appeal, places some emphasis on the role of the
financial expert that assisted the exemption panellist , as a basis to criticize my
interference with the exemption ruling. But the problem was that the financial expert’s
role and input was not apparent. There was no analysis of the financial information
provided by the applicant conducted by the expert apparent fr om the record. In fact,
6 2008 (4) SA 367 (CC) at para 66.
7 (2014) 35 ILJ 613 (CC) at para 30.
7
the general conclusion by the panellist, as supported by t he financial expert, was that
the applicant was actually in a di re financial position. The only financial basis for
finding that the increase was affordable was the narrow and single compari son an
item in a budget to actual expenditure, as I dealt with in my judgment. If that is how a
financial expert advised the panellist , then that was a misdirection. Judges do bring
their own knowledge and experience to bear in deciding matters, and do not have to
solely defer to the views of financial experts, especially if it is apparent that those
views are misdirected. I do not consider that IMATU has made out a substantiated
ground for leave to appeal in this regard. It makes abstract submissions without
dealing with the real facts, as I have dealt with in my judgment.
[12] Further, IMATU contends that I erred by setting aside the panellist’s decision
on the basis of flaws in the panellist’s reasoning, whereas dialectical
unreasonableness is not a proper ground for review . However, I did nothing of the
sort. Even though I considered the panellists reasoning for refusing exemption to be
misdirected, I specifically went on to consider whether a finding of refusing exemption
was justified, rational and reasonable, on all the facts before the panellist and the
actual issue she was required to consider . The point is that if the facts supported the
notion that exemption be refused, then the outcome the panellist arrived at would be
reasonable, and I would not have interfered with it. But the fact s showed the
opposite. On the facts, this was a case where, as a rational, reasonable and
justifiable conclusion, exemption should have been granted because the increase
was not affordable, and for that reason, the ruling had to be reviewed and set aside.
IMATU appears to completely misconstrue my judgment , presumably in an effort to
make out a case for leave to appeal that does not exist . IMATU has no prospects of
make out a case for leave to appeal that does not exist . IMATU has no prospects of
success on appeal in this regard.
[13] According to IMATU, a private sector exemption model was not appropriate in
this case. I have already dealt with this to some extent above. Perhaps this view
adopted by IMATU lies at the very heart of the financial crisis local authorities find
themselves in. The crisp point is, contrary to what appears to be suggested by
IMATU, that local authorities do not exist for the primary purpose to provide jobs and
salaries to employees. They exist to provide services to residents. And where service
delivery to residents is compromised because of a dire financial position as was
undoubtedly the case in this instance, then all must contribute to bring matters back
8
onto even keel. That would include the employees forfeiting increases. To there no
special status afforded to employees in a local authority that places them above all
other means of cost cutting and affords them some sort of immunity in this regard .
This is in effect what IMATU is saying. Such a suggestion, in my view, is nonsensical.
I do not believe there exists any prospects of success on appeal in this regard.
[14] SAMWU contends that I failed to recognise that they challenged the reliability
of the financial records produced by the applicant in the exemption application. This
is simply not correct. What I held was that SAMW U failed to offer any financial
information in opposition to or different to the information provided by the applicant. It
is entirely unhelpful to simply dispute what is on offer in an exemption application
where it comes to financial information (which was very detailed in casu) , but offer
absolutely nothing in contradiction. This is especially so, considering that the panellist
herself found, on the facts, that the applicant was in a dire financial position. SAMWU
has no prospects of success on appeal relating to this finding.
[15] I never found, despite what is contended by SAMWU in its leave to appeal
application, that because the applicant did not budget for the increase, it was
exempted from paying it. In fact, if proper regard i s had to the reasoning contained in
my judgment, I was at pains to point out that the failure to budget for an increase is
not cause per se to qualify for exemption, and that the MFMA cannot be used as
some or other tool to use to get exemption on the basis that the increase is not
budgeted for. I made it clear that what needed to rather be explored and ascertained
is why the increase was not budgeted for. Or differently put, the real enquiry is
whether there was just and reasonable cause not to budget . Only if so, the failure to
budget may lead to ex emption. If not, then the failure to budget is immaterial.
budget may lead to ex emption. If not, then the failure to budget is immaterial.
SAMWU misconstrues my judgment, and as such, it has no prospects of success on
appeal.
[16] As to the argument relating to collective bargaining being undermined by
granting exemption, I have dealt with this in detail in my judgment. Both SAMWU and
IMATU have advanced no cogent reasoning or grounds that convinces me otherwise
in this regard. Again, and just to describe it as simply as possible, what would be
point of prescribing that the ability to obtain exemption is an essential component of
industry (sector) collective bargaining, only to then turn around and say that the
9
granting of such exemption undermined that collective bargaining. It makes no sense,
and is contrary to the law. The authorities dealing with this issue are in my view clear.
SAMWU and IMATU have no prospects of success on appeal in this regard.
[17] The affordability test is a determination on the facts. On these facts, the
increases were not affordable. The panellist’s findings that the increases were
affordable was not based on any contradiction of the financial information provided
by the applicant that established its dire financial position. Even the panellist
accepted this to be true. However, the panellist determined affordability on an entirely
wrong pr emise, when the financial information showed the increases were not
affordable. SAMWU and IMATU have not advanced anything in their applications for
leave to appeal to convince me that another Court could come to a different
conclusion in this regard, especially considering the factual findings I had made in
this regard. I believe there is no case for leave to appeal in this respect.
[18] All the above considered, I thus conclude that SAMWU and IMATU have failed
to show that there exists a reasonable prospect that another Court would come to a
different conclusion, and in my view, they have little prospect of success on appeal .
This matter also does not concern any issue of particular public interest, or any
question of law that requires determination by an appeal Court. The application for
leave to appeal thus falls to be dismissed. I believe the following dictum from the
judgment in Martin & East (Pty) Ltd v National Union of Mineworkers and Others
8 to
also be appropriate in deciding to refuse leave to appeal:
‘… The Labour Relations Act was designed to ensure an expeditious
resolution of industrial disputes. This means that courts, particularly courts in
the position of the court a quo, need to be cautious when leave to appeal is
granted. …’
the position of the court a quo, need to be cautious when leave to appeal is
granted. …’
[19] This only leaves the issue of costs in th e applications for leave to appeal . I
have a wide discretion where it comes to the issue of costs, by virtue of the
provisions of section 162(1) of the LRA. I intend to follow the same approach as set
out in my original judgment and the reasons contained therein, and make no order as
to costs.
8 (2014) 35 ILJ 2399 (LAC) at 2405J-2406A
10
[20] In the premises the following order is made:
Order
1. The third and fourth respondents’ application for leave to appeal under
case number JR 1946 / 23 is dismissed.
2. There is no order as to costs.
S. Snyman
Acting Judge of the Labour Court of South Africa