THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2155/2021
In the matter between:
HARMONY GOLD MINING COMPANY LTD Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER SILAS SEGOLE N.O. Second Respondent
NUM obo EVON SIBONGILE JAPHTA Third Respondent
Decided: In Chambers
Delivered: 14 August 2025
JUDGMENT – LEAVE TO APPEAL
PHAKEDI, AJ
2
Introduction
[1] This is an opposed application for leave to appeal against the judgment
granted by this Court on 0 6 June 2025. The applicant served the third respondent
with its application on 30 June 2025 but only filed same to the registrar on 09 July
2025 outside the period prescribed for filing applications for leave to appeal as
envisaged in Rule 67 (2) of the Labour Court Rules.
[2] This court does not intend to deal with each of the grounds of appeal raised
by the applicant and this should not be construed to mean that such grounds were
not considered. Both parties have filed their submissions in terms of the Rules and
same were duly considered in formulating this judgment.
[3] At the onset, it must be noted that the allegations levelled against the third
respondent read:
‘[Breaching] housing contract in that you sublet Flat No 56 Park Place which
is allocated to you as per application form dated 29.01.2010.’
[4] The provisions of the Employee Occupation Agreement which the third
respondent allegedly breached stated:
‘3.1 Only the employee and his/her bona fide dependents shall permanently
reside on the premises allocated to him/her.
3.2 The employee is not permitted to sublet the premises or portion thereof
or lodge or board persons other than bona fide dependents. An employee
found subletting might be requested to vacate the property...’
[5] The Applicant dismissed the third respondent and she referred her dispute to
the Commission for Conciliation Mediation and Arbitration (CCMA) where the
Commissioner found that her dismissal was substantively unfair and awarded
reinstatement with back pay. Upon receipt of the arbitration award the Applicant
approachced this Court seeking to review and set aside the award.
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[6] Having considered the matter and submissions from both parties, the Court
came to the conclusion that the decision reached by the Commissioner is one which
a reasonable decision- maker could have reached based on all the evidence and
material presented during arbitration proceedings.
Applicable test for leave to appeal
[7] The application is governed by section 17(1) of the Superior Courts Act
1
which provides:
‘17 Leave to appeal
(1) 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
(ii) there is some other compelling reason why the appeal should be heard
including conflicting judgments on the matter under consideration,
(b) the decision sought on appeal does not fall within the ambit of section
16 (2) (a), and
(c) where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and prompt resolution of
the real issues between the parties.’
[8] The above-mentioned section also applies to applications for leave to appeal
filed in the Labour Court as envisaged in section 151 (2) of the LRA
2.
[9] In Member of the E xecutive Council for Health, Eastern Cape v Mkhitha and
another
3 the Supreme Court of Appeal said the following
‘[16] 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
1 Act. 10 of 2013.
2 This section provides that ‘ the Labour Court is a superior court that has authority inherent powers
and standing, in relation to matters under its jurisdiction, equal to that which a court of a Division of
the High Court of South Africa has in relation to the matters under its jurisdiction.’
3 (1221/2015) [2016] ZASCA 175.
4
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.
[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 a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal.’
[10] The Labour Appeal Court (LAC) in Martin and East (Pty) Ltd v N ational Union
of Mineworkers and others
4 emphasised that this court ought to be cautious when
leave to appeal is granted, as should the LAC when petitions are granted taking into
account that the L aboour Relations Act5 (LRA) was designed to ensure an
expeditious resolution of labour disputes . The statutory imperative 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.
[11] The Applicant takes an issue with paragraph 30 of the judgment wherein this
Court indicated that the information that Molefi was scared and intimidated to testify
was raised for the first time in review proceedings. Even if this court erred in that
regard, this error would not change the outcome of the review proceedings. The
applicant’s submissions in respect of the failure of the Commissioner to deal with the
hearsay evidence were dealt with in the judgment and shall not be repeated herein.
[12] After careful consideration of all the grounds for leave to appeal submitted by
the applicant, this Court is not persuaded that this kind of a case should remain on
the court rolls subverting the primary purpose of the LRA, namely, expeditious
the court rolls subverting the primary purpose of the LRA, namely, expeditious
resolution of labour disputes. This Court is not satisfied that the LAC would treat the
4 (2014) 35 ILJ 2399 (LAC) at pg 16.
5 Act 66 of 1995, as amended.
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factual matrix of this case differently nor that the applicant has raised novel points of
law which requires the LAC’s intervention.
[13] In conclusion, it is found that the applicant failed to demonstrate that the
appeal would have reasonable prospects of success and that compelling reasons
exist for the appeal to be heard. Accordingly, the following order is made:
Order
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
GC Phakedi
Acting Judge of the Labour Court of South Africa