THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2025 – 082814
In the matter between:
SELLO MOLAPANE MOTHOTOANA Applicant
and
JOHANNESBURG SOCIAL HOUSING CO. (SOC) LTD First Respondent
THEODORE DHLAMINI NO Second Respondent
THANDEKA TSHABALALA NO Third Respondent
MUSA SHIBAMBO NO Fourth Respondent
THULANI MDADANE NO Fifth Respondent
TABISA POSWA NO Sixth Respondent
ZAMIKHAYA XALISA NO Seventh Respondent
LAWRENCE NDLOVU NO Eighth Respondent
NTOKOZO MJIYAKO BAYIPHIWE SIMELANE NO Ninth Respondent
JASON SOBEKWA NO Tenth Respondent
2
Summary: Application for leave to appeal dismissed.
Date issued: 8 September 2025
JUDGMENT
DANIELS J
Introduction
[1] This relates to the application for leave to appeal against the judgment
dated 24 June 2025. In the application, the applicant sought final relief , based
on an alleged breach of his employment contract by the first respondent.
Test for leave to appeal
[2] Section 17(1) of the Superior Courts Act No. 10 of 2013 provides that
leave to appeal may only be given where the court is of the opinion that the
appeal would have a reasonable prospect of success or there is some other
compelling reason why the appeal should be heard. In S v Smith
1 the court
emphasized that a reasonable prospect of success postulates a “dispassionate
decision, based on the facts and the law, that a court of appeal could
reasonably arrive a conclusion different to that of the trial court.” In MEC for
Health, Eastern Cape v Mkhitha and Another2 the court held that there “must be
a sound, rational basis to conclude that there is a reasonable prospect of
success on appeal”. It is plain that an application for leave to appeal must
present an objectively sound and rational basis to conclude that there are
reasonable prospects of success. This is a high threshold. Accordingly, l eave to
appeal is not merely for the asking.
1 2012 (1) SACR 567 (SCA)
2 [2016] JOL 36940 (SCA) at paras 16 – 17.
3
Grounds for leave to appeal
[3] To be perfectly honest, I find it hard to distinguish between the various
grounds for leave to appeal.
[4] In the main, the applicant alleges that:
4.1 The court erred in its application of the Plascon Evans rule and it
should have found that there was no real, genuine or bona fide dispute of
fact.
4.2 The first respondent cannot be permitted to approbate and
reprobate, because it made an election to discipline the applicant for
misconduct and it is bound by its election.
4.3 The employment contract excluded the principle of repudiation.
4.4 There was no written agreement to second the applicant between
1 January and 31 March 2025.
4.5 The court should not have issued a cost order against it.
Analysis
[5] In para 6 of its judgment, the court held that the matter must be resolved
on the following facts: (1) the applicant failed to tender his services, for a period
of three months, without being excused from doing so, and (2) when given an
opportunity to explain his conduct , the applicant failed to do so. In my view,
there was no basis to reject these factual averments, by the first respondent, as
being far-fetched or untenable.
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[6] The applicant seeks to apply the principles relating to peremption to this
matter. In Mhlontlo Local Municipality & others v Ngcangula & another 3 the
Supreme Court of Appeal (SCA) explained peremption in the following manner:
“The principle of peremption safeguards the integrity of the judicial
process by preventing litigants from oscillating between contradictory
positions, ensuring judicial consistency and fairness. It ensures finality
and stability in legal proceedings, which is essential for maintaining
public trust in the justice system. The underlying principle of the doctrine
of peremption is that a litigant cannot take two inconsistent positions.”
(own emphasis)
[7] Peremption is about safeguarding the integrity of the judicial process. It is
not about ensuring that humans and institutions behave consistent ly.
Accordingly, if the first respondent failed to clearly or consistently articulate that
applicant had repudiated his contract, this did not preclude it from accepting his
repudiation.
[8] The applicant submits that his employment contract exclude d the
common law principle of repudiation. N o basis was laid for the submission. In
any event, it was not pleaded.
[9] There is no authority for the proposition that repudiation no longer forms
part of our law because of section 186(1) of the LRA. In Albany Bakeries Ltd v
Van Wyk & others
4 the Labour Appeal Court recognized that repudiation
remains part of our employment law.
[10] I do not understand the submission that there was no agreement to
second the applicant between 1 January and 31 March 2025. Until the services
of the applicant terminated, he remained an employee, and was required to
tender his services.
3 (2024) 45 ILJ 775 (SCA) at para 13
4 (2005) 26 ILJ 2142 (LAC) at paras 24 – 26
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[11] In relation to costs, this matter related to an alleged breach of an
employment contract. As such, the dispute was not a labour matter but a civil
matter governed by the BCEA . The provisions of section 162 of the LRA were
inapplicable.5
Conclusion
[12] For the reasons set out above, the application for leave to appeal falls to
be dismissed.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Adv V Ndebele
Buthelezi Inc
For the Respondents:
Mr J Norval
ENS Africa Attorneys
5 RFS Administrators (Ptd) Ltd v Samons and Others (JS 641/17) [2022] ZALCJHB 110 (30
August 2022) - confirmed on appeal RFS Administrator v Samons [2024] 7 BLLR 722 (LAC)