THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 657/22
In the matter between:
NOMATHAMSANQA PRIDE MSIMANGA Plaintiff
and
JOHANNESBURG WATER SOC LTD Defendant
Considered: In chambers
Delivered: 20 October 2025
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
EDWARDS, AJ
[1] The applicant has applied for leave to appeal against the whole of the
judgment of this court dated 22 August 2025.
[2] The issue before this Court was whether or not it had jurisdiction to adjudicate
the matter as the applicant ’s statement of claim had not been referred to this
Court for adjudication within 90 days of the certificate of outcome being issued
by the Commission for Conciliation, Mediation and Arbitration as required in
terms of section 136(1) of the Labour Relations Act as it was a dispute
referred to this Court in terms of section 10(6)(a) of the Employment Equity
Act and the applicant had not applied for condonation.
[3] This Court upheld the respondent’s jurisdictional challenge on the basis that
the applicant’s proposition that the 90- day period within which an unfair
discrimination dispute must be referred for adjudication ought not to apply to
disputes in which the unfair discrimination complained of is continuous could
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not be sustained. This Court found that t he rationale for the six -month time
period not applying to such disputes does not exist in respect of those
disputes once a certificate of outcome has been issued as the 90-day period
commences from the date of issue of the certificate, which date is fixed and
will not change regardless of whether the discrimination complained of is
ongoing.
[4] In the circumstances, this Court found that the applicant was required to bring
an application for the condonation of the late filing of her statement of claim,
and, as she had not done so, the matter should be struck off the roll for lack of
jurisdiction.
[5] This Court exercised its discretion in making an order for costs in favour of the
respondent on the basis that fairness dictated that the norm that costs should
not usually be granted in this Court should be departed from as the applicant
had persisted with the point that condonation was not necessary, despite the
necessity for same having been pointed out by the respondent and there
being no authority or basis for her stance on the point.
[6] The applicant seeks leave to appeal on the basis that this Court erred in
arriving at the above findings. The respondent opposes the application for
leave to appeal.
[7] The grounds upon which leave to appeal is sought as well as the content of
the written submissions filed in support of the application for leave to appeal
have, in my view, already been comprehensively addressed in this Court’s
judgment in this matter.
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[8] In considering this application, I have had regard for the test for applications
for leave to appeal which is set out in section 17(1)(a) of the Superior Courts
Act1, that is, 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 the appeal should
be heard, including conflicting judgments on the matter under consideration.
[9] I have also t aken cognisance of the comment of Davis JA in Martin & East
(Pty) Ltd v National Union of Mineworkers & others,2 that, because the Labour
Relations Act, 66 of 1995 (“the LRA”) was designed to ensure an expeditious
resolution of industrial disputes, courts, and particularly courts in the position
of this C ourt, need to be cautious when leave to appeal is granted and must
take great care to ensure a balance between the expeditious resolution of a
dispute and the rights of the party which has lost.
[10] Having considered the application for leave to appeal, as well as the written
submissions of both parties, and having reflected on this Court’s judgment i n
this matter , I am not persuaded that the appeal would have a reasonable
prospect of success, nor am I persuaded that there are any compelling
reasons for the matter to be heard by the Labour Appeal Court.
[11] Accordingly, the application for leave to appeal falls to be dismissed.
[12] In the premises, the following order is made:
Order
1. The application for leave to appeal is dismissed with no order as to
costs.
_______________
M. Edwards
1 No. 10 of 2013.
2 (2014) 35 ILJ 2399 (LAC) at 2405J - F.
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Acting Judge of the Labour Court of South Africa