THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR114/23
In the matter between:
LYMON SIBUSISO VILAKAZI Applicant
and
AVRAGYSTIX (PTY) LTD First Respondent
KHULULEKANI HOPEWELL XAMESI Second Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION (CCMA) Third Respondent
Decided: In chambers
Delivered: 29 October 2025
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JUDGMENT: LEAVE TO APPEAL
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ERASMUS, AJ
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Introduction
[1] This is an application for leave to appeal against the judgment and order of
this Court handed down on 1 August 2025 in terms of which the Court
dismissed the Applicant’s application for review.
[2] The Applicant brought his application under the Court’s old rules 1, more
particularly Ru le 30(2) read with item 15 of the Practice Manual 2. Despite
referencing item 15 of the Practice Manual, the Applicant did not file
submissions in accordance therewith. Neither did the Respondent. No
submissions were filed by either party in accordance with the new Cou rt rules
either.
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[3] The application for leave to appeal was decided in chambers as per the
Court’s rules.
Test for leave to appeal
[4] It is trite that leave to appeal is not simply for the taking.
[5] Section 17 of the Superior Courts Act 4 regulates instances in which leave to
appeal may be granted, and Section 17(1) provides that leave to appeal may
only be given where the judge concerned is 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
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
2 Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from
July 2024.
3 Rule 67(5) of the new Rules requires submissions to be filed within 10 days of filing the application
for leave to appeal.
4 Act 10 of 2013.
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(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.’
[6] In Seatlholo & others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others5 van Niekerk J (as he then was) stated that:
‘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 s 17(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
& others v Crocodile Valley Citrus Co (Pty) Ltd & 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 & East
(Pty) Ltd v National Union of Mineworkers & others (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 & another (C 536/15, 6 November
2015).’
[7] The Supreme Court of Appeal in MEC for Health, Eastern Cape v Mkhitha
and Another6 stated that:
and Another6 stated that:
‘[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 that leave to appeal may only be given where the
5 (2016) 37 ILJ 1485 (LC); [2016] ZALCJHB 72 at para 3.
6 (1221/2015) [2016] ZASCA 176 (25 November 2016).
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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.’
Merits of the application
[8] Due to the Applicant’s lack of compliance with the requirements relating to the
filing of written submissions, his application stands to be dismissed on this
ground alone. The Court will nonetheless also have regard to the merits of the
application for leave to appeal.
[9] In his application, the Appli cant has either raised new grounds for review
which were not raised in his affidavits in support of his review application
previously, or repeated the same allegations as contained in his application
for review, expressing his disbelief that the Court did not side with his version
or submissions made.
[10] The Applicant also continued with his submissions regarding not being guilty
of the misconduct he was charged with and ultimately dismissed for, despite it
being common cause that the matter that had been referred to arbitration was
an unfair labour practice dispute, more specifically , an unfair suspension
dispute. He was informed by the Second Respondent during the arbitration
proceedings that a separate unfair dismissal dispute could be initiated should
he wish to challenge the reasons for his dismissal, but the Applicant declined
the opportunity.
[11] The Applicant expressed his view that this Court’s judgment wherein his
suspension was found to be precautionary was “sad and uncalled for” and
that this Court tried to “validate” the finding as being precautionary in
circumstances where the employer did not call the suspension a
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precautionary suspension. The reasons for finding that the suspension was
precautionary pending the outcome of the disciplinary inquiry and that it did
not constitute an unfair labour practice are set out in the judgment handed
down on 1 August 2025 and need not be repeated herein.
[12] As a general assertion, t he Applicant has stated that the Court’s finding that
the Commissioner’s award stands as an award which falls without the bounds
of reasonableness tramples on his constitutional rights . The Applicant’s
constitutional rights have been given effect to in the labour legislation, for
example, the Labour Relations Act (LRA).7 His matter was arbitrated in terms
of the LRA , and his review application was considered in terms of the LRA.
This point is similarly without merit.
[13] As a result, the following order is made:
Order
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
_____________________________
L. Erasmus
Acting Judge of the Labour Court of South Africa
7 Act 66 of 1995, as amended.