IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1394/22
In the matter between:
THATO SIMON KHABU Applicant
and
STONE AND ALLIED INDUSTRIES (PTY) LTD Respondent
Heard: In Chambers
Delivered: 08 December 2025
Summary: Leave to appeal is granted by virtue of substantial point of law.
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JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
___________________________________________________________________
DIKOTLA, AJ
Introduction
[1] On 02 February 2024, this Honourable Court handed down its judgment in
which the applicant’s claim was dismissed, and whereas he seeks leave to
appeal to Labour Appeal Court (LAC) against same.
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[2] Since this judgment against which leave to appeal is sought is detailed , I
therefore do not intend to rehash my reasoning and findings thereof.
[3] In summation, the gist of the dispute between the parties concerned whether
the applicant’s claim is prescribed or not.
Principles to Leave of Appeal
[4] Learning from the wisdom of the Superior Court’s statutory framework, t he
ultimate test applicable for leave to appeal is drawn in section 17(1)(a) of the
Superior Courts Act 10 of 2013 which provides that:
“(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.”
[5] In MEC for Health, Eastern Cape v Mkhita 1, the Supreme Court of Appeal
emphasized the correct considerations in granting leave to appeal, as follows:
“[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
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.”
[6] The Supreme Court of Appeal set out the application for a test to grant leave to
appeal in Cook v Morrisson and Another2 as follows:
“[8] The existence of reasonable prospects of success is a necessary but insufficient
“[8] The existence of reasonable prospects of success is a necessary but insufficient
precondition for the granting of special leave. Something more, by way of special
circumstances, is needed. These may include that the appeal raises a substantial point of law;
1 2016 JDR 2214 (SCA)
2 2019 (5) SA 51 (SCA)
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or that the prospects of success are so strong that a refusal of leave would result in a manifest
denial of justice; or that the matter is of very great importance to the parties or to the public.
This is not a closed list (Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty)
Ltd 1986 (2) SA 555 (A) at 564H – 565E; Director of Public Prosecutions, Gauteng Division,
Pretoria v Moabi 2017 (2) SACR 384 (SCA) ([2017] ZASCA 85) para 21).”
Conclusion
[7] In my view the reasonable prospects of success are insufficient, however the
case as alluded raises a substantial point of law bordering along the essential
development and application of breach of contract as cause of action and
possible defence of prescription as universally acceptable in civil cases which is
sui generis right and of greater importance to the public.
[8] It is against the above substantial position, that leave to appeal shall succeed.
Costs
[9] Since t his application concerns important questions of law pertaining to
development and application of civil law in an exclusive area of labour law, it is
considered as a matter of public interest, therefore costs shall be determined in
the same context.
[10] In exercising its judicial discretion, the Constitutional Court in Long v South
African Breweries (Pty) Ltd and Others 3, reaffirmed the principle set in Zungu v
Premier of the Province of KwaZulu -Natal and Others 4, with regard to costs in
employment disputes and stated that “when making an adverse costs order in a
labour matter, a presiding officer is required to consider the principle of fairness
and have due regard to the conduct of the parties”.
[11] In the premises, I make the following order:
Order
1. Leave to appeal is granted.
2. No order to costs.
3 [2019] ZACC 7; (2019) 40 ILJ 965 (CC) at para 30.
4 [2018] ZACC 1; (2018) 39 ILJ 523 (CC) at para 25.
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________________
B. J. Dikotla
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. A. J Nel
Instructed by: Goldberg Attorneys
For the Respondents: Adv. M.J Van As
Instructed by: Schoeman Steyn Attorneys Inc.