Denel Soc Ltd v Nsthihlele (Application for Leave to Appeal) (2025/057140) [2026] ZALCJHB 2 (13 January 2026)

60 Reportability

Brief Summary

Labour Law — Employment Equity Act — Application for leave to appeal dismissed. The applicant, Denel SOC Ltd, sought to set aside the respondent's application under the Employment Equity Act as an irregular step, arguing that such claims could not be instituted by way of application. The court found that there was no rule prohibiting the respondent's conduct and that the order was not appealable as it was not final or definitive of the parties' rights. The court concluded that the appeal would not have a reasonable prospect of success and that no compelling reason existed to grant leave to appeal.

Comprehensive Summary

Summary of Judgment


Introduction


This judgment concerns an application for leave to appeal in the Labour Court. The applicant, Denel SOC Ltd, sought leave to appeal against an earlier interlocutory judgment and order made by Bhima AJ, in which the court dismissed Denel’s interlocutory application aimed at setting aside (or dismissing) the respondent’s main application as an irregular step.


The respondent is Elias Sello Ntsihle, who had instituted the main application in terms of the Employment Equity Act 55 of 1998 (EEA). Denel’s interlocutory challenge was premised on the contention that it is impermissible to institute an EEA claim by way of motion proceedings (application), and that such claims must proceed by action.


The interlocutory application was argued on 12 September 2025, and judgment was delivered on 3 October 2025, dismissing Denel’s application. Denel then brought the present application for leave to appeal, which—consistent with Labour Court practice—was determined in chambers on the papers, with both parties represented by counsel and comprehensive written submissions filed. The judgment on leave to appeal was delivered on 13 January 2026.


The general subject-matter of the dispute is procedural and concerns the permissibility of motion proceedings for claims brought under the EEA, and whether the Labour Court’s dismissal of an irregular-step application is appealable, and if so, whether leave to appeal should be granted.


Material Facts


The material facts are primarily procedural and were not treated as materially disputed.


Denel brought an interlocutory application contending that the respondent’s initiation of the main EEA claim by notice of motion constituted an irregular step, on the basis that EEA claims may not be instituted by application proceedings.


On 3 October 2025, the court dismissed Denel’s interlocutory application. A central reason given in that judgment (as summarised in the present decision) was that there is no rule of law that specifically excludes or prohibits the respondent from proceeding by way of motion in advancing an EEA claim.


Denel thereafter sought leave to appeal against the dismissal of its interlocutory application.


Legal Issues


The court identified two central questions for determination.


The first was whether the order dismissing Denel’s interlocutory application was appealable. This involved a legal evaluation of appealability principles as they apply to interlocutory orders, including whether the order was final in effect, definitive of rights, or dispositive of substantial relief, and the role of the constitutional interests of justice standard.


The second was whether, if the order was appealable, the proposed appeal had a reasonable prospect of success, or whether there existed some other compelling reason for the appeal to be heard. This was largely a question of the application of legal standards governing leave to appeal to the procedural dispute about motion proceedings under the EEA, as well as an evaluative assessment of whether any alleged conflict of authority justified appellate consideration.


Court’s Reasoning


Appealability


The court considered the common-law test for appealability described in Zweni v Minister of Law and Order 1993 (1) SA 523 (A), which emphasises that an appealable decision is generally one that is final in effect, definitive of the parties’ rights, and disposes of at least a substantial portion of the relief claimed.


The court then considered the Constitutional Court’s approach, particularly as expressed in Tshwane City v Afriforum and another 2016 (6) SA 279 (CC) and National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA 223 (CC), which places the interests of justice at the centre of the inquiry and relaxes the earlier rigidity of the finality-based approach. The judgment also referenced the articulation that the temporary nature of an order is not itself determinative of whether leave to appeal should be granted, and noted the Constitutional Court’s treatment of appealability in United Democratic Movement and another v Lebashe Investment Group (Pty) Ltd and others 2023 (1) SA 353 (CC), including discussion of whether an order constitutes a “decision” for purposes of section 16(1)(a) of the Superior Courts Act.


Applying these principles, the court held that the order dismissing Denel’s interlocutory application was not final in effect and not definitive of the parties’ rights, because the procedural point raised by Denel could be raised again in the main application. The court therefore reasoned that the interlocutory order was capable of reconsideration in subsequent proceedings and did not finally determine the procedural controversy between the parties.


On this basis, the court further concluded that the interests of justice did not dictate that the order should be treated as appealable in the circumstances.


Reasonable prospects of success


The court proceeded to consider prospects of success on the assumption that it might be wrong on appealability. It concluded that leave to appeal would in any event fail because the appeal lacked reasonable prospects of success.


The court reasoned that if the legislature intended to exclude motion proceedings, or prescribe an exclusive procedural form for EEA claims, it would have done so. The court regarded it as significant that the legislature did not define “adjudication” in the EEA in a way that would exclude motion proceedings. The court treated this as indicating that a litigant may choose a procedure, albeit subject to the litigation risks that may follow from that choice.


The court rejected Denel’s reliance on Gibb v Nedcor Limited [1997] 12 BLLR 1580 (LC) as authority for the proposition that “adjudication” in the EEA excludes motion proceedings or requires action proceedings. The court held that Gibb did not deal with the EEA at all, and was concerned with whether CCMA proceedings after a private disciplinary inquiry should take the form of review or action; the court considered the facts and context in Gibb to be distinguishable.


The court considered O’Connor v Lexisnexis (Pty) Ltd (2024) 45 ILJ 1287 (LC) to be decisive against Denel’s argument. The court relied on O’Connor’s statement that while a claim under section 6 of the EEA will normally proceed by way of trial under Rule 6, there is no reason why a litigant cannot approach the Labour Court on an urgent basis by motion if circumstances justify it. The court adopted this approach more generally, expressing agreement that while EEA claims will normally proceed by action, a litigant may elect motion proceedings, but will bear the risk if material disputes of fact arise.


On this reasoning, the court concluded it could not find that another court would come to a different conclusion, and thus the appeal lacked reasonable prospects.


Compelling reason to hear the appeal


Denel also argued that leave should be granted to clarify an alleged conflict between Gibb and O’Connor. The court rejected this submission, holding there was no conflict because Gibb did not concern the EEA and did not hold that motion proceedings are excluded from “adjudication,” whereas O’Connor contemplated the permissibility of motion proceedings in appropriate circumstances for EEA-related claims.


The court therefore found no other compelling reason to grant leave to appeal.


Outcome and Relief


The Labour Court dismissed the application for leave to appeal.


The court ordered that costs follow the event, and accordingly dismissed the application for leave to appeal with costs.


Cases Cited


Zweni v Minister of Law and Order 1993 (1) SA 523 (A).


Tshwane City v Afriforum and another 2016 (6) SA 279 (CC).


National Treasury and others v Opposition to Urban Tolling Alliance and others 2012 (6) SA 223 (CC).


United Democratic Movement and another v Lebashe Investment Group (Pty) Ltd and others 2023 (1) SA 353 (CC).


Cash Crusaders Franchising (Pty) Ltd v Cash Crusaders Franchisees Listed on Annexure “ADP1” to the Founding Affidavit of Du Plooy [2024] 2 All SA 49 (WCC).


Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and others (2016) 37 ILJ 1485 (LC).


Gibb v Nedcor Limited [1997] 12 BLLR 1580 (LC).


O’Connor v Lexisnexis (Pty) Ltd (2024) 45 ILJ 1287 (LC).


Legislation Cited


Employment Equity Act 55 of 1998.


Superior Courts Act 10 of 2013.


Rules of Court Cited


Labour Court Rule 6.


Held


The court held that the order dismissing Denel’s interlocutory irregular-step application was not appealable because it was not final in effect and not definitive of the parties’ rights, given that the procedural issue could be raised again in the main application, and the interests of justice did not require appellate intervention.


The court further held that even if appealability were assumed, leave to appeal should be refused because the proposed appeal lacked reasonable prospects of success. It held that the EEA does not expressly prohibit proceeding by motion, that Gibb did not support Denel’s argument, and that O’Connor supported the proposition that although EEA claims will normally proceed by trial/action, motion proceedings may be utilised where appropriate, subject to the risk of factual disputes.


The court also held there was no compelling reason to grant leave based on any alleged conflict between Gibb and O’Connor.


LEGAL PRINCIPLES


Appealability is not determined solely by common-law finality criteria; the constitutional standard of the interests of justice is overarching, and interlocutory orders may be appealable where the interests of justice so require, even if one or more of the traditional Zweni attributes are absent.


An interlocutory order dismissing a procedural challenge may lack appealability where it is not final in effect and not definitive of rights, particularly where the same issue may be raised again in the main proceedings.


In the absence of an express statutory exclusion in the EEA, the institution of an EEA claim by motion proceedings is not, on the reasoning adopted, prohibited as a matter of law; although EEA claims will generally proceed by trial/action, motion proceedings may be used where appropriate, with the litigant bearing the risk that material disputes of fact may make motion proceedings unsuitable.


Leave to appeal is refused where the proposed appeal has no reasonable prospects of success and where there is no other compelling reason for the appeal to be heard, including where an alleged conflict of authority is found not to exist.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-057140
In the matter between:
DENEL SOC LTD Applicant
and
ELIAS SELLO NTSIHLE Respondent
Heard: In Chambers
Delivered: 13 January 2026

JUDGMENT
APPLICATION FOR LEAVE TO APPEAL
BHIMA, AJ
Introduction
[1] The applicant ( ‘Denel’) brought an interlocutory application to set aside (or
dismiss) the respondent’s application (‘the main application’) as an irregular
step. The basis for this was, as contended by Denel , that it was impermissible
to institute a claim under the Employment Equity Act, No. 55 of 1998 (‘the
EEA’) by way of application.
[2] The application was argued before me on 12 September 2025, and judgment
was thereafter delivered on 3 October 2025. In my judgment I dismissed

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Denel’s application on, inter alia, the basis that there was no rule of law that
specifically excluded or prohibited the respondent’s conduct, i.e., to proceed
with his claim by way of motion . Denel now seeks leave to appeal against t his
judgment.
[3] As is the practice in this Court, this application was adjudicated on the papers.
Both parties were represented by counsel, and provided comprehensive written
submissions on the matter.
The issues
[4] To my mind, and as set out in the submissions on behalf of both parties, there
are two issues that arise, namely:
4.1 whether my judgment/order is appealable; and
4.2 if so, whether the appeal would have a reasonable prospect of success or
whether there is some other compelling reason why the appeal should be
heard.
[5] An answer in the negative to either one of the aforegoing questions is
dispositive of the application for leave to appeal.
Is the order appealable?
[6] In determining whether the order made is appealable, the nexus is the test as
espoused by Harms AJA (as he then was) in Zweni v Minister of Law and
Order1:
‘In the light of these tests and in view of the fact that a ruling is the antithesis of a
judgment or order, it appears to me that, generally speaking, a non-appealable
decision (ruling) is a decision which is not final (because the Court of first
instance is entitled to alter it), nor definitive of the rights of the parties nor
has the effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings.’ (own emphasis)
[7] However, in Tshwane City v Afriforum and another 2, Constitutional Court per
Mogoeng CJ said:

1 1993 (1) SA 523 (A) at 536A-C.

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‘The common-law test for appealability has since been denuded of its somewhat
inflexible nature. Unsurprisingly so because the common law is not on par with
but subservient to the supreme law that prescribes the interests of justice as the
only requirement to be met for the grant of leave to appeal. Unlike
before appealability no longer depends largely on whether the interim order
appealed against has final effect or is dispositive of a substantial portion of the
relief claimed in the main application. All this is now subsumed under the
constitutional interests of justice standard. The overarching role of interests of
justice considerations has relativised the final effect of the order or the
disposition of the substantial portion of what is pending before the review court,
in determining appealability.’
[8] Of course, the court therein, as well as in National Treasury and others v
Opposition to Urban Tolling Alliance and others 3, were concerned with interim
orders. Notwithstanding, in the words of Froneman J: “ It is by now settled law
that the operative standard for determining whether leave to appeal should be
granted is 'the interests of justice'. That the order is temporary is not in itself
determinative of whether the interests of justice call for leave to appeal to be
granted.”4
[9] In United Democratic Movement and another v Lebashe Investment Group
(Pty) Ltd and others5 Madonda AJ said:
‘What is to be considered and is decisive in deciding whether a judgment is
appealable, even if the Zweni requirements are not fully met, is the interests of
justice of a particular case and whether or not an order lacking one or more of
the factors set out in Zweni constitutes a 'decision' for the purposes of s
16(1)(a) of the Superior Courts Act. Over and above the common-law test, it is
well established that an interim order may be appealed against if the interests of
justice so dictate. It is thus in the interests of justice that the impugned interim

justice so dictate. It is thus in the interests of justice that the impugned interim
interdict is appealable on the allegation that the interdictory relief in question
resulted in the infringement of the right to freedom of expression.’

2 2016 (6) SA 279 (CC) at 294 para 40.
3 2012 (6) SA 223 (CC).
4 Op cit 2 at 307 para 83.
5 2023 (1) SA 353 (CC) at 371 para 45.

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[10] To my mind, the order dismissing Denel’s application is not final in effect nor
definitive of the rights of the parties, for the simple reason that the same issue
raised by Denel in its application can be raised again in the main application.
As such, the order may be subject to reconsideration by another court.
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[11] For the same reason, the interests of justice do not dictate that the order is
appealable.
Would the appeal have a reasonable prospect of success?
[12] Even if I am wrong on that score; to my mind, the appeal would not have a
reasonable prospect of success.7
[13] First, if the legislature intended to exclude motion proceedings or prescribe
specific forms of proceeding in the EEA, it would have done so. The legislature
further elected not define ‘adjudication’ under the EEA nor specify that
adjudication in context would exclude motion proceedings. This election is
telling; it can only mean that a party would be entitled to select the relevant
process, but also that such party would bear the risk associated with the
particular choice.
[14] Second, I do not read Gibb v Nedcor Limited
8 (‘Gibb’) as authority for the
proposition that the word ‘adjudication’ in the EEA, means that motion
proceedings are excluded, or that process under section 10 of the EEA had to
proceed by way of action. Gibb did not deal with the EEA at all.
[15] Gibb was concerned with whether or not the procedure in the CCMA after a
private disciplinary inquiry was to be a review process or whether it should be
on action. The facts in Gibb are entirely distinguishable from this matter.
[16] O’Connor v Lexisnexis (Pty) Ltd
9 (‘O’Connor’) is the death knoll to Denel’s
case. As Meyerowitz AJ said therein:

6 See Cash Crusaders Franchising (Pty) Ltd v Cash Crusaders Franchisees Listed on Annexure
“ADP1” to the Founding Affidavit of Du Plooy [2024] 2 All SA 49 (WCC) at para 52.
7 See Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and

7 See Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and
others (2016) 37 ILJ 1485 (LC) at paras 2 & 3 for the appropriate test for leave to appeal.
8 [1997] 12 BLLR 1580 (LC).
9 (2024) 45 ILJ 1287 (LC).

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‘While a claim under section 6 of the EEA will normally proceed by way of
trial under Rule 6, I see no reason why a litigant cannot approach this court
on an urgent basis if the circumstances justify an urgent order . A good
example is an urgent order setting in place restrictions on an employer so as to
prevent an employee from being sexually harassed pending a trial for full and
better compensation in due course.’ (own emphasis)
[17] I agree that a claim under section 6 of the EEA, or for that matter one under
section 10, will normally proceed by way of action; however, I see no reason
why a litigant cannot approach the Court on motion if he so elects. Of course,
the litigant will bear the risk if he elects to proceed by way of motion and
material factual disputes arise.
[18] Accordingly, I cannot find that another court would come to a different
conclusion than I have; and leave to appeal must be refused.
Is there some other compelling reason why the appeal should be heard?
[19] Denel also contends that leave to appeal should be granted in order for a Court
clarify the alleged conflict between two decided cases: Gibb and O’Connor.
[20] There is however no conflict between the judgments. As set out hereinabove,
Gibb does not deal with the EEA nor does it state that motion proceedings are
excluded from ‘adjudication’. O’Connor essentially states that motion
proceedings can be used for claims under the EEA where appropriate.
[21] As such, there is no other compelling reason to grant leave in the
circumstances.
Conclusion
[22] Having found in the negative to all of the questions posed hereinabove, the
application must fail.
[23] The only remaining issue is the question of costs, taking into account the
totality of circumstances I am of the view that costs should follow the event.
[24] In the premise, I make the following order:
Order

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1. The application for leave to appeal is dismissed with costs.

_______________________
R Bhima
Acting Judge of the Labour Court of South Africa