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