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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE Number: 2025 – 212698
In the matter between:-
THEBOGO VINCENT MODIKA Applicant
and
INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
NATIONAL UNION OF METALWORKERS OF
Decided: In Chambers
Delivered: 5 February 2026
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
5 February 2026
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This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploading onto CaseLines. The date and
time for hand-down is deemed to be 5 February 2025
Summary: Leave to appeal – proper grounds made out – application for leave
to appeal granted
JUDGMENT – LEAVE TO APPEAL
SNYMAN, AJ
Introduction
[1] In this instance, the applicant brought an urgent application to interdict the first
respondent from continuing with an internal disciplinary hearing against him .
The applicant alleged that this disciplinary hearing constitutes an occupational
detriment against him, based on a protected disclosure he had made on 29
July 2025, and he relied on section 188A(11) of the Labour Relations Act
(LRA)
1. The applicant sought final relief.
[2] The matter was argued before me on 12 November 2025, and I handed down
judgment on 13 November 2025. I granted the application and afforded the
applicant the interdictory relief he sought, subject to certain conditions, which
was contained in the order at the conclusion of the judgment.
[3] The first respondent was dissatisfied with the order and judgment against it.
An application for leave to appeal was filed on 17 November 2025. It also filed
written submissions in support of its application for leave to appeal on 30
November 2025. The applicant, as at the date of considering the application
for leave to appeal, had not filed his own written submissions , with the time
limit for doing so now having expired. The leave to appeal application is thus
now ripe for determination.
1 Act 66 of 1995 (as amended).
3
[4] Rule 67(6) of the Labour Court Rules provides that an application for leave to
appeal will be determined by a Judge in chambers, unless the Judge directs
otherwise. I see no reason to direct otherwise and will therefore determine the
first respondent’s leave to appeal application in chambers.
Analysis
[5] Leave to appeal is not there for the asking. In terms of section 17(1)(a) of the
Superior Courts Act 2, leave to appeal may only be given where Judge
considers that the appeal would have a reasonable prospect of success , there
is some other compelling reason why the appeal should be heard, including
the existence of conflicting judgments.
[6] Thus, for an application for leave to appeal to be successful, it is required of
the party seeking such leave to demonstrate that there are reasonable
prospects that another Court, in this instance, the Labour Appeal Court, would
come to a different conclusion to that reached in the judgment that is sought to
be taken on appeal.
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[7] As to the meaning of ‘ reasonable prospects of success’, this was considered
in Member of the Executive Council for Health, Eastern Cape v Mkhitha and
Another4 where the Court said:
‘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.
2 Act 10 of 2013.
3 See J & L Lining (Pty) Ltd v National Union of Metalworkers of SA and Others (2) (2019) 40 ILJ 1303
(LC) at para 5.
4 [2016] JOL 36940 (SCA) at paras 16 – 17. See also Ramakatsa and Others v African National
Congress and another [2021] JOL 49993 (SCA) at para 10, where it was held: ‘The test of reasonable
prospects of success postulates a dispassionate decision based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that of the trial court. In other words, the
appellants in this matter need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but there must exist a
reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospects
of success must be shown to exist … ’.
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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.’
[8] I have considered the first respondent’s application for leave to appeal with
due regard to the aforesaid principles. I am persuaded that there exist
reasonable prospects that another Court may come to a different conclusion
with regard to certain factual findings I had made.
[9] Further, I believe that the issue of section 188A(11) and its consequences to
pending disciplinary proceedings, as well as on what basis should this Court
interfere in medias res in such instances, is deserving of the attention of the
Labour Appeal Court. This is especially the case where it comes to what
exactly must be considered, and to what extent the Court must be satisfied
that a protected disclosure exists. The first respondent has also pointed to
conflicting judgments on this issue.
[10] I thus conclude that the first respondent has managed to show that there
exists a reasonable prospect that another Court would come to a different
conclusion, and in my view the first respondent has reasonable prospect of
success on appeal . But especially, I consider there to exist a pertinent
question of law that requires determination by an A ppeal Court. The
application for leave to appeal thus falls to be granted.
[11] This only leaves the issue of costs in this application for leave to appeal, which
I believe should be costs in the appeal.
[12] In the premises the following order is made:
Order
1. The first respondent’s application for leave to appeal is granted.
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2. The first respondent is given leave to appeal to the Labour Appeal Court
against my judgment of 13 November 2025.
3. Costs are to be costs in the appeal.
_____________________
S. Snyman
Acting Judge of the Labour Court of South Africa