THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JS 207/19
JAN WALTERS KRUGER PLAINTIFF
and
UNIVERSITY OF SOUTH AFRICA DEFENDANT
Decided: In Chambers
Judgment: 24 February 2026
This judgment was handed down electronically by circulation to the parties' representatives
by email. The date for hand-down is deemed to be 24 February 2026.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
PRINSLOO J
[1] The Plaintiff applied for leave to appeal against the whole judgment and order,
delivered on 20 June 2025.
[2] The Applicant raised numerous grounds for leave to appeal and filed
submissions in support of its grounds for appeal.
[3] I have considered the grounds for appeal as well as the submissions made in
support and in opposition thereof. Both parties filed comprehensive
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submissions, which I have taken time to peruse and consider and I do not
intend to repeat those herein.
The test for leave to appeal
[4] It is trite that there is no automatic right of appeal against a judgment of the
Labour Court. This much is clear from section 166(1) of the Labour Relations
Act1 (LRA) which provides that any party to any proceedings before the
Labour Court may apply for leave to appeal to the Labour Appeal Court (LAC)
against any final judgment or final order of the Labour Court. To be entitled to
leave to appeal, an applicant in an application for leave to appeal must satisfy
this Court that there is a reasonable prospect that another court would come
to a different conclusion.
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[5] Section 17(1) of the Superior Courts Act 3 provides that leave to appeal may
only be granted if the appeal has a reasonable prospect of success or if there
is some other a compelling reason why the appeal should be heard. The
Superior Courts Act has raised the threshold for granting leave to appeal.
[6] The test is not whether there is a possibility that another court could come to a
different conclusion, the test is whether there is a reasonable prospect that
another court would come to a different conclusion. The test indicates a
measure of certainty that another court will differ from the court whose
judgment is sought to be appealed against.
[7] It is further trite that an applicant in an application for leave to appeal must
convince the court a quo that it has reasonable prospects of success on
appeal. Appeals should be limited to matters where there is a reasonable
prospect that the factual matrix could receive a different treatment or where
there is some legitimate dispute on the law.
1 Act 66 of 1995, as amended.
2 See Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).
3 Act 10 of 2013.
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[8] In Seatlholo and o thers v Chemical Energy Paper Printing Wood and Allied
Workers Union and others ,4 this Court confirmed that the test applicable in
applications for leave to appeal is stringent and held as follows:
‘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 s17(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
and others v Crocodile Valley Citrus Company (Pty) Ltd and 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 and East (Pty) Ltd v NUM (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 and another (C 536/15, 6 November
2015).’
[9] In deciding this application for leave to appeal, I am also guided by the dicta
of the Supreme Court of Appeal (SCA) where it held in Dexgroup (Pty) Ltd v
Trustco Group International (Pty) Ltd and others5 that:
‘…The need to obtain leave to appeal is a valuable tool in ensuring that
‘…The need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack merit. It should in
this case have been deployed by refusing leave to appeal.’
This application
[10] I have considered the submissions made in support and in opposition of the
grounds for appeal and applying the applicable test, I am not convinced that
the Plaintiff has made out a case for leave to appeal to be granted.
[11] Considering the grounds for leave to appeal and the submissions filed by the
Plaintiff, it is evident that the application does not meet the high threshold for
leave to appeal to be granted as the application is rather a record of the
4 (2016) 37 ILJ 1485 (LC) at para 3.
5 2013 (6) SA 520 (SCA) at para 24.
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Plaintiff’s dissatisfaction with the outcome and a re- argument of the issues
already ventilated and decided upon during the trial.
[12] The purpose of an appeal to the LAC is not to provide an applicant with an
avenue for re- argument or an opportunity to re- open what has already been
finally adjudicated. An appeal is limited to matters where there is a reasonable
prospect that another court would find differently.
[13] This matter concerns the application of established and trite principles
governing the position regarding retirement and a claim for discrimination
based on age. There is no novel issue, nothing unique or any legitimate
dispute about the applicable legal principles involved. In short: there is no
legitimate dispute on the law and the Plaintiff is unable to cross this hurdle.
[14] There is also not a reasonable prospect that the factual matrix would receive
a different treatment by the LAC or that the LAC would come to a different
conclusion.
[15] There is no merit in any of the grounds for leave to appeal. I will refer to some
of the grounds for leave to appeal to illustrate that there is no prospect of
success. The Plaintiff submitted that ‘this Court erred in not coming to the
conclusion that giving the employer the right to dismiss the employee anytime
after reaching the agreed or normal retirement age is incompatible with
section 9(1), 9(3) and 23 of the Constitution pertaining to a right to fair labour
practices and the spirit, purport and obj ects of the Bill of Rights and the LRA
itself.’ The Plaintiff’s pleaded case did not raise the issue that section
187(2)(b) of the LRA was incompatible with sections 9 and 23 of the
Constitution – the constitutional point was not pleaded, and it was not an
issue for this Court to decide. It cannot be decided on appeal.
[16] The Plaintiff raised as a ground for leave to appeal that ‘the court should have
found that the employer’s conduct in retiring the employee the following year
found that the employer’s conduct in retiring the employee the following year
in January 2019 was contrary to section 2(a) to (d) of the Older Persons Act
13 of 2006.’
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[17] There are two difficulties with this ground for leave to appeal. First, it is
factually incorrect. The facts were that on 11 January 2019 the Plaintiff
received a letter, confirming that the employment relationship had terminated
on 31 December 2018. It was common cause that the Plaintiff’s contract of
employment terminated at the end of the year in which he had turned 65
(which was 2018) and that this was done in accordance with the Defendant’s
policy. The Plaintiff was not retired ‘the following year in January 2019’ and
this Court made no such finding. The letter issued in January 2019 merely
confirmed that the Plaintiff’s employment had terminated on 31 December
2018. The said letter did nothing more than to clarify the Plaintiff’s status and
it certainly did not constitute a termination or changed the date of termination.
[18] Second, the Plaintiff did not plead a contravention of the Older Persons Act,
nor did he adduce any evidence on this during trial. The Plaintiff’s case was
pleaded and pursued in terms of the provisions of the LRA and it is not
permissible to introduce an entirely new cause of action on appeal.
[19] The delay in handing down this judgment on account of medical incapacity is
regretted.
[20] In the premises I make the following order:
Order
1. The application for leave to appeal is dismissed with no order as to costs.
_________________
Connie Prinsloo
Judge of the Labour Court of South Africa