(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
05-03-2026
Signature Date
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: J930/24
In the matter between:
SEELAN PILLAY Appellant
and
DISCOVERY CONNECT DISTRIBUTION
SERVICES First Respondent
TEBOGO GOODMAN Second Respondent
APHELELE TAPILE Third
Respondent
In re:
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Applicant
NTJATJA KLASS APHANE Second Applicant
and
DISCOVERY CONNECT DISTRIBUTION
SERVICES First Respondent
2
TEBOGO GOODMAN Second Respondent
APHELELE TAPILE Third
Respondent
Considered: In Chambers
Delivered: 05 March 2026
JUDGMENT
MAFA-CHALI, AJ
Introduction:
[1] On 03 July 2025, this Court handed down judgment in terms of which the
contempt ruling issued by the first applicant was set aside and the first
applicant ordered to set down the constructive dismissal dispute for arbitration
proceedings.
[2] Mr Seelan Pillay has now made an application for leave to appeal the
judgment. Mr Pillay was not a party to the court proceedings as the applicant
was the Commission for Conciliation, Mediation and Arbitration (the CCMA)
and the contempt ruling was issued by the CCMA Commissioner in the
constructive dismissal dispute referred to the CCMA by Mr Pillay. The issue of
Mr Pillay’s locus standi shall be dealt with hereunder.
[3] There is no opposition by the respondents on the application for leave to
appeal.
[4] The application for leave to appeal was lodged on 23 July 2025, and further
submissions to the application were filed on 05 August 2025. The application
is in compliance with Rule 67 (2) and (5) of the Rules Regulating the Conduct
3
of the Proceedings of the Labour Court1 as it was filed within the 15 days
prescribed time limits form the date of the judgement.
Locus standi
[5] Mr Pillay submitted that he has not been cited as the party in the matter and
has lodged the appeal as an affected party who has a direct and substantial
interest to the proceedings and the decision of this Court and which has
impacted his rights significantly as an employee in the CCMA matter.
[6] Mr Pillay further submitted that the decision not to cite him as a party to the
proceedings was a legislative requirement in that the first and second
respondents were duty bound in accordance with the provisions of the Labour
Relations Act 2 (LRA) to lodge the application to refer the contempt ruling to
this Court, and in the application they both failed to submit the record of the
proceedings, the fact he has no control over.
[7] In the interests of justice, the Court will entertain this application brought by
Mr Pillay as an interested and affected party to the matter , and proceed to
deal with the test for leave to appeal.
The test for leave to appeal
[8] It is trite that there is no automatic right of appeal against a judgment of the
Labour Court. Section 166(1) of the LRA 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 judgement or final order of the
Labour Court. To be entitled to leave to appeal, an applicant must satisfy this
Court that there is a reasonable prospect that another Court would come to a
different conclusion
3.
[9] 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.
1 GN 4775 of May 2024. Effective 17 July 2024.
2 Act 66 of 1995, as amended.
3 See: Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC)
4
[10] When considering the standard in applications for leave to appeal, section
17(1) of the Superior Courts Act 4 is the starting point in considering
applications of this nature. It specifically provides that:
‘17 (1) leave to appeal may only be given where a 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
underconsideration;
(b) the decision sought on appeal does not fall within the ambit of
section 16(2)(a); and
(c) where the decision sought to be appealed does not dispose of
all the issues in the case, the appeal would lead to a just and
prompt resolution of the real issues between the parties.’
[11] Central to the determination of applications for leave to appeal is whether
there are reasonable prospects of success in the appeal. This test as outlined
in section 17 (1) of the Superior Court Act differs to the traditional test as
previously stated by our courts and it raises the threshold of the test for leave
to appeal.
[12] The threshold to cross for an audience with an appeal court is a high one,
requiring a strong reasonable prospect that another court would come to a
different decision, or that there are compelling reasons justifying the attention
of that court.
[13] In Seathlolo and others v Chemical Energy Paper Printing Wood and Allied
Workers Union and others
5, Judge Van Niekerk, discussing the test to be
applied states:
4 Act 10 of 2013
5 (2016) 37 ILJ 1485 (LC)
5
“The traditional formulation of the test that is applicable 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… the use of the word “would” in s 17(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…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…The statutory imperative of the expeditious resolution of labour
disputes necessarily requires that appeals be limited to those matters in
which that there is a reasonable prospect that the factual matrix could receive
a different treatment or where there is some legitimate dispute on the law…”
[14] In deciding this application for leave to appeal, I am also guided by the dicta of
the Supreme Court of Appeal where it held in Dexgroup (Pty) Ltd v Trustco
Group International (Pty) Ltd and Others 6 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”.
[15] In Smith v S
7, the test was summarised as follows:
“What the test of reasonable prospects of success postulates is 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
order to succeed, therefore, the appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those prospects
are not remote but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success, that the case is
be established than that there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as hopeless.
There must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal”.
6 2013 (6) SA 520 (SCA) at para 24.
7 2012 (1) SACR 567 (SCA).
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[16] An applicant in an application for leave to appeal must therefore convince the
court a quo that it has reasonable prospects of success on appeal. What the
test requires is the reasonable likelihood that another court, presented with
the same facts and evidence as this Court, could come to a different
conclusion than the one arrived at by this Court.
[17] Reasonable prospects of success mean that the applicant has to show that
another Court, faced with the same material, could come to a different
conclusion, or an appeal can succeed if there is a legitimate dispute of the
law.
[18] This Court and the LAC have in the past stressed that leave to appeal should
not be lightly granted because meritless appeals delay the final resolution of
disputes.
[19] The submissions made by the applicant are that he has a high chance of
success as he would wish to introduce new evidence into this appeal, which is
the record of the CCMA proceedings and the documentary evidence
submitted before the Commissioner at the contempt application, and such
evidence would show that the Respondent committed contempt of the CCMA
proceedings. The CCMA failed to submit these records before the Court and
the applicant finds this omission irregular.
[20] The applicant further submitted that the Court committed an error of law
finding that there was no contempt application made before the Commissioner
at the CCM A and that it was not clear how the Commissioner dealt with the
matter to ultimately issue the contempt ruling.
[21] The applicant lastly raised the issue of conflict of interest and submitted that
the Judge should not have presided over this matter as she had a relationship
with the CCMA as either a part time commis sioner of the CCMA or the CCMA
was her previous employer and the relationship was not disclosed.
[22] It is clear that the applicant intends the Labour Appeal Court to conduct a
rehearing of the matter already heard by this Court and introduce the record
rehearing of the matter already heard by this Court and introduce the record
of the CCMA proceedings as the CCMA failed to present it to the Court . The
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Applicant failed to show how the Court made an erred in applying the law or in
interpreting the provisions of the LRA when it adjudicated on the matter.
[23] Ordinarily an Appeal Court will not receive new evidence which was not
before the lower court unless in exceptional circumstances and it will require
special permission from the Court unless it is highly relevant, credible and
could not have been produced earlier with reasonable diligence. In this matter
the applicant has not shown such exceptional circumstances. It was just a
matter of the CCMA having failed to file the record of the CCMA contempt
proceedings without tangible and valid reasons given for such failure.
[24] The submissions regarding the conflict of interest are baseless as the
outcome of the judgment was against the CCMA as the application for
contempt brought by the CCMA was dismissed.
[25] Having had regard to the submissions made on behalf of the Applicant in
respect of this application, they do not come close to meeting the threshold
referred to above.
[26] In casu, applying the principles applicable to applications for leave to appeal, I
am not persuaded that there are reasonable prospects that the LAC would
arrive at a different conclusion than the one arrived at by this Court. The
Applicant failed to make out a case for leave to appeal to be granted.
[27] In light of the above, and having had regard to the submissions made in
regard to the application for leave to appeal, and further upon a reflection of
my judgment, I am of the view that the Applicant has failed to demonstrate
that there are reasonable prospects that the LAC will come to a different
decision to that reached in my judgment.
[28] I am not persuaded that any appeal would have a reasonable prospect of
success. Furthermore, there are no other compelling reasons why leave to
appeal should be granted.
[29] There is no reason why a cost order should be made in this application.
[30] In the premises, the following order is made:
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Order
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
__________________
G. Mafa-Chali
Acting Judge of the Labour Court of South Africa