THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 2025-205156
In the matter between:-
PORTIA HALIO TSHABALALA Applicant
and
ADVOCATE HARRIET MUTENGA N.O. First Respondent
MOQHAKA LOCAL MUNICIPALITY Second Respondent
Decided: In Chambers
Delivered: 5 March 2026
This j udgment 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 March 2026
Summary: Leave to appeal – no proper grounds made out – application for
leave to appeal dismissed
JUDGMENT – LEAVE TO APPEAL
SNYMAN, AJ
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] In this instance, the applicant had brought an urgent application seeking to
interdict the disciplinary proceedings against her from continuing, pending an
application brought by her to review certain conduct / decisions of the
chairperson of her disciplinary hearing. The applicant brought the application
under sections 157, 158(1)(a) and 158(1)(h) of the Labour Relations Act
(LRA)
1. The application came before me for argument 23 January 202 6. In an
order granted the same day, the applicant’s application was dismissed with
attorney and client costs . Written reasons (in the form of a written judgment)
was handed down in respect of this order on 30 January 2026.
[2] The applicant was dissatisfied with the order and judgment against her. An
application for leave to appeal was filed on the same date, being 23 January
2026, before the reasons for my order were even provided. This application for
leave to appeal only raised only two grounds for leave to appeal, namely a
general and unmotivated contention that I had failed to follow earlier decisions
on the same issue, and that I erred in granting a punitive costs award against
the applicant. This application for leave to appeal was then supplemented on
10 February 2026, where a number of further grounds for leave to appeal were
raised. The applicant further filed written submissions in support of her
application for leave to appeal on 1 8 February 2026. Considering this is an
application for leav e to appeal that must be dealt with as a matter of
expediency, I was not favoured with any written submissions opposing leave
to appeal f rom the first and second respondents by the time the time limit in
Rule 67(5) had expired. I consider the leave to appeal application to be ripe for
determination and will proceed accordingly.
[3] 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
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
applicant’s leave to appeal application in chambers.
Analysis
1 Act 66 of 1995 (as amended).
3
[4] Leave to appeal is not there for the asking. This is evident from section
17(1)(a) of the Superior Courts Act 2, which provides that: ‘(a) Leave to appeal
may only be given where the judge or judges concerned are of the opinion
that: (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 a matter under consideration.’
[5] In J & L Lining (Pty) Ltd v National Union of Metalworkers of SA and Others
(2)
3 the Court summarized the legal position that applies when a litigant seeks
leave to appeal from this Court, as follows:
‘Leave to appeal is not there for the asking. When deciding whether to grant
leave to appeal to the Labour Appeal Court, the Labour Court must determine
whether there is a reasonable prospect that another court would come to a
different conclusion to that of the court a quo, or in other words, whether the
appeal would have a reasonable prospect of success. This was summarised
in SA Clothing & Textile Workers Union & others v Stephead Military
Headwear CC, as follows:
‘It is trite that 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.’’
[6] As to the meaning of ‘reasonable prospects of success’, the Court in Member
of the Executive Council for Health, Eastern Cape v Mkhitha and Another 4
said:
2 Act 10 of 2013.
3 (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 … ’.
4
‘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.
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.’
[7] Next, and as to what would constitute a compelling reason for another Court to
entertain the appeal, the Court in Caratco (Pty) Ltd v Independent Advisory
(Pty) Ltd5 had the following to say:
‘... A compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future disputes. But here
too, the merits remain vitally important and are often decisive. ...’
[8] In this instance, the applicant has done very little in adding anything to the
arguments already presented to me on 23 January 2026. The applicant
continues to rehash all the same arguments, and just as was the case when
the matter was argued, it remains a completely unmeritorious case. The
applicant simply seeks to camouflage the same arguments with a plethora of
references to authorities, none of which is of much assistance or relevance in
this matter. Honestly, this matter is not overly complex, and to try and make it
so for the purposes of leave to appeal is not on. This is especially true on the
issue of jurisdiction. Other than a bald an unfounded assertion that there exist
conflicting judgments on jurisdiction, the applicant has in reality advanced
conflicting judgments on jurisdiction, the applicant has in reality advanced
nothing that would convince me that there exist any prospects that another
Court would come to a different conclusion in this respect . This is especially
so, considering the clear approach now adopted by the Labour Appeal Court
5 2020 (5) SA 35 (SCA) at para 2. See also Qoboshiyane NO and Others v Avusa Publishing Eastern
Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA) at para 5; Minister of Justice and Constitutional
Development and Others v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA) at
para 23; Tshwane City and Others v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA) at para 6.
5
in Cibane and Another v Premier of Province of Kwazulu- Natal6. To continue
to cling to old er authorities prior to judgments like Steenkamp and Others v
Edcon Ltd (National Union of Metalworkers of SA intervening) 7 and Cibane is
of no assistance to the applicant. There exist no prospects of success on
appeal in respect of the issue of jurisdiction.
[9] In the application for leave to appeal, the applicant attempts to slip in that her
case is founded on contract. This is entirely impermissible. The applicant
cannot raise a new case on appeal. I was at pains to identify exactly what her
case was, as she had specifically pleaded in her founding affidavit . She never
relied on contract or on section 77(3) of the BCEA as a basis for this Court
having jurisdiction. This kind of case must be pertinently pleaded and never
was. As clearly said in Shezi v SA Police Service and Others 8: ‘… an applicant
invoking s 77(3) must necessarily plead a case in contract. The applicant’s
pleaded case is not one that invokes any term of her employment contract, or
that alleges a breach of contract on the part of her employer …’. The applicant
is essentially grasping at straws , after the fact, to attempt to overcome her
undeniable jurisdictional difficulties. I can simply see no reasonable prospect
that another Court would decide otherwise, on appeal, in this respect.
[10] On the issue of authority, the applicant contends that I erred in relying on
Monareng v DR J S Moroka Municipality 9, which was overturned on appeal in
Monareng v DR J S Moroka Local Municipality10. I think the applicant is being
opportunistic in raising this as an issue supporting leave to appeal . The
applicant misconstrues my reference to the judgment of the Labour Court in
Monareng. I was using the facts in that judgment as an example of when
authority may be established by the nature of a position of a person granting
authority. I never held that authority in this case existed on the basis of the
authority. I never held that authority in this case existed on the basis of the
ratio of the Labour Court in Monareng. If proper regard is had to what I set out
in paragraph 13 of my judgment, as well as all the other preceding and
subsequent paragraphs specifically dealing with the issue of authority, I made
6 (2025) 46 ILJ 2587 (LAC).
7 (2016) 37 ILJ 564 (CC) at para 106.
8 (2021) 42 ILJ 184 (LC) at para 12. See also Leshabane v Minister of Human Settlements and Others
(2024) 45 ILJ 833 (LC) at para 49; Nhlapo-Mofokeng v Emfuleni Municipality and Another (2023) 44
ILJ 815 (LC) at para 10; Phahlane v SA Police Service and Others (2021) 42 ILJ 569 (LC) at para 9.
9 (2022) 43 ILJ 1855 (LC) at para 15.
10 (2024) 45 ILJ 2689 (LAC).
6
it clear that authority in principle can be established in a number of different
ways, which included resolutions and powers of attorney . There are many
other authorities I referred to an which I actually relied on. But what the
applicant does not refer to when seeking to make a point in this respect, is that
in this case , there was actually a M unicipal Council resolution. The complaint
by the applicant was that it was not a good enough resolution. The LAC in
Monareng never decided on what would be a ‘good enough’’ resolution.
Instead, what it said was: ‘… Absent a resolution by the municipal council, the
powers to oppose Mr Monageng’s appeal and to appoint the attorneys reside
with the municipal council …’ (emphasis added). The LAC overturned the
finding of the Labour Court because there was no resolution. In this case , I
was satisfied that the resolution provided did give authority to the Municipal
Manager to provide the power of attorney to the first respondent’s attorneys.
The LAC judgment in Monareng cannot assist the applicant. She has no
prospects of success on appeal on the authority issue.
[11] The applicant also persists with the authority challenge relating to the first
respondent’s appointment of P eyper attorneys. The applicant however has
added nothing to what had already been argued before in this respect . The
fact remains that Peyper attorneys do not seek to oppose the matter on behalf
the Municipal Council (the second respondent). Peyper attorneys are opposing
the matter on behalf of the first respondent in her own right and as a party,
herself, to the proceedings. It does not matter in what capacity she is a party.
She, personally, in her affidavit, made it clear that she authorised Peyper
Attorneys to bring the answering affidavit on her behalf, and oppose the matter
on basis she advances. This proves authority. No resolution from the
Municipal Council is needed. This is nothing but spurious point taking. I see no
Municipal Council is needed. This is nothing but spurious point taking. I see no
reasonable prospect that another Court would come to a different conclusion.
[12] The applicant, in the application for leave to appeal, further persists with the
same kind of spurious point taking where it comes my evaluation and setting
out of the evidence. She contends that I was effectively not permitted to have
regard to the comprehensive disciplinary finding provided by the first
respondent as an integral part of her answering affidavit, because the first
respondent did not in her answering affidavit specifically identify each and
every portion thereof she specifically relied upon and then repeat that portion
7
in the answering affidavit. I consider this submission preposterous. In Nature's
Choice Products (Pty) Ltd v Food and Allied Workers Union and Others11 the
Court dealt with his kind of point as follows:
‘Reliance by the respondents on Swissborough in support of their submission
that the appellant cannot simply make reference to a document and request
the court to have regard to it, is misplaced. That case is clearly
distinguishable. What was said in Swissborough was that an applicant cannot
simply attach documents to its founding affidavit and require the court to
establish, from somewhere within the pile of documents, averments to support
the application. The court in Swissborough held that if a document is attached
to an application, then the portion(s) of the document, which are relied upon,
must be clearly identified. In this case, that situation did not pertain, instead,
the relevant document, namely, the appellant's response, although not
attached to the founding papers, was, nevertheless, identified in the affidavit
and incorporated into that affidavit by reference
.’12
[13] In casu, the comprehensive finding by the first respondent was attached to her
answering affidavit. She further specifically incorporated it into her answering
affidavit by referring to it. She then raised a specific defence of mootness,
based on what she had found in her finding. She pertinently says: ‘ ’I have
dealt with the various rulings in the outcome of the hearing, annexure “HM1”. I
do not wish to further belabour these proceedings by dealing with each one
separately, and respectfully refer to annexure “”HM1”’. This is exactly in line
with what the Court envisaged in Nature’s Choice supra, and the finding and
its contents was thus proper evidence before me. The applicant is simply
being disingenuous, in raising this as a basis for seeking leave to appeal.
[14] Further, the applicant had an opportunity to answer this on reply , but never
[14] Further, the applicant had an opportunity to answer this on reply , but never
did. Instead, she bleated about the fact that she considered the conduct of
producing this finding in the first place to be impermissible self -help
considering the relief she was seeking in her application already brought when
the finding was issued. But to make it worse, there is not much difference
between what is set out in the first respondent’s finding and in the applicant’s
founding affidavit with regard to background facts. As I explained in my
11 (2014) 35 ILJ 1512 (LAC) at para 24.
12 The Court was referring to Swissborough Diamond Mines (Pty) Ltd & others v Government of the
Republic of SA 1999 (2) SA 279 (T)
8
judgment, the first re spondent just did it better in her finding. In the end,
Appeal Courts are most reluctant to interfere with factual findings of a Court a
quo on appeal. Factual findings of lower Courts will only be interfered with on
appeal in exceptional circumstances. That would be cases where it can be
shown that it lacked cogency, or was misdirected, or materially in error
considering what is contained in the litigation record (pleadings).
13 In Makate v
Vodacom (Pty) Ltd 14, the Court held:
‘… Deciding factual disputes is ordinarily not the role of apex courts.
Ordinarily, an apex court declares the law that must be followed and applied
by the other courts. Factual disputes must be determined by the lower courts
and when cases come to this court on appeal, they are adjudicated on the
facts as found by the lower courts. …
’
I do not consider that the applicant has made out any proper case for leave to
appeal where it comes to the findings of fact I have made.
[15] What is apparent to me is that much of the application for leave to appeal is
founded on the same kind of unwanted and spurious technical point taking to
try and establish a basis for relief that actually does not exist. Of particular
concern is that that the applicant has still been unable to provide any answer
to her insurmountable difficulty that based on her own case as pleaded, she
cannot interdict something that has come to pass. She makes broad and
unsubstantiated allegations of public inter est and the practical effect
intervention may have, without answering what is the real issue, being that
interdictory intervention is not possible for something that had already
happened. And all the complaints set out in the application for leave to appeal
about the conduct of the chairperson and the like can be fully and adequately
dealt with in the normal course, with f ull substantial redress being available ,
without resorting the kind of proceedings the applicant had launched. I do not
without resorting the kind of proceedings the applicant had launched. I do not
consider there to exist any reasonable prospect that an Appeal Court would
decide otherwise.
[16] According to the applicant, my judgment impacts negatively on her pending
review application, despite it not being before me. Even if that may be true, it
13 See Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission and Another (2024) 45 ILJ
1507 (CC) at para 71.
14 2016 (4) SA 121 (CC) at para 39.
9
simply does not matter because what I may find in this case cannot decide her
review. What I was called on to decide, in simple terms, is an interdict. I was
not called on to decide a review. Whether or not the applicant’s review
application under section 158(1)(h) is competent is an issue for a review Court
to decide for itself, no matter what I may have found in my judgment which
only concerns an urgent application for an interdict. This simply cannot
establish a case for leave to appeal. In any event, even when considering
whether a clear right or a prima facie right, as the case may be, for an interdict
exists, it is surely trite that it must involve at least some assessment of the
prospects of success on review. The applicant, in her founding affidavit,
pleaded that she had prospects of success on review. In that context, I must
decide the question., To now suggest that I should not, just because the actual
review application itself is not before me, is simply nonsensical. But I must
emphasise, nowhere in my judgment did I finally decide the merits of the
review application.
[17] I remain convinced that the current application is leave to appeal is yet another
component of the stratagem embarked upon by the applicant fr om the very
start of the disciplinary proceedings against her, to obstruct the same as far as
possible with the view to ultimately scuppering it. This cannot be allowed to
perpetuate. I considered the following dicta in Martin & East (Pty) Ltd v
National Union of Mineworkers and Others15 to be apposite in casu:
‘This was a case which should have ended in the Labour Court. This matter
should not have come to this court. It stood to be resolved on its own facts.
There is no novel point of law to be determined nor did the court a quo
misinterpret existing law. There was no incorrect application of the facts; in
particular the assessment of the factual justification for the
dismissals/alternative sanctions.
dismissals/alternative sanctions.
I would urge labour courts in future to take great care in ensuring a balance
between expeditious resolution of a dispute and the rights of the party which
has lost. If there is a reasonable prospect that the factual matrix could receive
a different treatment or there is a legitimate dispute on the law, that is
different. But this kind of case should not reappear continuously in courts on
15 (2014) 35 ILJ 2399 (LAC) at 2406B-F.
10
appeal after appeal, subverting a key purpose of the Act, namely the
expeditious resolution of labour disputes.’
[18] Ultimately, the applicant continues to be unable to appreciate the distinction
between the jurisdiction of this Court and the powers of this Court. The
applicant has been unable to advance any cogent legal argument to establish
any prospects of success on appeal where it comes to any of the jurisdictional
findings I have made. In short, the applicant has been unable to answer or
contradict, based on a sound legal foundation, any of my findings relating to
the jurisdiction of this Court. The applicant, in my view, has no prospect of
success on appeal where it comes to the issues of jurisdiction. And that should
really be the end of it for her.
[19] The applicant finally seeks leave to appeal against the costs order I made. The
decision to award costs entails the exercise of a discretion, and the applicant
has simply made out no case that the discretion as I have exercised it, would
be assailable on appeal, in line with the following dictum in Coates Brothers
Ltd v Shanker and Other
16:
‘An appellant must show, in an appeal from a decision in a lower court, that
the court a quo 'acted capriciously, or acted upon a wrong principle, or in a
biased manner, or for insubstantial reasons, or committed a misdirection or an
irregularity, or exercised its discretion improperly or unfairly …’
[20] In the end, I am compelled to reiterate that the applicant should never have
pursued the original application in the first place, as nothing stood in her way
of asserting all her rights not to be unfairly dismissed, which is after all what
this case is really all about, in the ordinary course, and pursuant to the dispute
resolution process under the LRA . The persistent reliance on unlawfulness,
despite all has been said about this not being com petent or envisaged under
the LRA, is an untenable position, and must end.
the LRA, is an untenable position, and must end.
[21] All the above considered, I thus conclude that the applicant has failed to show
that there exists a reasonable prospect that another Court would come to a
different conclusion, and in my view the applicant has no prospect of success
16 (2003) 24 ILJ 2284 (LAC) at para 5.
11
on appeal at all . Considering also what has actually happened, since the
application was brought in the first place, the applicant in essence by way of
this application for leave to appeal, seeks a determination from an A ppeal
Court where there is no longer any live lis between the parties where it comes
to the actual conduct sought to be interdicted. This matter also does not
concern any issue of particular public interest, or any question of law that
requires determination by an A ppeal Court , with the applicable jurisdictional
issues being trite . The application for leave to appeal thus falls to be
dismissed. It is, all considered, meritless.
[22] This only leaves the issue of costs in this application for leave to appeal . I
have a wide discretion where it comes to the issue of costs, by virtue of the
provisions of section 162(1) of the LRA. Even though I consider the application
for leave to appeal to be a continuation of the abuse of process that exists in
this case, and being for all intents and purposes meritless , I have not been
favoured with opposing submissions to the application for leave t o appeal from
the respondents. I shall therefore decide the application for leave to appeal on
an unopposed basis, and make no order as to costs.
[23] For all the reasons as set out above, the following order is made:
Order
1. The applicant’s application for leave to appeal is dismissed.
2. There is no order as to costs.
_____________________
S. Snyman
Acting Judge of the Labour Court of South Africa