THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JS878/2017
In the matter between:
NUMSA OBO AUBREY DHLUDHLU & OTHERS Applicants
and
MARLEY PIPE SYSTEMS (PTY) LTD Respondent
Heard: In chambers
Delivered: 19 March 2026
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
ITZKIN, AJ
[1] The applicants in this matter , who are a group of seven former employees of
the respondent (referred to herein as “the employees”),
1 seek leave to appeal
against this Court’s judgment wherein it was found that their dismissals were
substantively fair (at the level of sanction) and their unfair dismissal claims are
therefore dismissed.
1 They are Thabo Mphuthi, Vusi Mthimkulu, Moses Dhludhlu, Potia Mosekedi, Thabang Pitsi,
Hopolang Khumalo and Sarah Mokoena.
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
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Signature Date
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[2] They advance six intended grounds of appeal:
2.1 The Court erred and misdirected itself when it held that at issue requiring
determination at the outset is whether any regard may be had to violence
associated with strike of employees, despite the fact that the plaintiffs
were exonerated (ground one).
2.2 The Court erred in finding that the strike was not a response to unjustified
conduct of the defendant (ground two).
2.3 The Court erred and misdirected itself in finding that the evidence
establishes that further distribution was actively thwarted by a shop
steward (ground three).
2.4 The Court erred and misdirected itself in holding that the defendant
adduced evidence of substantial financial losses and operational
disruption following the strike (ground four).
2.5 The Court erred and misdirected itself in finding that the defendant has
discharged its onus of proving that dismissal was a proportionate and
substantively fair sanction (ground five).
2.6 The Court erred and misdirected itself in holding that the dismissal of the
applicants was substantively fair and the unfair dismissal claims are
therefore dismissed (ground six).
[3] The test for leave to appeal entails evaluating whether the appeal would have a
reasonable prospect of success or there is some other compelling reason why
the appeal should be heard, including conflicting judgments on the matter under
consideration.
[4] The test is not met in relation to the first four grounds.
4.1 Ground one appears to rest on a misunderstanding of the judgment. The
respondent had contended, in its heads of argument in the remitted
proceedings, that in assessing the seriousness of the misconduct, the
violence associated with the strike ought to be considered an aggravating
factor. In other words, it argued that this factor rendered the employees’
misconduct in participating in the unprotected strike more serious. In the
judgment, the Court rejected that argument and found that the violent
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nature of the strike ought not to be a factor that weighs in the Court's
consideration of sanction. The Court’s a pproach was thus to the
employees’ benefit, as the issue of sanction was not influenced by that
consideration.
4.2 With reference to ground two, there was simply no evidence t o
substantiate a contention that the strike was a response to unjustified
conduct on the part of the respondent.
4.3 With reference to ground three, the evidence clearly established that
steps were taken to seek to distribute ultimat a but that the process was
undermined by the intervention of a shop steward.
4.4 With reference to ground four, the defendant adduced evidence of
substantial financial losses and operational disruption following the strike,
and the judgment recognised that whilst this was a relevant factor, not all
losses could necessarily be attributed to the unprotected strike itself
(given that some may well have flowed from the assault and associated
conduct).
[5] In my assessment, grounds five and six fall into a different category. An
assessment of proportionality in determining substantive fairness (on sanction)
entails a value judgment which is not straightforward, and there exists scope for
different decision makers to attribute different amounts of weight to the various
factors at play in a specific case.
[6] By way of example, although this Court was not persuaded that the limited
duration of the strike was a weighty consideration in the circumstances of this
case, there exists a reasonable prospect of a different view thereon being taken
by an appeal court , which in turn, may influence its assessment of substantive
fairness at the level of sanction.
[7] For these reasons, I am inclined to grant the application for leave to appeal.
Order
1. The application for leave to appeal is granted.
2. There is no order as to costs.
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_______________________
R Itzkin
Acting Judge of the Labour Court of South Africa