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[2026] ZALCCT 59
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Kleinsmith v Commission for Conciliation Mediation and Arbitration and Others (Leave to Appeal) (C03/2025) [2026] ZALCCT 59 (31 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case
no:
C03/2025
In the matter between:
RONALDO
GIOVANNI
KLEINSMITH
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION
&
ARBITRATION
First
Respondent
ELRIDGE
EDWARDS
N.O
Second Respondent
ABSA
BANK
LTD
Third
Respondent
Heard
:
In chambers
Delivered
:
31 March 2026
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date for hand-down
is deemed to be 31 March 2026.
JUDGMENT - APPLICATION
FOR LEAVE TO APPEAL
JACOBS AJ
Introduction
[1]
This is an opposed application by the Third
Respondent for leave to appeal against the whole of this court's
judgment and order
of 10 February 2026.
Test for Leave to
Appeal
[2]
The test to be applied in considering an
application for leave to appeal is well known.
[3]
Leave
to appeal will only be granted if a court is of the opinion that the
appeal would (not may), have reasonable prospects of
success and/or
there are compelling reasons why the appeal should be heard.
[1]
Stated differently, t
he
test is whether there is a reasonable prospect that another court
would come to a different conclusion, not whether there is
a
possibility that another court could come to a different conclusion.
[4]
The
Labour Appeal Court in
Martin
and East
[2]
warned that:
“
...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...”
[3]
The application
[5]
Several grounds of appeal were raised in support
of this application.
Both the Applicant and Third Respondent
submitted comprehensive submissions in support and in opposition of
the application for
leave to appeal.
Ground 1 – A
fairness issue was mischaracterised as a jurisdictional issue and the
incorrect standard on review was applied
[6]
The
question to be considered related to the Third Respondents authority
to pursue disciplinary action against Mr Kleinsmith for
alleged
misconduct during an earlier period of employment. The test on review
when a legal issue such as jurisdiction is considered,
involves a
determination of correctness, and not reasonableness.
[4]
[7]
The inquiry whether an employer has the authority,
or jurisdiction, to institute disciplinary action is a legal question
and not
an issue susceptible to subjective opinion. The inquiry was
not whether the exercise of disciplinary power was fair as the Third
Respondent suggests, but rather whether the power to act existed at
all.
[8]
The Third Respondent’s point of departure is
the assumption that Absa had the authority to act. The authority to
act is a
legal prerequisite which has to exist before the fairness of
any pursuant action may be evaluated. Absa’s common law and
contractual authority to discipline were found to have ended when the
contract which this authority derived from, terminated.
[9]
The question whether Absa had the power to
institute disciplinary action was not a fairness issue, but a
question of law.
Ground 2 - Contractual
rights were conflated with the employer’s right to maintain
discipline
[10]
The finding
in
Public
Investment Corporation v More and Others
[5]
that a disciplinary hearing is held within the ambit of the LRA and
that dismissal is the exercising of a statutory right to terminate
an
employment relationship on the grounds recognised by the LRA, was
acknowledged.
[11]
The statutory right to terminate an employment relationship on the
grounds recognised by
the LRA can however not exist in absence of an
employment relationship, which will always be based on an employment
contract, whether
expressed, implied, verbal or written. The
statutory right to terminate an employment relationship is derived
from the employment
contract.
[12]
Contractual rights were specifically distinguished
from the employer’s right to maintain discipline.
An
employer’s common law, statutory or contractual rights to
discipline an employee cannot exist or be exercised outside a
valid
employment contract.
Ground 3 - Clause 13.1
of the 2022 employment contract was misinterpreted
[13]
Clause 13.1 of the 2022 employment contract
is unambiguous and was evidently included by the Third Respondent to
limit the parties’ rights and obligations to those rights
and
obligations incidental to the employment relationship which came into
effect on 1 December 2022.
[14]
The intention of the parties when concluding the 2022 contract, was
clearly to start with
a clean slate. Mr Kleinsmith would not have
been entitled to demand benefits such as recognition for long service
and seniority
based on the earlier employment contract. Clause 13.1
is obviously not meant to operate selectively, and it clearly does
not allow
for unilateral additions, amendments or extensions to the
contract – that would create an absurd situation.
[15]
The language, purpose and context of clause 13.1
is not open for creative interpretation.
Clause 13.1 is an
expressed exclusion of rights and obligations that may have existed
by virtue of any historical or ulterior contract
or arrangement.
Ground 4 - Reasoning
is internally contradictory and irreconcilable with
Public
Investment Corporation v More
[16]
This aspect is closely related to ground 2, above.
[17]
Although misconduct does not prescribe with the
passage of time, the right to act on perceived misconduct, however
lapses with the
termination of the contract from which the right to
discipline is derived.
[18]
The rights incidental to a terminated contract do
not automatically revive upon the later conclusion of a new contract,
especially
if the new contract expressly excludes the incorporation
of historical rights. This is not what
Public
Investment Corporation v More
implies.
Ground 5 –
Implying a waiver where none could legally exist
[19]
A waiver was not implied. The contract concluded
in December 2022 clearly expressed the intention to limit the
parties’ rights
and obligations to those rights and obligations
incidental to the 2022 contract.
[20]
In this instance, a prior right to discipline was
extinguished by the termination of the contract it was derived from.
Whether the
provision in question is labeled as a waiver or a
contractual exclusion, may be semantic differentiation. The
provisions of the
2022 contract intentionally excluded
any
rights or obligations that the parties may have been entitled to by
virtue of any historical or ulterior contract or arrangement.
Ground 6 –
Misdirection on a material and undisputed fact
[21]
The record of the evidence adduced at the arbitration hearing showed
that Mr Kleinsmith
and Opulence ceased working for Absa when Mr
Kleinsmith was appointed in December 2022. An invoice was submitted
in January 2023
for services rendered 3 to 4 months earlier, prior to
Mr Kleinsmith’s employment on 1 December 2022. Opulence did not
render
services to Absa after 1 December 2022.
[22]
The
Sidumo
-test was applied to the Commissioner’s
findings concerning the first charge, and a sanction short of
dismissal was imposed
in accordance with the Commissioner’s
finding that Absa’s actions were too harsh in relation to this
charge.
Other
possible compelling reasons for the appeal to be heard
[23]
The Third Respondent suggests that the questions
raised in its application for leave to appeal are of broader
importance to labour
law in South Africa and warrant appellate
guidance.
[24]
In
Martin
and East,
[6]
the LAC made it clear that leave to appeal is not simply there for
the taking, and also emphasised that:
“…
The
Labour
Relations Act was
designed
to ensure an expeditious resolution of industrial disputes. This
means that courts, particularly courts in the position
of the court a
quo, need to be cautious when leave to appeal is granted, as should
this Court when petitions are granted
.”
[25]
The issues relevant to this matter are not
new. The issues involve established legal principles which are dealt
with sufficiently
in sources such as authoritative
judgements.
[26]
Parties approach the Labour Court to get
finality on an issue. This court cannot grant leave to appeal merely
to see what the Labour
Appeal Court may determine.
Conclusion
[27]
In the circumstances, leave to appeal
cannot succeed.
Order
1.
The application for leave to appeal is
dismissed.
2.
The Third Respondent will pay the Applicant’s costs.
W
Jacobs
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicant:
-Adv C de Kock &
Adv D Seale
Instructed by:
- CK Attorneys
For the Third
Respondent:
- Adv L Mukome
Instructed by:
- Phatshoane Henney
Attorneys
[1]
Superior Court Act 10 of 2013, section 17(1);
Also
see eg
:
Martin
and East (Pty) Ltd v NUM
(2014)
35 ILJ 2399 (LAC)
[2]
Supra
[3]
Also see:
Mgedezi
Gasbat Nxumalo v The National Bargaining Council for the Chemical
Industry (NBCCI) and Others
(JR 1170/2023) [2016] ZALCJHB 212 (15 June 2016)
[4]
Ukweza
Holdings (Pty) Ltd v Nyondo and Others
(PA2/19)
[2020] ZALAC 7
;
[2020] 6 BLLR 544
(LAC); (2020) 41 ILJ 1354
(LAC);
Also
see eg
:
Exxaro
Coal (Pty) Ltd v Chipana and Others
(JA161/17)
[2019] ZALAC 52
;
[2019] 10 BLLR 991
(LAC); (2019) 40 ILJ
2485 (LAC) (27 June 2019);
Eskom
Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and
others
[2017] 8 BLLR 797
(LC)
[5]
(JR 2121/2022) [2025] ZALCJHB 159; (2025) 46 ILJ 1775 (LC)
[6]
Supra