THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C97/2024
In the matter between:
NOGXOLO BIGBOY Applicant
and
NATIONAL BARGAINING COUNCIL FOR THE
PRIVATE SECURITY SECTOR First Respondent
JP HANEKOM N.O. Second Respondent
RISK&CO / ATCOGLO Third Respondent
Heard: 9 April 2026 (In chambers).
This judgment is handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down this ruling is deemed to be 10h00 on 10
April 2026.
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______________________________________________________________________
JUDGMENT
______________________________________________________________________
DE KOCK, AJ
Introduction
[1] The applicant, Nogxolo Bigboy, applies for leave to appeal against the judgment of
this Court handed down on 14 October 2025 in which his application to review and
set aside the arbitration award of Commissioner JP Hanekom was dismissed. The
award, issued on 7 February 2024 under the auspices of the National Bargaining
Council for the Private Security Sector, upheld the substantive and procedural
fairness of the applicant’s dismissal by the third respondent (Atcoglo). The
application for leave to appeal is opposed by the third respondent.
Applicable Legal Test
[2] Section 17(1)(a) of the Superior Courts Act 1 provides that leave to appeal may
only be granted where the judge is of the opinion that the appeal would have a
reasonable prospect of success, or there is some other compelling reason why
the appeal should be heard.
[3] The wording is deliberate. The legislature moved away from the earlier, more
permissive formulation that focused on whether another court may come to a
different conclusion. The current test requires that the judge be satisfied that the
appeal would have a reasonable prospect of success, a higher threshold than
mere arguability.
1 Act 10 of 2013.
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[4] In Smith v S2, the court explained that “reasonable prospects of success” means
more than that the case is arguable. There must be a sound, rational basis for
concluding that another court would come to a different conclusion.
[5] In Martin and East (Pty) Ltd v National Union of Mineworkers and Others 3, the
Labour Appeal Court underscored the gate-keeping function of the Labour Court.
It cautioned that disputes that raise no novel point of law and involve no
misinterpretation of existing law should ordinarily end in the Labour Court and not
be allowed to “reappear continuously in courts on appeal after appeal, subverting
a key purpose of the Act, namely the expeditious resolution of labour disputes.”
Condonation
[6] The applicant’s submissions in support of the application for leave to appeal were
due on or before 11 November 2025, being within ten days of the filing of the leave
to appeal application itself. The submissions were not filed within that period. The
applicant seeks condonation for the late filing.
[7] The applicant’s affidavit characterises the delay as “approximately 40 court days.”
This calculation is incorrect. The period from 12 November 2025 (the first day after
the due date) to 7 January 2026 (the date of filing) must be assessed having
regard to the dies non provisions. The December/January court recess and public
holidays falling within that period are excluded from the count of court days.
4 On a
proper calculation, the delay amounts to approximately 24 court days.
[8] Furthermore, the Registrar brought the requirement to file submissions to the
applicant’s attention on 12 December 2025. The dies non period commenced on
16 December 2025. Accordingly, two court days , 12 and 15 December 2025, fell
between the Registrar’s notification and the commencement of the recess, during
which the applicant took no steps. From 16 December 2025, however, no court
days ran. The filing on 7 January 2026 was itself within the dies non period and
days ran. The filing on 7 January 2026 was itself within the dies non period and
2 (475/10) [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) at para 7.
3 (CA23/2012); [2013] ZALAC 35; (2014) 35 ILJ 2399 (LAC).
4 Rule 1 of the Rules Regulating the Conduct of Proceedings in the Labour Court (GN 4775 of 3 May
2024). The period 16 December to 15 January (both dates inclusive) constitutes dies non for purposes of
calculating prescribed time periods.
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preceded the resumption of the court term on 16 January 2026. The two court
days of inaction between notification and the commencement of the recess do not,
in the circumstances, weigh materially against the applicant, and do not alter the
overall assessment in favour of granting condonation.
[9] The applicant’s explanation for the delay, as set out in his supporting affidavit
sworn on 30 December 2025, is that he was not au fait with the rules and modus
operandi of this Court and believed that the application for leave to appeal, on its
own and without supporting submissions, would suffice. He has no legal advisor or
representation. He submits that the third respondent will suffer no prejudice and
that he himself will suffer immense prejudice if condonation is refused.
[10] Weighing the relevant considerations: the delay, properly calculated, is a relatively
short period of 24 court days; a significant portion of the calendar period was
absorbed by the court recess; the applicant is self -represented; and the third
respondent, whilst opposing, does not identify any specific prejudice flowing from
the delay beyond the need to incur further legal costs. Having regard to the
interests of justice and the overall circumstances, the Court is prepared to grant
condonation.
[11] The Court proceeds to consider the merits of the application for leave to appeal.
Merits of the Application for Leave to Appeal
General observations
[12] The judgment under attack properly identified and applied the correct review
framework.
5 The Court found, as it was entitled to, that: (a) review is not an
appeal; (b) factual errors or disagreements with credibility findings do not, of
themselves, constitute a reviewable irregularity; and (c) an award stands where
the outcome is one a reasonable arbitrator could reach on all the material before
him.
5 Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); Herholdt v
Nedbank Ltd [2013] ZASCA 97; (2013) 34 ILJ 2795 (SCA) at para 25; Gold Fields Mining SA (Pty) Ltd v
CCMA & others (JA2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC).
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[13] The applicant’s six proposed grounds of appeal reprise, in substance, the same six
grounds advanced on review. Each was individually considered, rejected on the
facts, and assessed cumulatively for reasonableness. This Court expressly found:
the commissioner made credibility findings based on probabilities; the employer’s
witnesses were consistent and corroborated by documentary evidence; the
applicant was an unreliable witness who offered bare denials; and the outcome
was supported by substantial evidence.
Grounds 1–4: Credibility, evidence and probabilities
[14] The applicant’s challenge to the events of 27 January 2023 and 10 February 2023,
Pape’s training role, Martin’s alleged contradictions, and the weight attached to
Burger’s email are quintessential factual disputes of a credibility and probability
nature. Such disputes do not give rise to a reviewable irregularity, and this Court’s
endorsement of the commissioner’s findings on these issues is not susceptible to
challenge on appeal.
[15] The proposed grounds disclose no legal misdirection, no misconceived enquiry,
and no irrationality in the commissioner’s approach or this Court’s assessment
thereof. There is no realistic prospect that another court would arrive at a different
conclusion on any of Grounds 1 to 4.
Ground 5: Abandonment of the disciplinary hearing
[16] The finding that the applicant abandoned the disciplinary hearing is
unimpeachable on the evidence. The applicant conceded that he did not attend
the reconvened hearing on 17 April 2023, and that his reason for not attending
was his unilateral assessment that the evidence to be presented was irrelevant. An
employee who elects not to participate in a disciplinary hearing after proper notice
cannot subsequently complain of procedural unfairness. Ground 5 discloses no
reasonable prospect of success on appeal.
Ground 6: Racist remark and sanction
[17] The applicant admitted making a racist remark to Pape. The commissioner found,
[17] The applicant admitted making a racist remark to Pape. The commissioner found,
and this Court upheld the finding, that this conduct independently merited
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summary dismissal. The Labour Appeal Court has confirmed that racist remarks in
the workplace constitute serious misconduct that fundamentally undermines
workplace dignity and trust.
6 The commissioner’s conclusion that dismissal was an
appropriate sanction, independently supported by this admitted conduct, cannot be
said to be one that no reasonable arbitrator could reach. Ground 6 discloses no
reasonable prospect of success on appeal.
[18] It follows that even if all other grounds were to enjoy any traction before an
appellate court, which this Court does not accept, the independently sufficient
basis for dismissal constituted by the admitted racist remark would in any event
sustain the outcome.
No compelling reason
[19] The applicant raises no novel legal issue, identifies no conflicting judgments,
advances no point of public importance, and discloses no jurisprudential
uncertainty. There is accordingly no other compelling reason why the appeal
should be heard.
Overall Assessment
[20] The applicant has failed to demonstrate a realistic, reasonable prospect that
another court would arrive at a different conclusion in respect of any of the
grounds advanced. The application discloses no compelling reason for the appeal
to be heard. Notwithstanding the granting of condonation, the application for leave
to appeal must accordingly be dismissed.
Costs
[21] The third respondent does not seek a costs order. This Court’s judgment was
made without a costs order against the applicant. In the exercise of the Court’s
discretion and having regard to the applicant’s status as a self-represented litigant,
there will be no order as to costs.
Order
6 Legal Aid South Africa v Mayisela [2019] ZALAC 1; (2019) 40 ILJ 1526 (LAC) at para 49.
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[22] In the premises, the following order is made:
1. The application for condonation of the late filing of the applicant’s
submissions in support of the application for leave to appeal is granted.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa