THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 419 /2022
In the matter between:
MOHAMED SALLY APPLICANT
AND
CPES (PTY) LTD T/A VIVI SA RESPONDENT
Heard: IN CHAMBERS
Delivered:30 March 2026
JUDGMENT- APPLICATION FOR LEAVE TO APPEAL
MAHALELO, AJ
Introduction
[1] This is an application for leave to appeal against the whole of this C ourt's
judgment and order delivered on 30 January 2026 in which t he Court found
that the applicant had not established constructive dismissal as contemplated
in section 186(1) (e) of the LRA and dismissed the applicant’s claim of unfair
discrimination.
2
[2] Several grounds of appeal were raised in support of this application. It is
unnecessary to list them in this judgment. Suffice to mention that the
respondent submitted that those gr ounds are meritless and should be rejected
by the court.
Test for Leave to Appeal
[3] Section 17 (1) of the Superior Court Act1 deals with the relief of leave to appeal.
In terms thereof, leave to appeal may only be granted (a) where a judge/s are
of an opinion that (a) the appeal “would” not “may”, have reasonable prospects
of success (b) there are some compelling reasons why the appeal should be
heard, including the existence of conflicting judgments on the matter under
consideration.
[4] It has been confirmed that the use of the words “ only” and “would” implies that
the threshold is set to o high to a point where this Court must only give leave in
instances where a definitive prospect exist that the appeal would succeed.
[5] The court in Mgedezi Gasbat Nxumalo v The National Bargaining Council for
the Chemical Industry (NBCCI) and Others 2 conveniently summari sed the
approach to an application for leave to appeal as follows:
“The traditional formulation of the test that is applicable in an application such
as the present 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. As the respondents
observe, the use of the word would in section 17(1)(a)(i) are 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 (See Daantjie Community and Others v
Crocodile Valley Citrus Company (Pty) Ltd and Another (75/ 2008) [2015]
ZALCC 7(28 July 2015). Further, this is not a test to be applied lightly - the
Labour Appeal Court has recently had occasion to observe that this court ought
Labour Appeal Court has recently had occasion to observe that this court ought
to be cautious when leave to appeal is granted, as should the Labour Appeal
1 10 of 2013
2 JR 1170/2023 Unreported
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Court when petitions are granted. 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 (see the judgment by Davis JA in Martin and East(Pty) Ltd v NUM
(2014) 35 ILJ 2399 (LCA), and also Kruger v S 2014(1) SACR 369 (SCA) and
the ruling by Steenkamp J in Oasys Innvations (Pty Ltd v Henning and Another
(C536/15, 6 November 2015…”
Conclusion
[7] I have had regard to the test for leave to appeal and the submissions in terms of
rule 67(5) by the parties . I concluded that t here are no reasonable prospects on
appeal.
[8] In the circumstances leave to appeal application stands to fail.
Order
1. Application for leave to appeal is dismissed.
2. No order as to costs
_______________________
MB MAHALELO
Acting Judge of the Labour Court of South Africa.
Appearances
For the Applicant: Adv F Boda SC; Adv Moolla
Instructed by: AR Mahomed Attorneys
For the Respondent: Adv AJ Nel
Instructed by: Goldberg Attorneys Inc