THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No: C632/2023
In the matter between:
MALUTI – A PHOFUNG MUNICIPALITY Applicant
and
SOUTH AFRICAN MUNICIPAL WORKERS UNION First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION Second Respondent
INDEPENDENT MUNICIPAL & ALLIED TRADE UNION Third Respondent
SOUTH AFRICAN LOCAL GOVERNMENT Fourth Respondent
BARGAINING COUNCIL
SAM MAKHUBU Fifth Respondent
Heard: In Chambers
Delivered: 27 May 2026
(1) Reportable: NO
(2) Of interest to other Judges: NO
Signature Date
JUDGMENT
DANIELS J
[1] This judgment concerns an application for leave to appeal and a related
application for condonation. The applicant sought final relief by applying to
review and set aside the fifth respondent's conduct on the grounds that it was
unlawful. Judgment was handed down on 19 January 2026, with the
application being dismissed.
[2] The applicant filed an application for leave to appeal on 9 February 2026 and
delivered its submissions on 2 March 2026. The applicant seeks condonation
of the late filing of its submissions, which were filed 4 days past the deadline.
The delay was occasioned by difficulties securing timely instructions to
proceed with the application. The short delay is adequately explained, and
there is no prejudice. In the interests of justice, condonation is granted.
[3] Section 17(1) of the Superior Courts Act No. 10 of 2013 provides that leave to
appeal may be granted only where the court a quo is of the opinion that the
appeal has a reasonable prospect of success, or where there is some other
compelling reason for the appeal to be heard. Leave to appeal should not be
granted unless there is a sound and rational basis to conclude that there is a
reasonable prospect of success.
1
[4] There is no need to explore all the grounds of appeal. From what follows, it is
plain that the applicant has no reasonable prospects of success.
1 MEC for Health, Eastern Cape v Mkhitha and Another [2016] JOL 36940 (SCA) at paras 16 – 17
[5] Quite simply, given the material factual disputes , the applicant was unable to
discharge the onus.
[6] The applicant made sweeping allegations regarding the central issue in the
dispute, relying on two documents: the staff establishment and the approved
annual budget . However, w hen its allegations were disputed, the applicant
failed to produce such documents. This was insufficient. With applications, the
affidavits stand as both pleadings and as evidence. It is an established rule of
evidence that when the terms of a written document are at issue, the
document should be produced, whether this be the original or a copy.2
[7] In National Director of Public Prosecutions v Zuma 3 Harms DP (as he then
was) stated crisply: “Motion proceedings, unless concerned with interim relief,
are all about the resolution of legal issues based on common cause facts.
Unless the circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.” On the
Plascon Evans4 test, final relief should only be granted when the facts alleged
by the applicant, which are admitted by the respondent, taken with those facts
alleged by the respondent, justify the relief. On that test, the application did
not get out of the starting blocks.
Order
[8] The application for condonation is granted, but the application for leave to
appeal is dismissed.
RN Daniels
Judge of the Labour Court of South Africa
2 R v Amod & Co (Pty) Ltd and another 1947 (3) SA 32 (A) at para [40]
33 2009 (2) SA 277 (SCA) at para [26]
4 Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)