THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR2672/2021
In the matter between:
DEPARTMENT OF FORESTRY, FISHERIES AND
THE ENVIRONMENT Applicant
and
COMMISSIONER TJ SONO N.O. First Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL Second Respondent
PSA obo LUTHANDO KIVA Third Respondent
DEPARTMENT OF PUBLIC SERVICE
AND ADMINISTRATION Fourth Respondent
DEPARTMENT OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT Fifth Respondent
Decided : In Chambers
Judgment : 24 June 2026
This judgment was handed down electronically by emailing a copy
to the parties. The 24 June 2026 is deemed to be the date of delivery
of this judgment).
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ 24/06/2026
Signature Date
2
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
TEBEILE AJ
Introduction
[1] This is an application for leave to appeal against the whole
judgment and order of this C ourt delivered on 15 August 2024. In
that judgment, th is court dismissed the applicant’s review
application brought in terms of section 145 of the Labour Relations
Act
1 (“the LRA ”), which sought to review and set aside an
arbitration award issued by the first respondent on 20 April 2021.
The application for leave to appeal is unopposed.
[2] It is important within the context of effective administration of justice
that I must mention that it appears that the applicant brought its
application for leave to appeal on 05 September 2024. However,
the said application for leave to appeal was unfortunately never
brought to my attention until on or ab out 27 May 2026 when I
received an email from Mr Tshepo Sethole from the office of the
registrar of this Court enquiring about the said application for leave
to appeal. The email dated 27 May 2026 reads:
“I trust that this email finds you well.
We have received an email from the Applicant in the above matter,
enquiring as to the status of the application for leave to appeal that was
submitted in September 2024. The said application is directed at
appealing a judgment delivered by you.
1 Act 66 of 1995, as amended.
3
Kindly confirm whether the application was recei ved by you, and
thereafter provide an update regarding the status thereof, including any
further steps taken or outstanding.”
[3] Unfortunately, on 27 May 2026, it was for the very first time that I
was informed of the applicant’s application for leave to appeal.
[4] In response to the email dated 27 May 2026 from office of the
registrar, I requested that the application for leave to appeal be
forwarded to me and that the court file be arranged for my
consideration to ensure speedy hearing of this application. I m ust
admit that the delay in hearing of this application is prejudicial to
both parties and the interest of justice. The Court is regretful for
lengthy delay in determination of this application for leave to
appeal.
[5] I sincerely tender my sincere apologies to the parties for the
inconvenience caused by the delay on the hearing of this
application for leave to appeal.
Background
[6] The background to this matter is set out in the main judgment and
is briefly summarised here. The third respondent, Mr Luthando
Kiva, was employed by the applicant as a Senior Forestry Scientist.
He referred a dispute to the second respondent, demanding that he
be translated to the Occupation Specific Dispensation (OSD)
retrospectively from 2012. He alleged that he met the criteria for
translation in terms of Annexure B of the OSD.
[7] The first respondent found that Annexure B of the OSD was
applicable to Mr Kiva ’s circumstances and ordered the applicant to
comply with Annexure B and translate Mr Kiva to the OSD with
effect from 2012.
4
[8] The applicant sought to review and set aside this award on several
grounds, including that the first respondent lacked jurisdiction, that
the order was one of specific performance beyond the second
respondent’s powers, and that there was a non- joinder of the
Department of Public Service and Administration (DPSA). This
Court dismissed the review application, finding that the first
respondent’s decision was one that a reasonable decision -maker
could reach. The applicant now seeks leave to appeal that
judgment.
The test for leave to appeal
[9] The test for leave to appeal is governed by section 17(1) of the
Superior Courts Act2. Section 17(1)(a) provides that leave to appeal
may only be given where the judge concerned 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,
including conflicting judgments on the matter under consideration.
[10] The test is now a stringent one. In Mkhitha3, the Supreme Court of
Appeal held that an applicant for leave to appeal must convince the
court on proper grounds that there is a reasonable prospect or
realistic chance of success on appeal. A mere possibility of success,
an arguable case, or one that is not hopeless, is not enough.
4 There
must be a sound, rational basis for concluding that there is a
reasonable prospect of success on appeal.
5
[11] The Labour Appeal Court in Martin and East (Pty) Ltd v N ational
Union Mineworkers and Others 6 emphasized that this Court should
2 Act 10 of 2013.
3 MEC for Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176.
4 Id at para 17.
5 Id.
6 (2014) 35 ILJ 2399 (LAC).
5
be cautious when granting l eave to appeal. Davis JA went on and
held that the LRA was “designed to ensure an expeditious resolution
of industrial disputes ”, and that means, the courts “need to be
cautious when leave to appeal is granted, as should this Court when
petitions are granted” . The statutory imperative of the expeditious
resolution of labour disputes requires that appeals be limited to those
matters where there is a reasonable prospect that the factual matrix
could receive a different treatment or where there is a legitimate
dispute on the law.7
Evaluation of the grounds for leave to appeal
[12] I have considered the grounds for leave to appeal raised by the
applicant and the submissions made in support thereof. I have also
reflected on the judgment delivered on 15 August 2024, which I
consider to be thorough and well-reasoned.
[13] The applicant’s primary argument is that this court erred in finding
that the dispute was about the application of a collective agreement,
and that the arbitrator’s order for compliance with Annexure B
constituted an impermissible order for specific performance. I am not
persuaded that another court would reach a different conclusion on
this point.
[14] The first respondent was tasked with determining whether Mr Kiva
was entitled to be translated to the OSD in terms of the collective
agreement. The order requiring the applicant to comply with
Annexure B is a natural and necessary consequence of finding that
Mr Kiva met the criteria for translation. It is not, as the applicant
suggests, an order for specific perfor mance akin to reinstatement,
7 See also Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others (2016) 37 ILJ 1485 (LC).
6
but rather an order to give effect to the provisions of a binding
collective agreement.
[15] The applicant also contends that this Court erred in its approach to
the issue of non- joinder of the DPSA. Th is Court correctly held that
this issue was never raised during the arbitration and that the
applicant had failed to demonstrate that the DPSA had a direct and
substantial interest in the proceedings which would be prejudiced by
its non-joinder.
[16] In my view, the grounds for leave to appeal advanced by the
applicant are essentially a repetition of the arguments raised in the
review application. They do not identify any material error of law or
fact in the judgment of this court delivered on 15 August 2024. In my
view, t he applicant has failed to show that there is a reasonable
prospect that another court would come to a different conclusion.
[17] I am mindful of the applicant’s argument that the appeal raises an
important question regarding the proper exercise of the c ourt’s
discretion. However, as set out above, the principles governing the
review of arbitration awards and the interpretation of collective
agreements are well-established. The applicant has failed to identify
any novel or unresolved legal issue that would constitute a
compelling reason for the appeal to be heard.
Conclusion
[18] Having considered the application, the grounds for leave to appeal,
and the applicable legal principles, I am not convinced that the
applicant has established that there is a reasonable prospect of
success on appeal, nor that there is any other compelling reason
why the appeal should be heard.
7
[19] In the circumstances, t he application for leave to appeal falls to be
dismissed.
Costs
[20] The general rule in this C ourt is that costs do not follow the result.
The application for leave to appeal is unopposed and therefore an
appropriate order is to make no order as to costs.
Order
[21] In the result, the following order is made:
1. The application for leave to appeal is dismissed.
2. There is no order as to costs.
Shadrack Tebeile
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. M.H Mhambi
Instructed by: State Attorney, Pretoria (Mr N Mkhwanazi)
For the Third Respondent: No appearance