THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: J 1751/2023
DEAN DE JAGER FIRST PLAINTIFF
FRANK JEAN-PAUL DEL PONTES SECOND PLAINTIFF
FRANCIOUS BARNARDUS DE JAGER THIRD PLAINTIFF
and
METHANO GROUP (PTY) LTD DEFENDANT
Decided: In Chambers
Judgment: 7 August 2026
This judgment was handed down electronically by email circulation to the parties. The date for
hand-down is deemed to be 7 August 2026.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
PRINSLOO J
[1] The Defendant applied for leave to a ppeal against the whole of the judgment
and order, delivered on 12 May 2026.
[2] I have considered the grounds for appeal raised by the Defendant as well as
the submissions made in support and in opposition thereof, and I do not intend
to repeat those herein.
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The test for leave to appeal
[3] It is trite that there is no automatic right of appeal against a judgment of the
Labour Court. This much is clear from section 166(1) of the Labour Relations
Act1 (LRA) which provides that any party to any proceedings before the Labour
Court may apply for leave to appeal to the Labour Appeal Court (LAC) against
any final judgment or final order of the Labour Court. To be entitled to leave to
appeal, an applicant in an application for leave to appeal must satisfy this Court
that there is a reasonable prospect that another court would come to a different
conclusion.
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[4] Section 17(1) of the Superior Courts Act 3 provides that leave to appeal may
only be granted if the appeal has a reasonable prospect of success or if there
is some other compelling reason why the appeal should be heard. The Superior
Courts Act has raised the threshold for granting leave to appeal.
[5] The test is not whether there is a possibility that another court could come to a
different conclusion, the test is whether there is a reasonable prospect that
another court would come to a different conclusion. The test indicates a
measure of certainty that another court will differ from the court whose judgment
is sought to be appealed against.
[6] It is further trite that an applicant in an application for leave to appeal must
convince the court a quo that it has reasonable prospects of success on appeal.
The prospects of success must not be remote and a sound, rational basis for
the conclusion that there are prospects of success must be shown to exist.
[7] Appeals should be limited to matters where there is a reasonable prospect that
the factual matrix could receive a different treatment or where there is some
legitimate dispute on the law.
1 Act 66 of 1995, as amended.
2 See Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).
3 Act 10 of 2013.
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[8] In Seatlholo and o thers v Chemical Energy Paper Printing Wood and Allied
Workers Union and o thers,4 this Court confirmed that the test applicable in
applications for leave to appeal is stringent and held 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 t hat is sought to be taken on appeal. As the respondents
observe, the use of the word “would” in s17(1)(a)(i) is 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 to be cautious
when leave to appeal is granted, as should the Labour Appeal Cour t 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 i n Martin and East (Pty) Ltd v NUM (2014) 35 ILJ
2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by
Steenkamp J in Oasys Innovations (Pty) Ltd v Henning and another (C 536/15,
6 November 2015).’
[9] In deciding this application for leave to appeal, I am also guided by the dicta of
the Supreme Court of Appeal (SCA) where it held in Dexgroup (Pty) Ltd v
Trustco Group International (Pty) Ltd and others5 that:
‘…The need to obtain leave to appeal is a valuable tool in ensuring that scarce
‘…The need to obtain leave to appeal is a valuable tool in ensuring that scarce
judicial resources are not spent on appeals that lack merit. It should in this case
have been deployed by refusing leave to appeal.’
This application
[10] I have considered the submissions made and the grounds for appeal and
applying the applicable test, I am not convinced that the Defendant has made
out a case for leave to appeal to be granted.
[11] Considering the grounds for leave to appeal, it is evident that the application
does not meet the high threshold for leave to appeal to be granted. The purpose
of an appeal to the LAC is not to provide a litigant with an avenue for re-
argument or an opportunity to re- open what has already been finally
4 (2016) 37 ILJ 1485 (LC) at para 3.
5 2013 (6) SA 520 (SCA) at para 24.
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adjudicated. An appeal is limited to matters where there is a reasonable
prospect that another court would find differently.
[12] This matter concerns the application of established and trite principles
governing postponement applications and dismissals for operational reasons
(retrenchment). There is no novel issue, nothing unique, and no legitimate
dispute about the applicable legal principles involved. In short: there is no
legitimate dispute on the law and the Defendant is unable to cross this hurdle.
[13] There is also not a reasonable prospect that the factual matrix would receive a
different treatment by the LAC or that the LAC would come to a different
conclusion.
[14] On the refusal to grant postponement, the Defendant, in seeking leave to
appeal, filed an affidavit to set out the reasons why postponement should have
been granted. It is evident from the papers filed in the application for leave to
appeal that the Defendant seeks to remedy the reality that it did not present
sufficient evidence to justify a postponement. The Defendant seeks to introduce
new and amplified facts that were not provided when the application for
postponement was made. For instance, this Court was never informed that Mr
Malatji was unable to testify virtually because he did not have access to files
and records left in his office or that he did not foresee the possibility that he
would not be able to return to South Africa for the trial. This is not permissible,
and this application must be decided having regard to the factual matrix as it
was presented at the time the postponement application was refused.
[15] Insofar as the Defendant seeks leave to appeal against the refusal to grant a
postponement and the awarding of costs, those issues were decided by
exercising a discretion. In MEC for Environmental Affairs and Development
Planning v Clairison’s CC
6 the Supreme Court of Appeal described the test that
applies to the review of a discretion as follows:
applies to the review of a discretion as follows:
When the law entrusts a functionary with a discretion it means just that: the law
gives recognition to the evaluation made by the functionary to whom the
discretion is entrusted, and it is not open to a court to second- guess his
evaluation. The role of a c ourt is no more than to ensure that the decision-
maker has performed the function with which he was entrusted.
6 2013 (6) SA 235 (SCA) paras 18 and 20.
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……. The law remains, as we see it, that when a functionary is entrusted with
a discretion, the weight to be attached to particular factors, or how a particular
factor affects the eventual determination of the issue, is a matter for the
functionary to decide, and as he acts in good faith (and reasonably and
rationally) a court of law cannot interfere.
[16] When the exercising of a discretion is challenged, the test that the court, called
upon to interfere with the discretion, will apply is to evaluate whether the
decision maker acted capriciously, or upon the wrong principle, or with bias, or
whether or not the discretion exercised was based on substantial reasons or
whether or not the decision maker adopted an incorrect approach.
[17] Considering the test to be applied in challenging the exercise of a discretion,
the Defendant has not made out a case to show that the discretion was not
exercised judicially or that there is a possibility that the LAC would come to a
different conclusion.
[18] On the merits, the Defendant seeks leave to appeal because the “court erred
by overlooking submissions in the Defendant’s answering affidavit..” “the
factual findings are vitiated by ignoring material evidence in the court file” and
by making findings in favour of the Plaintiffs on aspects that are disputed by the
Defendant.
[19] The Defendant did not lead any evidence in the trial, and it is not open to the
Defendant to reference ‘evidence’ that was not led or presented. The Defendant
clearly does not understand that the contents of pleadings do not constitute
evidence per se, but that evidence must be presented and tested at trial. The
Defendant led no evidence.
[20] The Defendant raised as a ground for appeal that ‘the court erred by
overlooking submission in the Defendant’s answering affidavit that the Plaintiffs
were informed and consulted with the Union representatives (sic), because
consultation does not mean consulting the employees individually.’ This ground
consultation does not mean consulting the employees individually.’ This ground
for leave to appeal is also indicative of the Defendant’s lack of understanding
of Court process and the value of evidence. Not only did the Defendant not lead
any evidence, but this Court was faced with a case where the Plaintiffs
presented direct, viva voce and uncontested evidence that they did not belong
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to a union and that there was no consultation as required by section 189 of the
LRA, with a union or otherwise.
[21] This application for leave to appeal has no merit. It is an opportunistic abuse of
process, and in my view it would be just and fair to dismiss it with costs.
Order
I therefore make the following order:
1. Leave to appeal is dismissed with costs.
_________________
Connie Prinsloo
Judge of the Labour Court of South Africa