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[2026] ZALCCT 136
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Swarts v Safety and Security Sectoral Bargaining Council and Others (Leave to Appeal) (C295/24) [2026] ZALCCT 136 (20 August 2026)
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IN
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
C
ase
no: C 295/24
Not
reportable
In the matter between:
ABRAHAM
SWARTS
Applicant
and
SAFETY AND SECURITY
SECTORAL
BARGAINING
COUNCIL
First Respondent
MAUREEN
DE BEER N.O.
Second Respondent
SA
POLICE SERVICES
Third Respondent
Date
of Judgment
: 20 August 2026
APPLICATION FOR LEAVE
TO APPEAL - JUDGMENT
[1] The court
dismissed the Applicant’s application for condonation for the
late filing of its review application on
23 July 2026. The Applicant
now seeks leave to appeal against the judgement.
[2] The Applicant’s
principal ground is that the court failed to exercise its judicial
discretion properly when refusing
condonation. He contends that the
court did not assess all relevant factors cumulatively within the
interests-of-justice enquiry,
but gave insufficient weight to his
explanation for the delay, the documentary evidence supporting it,
his attempts to obtain legal
assistance, the importance of the
matter, and his prospects of success. He argues that another court
could reasonably conclude
that these factors justified condonation.
[3] The Applicant
challenges what he regards as a material factual error regarding his
employment status. The judgement appears
to have proceeded on the
basis that he remained employed during the relevant period and could
therefore have acted earlier, whereas
he says he resigned from SAPS
on 7 March 2022 and remained unemployed during the period relevant to
the delay. He contends that
this incorrect factual premise materially
influenced the court’s assessment of his explanation, diligence
and ability to
obtain legal assistance.
[4] The Applicant
argues that the court failed to properly assess his explanation for
the delay and the challenges he faced
in securing effective legal
assistance, including his interactions with Workers Life Legal
Insurance and his decision to proceed
as a self-represented litigant.
He claims the core issue was not merely having legal insurance but
whether effective legal assistance
was genuinely accessible to him.
He further contends that the court should have considered the
documentary evidence and circumstances
together, rather than focusing
solely on the delay itself.
[5] The Applicant
argues that the Court incorrectly assessed his prospects of success
in the underlying section 145 review.
He maintains that the Court
focused too heavily on the employer’s disciplinary process
instead of considering whether the
commissioner’s arbitration
award was reviewable under the proper
Gold Fields
reasonableness standard. Moreover, the Applicant relies on the
cumulative effect of these matters. He contends that the incorrect
employment-status finding, treatment of his explanation and attempts
to obtain legal assistance, assessment of prospects of success,
arbitration record, supplementary affidavit, procedural history and
overall interests-of-justice enquiry collectively establish
a
reasonable prospect that another court would reach a different
conclusion. Alternatively, he submits that these matters constitute
compelling reasons under s 17(1)(a)(ii) of the Superior Courts Act
for the appeal to be heard.
[6]
The application is opposed by the Third Respondent on the basis that
the
Applicant
has not demonstrated reasonable prospects that another court would
reach a different conclusion
.
It relies on the stringent test for leave to appeal and submits that
an appeal is not automatic. In relation to condonation, the
Third
Respondent maintains that the review application was filed almost
ten
months late
,
that substantial portions of the delay remained unexplained or
inadequately explained and that the court correctly found the
explanation
unsatisfactory.
[7] The Third
Respondent also argues that the Applicant’s chances of success
in the review were limited. It states that
the Applicant only claimed
the collective agreement was breached, his suspension was unfair and
the arbitrator’s reasoning
was unreasonable, but failed to
clearly show how these points indicated reviewable irregularities or
strong prospects. Concerning
the claimed factual mistake about the
Applicant’s employment status, the Third Respondent asserts
that this does not prove
the court’s decision on condonation
was incorrect.
[8]
The Third Respondent argues that several of the Applicant’s
remaining grounds; including the alleged failure to
consider the
procedural context, alleged inconsistent application of condonation
principles, failure properly to conduct the interests-of-justice
enquiry and the alleged cumulative improper exercise of judicial
discretion
do
not justify leave to appeal and need not be addressed individually
.
[9] I have
considered the parties' submissions.
[10]
Section 17(1)
of the
Superior Courts Act 10 of 2013
provides:
(1) Leave to appeal may
only be given where the judge or judges concerned are of the opinion
that—
(a) (i) the appeal would
have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision sought
on appeal does not fall within the ambit of
section 16(2)(a)
; and
(c) where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and
prompt resolution of the real
issues between the parties.
[11]
An applicant party seeking leave to appeal must persuade this court
on material grounds that it has prospects of success
on appeal and
such prospects are not remote, but have a realistic chance of
succeeding. Furthermore, the prospects of success must
truly be
reasonable.
[1]
[12] It is noted
that the Applicant’s reference to his unemployment status would
not have made any difference to the
court’s decision. The
Applicant presented various arguments regarding the reason for the
lateness and all were considered
in their totality. The court was not
convinced that it was in the interests of justice to condone a delay
of almost 10 months.
Moreover, there exists no compelling reason for
the appeal to be heard.
[13] Having
considered the judgement and the detailed submissions from both
parties, the court is not persuaded that the Applicant’s
grounds for appeal warrant a decision that an appeal would have
reasonable prospects of success.
Order
1. The application
for leave to appeal is dismissed.
2. No order is made
as to costs.
P
Venter
Acting
Judge of the Labour Court of South Africa
20
August 2026
[1]
See
MEC Health Eastern Cape v Mkhitha (2026) ZASCA