SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR1387/2018
In the matter between:
IMPERIAL COLD LOGISTICS (PTY) LTD Applicant
and
FRANCIS TJALE N.O. First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
FOOD AND ALLIANCE WORKERS UNION Third Respondent
RUBEN BUDA Fourth Respondent
Considered: in Chambers
Delivered: This judgment is handed down electronically by circulation to the
parties’ legal representatives by email and publication on the Labour Court’s
website. The date for hand-down is deemed to be 18 August 2026.
JUDGMENT – APPLICATION FOR LEAVE TO APPEAL
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
PHAKEDI, AJ
Introduction
[1] This is an opposed application for leave to appeal against the judgment
granted by this Court on 13 August 2025. The application was filed on 10 April
2026 outside the period prescribed in Rule 67 (2) of the Labour Court Rules 1
accompanied by a condonation application. The file was only brought to the
attention of the judge on 21 May 2026.
[2] In its application for condonation, the Applicant alleges that its legal
representatives only became aware of the judgment on 10 March 2026 upon
receipt of an email from the Fourth Respondent’s legal representatives. The
email was received from t[…] and it was directed to t […] and she responded
to the email on 23 March 2026.
[3] It is recorded on the court file that the judgment was delivered electronically
on 13 August 2025. This is supported by an email from the Labour Court
Registrar on the same day at or around 12:51 addressed to the following
recipients:
‘t[…] ;a[…] ; a[…]
Good day All
Kindly find the attached hereto judgment in the above matter.
Kindly share same with anyone who may be omitted from this e-mail.
Kind regards’
[4] This application was submitted seven and half months after the date of
issuing of the judgment. The Fourth Respondent did not file opposing papers
but filed his submissions resisting the application for leave to appeal.
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court ( Effective 17 July
2024).
3
Condonation application
[5] As indicated above, the Applicant indicates that it only received the judgment
on 23 and/or 26 March 2016 from its legal representative who only received it
on 10 March 2026. The notice of leave to appeal was then served on 30
March 2026 but filed with the Registrar on 10 April 2026. The applicant
alleges that the judgment does not stipulate how it was handed down and
prior to 10 March 2026 its attorneys were not aware that it had been handed
down as there was no communication from the Labour Court.
[6] In terms of a period of delay, the Applicant alleges that the application was
filed six days late from the date the judgment was received. In respect of
prejudice, the Applicant stated that it would suffer prejudice if its condonation
application is not granted taking into account t he implications that the
judgment will have on its operations if it were not to be overturned. In respect
of prospects of success it was submitted that they are contained in the
application for leave to appeal and this Court will then proceed to also deal
with the application for leave to appeal.
[7] On 24 June 2026 while considering an application for leave to appeal together
with the application for condonation, this Court requested the Registrar to
issue the following directive to the parties’ legal representatives:
‘Kindly note that the Judge is in the process of finalizing the judgment in the
above-mentioned matter and I have been to send this directive to the parties:
1. The Applicant has filed its application for leave to appeal accompanied
by an application for condonation for the late filing thereof. According
to the explanation for the delay, the Applicant avers that it only gained
knowledge of the judgment delivered on 13 August 2025 on 10 March
2026.
4
2. The Applicant’s legal representative, Ms T Moyo is directed to submit
an affidavit on or before Friday, 3 July 2026 confirming that she did
not receive the judgment on 13 August 2025 as per the attached
annexure.
3. The Respondent’s legal representative, should s/he deem it
necessary, is directed to file an affidavit in response to the affidavit
mentioned-above on or before Friday, 10 July 2026.’
[8] Both legal representatives duly submitted their affidavit s within the prescribed
timeframes and the Court is appreciative of their assistance.
Explanatory affidavit by Thandi Moyo
[9] Ms Moyo submitted that the email was indeed received by her colleague Mr
Arend Poshuma on 13 August 2025 and he confirmed that she was copied in
the said email. However, according to her long explanation, the said email
never reached her attention and it may have been deleted from her cell
phone.
Explanatory affidavit by Ms Tendayi Mudenda
[10] Mr Mudenda submitted that the judgment did not come to his attention prior to
10 March 2026. The email address ‘ a[…] ’ was an incorrect email address of
the Counsel who appeared for the Fourth Respondent at the hearing of the
matter. His correct email address is ‘ a[…] . The Fourth Respondent only
learned later that the judgment had been delivered electronically to the parties
and the Applicant’s legal representatives had received it and no steps were
taken to prosecute the leave to appeal application.
[11] It was further submitted that the decision of the Fourth Respondent not to
oppose the condonation application was based on the bona fide but mistaken
understanding that neither party had received the judgment on 13 August
2025. The explanation provided in the email is in direct conflict of the
admission by Ms Moyo that indeed her office received the judgment on 13
August 2025 and her colleague, Mr Posthuma does confirm receipt thereof.
5
Evaluation and analysis
[12] It is trite that in granting condonation, the Court exercises a discretion. The
Labour Appeal Court may only interfere with the exercise of this discretion if it
is found that in exercising its discretionary powers, the Court acted
capriciously, upon wrong principles, in a biased manner, for insubstantial
reasons, or committed a misdirection, or an irregularity or exercised its
discretion improperly or unfairly.
2
[13] The application for condonation rests on an incorrect and unfortunate belief
that the judgement was only brought to the attention of the Applicant’ s legal
representatives on 10 March 2026. Ms Moyo confirmed in an affidavit that she
was indeed copied in the email when the judgement was delivered on 13
August 2025. The explanation provided in her affidavit regarding why she did
not pay attention to the email sent to her demonstrates that the explanation
for the delay provided in the condonation application does not take the court
into confidence regarding what truly led to the application not being filed within
the prescribed timeframes.
[14] The Applicant only seeks to provide an explanation for a period of delay from
10 March 2026 when Ms Moyo received the judgment from the Fourth
Respondent’s legal representatives. This is insufficient and more is required.
It is trite that condonation is not merely there for the taking and the Court
cannot exercise a discretion in a vacuum.
[15] The Labour Appeal Court ( LAC) has endorsed with approval what was stated
in Standard General Insurance Co Ltd v Eversafe (Pty) Ltd and Others
3, that
the applicant must “ at least, furnish an explanation of his default sufficiently
full to enable the court to understand how it really came about and to assess
his conduct and motives… Where there has been a long delay, the court
2 See: Coates Brothers Ltd v Shanker and Others (2003) 24 ILJ 2284 (LAC) at para 5.
3 2000 (3) SA 87 (W) at para 12.
6
should require the party in default to satisfy the court that the relief sought
should be granted”.4
[16] The LAC in SACCAWU obo Letsoalo and Another v Commission for
Conciliation, Mediation and Arbitration and Others5 held that:
‘[18] It is well accepted that condonation cannot be had for the mere asking
but a plea for the court’s indulgence to excuse the non- compliance
with the prerequisite time limits in terms of the prescripts on sufficient
cause shown. The yardstick is the interest of justice which entails a
consideration of all the relevant factors, including the extent and cause
of the delay; the effect of the delay on the administration of justice and
other litigants; the reasonableness of the explanation for the delay; the
importance of the issue to be raised in the intended appeal; and the
prospects of success. Ultimately, the particular circumstances of each
case will determine which of these factors are relevant.
[19]
Added to the general principles, in Steenkamp and Others v Edcon
Ltd, the Constitutional Court endorsed the Labour Law -specific factors
and considerations which are premised on one of the primary objects
of the LRA to have labour disputes resolved expeditiously. Since
labour disputes are inherently urgent, the LRA imposes strict time
limits within which various applications and referrals must be launched
to give effect to the primary object of the LRA. As a result, and
pertinent to the case at hand, condonation in a case of disputes over
individual dismissals will not readily be granted unless,
inter alia, the
explanation for non-compliance is compelling… ’
[17] The Constitutional Court in Booi v Amathole District Municipality and Others 6,
stressed that condonation is not merely there for the taking. The Court
confirmed that condonation should be granted if it is in the interests of justice to
do so, which has to be determined by reference to all relevant factors including
do so, which has to be determined by reference to all relevant factors including
the nature of the relief sought, the extent and cause of the delay, the effect on
4 See also: Aspen Holdings Pty Ltd and Another v Phelane and Another (Aspen Holdings) [2025] 4
BLLR 409 (LAC) at para 14.
5 (JA 155/23) [2025] ZALAC 12 (30 January 2025) at paras 18 and 19.
6 [2022] 1 BLLR 1 (CC) at para 27.
7
the administration of justice, prejudice and the reasonableness of the
explanation for the delay.
The application for leave to appeal
[18] This court does not intend to deal with each of the grounds of appeal raised
by the applicant and this should not be construed to mean that such grounds
were not considered. The Applicant alleges that this Court failed to take into
account that the review application was ripe for hearing on or during
December 2018, it made constant follow ups from 16 November 2020 to date
of filing of the record, and reconstruction of the was requested by it on 11
February 2021 before the letter of 8 March 2021 from the Respondent . The
Court failed to take into account the fact that between 2021 and 2022 the
court file went missing and there was another follow up with the CCMA on 22
November 2022.
[19] The Applicant further submitted that this Court failed to exercise any
discretion to determine the issue of backpay payable to the Fourth
Respondent had the matter been finalized in 2019. In sum, the Court erred in
making a finding that was excessive and punitive resulting in an irregular
exercise of its discretion. In the result, another Court may come to a different
conclusion taking into account the complex issues of law, the importance of
the judgement to the conduct of law and the consequences to the Applicant.
[20] The Fourth Respondent submitted that this application is nothing but an
attempt by the Applicant to re- argue the matter which has been brought to
finality. The Respondent argued that the argument presented in the leave to
appeal was considered by the Court in its judgement and the desire that it
ought to have been weighed differently does not meet the stringent threshold
prescribed for the granting of applications for leave to appeal.
8
The legal framework for leave to appeal
[21] Section 16 (2) (a) of Superior Courts Act 7 (the Act) deals with appeals in
general and states:
‘(i) When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result, the appeal
may be dismissed on this ground alone;
(ii) Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.’
[22] Applications for leave to appeal are regulated in terms of section 17(1) of the
Act which provides:
‘17 Leave to appeal
(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.’
[23] The above-mentioned section also applies to applications for leave to appeal
filed in the Labour Court as envisaged in section 151 (2) of the Labour
Relations Act8 (LRA).
7 Act 10 of 2013.
9
[24] In Member of the Executive Council for Health, Eastern Cape v Mkhitha and
another9 the Supreme Court of Appeal said the following
‘[16] Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is a reasonable
prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of
2013 makes it clear 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 it should be heard.
[17] An applicant for leave to appeal must convince the court on prop er
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. There must be a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’
[25] The Labour Appeal Court (LAC) in Martin and East (Pty) Ltd v National Union
of Mineworkers and others 10 emphasised that this court ought to be cautious
when leave to appeal is granted, as should the LAC when petitions are
granted taking into account that the LRA was designed to ensure an
expeditious resolution of labour disputes. The statutory imperative 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.
[26] In Fairtrade Tobacco Association v President of the Republic of South Africa
11
the full Court held that:
“As such, in considering the application for leave to appeal, it is crucial for this
Court to remain cognizant of the higher threshold that needs to be met before
8 Act 66 of 1995, as amended. This section provides that ‘the Labour Court is a superior court that has
authority inherent powers and standing, in relation to matters under its jurisdiction, equal to that which
a court of a Division of the High Court of South Africa has in relation to the matters under its
jurisdiction.’
9 (1221/2015) [2016] ZASCA 176 (25 November 2016)at paras 16 and 17.
10 (2014) 35 ILJ 2399 (LAC) at p 16.
11 (21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at para 6.
10
leave to appeal may be granted. There must exist more than just a mere
possibility that another court, the SCA in this instance, will, not might, find
differently on both facts and law.”
[27] In S v S and Another 12 the Constitutional Court confirmed that the threshold
for granting applications for leave to appeal is deliberately more stringent. The
word “would” in section 17(1)(a) imposes a higher bar than “might”: it requires
a realistic and not merely remote prospect that another court would in fact
reach a different conclusion. Mere disagreement with the reasoning of the
court a quo , or the fact that the issues are arguable, does not suffice.
Something more is required in order for the leave to appeal to be granted.
[28] The application for leave to appeal brought by the Applicant rests on a glaring
disagreement with the reasoning of this court and does not present anything
more than a regurgitation of the issues which were duly considered by this
Court and dealt with in detail in its judgment.
[29] Finally, the allegations that this Court failed to exercise its discretion on the
issue of backpay payable to the Fourth Respondent in terms of the arbitration
award are baseless and unfounded. This Court was not ceased with the
dispute concerning the fairness of a dismissal
13. The issue before the court
was about non- compliance with the provisions of the Practice Manual of the
Labour Court.14
[30] Turning to the grounds for appeal, the Court is not persuaded that this matter
should be kept on the roll indefinitely. The remainder of the grounds advanced
for leave to appeal do not advance this matter anywhere as the application
12 2019 (6) SA 1 CC at para 30
13 There is a discretion to award the remedies contained in section 193 of the LRA which provides
that:
‘(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair,
the Court or the arbitrator may —
the Court or the arbitrator may —
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) order the employer to re- employ the employee, either in the work in which the employee was
employed before the dismissal or in other reasonably suitable work on any terms and from any date
not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.’
14 Practice Manual of the Labour Court of South Africa, effective 2 April 2013 , repealed with effect
from July 2024.
11
does not raise any novel points of law which require the intervention and
attention of the LAC.
[31] The Court does not believe that it is in the interests of justice to grant the
application for condonation. After careful consideration of the grounds for
leave to appeal submitted by the applicant in this matter, this Court is not
persuaded that the application for leave to appeal should be granted.
[32] Accordingly, the following order is made:
Order
1. The application for condonation is dismissed.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
_______________________
G. C. Phakedi
Acting Judge of the Labour Court of South Africa