THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C472/2022
In the matter between:
KYLE JORDAN Applicant
and
THE GENERAL PUBLIC SERVICE BARGAINING
COUNCIL First Respondent
KHUDUGA TLALE NO Second Respondent
THE OFFICE OF THE CHIEF JUSTICE Third Respondent
Date of Hearing: In chambers
Date of Judgment: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Labour Court website
and release to SAFLII. The date of handing down judgment is deemed to be 20
August 2026.
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: No
20 August 2026
Signature Date
GANDIDZE, J
Introduction
[1] In a judgment and order dated 30 March 2026, this court dismissed a review
application brought by Mr Kyle Jordaan (Jordaan) , in which he sought to
challenge an award issued under the auspices of the General Public Service
Sectoral Bargaining Council (the Bargaining Council), in case number
GPBC159/2021, dismissing a constructive dismissal claim he had referred to
the Bargaining Council. The present application seeks leave to appeal against
the whole judgment and order.
[2] The application is opposed by the Office of the Chief Justice (conveniently
referred to as the respondent), which filed its submissions two days late and
sought condonation. There was no opposition to the late filing, and the two-
day delay is not excessive. Condonation will be granted so that both parties'
cases are fully ventilated.
The test in applications for leave to appeal
[3] Section 166 of the Labour Relations Act 1 provides for appeals against this
court’s judgments and orders.
[4] As t his court is a superior court, s ection 17(1) of the Superior Courts Act 2
(SCA), sets out the grounds on which leave to appeal may be granted. These
include, inter alia, a reasonable prospect of success and a compelling reason
for the appeal to be heard.
[5] In considering whether to grant an application for leave to appeal, the court in
Smith v S3, held that the court a quo assesses whether there is a reasonable
prospect of success in the envisaged appeal , not whether the appeal itself
would succeed. The court also stated this:
‘[7] What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of
1 Act 66 of 1995, as amended.
2 Act 10 of 2013.
3 2012 (1) SACR 576 (SCA) at para 3.
appeal could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the appellant must convince
this court on proper grounds that he has prospects of success on
appeal and that those prospects are not remote but have a realistic
chance of succeeding. More is required to be established than that
there is a mere possibility of success, that the case is arguable on
appeal or that the case cannot be categorised as hopeless. There
must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal.’
Grounds of appeal
[6] Leave to appeal is sought on the ground that the court erred in the following
respects:
6.1 In applying the reasonableness test rather than the correctness test,
which applies when the review concerns a constructive dismissal matter.
6.2 In not finding that the respondent’s unilateral decision to withhold
Jordaan’s salary constituted a material breach of the employment
contract, as an employer has no right at common law or under the Basic
Conditions of Employment Act 4 to withhold remuneration without
following a fair procedure and/or instituting disciplinary proceedings.
6.3 In independently assessing the reasons relied upon for the constructive
dismissal, failing to take into account the respondent's cumulative
conduct, which, viewed objectively from Jordaan's perspective, rendered
continued employment intolerable. The conduct in question includes the
persistent refusal to engage with Jordaan regarding his views that the
return-to-office instruction was unlawful and unreasonable; allegations of
insubordination, desertion, breach of contract and repeated threats of
disciplinary action that were never instituted; Jordaan’s exclusion from
work communications and not being allocated work , culminating in the
abrupt and unexplained withholding of salary without affording Jordaan
an opportunity to make representations.
4 Act 75 of 1997, as amended.
6.4 In failing to find that the return- to-work instruction was unlawful and
unreasonable, because it was not in compliance with Circular 15 of 2020
and the Disaster Management (DMA) Regulations.
6.5 In failing to find that Jordaan had an election to resign in the face of the
respondent's fundamental breach of withholding his salary, and instead
burdening him with resolving the salary issue.
6.6 In characterising Jordaan's remote working arrangement at the start of
the national lockdown as one permitted by the respondent.
6.7 In misunderstanding Jordaan’s interpretation of the 80/20 rotation rule.
[7] It is submitted that Jordaan has reasonable prospects of success on appeal,
and that the facts and the outcome of the case are of such substantial
importance that the case is deserving of adjudication by the Labour Appeal
Court.
Evaluation
[8] Having considered all the grounds on which leave to appeal is sought , and
approaching the matter with intellectual humility and integrity, 5 I am of the
view that the only ground on which the Labour Appeal Court (LAC) would
reasonably reach a different conclusion is the correct interpretation of the
DMA Regulations , which affects the lawfulness and reasonableness of the
instruction to return to the office , and whether that instruction rendered
continued employment intolerable for Jordaan. This is an issue of public
importance on which the LAC should pronounce, and hence a compelling
reason for granting leave to appeal. Therefore, leave to appeal w ill be
granted, without limiting the appeal to the one ground referred to in this
paragraph.
[9] In the premises, I make the following order:
Order
5 Shinga v the State and Another (Society of Advocates, Pietermaritzburg Bar, as Amicus Curiae)
O'Connell and Others v the State 2007 (4) SA 611 (CC) at para 53.
1. The respondent’s late filing of the submissions in the application for
leave to appeal is condoned.
2. Leave to appeal is granted
3. Costs are costs in the appeal.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa