THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026 – 092263
In the matter between:
DEPARTMENT OF CORRECTIONAL SERVICES Applicant
and
M E KGOWE First Respondent
A W ZWANE Second Respondent
I O BANDA Third Respondent
POLICE AND PRISONS CIVIL RIGHTS UNION Fourth Respondent
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL Fifth Respondent
Decided: In Chambers
This j udgment was handed down electronically by circulation to the parties'
legal representatives by email and uploading on Case Lines. The date and time
for hand-down is deemed to be 25 August 2026
Summary: Leave to appeal – no proper grounds made out – application for
leave to appeal dismissed
(1) REPORTABLE: NO
(2) OF INTEREST TO
OTHER JUDGES: NO
(3) REVISED: YES
25 August 2026
2
JUDGMENT – LEAVE TO APPEAL
SNYMAN, AJ
Introduction
[1] In this instance, the applicant had brought a self -review application, as
provided for in terms of Section 158(1)(h) of the Labour Relations Act (LRA) 1.
It was brought on the basis of urgency by the applicant , in order to review and
set aside a settlement agreement concluded between the applicant and the
first, second and third respondents, in terms of which the unfair dismissal
disputes pursued by these respondents to the fifth respondent as applicable
bargaining council was settled. The applicant challenged the validity of this
settlement agreement on a variety of grounds, all founded on the general
principle of legality . The application was opposed by the individual
respondents and the respondent trade union.
[2] The application came before me on 9 June 2026, on which date I reserved
judgment. In a written judgment handed down on 3 July 2026, I upheld the
review application brought by the applicant , set aside the settlement
agreement concluded between the applicant and the first, second and third
respondents, also set aside the arbitration award under section 142A making
the settlement agreement an arbitration award, and remitted the unfair
dismissal disputes back to the fifth respondent for arbitration on the merits.
[3] The first to fourth respondent s (the respondents) w ere dissatisfied with the
order and judgment against them, and filed an application for leave to appeal
on 17 July 2026. The application for leave to appeal was opposed by the
applicant. Written submissions as contemplated by Rule 67(5) w ere filed by
the respondents on 27 July 2026, followed by the applicant’s written
submissions on 4 August 2026. The application for leave to appeal is thus ripe
for determination.
1 Act 66 of 1995 (as amended).
3
[4] Rule 67(6) of the Labour Court Rules provides that an application for leave to
appeal will be determined by a Judge in chambers, unless the Judge directs
otherwise. I see no reason to direct otherwise and will therefore determine the
leave to appeal application by the respondents in chambers.
Analysis
[5] Leave to appeal is not there for the asking. This is evident from section
17(1)(a) of the Superior Courts Act 2, which provides that: ‘(a) Leave to appeal
may only be given where the judge or judges concerned are of the opinion
that: (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 a matter under consideration.’
[6] In J & L Lining (Pty) Ltd v National Union of Metalworkers of SA and Others
(2)
3 the Court summarized the legal position that applies when a litigant seeks
leave to appeal from this Court, as follows:
‘Leave to appeal is not there for the asking. When deciding whether to grant
leave to appeal to the Labour Appeal Court, the Labour Court must determine
whether there is a reasonable prospect that another court would come to a
different conclusion to that of the court a quo, or in other words, whether the
appeal would have a reasonable prospect of success. This was summarised
in SA Clothing & Textile Workers Union & others v Stephead Military
Headwear CC, as follows:
‘It is trite that for an application for leave to appeal to be successful, it is
required of the party seeking such leave to demonstrate that there are
reasonable prospects that another court, in this instance, the Labour Appeal
Court, would come to a different conclusion to that reached in the judgment
that is sought to be taken on appeal.’
’
[7] As to the meaning of ‘reasonable prospects of success’, this was dealt with in
Member of the Executive Council for Health, Eastern Cape v Mkhitha and
Another4 where the Court said:
2 Act 10 of 2013.
Another4 where the Court said:
2 Act 10 of 2013.
3 (2019) 40 ILJ 1303 (LC) at para 5.
4
‘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.
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. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal
.’
[8] Next, and as to what would constitute a compelling reason for another Court to
entertain the appeal, the Court in Caratco (Pty) Ltd v Independent Advisory
(Pty) Ltd5 had the following to say:
‘... A compelling reason includes an important question of law or a discrete
issue of public importance that will have an effect on future disputes. But here
too, the merits remain vitally important and are often decisive. ...’
[9] The application for leave to appeal is premised on a number of specific
grounds. I do not intend to address all of them in detail, because much of what
is said in the application for leave to appeal relate to issues already fully
ventilated when the matter was originally argued. In this respect, I stand by
what I have said in my original judgment. The mere disagreement by the
respondents of the findings I had made, and contending such is wrong, does
not constitute a proper basis for seeking leave to appeal, considering the tests
4 [2016] JOL 36940 (SCA) at paras 16 – 17. See also Ramakatsa and Others v African National
Congress and another [2021] JOL 49993 (SCA) at para 10, where it was held: ‘The test of reasonable
prospects of success postulates a dispassionate decision based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that of the trial court. In other words, the
appellants in this matter need to convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects of success must not be remote, but there must exist a
reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospects
of success must be shown to exist … ’.
5 2020 (5) SA 35 (SCA) at para 2. See also Qoboshiyane NO and Others v Avusa Publishing Eastern
Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA) at para 5; Minister of Justice and Constitutional
Development and Others v Southern Africa Litigation Centre and Others 2016 (3) SA 317 (SCA) at
para 23; Tshwane City and Others v Nambiti Technologies (Pty) Ltd 2016 (2) SA 494 (SCA) at para 6.
5
for leave to appeal set out earlier in this judgment. So, and even where I do
not specifically address any issue raised in the respondents’ application for
leave to appeal in this judgment, it must be accepted that I have not been
convinced that the respondents have made out a proper case for leave to
appeal in line with the aforesaid tests.
[10] I will however deal with some of the issues raised in the respondents’ leave to
appeal application. The respondents contend that the settlement agreement in
this case could not be reviewed and set aside, because it was made an
arbitration award under section 142A of the LRA. This issue was specifically
dealt with when the matter was originally argued before me. The respondents
have added nothing in the application for leave to appeal different to what has
already been said in this regard, and as dealt with in my judgment. I will suffice
by reiterating that the purpose behind making a settlement agreement an
arbitration award under section 142A is to facilitate execution thereof. It
enables the beneficiary under the settlement agreement to invoke all the
enforcement provisions under the LRA, such as execution by the Sheriff or
contempt proceedings. It does not seek to elevate the settlement agreement to
a level that makes it unassailable in the normal course, even where its validly
is challenged. The purported ‘interaction’ between section 142A, 143, 145 and
158(1)(h) relied on the respondents as basis for establishing a case for leave
to appeal is nothing but a red herring and designed to lend some substance to
a ground for seeking leave to appeal which has no prospect of success.
[11] In my view, I consider the manner in which the applicant sought to address in
its written submissions this case of the respondents to be quite apposite. The
applicant explains it as follows. When the GPSSBC had before it a settlement
agreement which recorded that the parties agreed it be made an arbitration
agreement which recorded that the parties agreed it be made an arbitration
award under section 142A(1), that in itself was the st atutory basis for making it
an arbitration award, without more. There can be no reviewable defect relating
to anything the GPSSBC may do in then making the settlement agreement an
arbitration award. In short , there is no basis to review this action. The
reviewable defect complained of is antecedent the conclusion of the
settlement agreement, and if th e settlement agreement is set aside on review
based on that defect , then there can be no basis for it to be made an
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arbitration award, and the award is open to challenge on that very basis . I
believe the applicant is qui te correct, where it says: ‘ The Respondents’
argument is consequently circular to the extent that it contends that the
settlement could not be effectively set aside whilst the award remained extant,
while the suggested basis for setting aside the award would itself depend upon
first establishing the invalidity of the settlement … ’. In my view, this is all really
quite logical, and the respondents’ wrangling to the contrary does not establish
prospects of success on appeal.
[12] What the respondents further clearly miss, and which they are still unable to
answer, is that the applicant did not just seek to review and set aside the
settlement agreement, and that is that. The notice of motion applied a logical
sequence. First, it was sought that the settlement agreement be set aside on
the basis of legality. Then, if the settlement agreement was set aside, it was
sought that the arbitration award under section 142A(1) be set aside, as the
basis for such award had fallen away. And thi rd, the GPSSBC was specifically
joined as a party to the proceedings as a result of this relief sought. This surely
illustrates that the respondents’ case of some ‘interaction’ between various
sections is nothing but contrived to bolster this application for leave to appeal,
and has no merit.
[13] The respondents further contend that it was not permissible for the applicant to
rely on section 158(1)(h), because it had other remedies available, and in this
context, section 158(1)(h) should be narrowly construed to the extent that it
should not be allowed where there are such other remedies. I do not consider
there to be any merit in this contention. The respondents say that section 144
should have been used. How it is even possible , where it comes to a
settlement agreement concluded with the participation of both parties , to be
settlement agreement concluded with the participation of both parties , to be
rescinded under section 144 is beyond me. And secondly, section 145, as also
referred to by to respondents, applies to arbitration awards following a
decision by an arbitrator . In casu, there is no such decision. And lastly, the
respondents appear to be oblivious to everything I have said in my judgment
where it comes to the entitlement of an organ of state to seek self-review
where decisions by functionaries are made contrary to the principle of legality.
In short, the applicant was always entitled to pursue a review under section
7
158(1)(h), which it did, and there is no prospect that another Court would
come to a different conclusion in this regard.
[14] In the end, l et me try and explain it as simply as possible. Making the
settlement agreement an arbitration award under section 142A, by agreement
between the parties, is not a decision susceptible to review. It is an
enforcement mechanism. What must always be attacked is the settlement
agreement itself. This can only be done, in this case, considering the case is
that it was unlawfully concluded, by way of section 158(1)(h). Only once this
underlying settlement agreement is set aside , can the arbitration award under
section 142A be set aside. That is exactly what the applicant was asking for. I
believe all this this is fairly trite, and there simply no prospects of success on
appeal where it comes to this ground for seeking leave to appeal raised by the
respondents.
[15] Next, the respondents say that under section 142A(1), the GPSSBC exercises
a discretion. But as specifically dealt with in my judgment already, this is
simply not correct where the parties specifically agree to make the settlement
agreement an arbitration award. The position may be different where there is
no such agreement, and a party makes application to the GPSBC to make the
settlement agreement an arbitration award. But this is not what happened
here. I am unconvinced that this ground for the respondents seeking leave to
appeal has any substance.
[16] The respondents’ entire case for seeking leave to appeal where it comes to
my findings relating to the meaning and import of Delegation 102 is nothing
more than simply rehashing the same case already argued. The respondents
obviously disagree with my reasoning and findings, but this, in terms of the
leave to appeal test articulated above, is wholly insufficient to substantiate a
case for l eave to appeal . I am not going to repeat everything already said in
case for l eave to appeal . I am not going to repeat everything already said in
this regard. I will suffice by saying that I am not convinced that there exists a
reasonable prospect that another Court would come to a different conclusion.
[17] The respondents contend that I erred in deciding the case as one of urgency
and overlooking the delay. First and foremost, findings of urgency are not
appealable. Findings of urgency are rulings that do not dispose of the
substantive merits of a matter, and as such, are not appealable. In Zweni v
8
Minister of Law and Order 6 the Court held, regarding a ruling that a matter is
urgent: ‘In the light of these tests and in view of the fact that a ruling is the
antithesis of a judgment or order, it appears to me that, generally speaking, a
non-appealable decision (ruling) is a decision which is not final (because the
Court of first instance is entitled to alter it), nor definitive of the rights of the
parties nor has the effect of disposing of at least a substantial portion of the
relief claimed in the main proceedings. …’. The same sentiments were
expressed in Ball v Bambalela Bolts (Pty) Ltd and Another 7, as follows: ‘At the
hearing before us the appellant did not persist with the ground that the court a
quo erred in ruling that the matter was not urgent. In the circumstances, I need
not say much on the point, save for restating that, generally, rulings on
urgency, by themselves, are not appealable, because they are not final and
definitive of the rights of the parties .’ And finally, in Altron TMT (Pty) Ltd v City
of Tshwane Metropolitan Municipality and Another8 the Court said:
‘… An order in terms of rule 6(12) that a matter should be heard as a matter of
urgency is not final nor definitive of the rights of the parties nor does it have
the effect of disposing of at least a substantial portion of the relief claimed in
the main proceedings. An order, in terms of rule 6(12), is no more than an
order directing how a matter should proceed. The procedural character of a
decision on urgency has been repeatedly held to be non-appealable.
’
[18] Where it comes to the issue of overlooking the delay, I dealt with this in detail
my judgment, with reference to all leading and comparable authorities, which
the respondents have simply been unable to assail. Again, this ground for
seeking leave to appeal is nothing but a disagreement with my findings and
reasoning, and as said, it does not establish a case for leave to appeal. I will
not repeat what I have already said.
not repeat what I have already said.
[19] The respondents also take aim at the relief afforded once the settlement
agreement is set aside . The respondents’ complaint is that even if the
settlement was unlawfully concluded, I had failed to craft just and equitable
6 1993 (1) SA 523 (A) at 536A -C. See also Lubambo v Presbyterian Church of Africa 1994 (3) SA 241
(SE) at 242G -I. See also Nelson Mandela Bay Municipality and another v Van Niekerk and others
(Leave to Appeal) 2022 JDR 3412 (ECP) page 4; Siyakhulisa Trading Enterprise (Pty) Ltd v Glencore
Operations South Africa (Pty) Ltd and Another 2023 JDR 4522 (GJ) at para 7; Alfred Nzo District
Municipality v Sokhani Development and Consulting Engineers (Pty) Ltd 2024 JDR 2636 (ECMA) at
para 3.
7 (2013) 34 ILJ 2821 (LAC) at para 32.
8 2024 JDR 0092 (GP) at para 24.
9
relief. But the respondents are unable to suggest what this relief would be.
Looking at it logically, if it is true that the settlement agreement was unlawfully
concluded, then surely it must be set aside. The benefits under the settlement
agreement, which is what the respondents appear to suggest should somehow
be maintained, cannot still apply if there is no settlement agreement. And once
there is no settlement agreement, then the unfair dismissal disputes remain
extant and uncompromised. How these disputes are then finally determined is
by way of arbitration, as prescribed by law. That is the relief I crafted. That is
surely straight forward, and a matter of common sense. I f the individual
respondents ultimately win their case, and obtain fully retrospective
reinstatement which is competent relief that can be granted, any prejudice to
them would be fully ameliorated. I have a wide discretion where it comes to
affording consequential relief in the case of a review application succeeding.
This discretion can only be interfered with if the respondents can show, as
said in Coates Brothers Ltd v Shanker and Other
9, the following:
‘An appellant must show, in an appeal from a decision in a lower court, that
the court a quo 'acted capriciously, or acted upon a wrong principle, or in a
biased manner, or for insubstantial reasons, or committed a misdirection or an
irregularity, or exercised its discretion improperly or unfairly …’
I am unconvinced that the respondents made out any such case. They
propagate different solutions, but that falls far short of establishing a legitimate
basis to interfere with my aforesaid discretion.
[20] I am therefore not convinced that leave to appeal is justified in this case. The
respondents have not advanced a cogent and substantiated basis upon which
it can be said that they enjoy reasonable prospects of success on appeal. In
fact, I believe prospects of success on appeal are slim to none. There is also
fact, I believe prospects of success on appeal are slim to none. There is also
no pressing issue of public interest that would call for consideration by a
Higher Court. This matter actually cries out for immediate finality . A further
delay caused by a pending appeal is simply not appropriate , and the
appropriate avenue is for this matter to proceed to arbitration, where it can be
finally decided as prescribed by the LRA, in a short space of time. In this
9 (2003) 24 ILJ 2284 (LAC) at para 5. See also Chetty v Baker McKenzie (2022) 43 ILJ 1599 (LAC) at
para 7
10
respect, I find guidance in the judgment of Martin & East (Pty) Ltd v National
Union of Mineworkers and Others10 where the Court decided:
‘This was a case which should have ended in the Labour Court. This matter
should not have come to this court. It stood to be resolved on its own facts.
There is no novel point of law to be determined nor did the court a quo
misinterpret existing law. There was no incorrect application of the facts; in
particular the assessment of the factual justification for the
dismissals/alternative sanctions.
I would urge labour courts in future to take great care in ensuring a balance
between expeditious resolution of a dispute and the rights of the party which
has lost. If there is a reasonable prospect that the factual matrix could receive
a different treatment or there is a legitimate dispute on the law, that is
different. But this kind of case should not reappear continuously in courts on
appeal after appeal, subverting a key purpose of the Act, namely the
expeditious resolution of labour disputes
.’
[21] This only leaves the issue of costs in the application for leave to appeal. I have
a wide discretion where it comes to the issue of costs, by virtue of the
provisions of section 162(1) of the LRA. On the basis of the same reasoning
as found in my original judgment, I consider no order as to costs as being fair
and appropriate.
[22] For all the reasons as set out above, the following order is made:
Order
1. The first, second, third and fourth respondents’ application for leave to
appeal is dismissed.
2. There is no order as to costs.
_____________________
S. Snyman
Acting Judge of the Labour Court of South Africa
10 (2014) 35 ILJ 2399 (LAC) at 2406B-F.