JUDGMENT
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case Number: JR 1733/23
In the matter between:
VINCENT MASHININI Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER DANIEL MOFEREFERE MAJARE Second
Respondent
PHILIP MORRIS SOUTH AFRICA (PTY) LTD Third Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : NO
07 September 2026
______________________ ______________________________
DATE SIGNATURE
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Neutral Citation : Vincent Mashini v Commission for Conciliation, Mediation and
Arbitration and 2 Others (JR 1733- 2023) [2026] ZALCJHB -------- (07 September
2026)
Coram: Khaba AJ
Considered: In Chambers
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email . The date of this order is deemed to be 07
September 2026.
Summary: Application for leave to appeal – s 17(1)(a)(i) of the Superior Courts Act
10 of 2013 – an applicant now faces a higher and more stringent threshold – Leave
to appeal refused.
___________________________________________________________________
JUDGMENT
[APPLICATION FOR LEAVE TO APPEAL]
___________________________________________________________________
KHABA, AJ:
Introduction:
[1] This is an application for leave to appeal against the judgment and order I
delivered on 27 July 2026 ("the Judgment"), which dismissed the applicant's
review application. The applicant, who appeared in person, now seeks leave
to appeal to the Labour Appeal Court . The third respondent opposes the
application.
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[2] The applicant does not seek leave to appeal against the costs order, as
there
was no order as to costs in the judgment. The applicant seeks leave to
appeal
against the dismissal of the review application.
[3] The central question is whether the applicant has satisfied the threshold
prescribed in terms of section 17(1)(a) of the Superior Courts Act 10 of 2013.
The section 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 compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration….”
The applicant's grounds of appeal:
[4] The applicant advances numerous grounds of appeal in his application for
leave to appeal and the submissions filed in support thereof. In essence, these
grounds are a repetition of the arguments advanced in the review application
and amount to a disagreement with the findings of the Judgment. They may be
summarised as follows:
a. The applicant contends that the court erred in its recording and
findings of the factual background of the disciplinary hearing, as set
out in paragraphs 6, 7, 8 and 9 of the Judgment. The applicant
submits that the evidence before the second respondent and the
record of the arbitration contradict the court's findings in several
respects, including: the nature and scope of the investigations; the
applicant's absences from the disciplinary hearing; the independence
of the chairperson; the essence of the chairperson's findings; and the
basis upon which the dismissal was effected.
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b. The applicant contends that the court erred in its recording and
findings of the arbitration proceedings, as set out in paragraphs 10,
11, 12 and 26 of the Judgment. The a pplicant submits that the
evidence before the second respondent and the record of the
arbitration contradict the court's findings in several respects, including:
the alleged corroboration of his version by his manager; the testimony
of Mr. Sondlo, the tracker data and its accuracy; the in- store audits
conducted by Mr. Sondlo, and the evidence of Ms. Baloyi.
c. The applicant contends that the court erred in finding that his
assertion that the third respondent failed to consult his union was not
borne out by the evidence (paragraphs 16 and 19 of the Judgment).
The applicant submits that he was a union official at the time
disciplinary actions were taken against him, that Item 4 of Schedule 8
of the LRA required consultation with his union before disciplinary
action was instituted, and that there was no evidence before the
second respondent demonstrating that the third respondent had
consulted with the union.
d. The applicant contends that the court erred in finding that the
chairperson of the disciplinary hearing was an external and
independent appointee and that the applicant had failed to establish
bias (paragraphs 19 and 24 of the Judgment). The a pplicant submits
that he applied for the chairperson's recusal, and that she dismissed
the application without furnishing reasons. The applicant further
submits that the chairperson was a director of a company contracted
by the t hird respondent to deal with his union, as evidenced by the
terms of that contract.
e. The applicant contends that the court erred in finding that his
arguments were unsustainable, that he was required to furnish a
medical certificate, that further delays were his fault, and that the third
respondent's conduct was not punitive (paragraphs 15, 16, 17, and 18
of the Judgment). The a pplicant submits that Ms . Adolph and Mr.
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Sondlo conceded under cross -examination that continuing the
disciplinary hearing in his absence was not supported by any policy,
code of conduct, or contract of employment. The a pplicant further
submits that the letter dated 18 October 2022 was irrelevant to the
disciplinary sitting of 03 November 2022, and that he was not required
to furnish a medical certificate for his absence on that date.
f. The applicant contends that the court erred in its findings concerning
substantive fairness, as set out in paragraphs 20, 21, 22, 23 and 25 of
the Judgment. The applicant submits that the court was wrong to
conclude that his arguments were without substance, that the third
respondent's evidence was thorough and internally consistent, that his
ISMS captures were false, that his defence was improbable and
unsubstantiated, and that the second respondent's findings were
unimpeachable. The applicant further submits that he captured his
ISMS calls within a cycle in accordance with a workplace rule, that his
ISMS captures were not false, that the tracker device used to support
his dismissal was inaccurate, and that he did not contravene any
workplace rule.
g. The applicant contends that the court correctly recorded that the
charges against him were vague but erred by omitting to make a
finding in this regard (paragraph 23 of the Judgment). The a pplicant
submits that the second respondent likewise failed to rule on this
aspect, notwithstanding the evidence adduced before him.
h. The applicant contends that the court erred in its analysis of his
testimony concerning the offence of "gross" dishonesty and "gross"
misrepresentation (paragraphs 23 and 25 of the Judgment). The
Applicant submits that the question posed to him regarding the
seriousness of the allegations was general in nature and not
specifically directed at the offences of "gross" dishonesty or gross
misrepresentation with which he was charged.
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i. The applicant contends that the court erred in finding that the
evidence of gross dishonesty amply justified the conclusion that the
trust relationship had been irretrievably broken down (paragraph 25 of
the Judgment). The a pplicant submits that he did not work with or
report to Mr. Sondlo in 2022, that his immediate superiors valued his
work and performance, and that no evidence was before the s econd
respondent establishing that he had acted dishonestly.
j. The applicant contends that the c ourt erred in finding that his
contention that the third respondent was motivated by a desire to
avert a strike or to curtail the financial implications of retrenchments
was speculative (paragraph 24 of the Judgment). The a pplicant
submits that he was a chief negotiator in the 2022 wage negotiations ,
that the CCMA had issued a certificate for a legal strike due to a
deadlock in those negotiations and that all TDR's in the Gauteng
Region, including the applicant, were retrenched in 2023.
k. The applicant contends that the court erred in finding that his grounds
of review failed to meet the exacting threshold established by the LRA
and that his application was, in substance, an impermissible attempt
to appeal against the second respondent's findings (paragraphs 26,
28, and 29 of the Judgment). The applicant submits that the second
respondent failed to make findings on all the procedural and
substantive issues before him , that he misdirected himself o n the
facts; that he made several errors of material fact and law; and that
the arbitration award lacks sufficient reason and is so unreasonable
that no reasonable commissioner could have reached it.
[5] The test for leave to appeal is no longer whether another court might
reasonably come to a different view. It is whether there are reasonable
prospects of success on appeal, that is , a sound , rational basis for the
conclusion that there is a realistic chance of this court’s decision being
conclusion that there is a realistic chance of this court’s decision being
overturned on appeal. A mere arguability or the possibility of an alternative
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finding does not suffice. The applicant must demonstrate that the appeal would
have a tangible, not speculative, prospect of success.
[6] Having carefully considered the eleven grounds advanced by the applicant, I
find that none, singly or cumulatively, discloses a reasonable prospect of
success. The grounds are, in substance, a repetition of arguments already fully
ventilated and correctly rejected in the main judgment they identify no
misdirection of law or fact reasonably capable of yielding a different outcome on
appeal. In truth, they seek impermissibly to re- litigate the same issues without
pointing to any palpable error or novel point of substance.
[7] The applicant has not identified any principle of law this court misapplied, nor
any fact it materially misunderstood. In my original judgment of 27 July 2026, I
have dealt with most, if not all, of the issues raised by the applicant in his
application for leave to appeal, and it is not necessary to repeat those in full.
Suffice to restate what I said in my original judgment. The application amounts
to a disagreement with the outcome, which is insufficient to warrant leave to
appeal.
[8] The traditional test in deciding whether leave to appeal should be granted was
whether there is a reasonable prospect that another court can come to a
different conclusion from that reached by me in my judgment. This approach
has now been codified in s 17(1)(a)(i) of the Superior Courts Act 10 of 2013,
which came into operation on the 23 rd of August 2013, which provides that
leave to appeal may only be given where a judge concerned is of the opinion
that ‘the appeal would have reasonable prospect of success.
[9] It is trite that if a court is unpersuaded of the prospects of success, it must still
enquire into whether there is compelling reason to entertain the appeal.
However, the merits remain vitally important and are often decisive. In
considering the existence of compelling reasons as envisaged by s 17(1)(a)(ii)
considering the existence of compelling reasons as envisaged by s 17(1)(a)(ii)
of the Superior Courts Act. I am also not persuaded that such reasons exist in
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this matter, when considering in the context of prospects of success on the
merits.
[10] In Ramakatsa and Others v African National Congress and Another
1, the SCA
held that the test of reasonable prospects of success postulates a
dispassionate decision, based on the facts and the law , that a court of appeal
‘would’ reasonably arrive at a conclusion different to that of the trial court.
These prospects of success must not be remote, but there must exist a
reasonable chance of succeeding. An applicant who applies for leave to appeal
must show that there is a sound and rational basis for the conclusion that there
are prospects of success.
[11] The ratio in Ramakatsa simply followed S v Smith
2 ,in which Plasket AJA
(Cloete JA and Maya JA concurring), held as follows:
“What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law that the Court of 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.”
[12] In Mont Chevaux Trust v Tina Goosen 3, the Land Claims Court held (in an
obiter dictum) that the wording of this subsection raised the bar of the test that
now has to be applied to the merits of the proposed appeal before leave should
be granted. I agree with that view, which has also now been endorsed by the
SCA in a judgment in Notshokovu v S4. In that matter the SCA remarked that an
1 [2021] ZASCA 31 (31 March 2021)
2 2012 (1) SACR 567 (SCA) at para 7
1 [2021] ZASCA 31 (31 March 2021)
2 2012 (1) SACR 567 (SCA) at para 7
3 (LCC14R/2014) at para 6
4 [2016] ZASCA 112 (7 September 2016)
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appellant now faces a higher and more stringed threshold, in terms of the
Superior Courts Act 10 of 2013 compared to that under the provisions of the
repealed Supreme Court Act 59 of 1959. The applicable legal principle as
enunciated in Mont Chevaux has also now been endorsed by the Full Court of
the Gauteng Division of the High Court in Pretoria in Acting National Director of
Public Prosecutions and Others v Democratic Alliance In Re: Democratic
Alliance v Acting National Director of Public Prosecutions and Others
5.
[13] As explained in MEC for Health, Eastern Cape v Mkhitha and Another,
Schippers AJA provided the following guidance on the test6:
“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 Supreme Courts Act 10 of 2013 makes it 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.”
[14] The appl icant has not established that the s econd respondent's findings were
untenable or so egregious that no reasonable commissioner could have
reached them. The a pplicant's challenges are, in essence, an attempt to re-
argue the merits of the case.
[15] I am not persuaded that the issues raised by the applicant in this application for
leave to appeal, are issues in respect of which another court is likely to reach
5 [2016] ZAGPPHC 489 at par 25
6 [2016] ZASCA 176 at paras 16-17
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conclusions different to those reached by me. I therefore conclude that there
are no reasonable prospects of another court making factual findings and
coming to legal conclusions at variance with my factual findings and legal
conclusions. Therefore, in my view, the appeal does not have reasonable
prospects of success.
[16] Having considered the papers filed on record and the submissions made by the
parties, it follows that the application for leave to appeal, must therefore fail.
Costs:
[17] The applicant has launched an application for leave to appeal which, upon a
proper consideration of its merits, was devoid of any realistic prospect of
success. The t hird respondent was consequently compelled to oppose the
application. However, in the Labour Court, costs do not ordinarily follow the
result, and the Labour Court is a court of equity.
[18] While the applicant's application is without merit, I am not persuaded that this is
an appropriate case for a costs order. The applicant appeared in person, and
although his status as a self -represented litigant does not exempt him from the
consequences of his actions, I consider it just and equitable, in the exercise of
the discretion conferred by section 162 of the LRA, to make no order as to
costs. Each party shall bear its own costs
Order:
[19] Accordingly, the following order is made:
1. The application for leave to appeal is dismissed.
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2. There is no order as to costs.
________________________________________
Khaba AJ
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr. Vincent Mashinini
(Self- Represented)
For the Third Respondent: Mr. D Woodhouse together with
Mr. Alex Du Plessis
Third Respondent Attorneys: Pinsent Masons South Africa Inc