South African Commercial Catering and Allied Workers Union obo Mavuso and Others v Tsogo Sun Casinos (Proprietary) Limited t/a Emnotweni Casinos Entertainment (Application for Leave to Appeal) (JS25/22) [2024] ZALCJHB 329 (30 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS25/22

In the matter between

SOUTH AFRICAN COMMERCIAL CATERING AND ALLIED WORKERS UNION (SACCAWU) obo MAVUSO, NONHALNHLA and 2 OTHERS Applicant and TSOGO SUN CASINOS (PROPRIETARY) LIMITED t/a EMNOTWENI CASINOS ENTERTAINMENT Respondent

Decided: In chambers

Delivered: 30 August 2024

Summary: Application for leave to appeal judgment and orders of a single Judge.

JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL

MORGAN, AJ

Introduction

[1] The Respondent has filed leave to appeal against the whole judgment delivered by this Court on 5 April 2024. In that judgment, this Court ordered:

‘1. The dismissal of the individual affected employees namely, Nonhlanhla Mavuso, Lorrain Mdaka and Lerato Malatjie based on the Respondent’s purported operational requirements is substantively and procedurally unfair.

2. The individual affected employees stated above, are reinstated with full salaries and employment benefits effective from the date of dismissal (17 November 2021).

3. There is no order as to costs.’

[2] For ease of reference, I refer to the parties in the same way as they appeared in the main application.

[3] That case was brought to this Court in terms of section 191(5)(b)(ii) of the Labour Relations Act[1] (LRA).[2] The aggrieved employees, Nonhlanhla Mavuso, Lorrain Mdaka and Lerato Malatji (employees), represented by the Applicant, the South African Commercial Catering and Allied Workers Union (SACCAWU), were purportedly dismissed based on operational requirements by the employer and Respondent in this case, Tsogo Sun Casinos (Pty) Ltd trading as Emnotweni Casinos.[3]

[4] In light of their dismissal, the Applicant sought to challenge the employees’ dismissals on the basis that the dismissals were procedurally and substantively unfair.

[5] This Court found in their favour and declared that the dismissals were substantively and procedurally unfair. This Court then ordered the employees to be reinstated with full salaries and employment benefits effective from 17 November 2021 (the date of the purported dismissal) to 5 October 2024 (the date of this Court's order).

[6] The Respondent has filed an application for leave to appeal against that order and the whole judgment thereof. It advances five chief arguments. While I will expand on these grounds later, I will provide a snapshot of their arguments at this juncture:

a. This Court reached the wrong conclusion in the context of the evidence before it regarding the genuine and bona fide nature of the consultation process and possible alternatives.

b. This Court reached the wrong conclusion in the context of the evidence before it regarding the Applicant Union’s involvement during the consultation process.

c. This Court failed to consider the Respondent’s legal argument and apply the relevant legal principles regarding the finding of substantive fairness and their relief granted.

d. This Court failed to properly consider the evidence regarding the impracticability of reinstating the employees and the relief being limited to compensation.

e. The Court reached the wrong conclusion in the context of the evidence before it regarding ordering reinstatement with backpay.

Background facts

[7] The employees in this case were purportedly dismissed based on operational requirements. Nonhlanhla Mavuso was employed on 15 March 2016 as a crèche attendant. She attended the following training: firefighting, first aid level one and basic computer literacy. She was laid off in July 2020. Lorrain Mdaka was first employed as a casual employee on 16 September 2005 and became a permanent employee on 1 July 2007. She was a crèche attendant from 2007 to 2014, a receptionist in March 2020, and a senior crèche

attendant from 2020 to 2021. She attended training in firefighting, first aid level one, occupational health and safety and basic

computer literacy. She was laid off in July 2020. Lerato Malatji was employed on 14 March 2014 as a crèche attendant. She attended training in firefighting, first aid level one and basic computer literacy. She was laid off in July 2020.

[8] The Respondent contacted the employees around 23 September 2021, inviting them to a meeting scheduled for 27 September 2021, with different times set for each employee.

[9] On 27 September 2021, the Respondent issued the employees a section 189(3) notice. In this notice, it was stated that the consultations would be held on four different occasions: the first consultation would take place on 27 September 2021; the second on 4 October 2021; the third on 11 October 2021; and the fourth consultation would take place on 18 October 2021.

Test for application to leave to appeal

[10] Section 17(1)(a) of the Superior Courts Act[4] sets out the test for 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.’

[11] The Supreme Court of Appeal in MEC for Health, Eastern Cape v Mkhitha and Another[5] (Mkhitha) stated that leave to appeal should only be granted if there is a genuine reasonable prospect of success. Section 17(1)(a) of the

Superior Courts Act stipulates that leave to appeal may be given only if the Judge in question believes the appeal has a reasonable prospect of success or there is another compelling reason for it to be heard.[6]

[12] An applicant requesting leave to appeal must convincingly show the Court, with valid reasons, that there is a reasonable likelihood or a realistic chance of success on appeal. It is not enough to merely indicate a possibility of success, present a debatable case, or demonstrate that the case is not without hope. There must be a solid and logical foundation to determine that there is a reasonable

prospect of success on appeal. This is set out in Mkhitha.[7]

[13] Recently, the Supreme Court of Appeal in Ramakatsa and Others v African National Congress and Another[8] (Ramakatsa), considering the import of section 17(1)(a) of the Superior Courts Act, articulated that:

‘Turning the focus to the relevant provisions of the Superior Courts Act, leave to appeal may only be granted where the judges concerned are of the opinion that the appeal would have a reasonable prospect of success or there are compelling reasons which exist why the appeal should be heard such as the interests of justice. This Court in Caratco, concerning the provisions of s 17(1)(a)(ii) of the Superior Courts Act pointed out that if the court is unpersuaded that there are prospects of success, it must still enquire into whether there is a compelling reason to entertain the appeal. Compelling reason would of course include an important question of law or a discreet issue of public importance that will have an effect on future disputes. However, this Court correctly added that ‘but here too the merits remain vitally important and are often decisive’. I am mindful of the decisions at high court level debating whether the use of the word ‘would’ as opposed to ‘could’

possibly means that the threshold for granting the appeal has been raised. If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. 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.’

[14] In a similar vein, the Supreme Court of Appeal in Smith v S[9] held, in relation to what constitutes “reasonable prospects of success” in terms of section 17(1)(a)(i) of the Superior Courts Act, that:

‘What the test of reasonable prospects of success postulates is 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 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.’

[15] The Respondent cites National Union of Metalworkers of South Africa v Jumbo Products CC[10] (Jumbo) for the proposition that the test can be described as:

‘… one based on whether there is a reasonable prospect that a Court of appeal may take a different view and hold the trial judgment to have been wrong.’[11] [Respondent’s emphasis]

[16] However, this is incorrect. Section 17 demands that a court would arrive at a different conclusion. It is not about the mere possibility that a court may arrive at a different conclusion but that it would. It is a higher threshold. The Supreme Court of Appeal has said as such. In S v Kruger[12], the Supreme Court of Appeal articulated the significance of the word ‘would’ and the normative weight it brings. The Court said:

‘[2] Before dealing with the merits of the appeal, it is necessary at the outset to deal with the test applied by the high court in granting leave to appeal to this court. Despite dismissing the appellant’s appeal, the high court concluded that it was ‘possible’ that another court might arrive at a different conclusion and that leave to appeal should not be ‘lightly refused’ where the person concerned is facing a lengthy sentence of imprisonment. This

is an incorrect test. What has to be considered in deciding whether leave to appeal should be granted is whether there is a reasonable prospect of success. And in that regard more is required than the mere ‘possibility’ that another court might arrive at a different conclusion, no matter how severe the sentence that the applicant is facing.

…

[3] The time of this court is valuable and should be used to hear appeals that are truly deserving of its attention. It is in the interests of the administration of justice that the test set out above should be scrupulously followed.’[13] [Own emphasis]

[17] Thus, the Respondent’s reliance on Jumbo is misplaced. The threshold is higher. This was affirmed by the Labour Court in Seathlolo & Others v Chemical Energy Paper Printing Wood & Allied Workers Union & Others.[14] Dealing with section 17 of the Superior Courts Act, the Land Claims Court in Mont Chevaux Trust v Tina Goosen & 18 Others[15] remarked:

‘It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against. This new standard is applied by Section 37 (4) (b) of the

Restitution of Land Rights Act 22 of 1994 to this court's duty to consider the prospects of an intended appeal.’[16]

[18] The Respondent also alleges that this matter raises arguable points of law of general importance.

[19] This language finds its provenance in section 167(3)(b)(ii) of the Constitution.[17] That section relates to the Constitutional Court’s jurisdictional basis to hear a matter. The importance of this section has been set out in Paulsen and Another v Slip Knot Investments 777 (Pty) Limited.[18]

[20] Nevertheless, I do not believe that this case inheres any arguable point of law. The case turned on the application of the facts of the established tests. It did not involve the development of the law or the establishment of any new test. Nor did the Court disagree with any established tests. The Court, with respect, simply applied the established principles to the facts and reached a conclusion. There was no law in dispute.

[21] It would also be a reach to argue that this case is of general importance. For a matter to be of general public importance, it must transcend the narrow interests of the litigants and implicate the interest of a significant part of the general public. This case and the findings of the judgment do not transcend the narrow interests of the litigants in this case.

a. In any event, here is a summary of this: The legal threshold for granting leave to appeal is stringent, ensuring that only cases with a solid and realistic prospect of success proceed to higher courts. Section 17(1)(a) of the Superior Courts Act requires a thorough and dispassionate evaluation of the facts and law to determine whether an appellate court would reasonably arrive at a different conclusion. This standard was reaffirmed in key judgments of the Supreme Court of Appeal, including Mkhitha[19], and Ramakatsa[20].

[22] The requirement for a “reasonable prospect of success” is more than a mere possibility or arguable case; it demands a sound, rational basis indicating that the appeal is truly deserving of judicial consideration. Misinterpretations suggesting a lower threshold have been corrected by the courts, emphasizing the necessity for a concrete and compelling case for appeal. This rigorous approach serves to uphold the integrity and efficiency of the judicial process, ensuring that appellate courts focus on matters with substantial merit and potential for a different outcome.

[23] It is also important to note that labour courts have to balance the “expeditious resolution of a dispute of a dispute and the rights of the party which [had] lost”. Davis JA reasoned:

‘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]

Should leave to appeal be granted?

[24] Taking into account all the arguments of the Respondent, I do not believe that another court would reach a different conclusion. I turn to the reasons for this belief below. I will highlight the arguments of the arguments set out by the Respondents and discuss them accordingly.

This Court reached the wrong conclusion in the context of the evidence before it regarding the genuine and bona fide nature of the consultation process and possible alternatives

[25] The Respondent argues that this Court found that the consultation process as held by Mr Siluale was merely a box-ticking exercise and was not a genuine consultation process. It is contended that the Applicant did not plead this and that the Court reached this finding without it being raised in the pleadings by the Applicant. The Respondent relies on Minister of Safety and Security v Slabbart[22] to support its argument and asserts that the Supreme Court of Appeal held that the purpose of pleadings is to define the issues for the other party and the court. Accordingly, it would be impermissible for a trial court to have recourse to issues failing outside the pleadings when deciding a case.[23]

[26] This ground falls to be dismissed because the Applicant did, in fact, raise this issue in its pleadings. This is the thrust of the Applicant’s Statement of Case in which the Applicant said –

‘19. The decision was already [taken] that Employees should be retrenched since the Employer had made an application to close down the crèche before any consultation even with the Employees at least.

20. There was no proposal whatsoever that the Employer had made and/or during the consultation process as envisaged by the [Labour Relations] Act.

21. The Employer failed and/or refused to disclose information to the Employees as stated in 13.4 and 13.7 above.

22. To an extent that the consultation process was not meaningful whatsoever as envisaged by section 189(2).

23. The Employees made proposals and suggestions to avoid retrenchment and the Employer simply rejected same without proper considerations.

24. The consultation was simply a formality or tick box process more than anything. In substantiation the process was simply a tick box, this is evident from the termination letter at paragraph 1, where the letter states that:

“We refer to the extensive facilitation process in terms of section 189 read with section 189 of the Labour Relations Act which took place during the period 27 September 2021 to 12 November 2021.”

24.1. It is submitted that, the process was never facilitated, which confirms that the conduct of the employer was not genuine and meaningful.’ [Own emphasis]

[27] It is evident that the Applicant raised the argument that the consultations were not genuine and bona fide. The argument that the Applicant did not plead the case was plainly unfounded. It was pleaded. Also, in any event, this Court had to satisfy itself that the consultation was genuine and bona fide.

[28] It must also be noted that the Applicant was not represented by legally trained professionals. It would be unduly formalistic and rigid to require the exact parlance a lawyer would use in the pleadings. In substance, it is clear that the Applicant raised the issue of consultation not being bona fide and genuine.

[29] In relation to the question of possible alternatives, there was no evidence (outside of the outright rejection of any alternatives) that the Respondent considered the possible alternatives proposed seriously and genuinely. It appears, on the evidence, that the Respondent was adamant that the only option was to retrench the employees and nothing more.

[30] The Respondent claims that it considered the possible alternatives prior to the consultations. That may be true but there is no evidence to this effect before this Court. Furthermore, if these deliberations took place before, that may be true too, but there were no genuine consultations in relation to the possible alternatives, which buttressed the employees’ belief that the consultations were not genuine. This is because they were not taken into the Respondent’s confidence.

This Court reached the wrong conclusion in the context of the evidence before it regarding the Applicant union’s involvement during the consultation process

[31] The Respondent alleges that there is undisputed evidence that the Applicant union was not recognised by the Respondent, that there were no organisational rights agreements between the parties and thus as a result, the employees were not paying union subscription fees and there were no deductions made from their salaries for this purposes.

[32] The Respondent makes this argument in order to demonstrate that it was not aware that the employees were members of the union. Due to its unawareness, it was unable to consult with the union – not because it wanted to deprive the employees of representation but because it did not know of the union.

[33] Notwithstanding this, the Respondent alleges that the lack of consultation with the union is by itself not enough to render the consultations meaningless and procedurally unfair.

[34] In this regard, there was a dispute. The Applicant employees alleged that they were denied the union’s representation despite being members and informing Mr Silaule of this. The employees alleged that they asked to take their voluntary severance package (VSP) offers to the union before agreeing to them. They were allegedly deprived of this.

[35] During the hearing, Mr Silaule conceded to the fact that he disallowed the employees from taking the VSP offers and from taking them home on the basis that they were confidential and private. On this basis, I was convinced that Mr Silaule was aware that the employees wanted to consult their union. This is why I concluded that “Mr Silaule’s refusal to me, demonstrates that the Respondent had a take-it-or-leave-it approach and deprived the affected employees of the ability to apply their minds and solicit advice from their union representative or any other third party”.[24] I further held that:

‘This is evinced by the fact that Mr Silaule conceded during cross examination that he did not allow the affected employees to take the proposed VSP offers home and solicit the views of their union representatives. He stated that these documents were confidential and private. However, it cannot be gainsaid that the VSP offers are confidential and private towards the affected employees or their chosen union representatives. If the consultations were genuinely aimed at achieving meaningful engagement, the affected employees should have been given sufficient opportunity to consider the contents of the VSPs and solicit the views of their representatives.

This would have enriched the consultations as the affected employees would have been better informed and better advised. The Respondent,

through the Human Resource Manager, created an artificial barrier by barring the affected employees from being able to take the documents home to consider and obtain advice thereon.’[25]

[36] Furthermore, it cannot seriously be gainsaid that denying the employees the ability to consult their trade union strikes at the core of procedural fairness. In terms of South African labour law, the right to fair labour practices is enshrined in section 23 of the Constitution. Procedural fairness in the context of employment relations necessitates that employees be given a genuine opportunity to engage with their representatives, particularly in matters as significant as VSPs. By preventing employees from consulting their union, the employer undermines the fundamental right to representation and meaningful participation in the decision-making process. This not only compromises the integrity of the consultation process but also erodes trust and transparency between the employer and the employees, thereby failing to meet the standards of procedural fairness required by law.

This Court failed to consider the Respondent’s legal argument and apply the relevant legal principles regarding the finding of substantive fairness and their relief granted

[37] This ground is self-explanatory. I do not think that these grounds have any merit.

[38] In any event, the Labour Appeal Court, per Froneman DJP, is instructive here:

‘Every person has the constitutional right to fair labour practices ( s. 27(1) of the Interim Constitution; s. 23(1) of the Final Constitution ). As far as retrenchment is concerned, fairness to the employer is expressed by the recognition of the employer’s ultimate competence to make a final decision on whether to retrench or not (cf. the Atlantis Diesel case at 1252H (ILJ); 28I (SA)). For the employee fairness is found in the requirement of consultation prior to a final decision on retrenchment. This requirement is essentially a formal or procedural one, but, as is the case in most requirements of this nature, it has a substantive purpose. That purpose is to ensure that the ultimate decision on retrenchment is properly and genuinely justifiable by operational requirements or, put another way, by a commercial or business rationale. The function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employer’s ultimate decision (an issue on which it is, generally, not qualified to pronounce upon), but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham (the kind of issue which courts are called upon to do in different settings, every day). The manner in which the court adjudges the latter issue is to enquire whether the legal requirements for a proper consultation process has been followed and, if so, whether the ultimate decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged from the consultation process. It is important to note that when determining the rationality of the employer’s ultimate decision on retrenchment, it is not the court’s function to decide whether

it was the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.’[26] [Own emphasis]

[39] In casu, there was no proper consultation and there was no misapplication of the law or the relevant legal principles. The employer’s

decision lacked the necessary foundation of a genuine consultation process, which is essential for ensuring that retrenchment decisions

are substantively fair and rationally justifiable. Given these deficiencies, it is inconceivable that any court, upon thorough

examination, would arrive at a different conclusion. The procedural flaws and substantive errors in this instance are so significant that they undermine the integrity of the retrenchment decision, making it indefensible both legally and commercially. Therefore, the prospect of a different court overturning this judgment is not only improbable but implausible.

This Court failed to properly consider the evidence regarding the impracticability of reinstating the Applicants and the relief being limited to compensation

[40] Section 193 of the LRA reads:

‘193. Remedies for unfair dismissal and unfair labour practice

(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 –

(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.

(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless –

(a) the employee does not wish to be reinstated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.

(3) If a dismissal is automatically unfair or, if a dismissal based on the employer's operational requirements is found to be unfair, the Labour Court in addition may make any other order that it considers appropriate in the circumstances.

(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.’

[41] The Respondent alleges that the order of this Court offends section 193(2)(c)-(d) of the Labour Relations Act. Those subsections state that: reinstatement should not be granted where it would not be reasonably practicable for the employer to reinstate or re-employ the employee (that is, section 193(2)(c) of the LRA); and reinstatement should not be granted where the dismissal is unfair only because the employer did not follow a fair procedure (that is, section 193(2)(d) of the LRA).

[42] Section 193(2)(d) does not readily apply here – this is because the dismissal was both procedurally and substantively unfair.

[43] In relation to section 193(2)(c), the Respondent did not furnish any evidence that it would be reasonably impractical for reinstatement. This is a new argument they are pursuing at the appeal stage.

The Court reached the wrong conclusion in the context of the evidence before it regarding ordering reinstatement with backpay

[44] Essentially, the Respondent argues that this Court should not have ordered backpay retrospectively from 17 November 2021. This is because the crèche did not perform for 20 months, and thus, in some imaginary, hypothetical world, if employees were still employed by the Respondent, they would have invariably been laid off or something similar for that 20-month period.

[45] Unfortunately, the Respondent wants this Court to speculate about what would have unfolded. There is no basis for this Court to accept that the employees would have been laid off or would have been paid less. Employment law provides backpay as a remedy to prevent such windfalls for employers who breach their obligations. Courts are not obligated to engage in hypothetical scenarios that could potentially undermine established legal principles. We are concerned with the facts presented and the legal obligations arising from them.

[46] In the premise, the following order is made:

Order

1. The application for leave to appeal is refused.

2. There is no order as to costs.

L.M Morgan

Acting Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] Section 191(5)(b)(ii) provides: ‘(5) If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved – (b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is – (ii) based on the employer's operational requirements.’

[2] Section 191(5)(b)(ii) provides:

‘(5) If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days have expired since the council or the Commission received the referral and the dispute remains unresolved –

(b) the employee may refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is –

(ii) based on the employer's operational requirements.’

[3] The Applicant alleged that the Respondent operated several hotel businesses in several cities within South Africa. This is incorrect.

The Respondent is only in the business of operating casinos and does not operate any hotels.

[4] Act 10 of 2013.

[5] (1221/2015) [2016] ZASCA 176 (25 November 2016).

[6] ibid at para 16.

[7] Ibid at para 17.

[8] (724/2019) [2021] ZASCA 31 (31 March 2021) at para 8.

[9] [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) at para 7.

[10] [1996] ZASCA 87; 1996 (4) SA 735 (SCA).

[11] Jumbo supra at 742A-B.

[12] [2013] ZASCA 198; 2014 (1) SACR 647 (SCA).

[13] Ibid at paras 2 - 3.

[14] [2016] ZALCJHB 72; (2016) 37 ILJ 1485 (LC) at para 3.

[15] 2014 JDR 2325 (LCC).

[16] Ibid at para 6.

[17] Constitution of the Republic of South Africa, 1996. Section 167(3)(b) of the Constitution reads: ‘(3) The Constitutional Court— … (b) may decide— (i) constitutional matters; and (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court…’

[17] Constitution of the Republic of South Africa, 1996. Section 167(3)(b) of the Constitution reads:

‘(3) The Constitutional Court—

(b) may decide—

(i) constitutional matters; and

(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court…’

[18] [2015] ZACC 5; 2015 (3) SA 479 (CC) at paras 20 - 28.

[19] Ibid at fn 5.

[20] Ibid at fn 8.

[21] Martin & East (Pty) Ltd v National Union Mineworkers and Others [2013] ZALAC 35; (2014) 35 ILJ 2399 (LAC).

[22] [2009] ZASCA 163; [2010] 2 All SA 474 (SCA).

[23] Ibid at para 11.

[24] SACCAWU obo Mavuso Nonhlanhla and 2 Others v Tsogo Sun Casinos (Proprietary) Limited (JS25/22) [2024] ZALCJHB 316 (5 April 2024) at para 55.

[25] Ibid at para 78.

[26] SACTWU & others v Discreto (A Division of Trump & Springbok Holdings) [1998] ZALAC 9; [1998] 12 BLLR 1228 (LAC) at para 8.