Labour Association Workers Union obo February & others v APL Cartons (Pty) Ltd & others (Application for Leave to Appeal) [2026] ZALCCT 180

Seat of Court: Labour Court, Cape Town

Date Delivered: 13 October 2026

Case No: 2025/084497

Name of Judge(s): De Kock AJ

Factual Summary:

LAWU referred a dispute to the CCMA on behalf of former employees of APL Cartons concerning the payment to them of retirement-fund contributions which Sanlam had paid to the employer as sole beneficiary after the fund was terminated. The commissioner declined jurisdiction on three independent grounds: LAWU had not established its authority to represent the individuals or their membership; the same dispute had been resolved by its withdrawal in November 2021; and the claim did not fall within section 73A of the BCEA. LAWU’s review of that ruling was deemed withdrawn under rule 37(15), and on 7 September 2026 the Court dismissed its application to reinstate the review for want of prospects of success, ordering it to pay costs on scale B.

LAWU sought leave to appeal on seven grounds, concerning the withdrawal, section 73A, mandate and membership, the completeness of the record under rule 37, costs, condonation for the late review and the conduct of the arbitration. The application was determined in chambers on the papers.

Legal Questions Considered:

[5] ‘The founding affidavit in the reinstatement application engaged none of the three. Unless the applicant shows a reasonable prospect that all three findings would be overturned on appeal, the application for leave cannot succeed.’

[7] ‘The account of how the withdrawal came about was before the Court and is recorded in the judgment. The difficulty was never that the account was disbelieved; it was that the review papers did not engage the Commissioner’s finding on it. […] Beyond asserting that a withdrawal so induced cannot bar a fresh referral, this application does not engage that finding, and does not say that the withdrawal has been challenged. And even taking the point at its highest, it engages only the second of the three independently dispositive findings; it does not touch the finding on LAWU’s authority or the finding on s 73A. There is no reasonable prospect that another court would come to a different conclusion on this ground.’

[9] ‘The premise of the ground is wrong. The judgment did not uphold the commencement-date point. […] What the judgment held was that the claim so characterised was not how the referral was framed, was not developed in the founding affidavit or the heads, and was offered for the first time from the bar in reply, and that prospects on a review must be shown on the case that was before the arbitrator and on the grounds pleaded in the review. Nothing in this application meets that holding. In any event, the point would not answer the separate and independently dispositive finding on LAWU’s authority. There is no reasonable prospect of success on this ground.’

[11] ‘This ground is decisive. On a jurisdictional review the question is whether the Commissioner was right or wrong, and if the finding on authority was wrong the review papers were the place to show it. They did not attempt to. Neither the founding affidavit nor the heads engaged the finding that LAWU produced nothing to show that the original applicants were its members, or the finding that some of those it purported to represent said on affidavit that it did not act for them. Nothing in the review papers attempted to show that finding wrong, whether by membership forms and proof of subscriptions or otherwise; the question is not whether such material might exist somewhere, but whether the finding was challenged in the application as litigated. It was not. The complaint that the Commissioner refused to consider closing submissions does not answer that silence.’

[12] ‘Because this finding was, on its own, sufficient to sustain the award, and was not challenged at all in the papers before the Court, there is no reasonable prospect that another court would interfere with the refusal of reinstatement on this ground.’

[14] ‘There is no contradiction. The judgment distinguished between delivery of the record by the CCMA to the Registrar, which on the CCMA’s own account was complete by 19 August 2025, and the later failure of the Court’s platforms to make those filings visible, which it held was not a failure by the CCMA to deliver and so not what the proviso to rule 37(13) speaks to. […] In any event, reinstatement was refused for want of prospects of success in the review, not on the operation of rule 37; the Court accepted that the default in filing the transcription was one of days and was adequately explained. Even if another court were to take a different view of when the record became complete, that would not alter the outcome.’

[16] ‘Those considerations were weighed in the judgment, expressly or in substance. […] The order was made against the union and not against the individuals on whose behalf it acted. The Court found expressly that the application was not vexatious. Nor was the order punitive: scale B was the scale asked for, and the applicant does not say why a different scale was called for. Costs under s 162 of the Labour Relations Act (LRA) are a matter of discretion, exercised on considerations of law and fairness with reasons given. No misdirection in that exercise has been shown, and there is no reasonable prospect that another court would interfere with the costs order.’

[18] ‘The ground misconceives the judgment. The two-day delay in filing the review was never the obstacle. The judgment records the delay and the explanation for it; it neither refused condonation for it nor shut the review out on account of it. Reinstatement was refused because the applicant had not shown prospects of success in the review, a finding that does not turn on, and is not disturbed by, whatever view is taken of those two days. As to s 34, the judgment addressed access to justice expressly, and held that the authority the applicant relied on for it, while closer to the mark than it appeared, does not supply prospects of success where there are none. A court does not deny access to justice by declining to reinstate a review that has no reasonable prospect of succeeding. There is no appealable omission on this ground.’

[20] ‘The judgment did not hold the complaints irrelevant; it held that they were not answers to a want of jurisdiction. The ruling under review was a jurisdictional ruling, and on review of such a ruling the question is whether the Commissioner was right or wrong, not whether the outcome was reasonable or the hearing fairly conducted. If the CCMA in fact lacked jurisdiction, the manner in which the Commissioner reached that conclusion will not assist the applicant. An irregularity in the conduct of the hearing, however serious, cannot confer on the CCMA a jurisdiction it did not have. The applicant’s remedy, if the jurisdictional findings were wrong, was to show on review that they were wrong; its papers did not attempt to. None of this shows a reasonable prospect of a different outcome on appeal.’

[21] ‘None of the grounds advanced, whether taken individually or cumulatively, establishes a reasonable prospect that the Labour Appeal Court would come to a conclusion different from that of this Court. No other compelling reason why the appeal should be heard has been shown. The application for leave to appeal must accordingly fail.’

[22] ‘The same considerations of law and fairness that informed the costs order in the principal judgment apply with equal force here. The applicant persists in litigation already found to lack prospects of success, and has put the first respondent to further expense in opposing an application which itself discloses no reasonable prospect of success. An order for costs is accordingly warranted.’

Relief: The application for leave to appeal was refused, and LAWU was ordered to pay the first respondent’s costs of the application.

Judgment on SAFLII