Shekwambane & others v Curro Holdings Ltd t/a Curro Academy Pretoria (Leave to Appeal) [2026] ZALCJHB 367

Seat of Court: Labour Court, Johannesburg

Date Delivered: 21 September 2026

Case No: JS602/20

Name of Judge(s): Snyman AJ

Factual Summary:

Ms Shekwambane and four other cleaners were dismissed for operational requirements after Curro Academy Pretoria outsourced its cleaning function. The new service provider, Suburban, guaranteed them positions on the same terms and with their service intact, but they refused the alternative on the union's advice, and the union did not engage in the s 189 consultation process. After a three-day trial, the Labour Court held on 30 July 2026 that the dismissals were substantively and procedurally fair and dismissed their claim.

The applicants applied for leave to appeal on 24 August 2026, three days after the 15-court-day period under Rule 67(2) had expired, without applying for condonation. They contended that another court 'may reasonably find' differently, challenged the findings on the transfer agreement, the union's failure to consult and credibility, and argued that the employer's evidence had not been pleaded. The respondent opposed.

Legal Questions Considered:

[6] ‘The 15 days’ time limit is calculated on the basis of Court Days. It follows that such period, considering judgment was handed down on 30 July 2026, expired on 21 August 2026. The leave to appeal application was filed on 24 August 2026 and therefore the application is out of time. This necessitated the applicants to apply for condonation in order to show good cause for the extension of such time period.’

[7] ‘The applicants have however not made any application for condonation, and have thus failed to show good cause for the extension of time period under Rule 67(2). For this reason alone, the application for leave to appeal must fail.’

[9] ‘Nonetheless, and for the sake of being complete, I have considered the merits of the application for leave to appeal, and for the reasons as set out below, I believe the application has no merit.’

[14] ‘Considering the above test for leave to appeal, I am compelled to point out that the applicants have misconstrued such test in seeking leave to appeal. The entire application is permeated with references that another Court ‘may reasonably find’ differently. That is not the test for leave to appeal. The test for leave to appeal is whether another Court would conclude differently. This is a clearly a higher threshold. Because the applicants have started from the wrong premise, so to speak, they have in general terms failed to make out a case for leave to appeal in line with the test articulated above.’

[15] ‘What the applicants do is to refer to and in essence quote extracts from findings I made in my judgment, then state that these findings are wrong and another Court may reasonably decide otherwise. […] The mere disagreement by the applicants with the findings I had made, and contending such is wrong, does not constitute a proper basis for seeking leave to appeal, considering the test for leave to appeal set out earlier in this judgment.’

[16] ‘These issues were specifically dealt with in detail, both in evidence and in the submissions by the parties, and my findings were squarely based on that. The applicants simply rehash the same issues and argument again. As in my original judgment, I remain entirely unconvinced that the applicants’ case in this regard has any substance, and there is no prospect at all that another Court would decide otherwise. In reality, the facts speak for themselves.’

[18] ‘The applicants have made out no case that would substantiate interference with the factual / credibility findings I have made, other than simply disagreeing with the same. The applicants needed to illustrate that my factual findings, as said in Santam Bpk v Biddulph[10], were ‘plainly wrong’ or ‘where the reasons given for the finding are seriously flawed’. This has not been done.’

[19] ‘The applicants clearly misconstrue what pleadings in trial proceedings are all about. In a pleading submitted by a party in trial proceedings, it is simply not required of that party to plead each and every piece of evidence that will be led. The pleading is not evidence. […] In an event, all the evidence was fully ventilated at trial without objection by the applicants, and there is no case made out of any prejudice that may have accrued to the applicants because an issue was not pleaded.[12]’

[20] ‘But other than this bald and unmotivated statement, the applicants fail to articulate any motivation or reasons as to why the cases I relied on would be distinguishable, which is what it seems the applicants are suggesting. The applicants must make out a proper case in this regard. This mere bald assertion establishes no case for leave to appeal. In any event, the cases concerned are in point, and not distinguishable.’

[21] ‘There was a decision by the respondent to outsource its cleaning functions which caused the positions of the applicants to become redundant. By law, this constitutes a proper and fair operational rationale for retrenchment. Because the entire cleaning function was outsourced, selection was not a relevant issue. In the context of alternatives to retrenchment, the applicants were guaranteed a position at the outsourced service provider (Suburban) on the same terms and conditions of employment, with length of service intact. But the applicants simply refused to work for the outsourced service provider and insisted on remaining employed with the respondent. The alternative positions at the service provider were offered to them throughout the retrenchment process as a specific measure to avoid retrenchment, but the applicants at all times, on the advice of the union, refused to accept it. As such, they invited their retrenchment. There was no evidence to indicate that the consultation process was procedurally unfair, and the union without proper cause or reasons simply failed to engage in the consultation process. On these core facts, the retrenchment of the applicants was clearly substantively and procedurally fair. There simply exists no reasonable prospect that another Court would come to a different conclusion.’

[23] ‘I am therefore unconvinced that leave to appeal is justified in this case. The applicants 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 no pressing issue of public interest that would call for consideration by a Higher Court. This matter actually cries out for finality.’

[24] ‘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.’

Relief: The application for leave to appeal was dismissed, with no order as to costs.

Judgment on SAFLII