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[2018] ZAGPPHC 145
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National Union of Public Service and Allied Workers on behalf of Members v The Member Of The Executive Council For Health: Gauteng Department and Others (78454/2016) [2018] ZAGPPHC 145 (12 February 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 78454/2016
12/2/2018
Not reportable
Not of
interest to other judges
In the matter between:
NATIONAL
UNION OF PUBLIC SERVICE AND
ALLIED
WORKERS on behalf of MEMBERS
(As
listed in Annexure "A"
hereto)
Applicant
And
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH: GAUTENG
DEPARTMENT
First Respondent
HEAD
OF DEPARTMENT FOR THE DEPARTMENT
OF
HEALTH: GAUTENG
PROVINCE
Second Respondent
THE
DEPARTMENT OF HEALTH: GAUTENG PROVINCE
Third Respondent
SMARTPURSE
SOLUTIONS (PTY)
LTD
Fourth Respondent
JUDGMENT
PETERSEN AJ:
[1]
This is an application for leave to
appeal against the whole of the judgment of this court delivered on 3
November 2017, dismissing
the application for a
rule
nisi
calling on the respondents, on
a certain date determined by the court, to show cause why the court
should not grant a final order,
to the Supreme Court of Appeal.
[2]
The applicant premises one of its
grounds of appeal on an allegation that the court had found that the
applicant failed to provide
reasons for urgency and why the relief
sought was sought on an urgent basis. With respect the court made no
such finding as that
clearly was not an issue before the court.
[3]
The applicant in its submissions at the
hearing of the application premised its right to the relief sought on
section 217 of the
Constitution and the right of access to courts
provided for in section 34 of the Constitution distancing itself from
submissions
that it relied on section 38. In this application, the
applicant submits that the right which is the subject of the relief
sought
by the applicant is that stipulated under section 23 of the
Constitution and given meaning by section 185 of the LRA. The nature
of the relief sought by the applicants premised on the Constitution
is therefore not clear.
[4]
Be that as it may the Court upheld a
number of the points
in limine
raised
by the respondents. The most significant ground of appeal is in
respect of jurisdiction. The applicant submits that it sought
a
declaratory order envisaged by
section 21(1)(c)
of the
Superior
Courts Act 10 of 2013
. In this regard the submission is made that by
finding that the court lacks jurisdiction the court in effect
disregarded the dictum
in
Municipal
Manager : Qaukeni Local Municipality and Another v FV General Trading
CC
2010 (1) SA 356
(SCA) at para
[25] and in particular para [26]. It is submitted that on this ground
there is reasonable prospects of success on
appeal within the meaning
of
section 17(1)(a)(i)
of the
Superior Courts Act. The
contention is
that the applicant could not obtain the relief it sought in this
court through the dispute resolution mechanism provided
for in
Chapter VIII of the LRA, as they are distinct from the relief sought
by the applicant in the present matter.
[5]
Section 17(1)
of the
Superior Courts
Act, Act
10 of 2013 ("the
Superior Courts Act"
;), regulates
applications for leave to appeal and 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 other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the
decision sought on appeal does not fall within the ambit of
section
16(2)(a)
; and
(c)
where
the decision sought to be appealed does not dispose of all the issues
in the case, the appeal would lead to a just and prompt
resolution of
the real issues between the parties.'
[6]
The
test in an application for leave to appeal prior to the
Superior
Courts Act was
whether there were reasonable prospects that another
court may come to a different conclusion.
[1]
Section 17(1)
has raised the test, as Bertelsmann J, correctly
pointed out in
The
Mont Chevaux Trust v Tina Goosen
&
18
Others
2014
JDR 2325 (LCC) at para [6]:
'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 Cornwright & 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.'
[7]
Whilst the applicant pins its' application to
section 17(1)(a)(i)
of
the
Superior Courts Act, I
remain mindful of the fact that the
decision impacts on the role of Community Health Workers in society
and their right to security
of employment. This on its own to my mind
in light of the points
in limine
having been upheld is a
compelling reason within the ambit of
section 17(a)(ii)
of the
Superior Courts Act to
grant leave to appeal. In light of the
significance of the matter, it would further not be misplaced to give
a directive that leave
to appeal be granted to the Supreme Court of
Appeal.
[8]
In the result:
1.
Leave to appeal is granted to the
Supreme Court of Appeal.
2.
Costs shall be costs in the
appeal.
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Appearances:
On
behalf of the Applicant : Advocate DZ Kela
On behalf of the First to
Fourth Respondents : Advocate Mhambi
DATE HEARD: 02 February 2018
DATE
OF JUDGMENT: 12 February 2018
[1]
Commissioner of Inland Revenue v Tuck
1989 (4) SA 888
(T) at
890