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[2016] ZALCJHB 27
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South African Medical Association obo Pietz v Department of Health - Gauteng Province and Others (JR2343/12) [2016] ZALCJHB 27 (29 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 2343/12
In
the matter between:
SOUTH
AFRICAN MEDICAL ASSOCIATION
OBO
DR GRZEGORC LUDWICK PIETZ
Applicant
and
DEPARTMENT
OF HEALTH – GAUTENG PROVINCE
First Respondent
ADVOCATE
RONNIE BRACKS N.O.
Second Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
BARGAINING
COUNCIL
Third
Respondent
Heard:
Considered
in
Chambers
Delivered
:
29 January 2016
JUDGMENT
RHOODIE
AJ
Introduction
[1]
This is an application for leave to appeal against the
judgment of this Court made on 29 July 2015, in terms of which, the
applicant's
review application was dismissed with costs.
[2]
The applicant has now sought leave to appeal against my judgment as
referred to above. The applicant filed an application for
leave to
appeal on 14 August 2015 and filed heads of arguments on 28 August
2015. The first respondent filed its papers on 8 October
2015.
Test
for leave to appeal
[3]
In
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether there is a reasonable
prospect that another Court might come to a different conclusion to
that of the Court
a
quo
.
[1]
[4]
As was specifically said in
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others:
[2]
‘
I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge to ask
whether
there is a reasonable prospect that another court may come to a
different conclusion. See
North
East Cape Forests v SAAPAWU and Others
(1997)
18
ILJ
729 (LC)
;
[1997] 6 BLLR 705
(LC) at 710A-B;
NEWU
v LMK Manufacturing (Pty) Ltd and Others
[1997]
7 BLLR 901
(LC) and Landman and Van Niekerk
Practice
in the Labour Courts
(Service 1) at A-41.’
[5]
The applicant thus have to show in this instance that there is a
reasonable prospect of another Court coming to a different
conclusion. The applicant has raised 26 individual grounds on which
leave of appeal application is based. Considering the conclusion
that
I have come to, I will not address all of these individual grounds.
The
merits of the application for leave to appeal
[6]
The facts and background leading to the dismissal of Dr. Pietz are
set out and dealt with in the Second Respondent’s award
and
then in the main judgment and will thus not be repeated herein.
[7[
From the outset, I am compelled to state two grounds of appeal raised
by the applicant are as follows:
7.1
The decision to award no compensation demonstrate reasonable
prospects of success on appeal.
I
would be disposed in favour of the granting of leave to appeal on the
very issue of the applicant’s interpretation of section
38 of
the Constitution in
Hoffmann
v South African Airways.
[3]
.
What
may constitute “appropriate relief” for the purposes of
this matter? I have addressed this issue in detail in my
judgment but
I am of the view that the certainty which can be provided by the
Labour Appeal Court considering and determining this
fundamental
issue would be of significant value.
7.2
The incidents unrelated to patient Hlatshwayo also demonstrate
reasonable prospects of success
on appeal.
The
interpretation of the case of
Palluchi
Home Depot (Pty) Ltd v Herskowitz and Others
[4]
will determine whether this ground/argument will convince another
Court to come to a finding different from the decision reached
by
myself. What this, however, surely must demonstrate, for the purposes
of an application for leave to appeal, is that this is
a matter where
Judges may reasonably differ. Due to the importance of this aspect in
the conclusions reached by this Court, it
would justify the attention
of the Labour Appeal Court.
[8]
In considering whether to grant leave to appeal, I am enjoined to
determine whether there are reasonable prospects that another
Court,
having regard to the same material that served before this Court, is
likely to arrive at a different conclusion. Having
had regard to the
various grounds relied upon, I am of the view that some of them are
sufficiently cogent to persuade me to allow
leave to appeal.
[9]
Having reflected on my judgment, the grounds upon which leave to
appeal is sought and submissions made in that regard, I am
of the
view that a case has in fact been made out to demonstrate reasonable
prospects of success on appeal.
[10]
Accordingly, the following order is made:
1.
The applicant’s application for leave to appeal is granted.
2.
The applicant’s is given leave to appeal to the Labour Appeal
Court against
the whole of my judgment handed down on 29 July 2015.
3.
Costs are to be costs in the appeal.
____________________
Rhoodie,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant:
Advocate,
F A Boda
Instructed
by:
Hogan Lovells Incorporated as Routledge Modise Inc
For
the Respondent:
Advocate S B Nhlapo
Instructed
by:
State Attorney
[1]
See
National
Education Health and Allied Workers Union v University of Cape Town
and Others
(2003) 24 ILJ 95 (CC) at paras 25-26;
Ngcobo
v Tente Casters (Pty) Ltd
(2002) 23 ILJ 1442 (LC);
Volkswagen
SA (Pty) Ltd v Brand No and Others
(2001) 22 ILJ 993 (LC);
Singh
and Others v Mondi Paper
(2000) 21 ILJ 966 (LC);
Glaxo
Welcome SA (Pty) Ltd v Mashaba and Others
(2000) 21 ILJ 1114 (LC).
[2]
(1999)
20
ILJ
2889 (LC)
at
para 4.
[3]
2001
(1) SA 1 (CC); 2000 (11) BCLR 1235 (CC); [2000] 12 BLLR 1365 (CC).
[4]
[2015]
5 BLLR 484
(LAC).