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[2017] ZALCJHB 104
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Minister of Police and Another v Kgopa and Another (JR76/13) [2017] ZALCJHB 104 (23 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR76/13
In
the matter between:
THE
MINISTER OF
POLICE
First Applicant
NATIONAL
COMMISSIONER OF
POLICE
Second Applicant
and
MM
KGOPA
First Respondent
LT
COLONEL DE
LANGE
Second Respondent
Decided:
23 March 2017 (in chambers)
RULING
ON LEAVE TO APPEAL
EVERETT
AJ
Background
[1]
The applicants seek leave to appeal my judgment of 19 May 2016. The
application is unopposed.
[2]
In essence, I had decided that the decision of the chairperson at a
disciplinary hearing to grant absolution from the instance
–
while manifestly wrong in law - could not be taken on review by the
state in terms of either section 158(1)(g) or (h) of
the Labour
Relations Act
[1]
.
[3]
The applicant submitted that I erred in finding that the employer had
no lo
cus
standi
to
review its own decision and it relied on the following decisions in
support of the application:
Hendricks
v Overstrand Municipality and Another
[2]
;
Ntshangase
v MEC for Finance, Kwa-Zulu Natal and Another
[3]
;
Khumalo
and Another v Member of the Executive Council for Education: Kwa-Zulu
Natal
[4]
.
Test
for leave to appeal
[4]
The test to be applied in an application for leave to appeal is that
referred to in section 17 of the Superior Courts Act.
Section
17(1) provides that leave to appeal “may only be given where
the judge or judges concerned are of the opinion that
the appeal
would have a reasonable prospect of success” or there is some
other compelling reason why the appeal should be
heard. A compelling
reason is obviously where there are decided cases to the contrary.
[5]
I would distinguish the decisions referred to by the applicant in the
application for leave to appeal. However, there is sufficient
similarity in the facts of the decided cases, in particular that of
Hendricks
, for me to conclude that another judge may have come
to a different conclusion on the basis for review of a State
functionary and
may have set aside the chairperson’s decision.
[6]
Applying the test of whether another judge may have come to a
different conclusion, I am of the view that this application should
succeed.
Order
[7]
I therefore rule as follows:
1.
Application for leave to appeal is granted.
2.
There
is no order as to costs.
_________________
Winnie
Everett
Acting
Judge of the Labour Court of South Africa
[1]
Act 66 of 1995.
[2]
2015 36
ILJ
163 (LAC)
[3]
(2010) 3 SA 201
(SCA)
[4]
(2014) 35
ILJ
613 (CC).