Summary of Judgment

1. Introduction

This judgment concerns an application for leave to appeal in the Labour Court. The application was brought by Thabang Mampane N.O, the National Lotteries Commission, the Board of the National Lotteries Commission, and Khau Moloko N.O (collectively, the applicants in the leave application), against the National Union of Public Service and Allied Workers (NUPSAW) and Kelebogile Mokgatlha (the respondents in the leave application). The matter is presented with a corresponding “in re” caption reflecting that the underlying litigation involved related proceedings between the same parties in reversed roles.

The procedural history is central. The leave application sought to challenge an earlier judgment delivered on 18 January 2018, in which the court reviewed and set aside a decision taken on 31 March 2016. In the earlier judgment, the court held that the impugned decision was ultra vires and null and void, and it remitted the decision for reconsideration by the relevant decision-maker. The court also noted that, by the time the review was argued, the dispute might already have been moot.

The general subject matter arises from a redeployment/relocation decision in the context of restructuring at the National Lotteries Commission (or Lotteries Board, as described in the judgment). The dispute concerns the status and reviewability of administrative or managerial decisions relating to an employee’s deployment to KwaZulu-Natal, and the extent to which a binding agreement about the redeployment process affected the ability to review the ultimate deployment decision.

2. Material Facts

The court’s reasoning proceeded from the existence of an earlier judgment (18 January 2018) in which it had found that the fourth applicant’s decision of 31 March 2016 was unlawful. That decision had refused to deviate from an earlier decision of 18 November 2015, taken by the first applicant, which involved deploying the affected employee (identified in the judgment as the second respondent in the leave proceedings) to KwaZulu-Natal. Alternatively, the March 2016 decision was characterised as dismissing the second respondent’s appeal against the November 2015 decision.

It was accepted in the earlier judgment (and carried into the leave application) that there was a binding agreement governing the redeployment process adopted after restructuring. However, the earlier judgment did not accept that agreement on process necessarily resolved whether the final deployment decision was capable of being reviewed.

The factual disputes material to the leave application were not disputes of primary historical detail, but disputes about what the existing instruments and conduct amounted to. In particular, the applicants contended that the binding agreement extended beyond process and included agreement on the transfer/redeployment itself, and that such agreement was binding on the affected employee. They further contended that the first applicant had confirmed and/or ratified the November 2015 decision, notwithstanding that the decision challenged in review was framed as the March 2016 refusal to deviate. Additionally, the applicants contended that the first applicant had delegated authority to the fourth applicant to decide the deviation request, and criticised the earlier judgment for rejecting delegation “solely” on what was said to be the first applicant’s say-so in an answering affidavit.

Finally, the applicants raised a point that the earlier judgment should have had regard to section 2D of the Lotteries Act 57 of 1997 (dealing with powers of delegation) rather than focusing on clause 9 of the Relocation Policy, which recorded that the board delegated authority to consider written deviation requests to the CEO.

3. Legal Issues

The central legal question in this judgment was whether leave to appeal should be granted against the judgment of 18 January 2018. That enquiry required the court to evaluate whether there was a sufficient prospect that another court might reach a different conclusion on the issues raised.

Within that leave-to-appeal framework, the specific issues were whether another court might differ on the conclusion that the existence of a binding agreement on redeployment process did not dispose of the reviewability of the final deployment decision, particularly where the applicants contended that the agreement also included agreement to the transfer.

Ancillary issues (raised as additional grounds for appeal) included whether the earlier judgment erred by not finding ratification/confirmation of the November 2015 decision by the first applicant, whether it erred in relation to the existence and proof of delegated authority to the fourth applicant, and whether the earlier judgment should have preferred reliance on section 2D of the Lotteries Act over the relevant Relocation Policy provision addressing delegation.

The dispute as framed in this judgment primarily concerned the application of law to fact and the characterisation of instruments and decisions (collective agreement scope, delegation, ratification), rather than a reassessment of primary factual evidence.

4. Court’s Reasoning

The court approached the matter by isolating the decisive question for leave: whether any of the proposed grounds of appeal showed a realistic prospect that another court would reach a different outcome. The judge focused first on the ground concerning the alleged collective agreement and whether it effectively confirmed the second respondent’s redeployment to KwaZulu-Natal in a way binding upon her.

On that issue, the court accepted that there was some prospect that another court could reach a different conclusion from the one reached previously. In particular, the judge identified the possibility that a different court might find that a collective agreement did not only regulate the process but might have extended to (or confirmed) the substantive redeployment decision itself. This assessment was sufficient, in the court’s view, to justify granting leave to appeal.

On the remaining grounds—concerning ratification, delegation, and the alleged misdirection in reference to section 2D of the Lotteries Act 57 of 1997 as opposed to clause 9 of the Relocation Policy—the court expressed doubt that another court would likely come to a different decision. The court did not, in this leave judgment, re-argue those issues in detail; it recorded its scepticism about the prospects of success on those additional grounds.

However, the court reasoned that, once leave to appeal was being granted on the first ground, there was no reason in principle to refuse leave on the remaining grounds. Two contextual considerations were expressly noted. First, having granted leave on one ground, the court saw no basis to “deprive” the applicants of leave on the other grounds. Second, the leave application was unopposed, which reinforced the court’s decision to permit the appeal to proceed on all grounds raised rather than confining it narrowly.

5. Outcome and Relief

The court granted leave to appeal against the judgment delivered on 18 January 2018.

No order was made as to costs.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

Lotteries Act 57 of 1997 (including section 2D)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Labour Court held that there was a sufficient prospect that another court might reach a different conclusion on whether a collective agreement (relating to redeployment following restructuring) effectively confirmed the employee’s redeployment to KwaZulu-Natal in a binding manner. On that basis, leave to appeal was granted.

Although the court doubted that the other grounds of appeal (concerning ratification of the earlier decision, delegation to consider deviation, and the statutory versus policy basis for delegation) were likely to succeed, it nonetheless granted leave on those grounds as well, particularly because leave was granted on the principal ground and the application for leave was unopposed. No costs order was made.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal may be granted where there is a sufficient prospect that another court may reach a different conclusion on a material issue.

In deciding whether to confine or broaden leave once a principal ground meets the threshold, the judgment reflected an approach that, where leave is granted on a significant ground, a court may allow the appeal to proceed on additional grounds as well, especially where there is no opposing party seeking limitation and where refusing leave on the additional grounds would serve no clear purpose in the circumstances.

The judgment also reflected (as part of the grounds raised and considered) the relevance, in appropriate cases, of distinguishing between statutory delegation powers (here, section 2D of the Lotteries Act 57 of 1997) and internal policy-based delegation (here, clause 9 of the Relocation Policy), though the leave judgment itself did not finally determine that delegation dispute and confined itself to assessing prospects on appeal.