THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case Number : JS2283/2019
ELIZABETH BEZUIDENHOUT First Plaintiff
M GROENEWALD obo LATE ESTATE OF C BEDDY Second Plaintiff
and
MINISTER OF BASIC EDUCATION First Defendant
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, GAUTENG PROVINCE Second Defendant
HEAD OF DEPARTMENT OF EDUCATION GAUTENG PROVINCE Third Defendant
MR. T. GROENEWALD N.O Fourth Defendant
SCHOOL GOVERNING BODY LANTERN SCHOOL Fifth Defendant
Heard: In chambers
Delivered: 17 February 2025
(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLII. The date on which the judgment is delivered is deemed to be 17 February 2025.)
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JUDGMENT
FORD AJ
Introduction
1. This is an application for leave to appeal against the whole of my
judgment and order, dated 19 November 2024. 2. In the judgment I dismissed the plaintiffs claim, without making an order
as to costs.
3. The plaintiffs challenge that decision on grounds that I have misdirected
myself on the facts and the law. For reasons that will become apparent herein, I
disagree.
Grounds of appeal
4. The plaintiffs contend that in assessing the merits of the case, I failed to
have regard to the following common facts , which were otherwise unchallenged
by the defendant:
4.1. The plaintiffs are qualified as Educational Psychologists
and that they are registered as such with the HPCSA;
4.2. That a requirement for their appointment was that they be
qualified as Educational Psychologist;
4.3. That at the time of their appointment they were informed
that they would be appointed as Educational Psychologist;
4.4. That since their appointment and employment with the
Gauteng Department of Education, they performed the duties and
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functions of an Educational Psychologist s and were evaluated and
assessed as such;
4.5. That there exists , in the post establishment of the
Department of Education, no post of a Therapist to be employed as
Psychologist and that there is a clear distinction between the duties and
salary scales of a Therapist (being either a Physiotherapist, Speech Therapist, Occupational Therapist) , Counsellors and Psychologist;
4.6. That other individuals employed by the Gauteng
Department of Education, also employed at the Lantern School, were
appoint ed in the post of Educational Psychologist and performed the
same duties and responsibilities of the plaintiffs ;
4.7. That the audit conducted by the Gauteng Department of
Education in 2018 confirmed that the defendants were aware of the fact
that the plaintiffs’ profession was that of Educational Psychologist s, and
that their registration status with the HPCSA was that of "active
psychologist";
4.8. That the Occupation Specific Dispensation for education
therapist, counsellors and psychologist (the OSD) required from the
Department of Education Gauteng to appoint and remunerate the
individuals as per their specific field of expertise and that the Department
of Education Gauteng could not utilise the plaintiffs , being registered
Educational Psychologists
in the capacity as a "Therapist s";
4.9. That even on the version of the Department of Education
Gauteng, presented by Mr Macaucua, that the defendants cannot employ
a person as Therapist and then utili se them as Psychologist;
5. The plaintiffs contend that if I had properly evaluated and considered the
aforementioned facts , I would have arrived at a different conclusion and that
there exist more than reasonable prospects that the Labour Appeal Court will
come to a different conclusion, having considered the facts of the matter.
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6. The plaintiffs reference paragraph 22 of my judgment , where I reached
the following conclusion;
The agreement between the Department and the plaintiffs came pursuant to the advertisement of certain vacant posts for therapists in the
Vacancy Circular. Not educational psychologists. The plaintiffs applied for those posts, fully aware of the fact that the posts, as advertised was
for a therapist position. The fact that the advert required the incumbent to
be registered as an educational psychologist with the HPCSA, as an
additional requirement, did not evolve the position into that of an
educational psychologist. The position was advertised as a therapist, the
plaintiffs applied for those positions, the plaintiffs were appointed, and
accepted those appointments.
7. In arriving at the aforementioned conclusion, so it is submitted, I
allegedly ignored the fact that;
7.1. Prior to the plaintiffs having applied for the positions , they
were employed on a temporary basis and performed the functions of
Educational Psychologist and not that of Therapist s;
7.2. That the first plaintiff was absorbed into the post
establishment at a time when the Gauteng Department of Education knew that she was performing the work of Educational Psychologist and
that she was not qualified as a Therapist;
7.3. That in terms of the OSD a Therapist is not an Educational
Psychologist and that there could have been no reason for advertising a position of Therapist with the "requirement" that the incumbent be
registered as an educational psychologist other than the fact that the
intention of the Gauteng Department Education was to employ such
individual as an Educational Psychologist;
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7.4. That besides the adverts itself the plaintiffs presented clear
and unchallenged evidence that the p rincipal informed the Gauteng
Department of Education, with reference to the advert, that the second
plaintiff wished to apply for the position of Educational Psychologist .
8. The plaintiffs contend that the conclusion I arrived at , was irreconcilable
with the proven facts and that they have reasonable prospects that the Labour
Appeal Court, when considering the facts, would come to a different conclusion.
9. The plaintiffs references my finding at paragraph 23, where I noted that
the 'what the plaintiffs are pursing, is in effect a claim to be appointed as
educational psychologists' and that claim, however legitimate it appears to be,
does not constitute rectification'. They submit that the finding is irreconcilable
with the authorities relied upon, having regard to the fact that it was common
cause between the parties and expressly admitted by the defendants that, at
the time the plaintiffs were appointed it was a requirement that they be
Educational Psychologist s. In the aforementioned circumstances , so it is
argued, and having regard to the authorities relevant to the issue of rectification,
it is submitted that I ought to have found, that it was the common intention of the
parties that the plaintiffs were to be appointed as Educational Psychologists and
that their contracts of employment did not correctly reflect the intention of the parties.
10. It is submitted further that, had I correctly considered and evaluated the
evidence presented, I would have concluded that;
10.1. It was at all times the intention of the parties that the
plaintiffs perform the duties and functions of an Educational Psychologist;
10.2. The evidence expressly and unequivocally confirmed that
the defendants required from the plaintiffs, to perform the functions of
Educational Psychologist and not that of Therapist;
10.3. In terms of the OSD the plaintiffs could not be employed as
Therapists;
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10.4. And that based on the aforementioned it ought to have
been evident that the plaintiffs’ contracts of employment could not have
been a true reflection of the intention of the parties which mistake was evidently due to an error on the part of the defendants.
Analysis
11. The plaintiffs advance the same arguments and issues raised at the trial
before me.
12. In order to claim rectification of an agreement, there must be a common
mistake, which does not reflect the true intention of the contracting parties. A nd
as previously stated, the mistake being a sine qua non for rectification
1.
13. I have considered all the issues which the plaintiffs allege, I neglected to
do. What the evidence confirmed was the following:
13.1. The agreement between the Department and the plaintiffs
came pursuant to the advertisement of certain vacant posts for therapists
in the Department’s v acancy circular ;
13.2. The vacancy circular sets out the post establishment s;
13.3. The circular did not make provision for educational
psychologists ;
13.4. The plaintiffs applied for those posts, fully aware of the fact
that the posts, as advertised was for a T herapist position;
13.5. The fact that the advert required the incumbent to be
registered as an educational psychologist with the HPCSA, as an additional requirement, did not evolve (as stated in the judgment) the
position into that of an educational psychologist. The position was advertised as a therapist, the plaintiffs applied for those positions, the plaintiffs were appointed, and accepted those appointments.
1 RZT Zelphy 4243 (Pty) Ltd v Olam South Africa Pty Ltd (5462/2015) [2020] ZAFSHC 95 (15
May 2020) para 19
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14. What became abundantly clear both at the trial and in this application for
leave to appeal, i s what the plaintiffs are pursuing, is a claim to be appointed as
educational psychologists, principally because they performed as such and
officials at the school and some at the Department knew this. That claim ,
however legitimate it appears to be, does not constitute rectification.
15. The long and short of this matter is this. The plaintiffs failed to convince
me that there was a common intention between them and Macuacua at the time of the conclusion of their contracts, that they were to have been appointed as educational psychologists.
16. As previously stated, the posts the plaintiffs were appointed to were
vacant at the time, and listed as such in the Department’s post establishment.
17. In terms of s 17(1)(a) of the Superior Courts Act 10, of 2013, leave to
appeal "may only be given" when: - the appeal would have a reasonable
prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under
consideration."
18. The court in MEC Health, Eastern Cape v Mkhitha2, touching on the test
to be applied when considering an application for leave to appeal, stated the following:
Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there is truly a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned
is of the opinion that the appeal would have a reasonable prospect of
success, or there is some other compelling reason why it should be
heard.
An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable or realistic chance on appeal . A mere
2 2016 JDR 2214 (SCA) para 16-17
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possibility of success, an arguable case or one that is not hopeless is not
enough. There must be a sound, rational basis to conclude that there is a
reasonable prospect of success on appeal." (Emphasis added).
19. In Smith v S
3 the Supreme Court of Appeal, also had occasion to
consider what "reasonable prospects of success" in section 17(1)(a)(i) meant, it
said:
"What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of
appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed therefore the appellant must convince this
court on proper grounds that he has prospects of success on appeal and
that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere
possibility of success, that the case is arguable on appeal or that the
case cannot be categorised as hopeless. There must, in other words, be
a sound. rational basis for the conclusion that there are prospects of
success on appeal".
20. In Fair Trade Tobacco Association v President of the Republic of South
Africa and Others4 a full bench held that:
''As such, in considering the application for leave to appeal, it is crucial for this Court to remain cognizant of the higher threshold that needs to be met before
leave to appeal may be granted. There must exist more than just a mere
possibility that another court, the SCA in this instance, will, not might find
differently on both the facts and the law. It is against this background that we
consider the most pivotal grounds of appeal."
21. In Democratic Alliance v President of the Republic of South Africa and
Others
5 the court held:
3 2012 (1) SACR 567 (SCA) at para 7
4 2020 JDR 1435 (GP) at [6]
5 (21424/2020) [2020] ZAGPPHC 326 (29 July 2020) at par [5]
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"Leave to appeal is not simply for the taking. A balance between the
rights of the party which was successful before the court a quo and the rights of the losing party seeking leave to appeal need to be established so that the absence of a realistic chance of succeeding on appeal
dictates that the balance must be struck in favour of the party which was initially successful.”
22. I have carefully considered the application for leave to appeal, and the
grounds advanced therein, and conclude that the plaintiffs have no prospect of success on appeal, and in the absence of a realistic chance of success on appeal, it would serve no purpose to grant leave to appeal.
23. In the premises, I make the following order
Order
1. Leave to appeal is refused.
2. I make no order as to costs.
Bart Ford
Acting Judge of the Labour Court of South Africa
Appearances:
For the plaintiffs : Adv. D.J. Groenewald
Instructed by: Serfontein, Viljoen & Swart