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[2026] ZALCCT 86
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Western Cape Education Department v Neumann and Others (C383/2023) [2026] ZALCCT 86 (25 May 2026)
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THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C383/2023
In the matter between:
WESTERN CAPE EDUCATION
DEPARTMENT
Applicant
and
WESLEY
NEUMANN
First Respondent
EDUCATION LABOUR
RELATIONS COUNCIL
Second
Respondent
JONATHAN GRUSS
N.O.
Third Respondent
PREMIER OF THE WESTERN
CAPE
Fourth Respondent
HELEN
ZILLE
Fifth Respondent
BRIAN
SCHREUDER
Sixth Respondent
PUBLIC SERVICE
COMMISSION
Seventh Respondent
DEPARTMENT OF PUBLIC
SERVICE AND
ADMINISTRATION
Eighth Respondent
Heard:
On paper
Delivered:
25 May 2026
This ruling on the
application for leave to appeal was handed down electronically by
circulation to the parties’ legal representatives
by email,
publication on the Labour Court website and release to SAFLII. The
date and time for handing down the ruling is deemed
to be 25 May
2026.
JUDGMENT
DE
KOCK, AJ
Introduction
[1]
This is an application by the Western Cape Education Department (“the
WCED”) for leave to appeal against the
judgment of this Court
delivered on 5 January 2026 (“the main judgment”). In the
main judgment, the arbitration award
of the third respondent dated 19
June 2023 was reviewed and set aside, the sanction of dismissal was
substituted with a final written
warning, and the WCED was directed
to reinstate Mr Wesley Neumann as Principal of Heathfield High School
with retrospective effect
to 20 May 2022. No order was made as to
costs.
[2]
The WCED’s Notice of Intention to Apply for Leave to Appeal is
dated 23 January 2026 and its heads of argument 5
February 2026. Mr
Neumann’s Notice to Oppose and opposing submissions are dated
12 February 2026. The papers were, however,
not placed before this
Court within any reasonable time after they were filed. Through
correspondence directed to the registrar
by the WCED’s legal
team, the Court was made aware in May 2026 that the application had
not been received in the Court file.
Mr Neumann’s opposing
submissions were forwarded to the Court by the registrar on 15 May
2026 and the WCED’s application
and heads of argument on 18 May
2026. The delay in the delivery of this judgment is occasioned by
these procedural difficulties,
none of which is attributable to the
parties.
[3]
The application has been determined on paper. Neither party requested
an oral hearing.
Applicable Legal Test
[4]
Section
17(1)(a) of the Superior Courts Act
[1]
provides that leave to appeal may only be granted where the judge is
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, including conflicting judgments on the matter
under
consideration.
[5]
In
Smith
v S
[2]
,
the court explained 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 the 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, and
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.
Analysis
[6]
The WCED advances a number of grounds, expanded upon in its heads of
argument. Central among them is the contention that
the conduct
attached to the 26 July 2020 letter ought to have been characterised
as gross insubordination rather than insolence,
and that this Court
erred in the framework it applied to language said to carry racial
connotations in the workplace. The WCED
also takes issue with the
substantive compliance finding under Charge 2 and with the engagement
with its case on selective discipline.
Further grounds are directed
at the application of
section 193(2)(b)
of the
Labour Relations Act
66 of 1995
, the WCED having opposed reinstatement on intolerability
grounds, and at the application of the review standard under
section
145
of the LRA.
[7]
Having considered the grounds advanced and the opposing submissions,
the Court is satisfied that the threshold for leave
to appeal has
been crossed. Several of the grounds raise issues on which it is
reasonably arguable that another court could come
to a different
conclusion.
[8]
Compelling reasons for the appeal to be heard are, in any event,
present. The main judgment was marked reportable. It
deals with the
conduct of a school principal during the COVID-19 national state of
disaster, set against an instruction issued
by the Head of Department
in the midst of that disaster. It addresses the line between robust
internal expression and insubordination
at senior management level in
a state department, and the framework for assessing the use of
historically-loaded language in workplace
correspondence. It also
substitutes dismissal with a final written warning and orders
reinstatement nearly four years after the
event. These are issues
that will recur in educator discipline and in public-sector
employment matters arising from the disaster
period. The Labour
Appeal Court should have the opportunity to consider them.
Costs
[9]
Costs of
this application fall to be considered under
section 162
of the LRA,
having regard to
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[3]
.
The ordinary norm in labour matters is that costs do not follow the
result. Where leave to appeal is granted, the appropriate
course is
that the costs of this application stand over for determination by
the appellate court.
Order
[10]
In the premises, the following order is made:
1. Leave to appeal
to the Labour Appeal Court against the judgment and order of this
Court of 5 January 2026 is granted.
2. The costs of the
application for leave to appeal shall stand over for determination by
the Labour Appeal Court.
C.
de Kock
Acting
Judge of the Labour Court of South Africa
[1]
Act
10 of 2013.
[2]
[2011]
ZASCA 15
;
2012 (1) SACR 567
(SCA) at para 7.
[3]
(CCT136/17)
[2018] ZACC 1
; (2018) 39 ILJ 523 (CC);
[2018] 4 BLLR 323
(CC);
2018
(6) BCLR 686
(CC) (22 January 2018).