Minister of Police and Another v Kgopa and Another (JR76/13) [2017] ZALCJHB 104 (23 March 2017)
The court found that, although it would distinguish the cases relied upon by the applicants, there is sufficient similarity in the facts, particularly in Hendricks, to conclude that another judge may have reached a different conclusion regarding the reviewability of the chairperson's disciplinary decision by a State...
Source-derived case information.
- Citation
- [2017] ZALCJHB 104
- Parties
- Applicant: Minister of Police; Applicant: National Commissioner of Police; Respondent: MM Kgopa; Respondent: Lt Colonel De Lange
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR76/13
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment
- Outcome
- Leave to appeal granted.
- Judges
- Everett
- Legal Topics
- Leave to Appeal, Review of Disciplinary Decisions, Locus Standi, Reasonable Prospect of Success
Source-derived case record
Summary, issues, holding and outcome
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Parties
Minister of Police
Applicant
National Commissioner of Police
Applicant
MM Kgopa
Respondent
Lt Colonel De Lange
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
Legal Issues
- 1 Whether the employer has locus standi to review its own disciplinary decision.
- 2 Whether the decision of the chairperson at a disciplinary hearing can be reviewed by the state under section 158(1)(g) or (h) of the Labour Relations Act.
- 3 Whether there is a reasonable prospect of success for the appeal.
Ratio Decidendi
The court found that, although it would distinguish the cases relied upon by the applicants, there is sufficient similarity in the facts, particularly in Hendricks, to conclude that another judge may have reached a different conclusion regarding the reviewability of the chairperson's disciplinary decision by a State functionary. Applying the test of whether another judge may have come to a different conclusion, the court held that the application for leave to appeal should succeed.
Court Disposition
Leave to appeal granted.
Orders
- Application for leave to appeal is granted.
- There is no order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
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 locus 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).