Bezuidenhout v Minister of Basic Education and Others

The first and second plaintiffs were qualified and registered Educational Psychologists with the HPCSA. They were employed by the Gauteng Department of Education at Lantern School, initially on a temporary basis, performing the duties and functions of Educational Psychologists. They applied for and were appointed to positions advertised in the Department's vacancy circular as 'Therapist' posts. The advertisements required incumbents to be registered as Educational Psychologists with the HPCSA as an additional requirement. After appointment, the plaintiffs continued to perform the duties of Educational Psychologists and were evaluated as such. However, their contracts designated them as Therapists, not Educational Psychologists. The plaintiffs sought rectification of their employment contracts to reflect their position as Educational Psychologists. The main judgment of 19 November 2024 dismissed the plaintiffs' claim without costs. The plaintiffs then applied for leave to appeal against the entire judgment and order.

• Whether the plaintiffs' employment contracts should be rectified to reflect appointment as Educational Psychologists rather than Therapists
• Whether there was a common intention between the parties that the plaintiffs were to be appointed as Educational Psychologists
• Whether a common mistake existed that would justify rectification of the employment contracts
• Whether the court in the main judgment misdirected itself on the facts and law
• Whether the plaintiffs had reasonable prospects of success on appeal in terms of section 17(1)(a) of the Superior Courts Act 10 of 2013

The application for leave to appeal was refused. No order as to costs was made.

To succeed in a claim for rectification of an employment contract, a party must establish that there was a common mistake between the contracting parties that does not reflect their true common intention at the time of contracting. A common mistake is a sine qua non for rectification. The mere fact that an employee performs duties different from their contractual designation, or that the employer was aware of the nature of work performed, does not establish the common intention required for rectification. Where positions are advertised in a departmental vacancy circular for specific posts (in this case, Therapist positions), and applicants apply for and accept appointment to those advertised positions, the contractual relationship is determined by the advertised post, not by additional qualifications required or subsequent duties performed. Leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013 requires more than a mere possibility of success or an arguable case - there must be a sound rational basis to conclude there is a reasonable (realistic) prospect of success on appeal.

The court observed that what the plaintiffs were actually pursuing was 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. The court noted that this claim, 'however legitimate it appears to be', does not constitute rectification. This suggests the court may have had some sympathy for the plaintiffs' substantive position but was constrained by the legal requirements for rectification. The court also emphasized the importance of striking a balance between the rights of the successful party and the rights of the losing party seeking leave to appeal, stating 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.'

This case clarifies the strict requirements for rectification of employment contracts in South African labour law, particularly emphasizing that rectification requires proof of a common mistake and common intention between parties at the time of contracting. The judgment reinforces that employees cannot claim rectification simply because they performed duties different from their contractual designation, or because officials were aware of the nature of their work. The case also provides guidance on the threshold for granting leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013, emphasizing that there must be more than a mere possibility of success - there must be a realistic chance based on sound rational grounds. It demonstrates the importance of the post establishment system in public sector employment and that advertisements for specific posts in vacancy circulars are determinative of the contractual relationship, regardless of additional qualifications required or subsequent work performed.