THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C414/2021
In the matter between:
SOUTH AFRICAN POLICE SERVICES Applicant
And
LT COL PS MOYO First Respondent
CST CB DE JONGH Second Respondent
Heard: 25 JUNE 2025
Delivered: 2 JULY 2025
Summary: (Review and condonation application – An application under section
158(1)(h) requires an application to be brought in a reasonable time – whether there
was an unreasonable delay in initiating the application - a review under section
158(1)(h) cannot be successful merely because the decision in question is labelled
‘irrational’ or ‘unreasonable’. The application must identify the grounds in law on
which it is based and should not just differ with the factual findings of the decision
maker or just label these as ‘irrational, unreasonable or irregular, more is required)
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JUDGMENT
MAY, AJ
Introduction
[1] This is an unopposed application to review and set aside a decision of the first
respondent (“the Chairperson”) in a disciplinary hearing only insofar as it relates to
the sanction issued against the second respondent. Although not specifically
mentioned in the application, the law is now settled that Section 158(1)(h) of the LRA
empowers the Labour Court to review decisions of chairpersons at disciplinary
hearings, at the instance of the employer, in circumstances where the State is the
employer. Concomitantly, the State as employer has the standing to institute such
review proceedings
1.
Condonation
[2] The sanction was handed down on 7 May 2021, was received by the
Applicant on the 15
th of May 2021 and the review application was brought on the 4 th
of August 2021. Section 158 (1)(h) requires that an application be brought within a
reasonable time.
[3] It is now accepted that it is not permissible for a court to fix a certain time
which it regards as a reasonable time but that the correct approach is to determine
whether there was an unreasonable delay in initiating the proceedings and if so,
should the delay in all the circumstances be condoned
2. The reasonableness or
unreasonableness of a delay is entirely dependent on the facts and circumstances of
any particular case.
3 The investigation into the reasonableness of the delay has
nothing to do with the Court’s discretion. It is an investigation into the facts of the
1 Minister of Police and Another v Kgopa and Another [2019] 1 BLLR 16 (LAC) at paragraph 12.
2 G4S Secure Solutions (SA) (Pty) Ltd v Gunqubele N.O. and Others [2017] 12 BLLR 1181 (LAC) at
paragraph 11.
3 Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en ’n ander 1986 (2)
SA 57 (A) (Setsokosane) at paragraph 86G.
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matter in order to determine whether, in all the circumstances of that case, the delay
was reasonable. Though this question does imply a value judgment it is not to be
equated with the judicial discretion involved in the next question, if it arises, namely,
whether a delay which has been found to be unreasonable, should be condoned
4.
[4] The Applicant contends that post receipt of the sanction, and between 15 May
2021 to 15 July 2021 here was a slow but steady exchange of internal memoranda
and recommendations made within the SAPS to take the sanction on review. There
is a delay of about 2 weeks at the acting section Head, Colonel Zuma, which in the
circumstances on its own does not appear to be inordinate or excessive. On 15 July
2021, the National Commissioner’s decision, officially made on 1 July 2021, was
referred to the state attorney’s office for implementation.
[5] On 15 July 2021, the review was in the hands of the state attorney, who
promptly set in motion the process of launching the application themselves and did
so by 4 August 2021. This delay is also not considered unreasonable or excessive.
[6] The delay at the National Commissioner’s office, of about 2 weeks is also not ,
in my view, inordinate or excessive. I do not think therefore that this was an
unreasonable delay. But if I am wrong and there was an unreasonable delay, the
applicant has explained the nature of the delay and why there was a delay. To this
must be added the prospects of success which the LAC has held to be obligatory in
circumstances such as these.
5 In assessing the prospects of success, I deem it
appropriate to assess the grounds of review in determining whether a proper case
has been made out for the relief sought and thus whether condonation should be
granted.
Prospects of success
The charges and elements of the evidence
[7] The second respondent was charged with serious misconduct in that he:
4 Setsokosane at paragraph 86E-F.
5 G4S Secure supra at paragraph 17.
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7.1 contravened section 40 of the South African Police Service Act, 68 of
1995 read with regulation 5 (3)(a) of the South African Police Service
Discipline Regulations, 2016, being a failure to comply with or contravening an
Act, regulation or legal obligation, in that he assaulted the complainant, stole
his motor vehicle and drove off with the vehicle without its owner’s permission;
7.2 contravened section 40 of the South African Police Service Act, 68 of
1995 read with regulation 5 (3)( t) of the South African Police Service
Discipline Regulations, 2016, being that he conducted himself in an improper,
disgraceful and unacceptable manner when he assaulted the complainant,
stole his motor vehicle and drove off with the vehicle without its owner’s
permission; and
7.3 contravened section 40 of the South African Police Service Act, 68 of
1995 read with regulation 5 (3)( u) of the South African Police Service
Discipline Regulations, 2016, being that he contravened any prescribed code
of conduct of the service or the public service, whichever may be applicable to
him in that he assaulted the complainant, stole his motor vehicle and drove off
with the vehicle without its owner’s permission;
[8] The Chairperson found the second respondent guilty of all charges, added the
charges together for purposes of sanction and imposed a sanction in terms of
regulation 12 (1)(d) being a suspension without salary for a period of 2 months. It is
this sanction that the Applicant seeks to review and set aside.
[9] Important to the consideration, in my view, is that the employee’s
representative called for a sanction short of dismissal and contended that the trust
relationship between the parties was not broken
6 and, more importantly, the
employer’s representative, Captain Malan, despite confirming that the offence is
dismissible, contended that an appropriate sanction would be a suspension for 2
months without salary
7.
Grounds of review and evaluation
6 Pages 48-49 of the transcript.
7.
Grounds of review and evaluation
6 Pages 48-49 of the transcript.
7 Page 51 of the transcript.
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[10] SAPS contend that the sanction imposed is too lenient and thus not
appropriate or proportional to the misconduct the employee committed.8
[11] They contend that the first respondent arrived at an unreasonable conclusion
with regards to the sanction. They also contend that the conclusion reached by the
first respondent doesn’t meet the requirement of rationality and/or reasonableness.
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[12] It is settled now that the Labour Court has the power under section 158(1)(h)
to review the decision taken by a presiding officer of a disciplinary hearing on (i) the
grounds listed in PAJA, provided the decision constitutes administrative action; (ii) in
terms of the common law in relation to domestic or contractual disciplinary
proceedings; or (iii) in accordance with the constitutional requirements of the
principle of legality, such being grounds permissible in law.
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[13] For a review on the grounds of unreasonableness to be determined, the court
has to consider the often- inter-related questions of rationality, lawfulness and
proportionality. T he court must consider the purpose, basis, reasoning or effect of
the decision against the review grounds under common law and now codified in
section 6 of PAJA. These are failing to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an ulterior purpose, in
bad faith, arbitrarily or capriciously etc 11. The court must also consider whether,
apart from the flawed reasons of or any irregularity by the arbitrator, the result could
be reasonably reached in light of the issues and the evidence before the arbitrator.12
In other words, whether the arbitrator misconceived the inquiry or undert ook the
inquiry in a misconceived manner and thus whether t here was a fair trial of the
issues.13
8 Reyling on Shoprite Checkers (Pty) Ltd v CCMA & Others [2008] 9 BLLR 838 (LAC) and De Beers
Consolidated Mines Ltd v CCMA and Others [2000] BLLR 995 (LAC).
Consolidated Mines Ltd v CCMA and Others [2000] BLLR 995 (LAC).
9 Page 10 of the pleadings record.
10 Hendricks v Overstrand Municipality [2014] 12 BLLR 1170 (LAC) at paragraph 29.
11 Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) at
paragraph 32.
12 Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA) at paragraph 12.
13 CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC) at paragraph 76.
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[14] Mere errors of fact or law may therefore not be enough to vitiate the award.
Something more is required. Therefore flaws in the reasoning of the arbitrator,
evidenced in the failure to apply the mind, reliance on irrelevant considerations or the
ignoring of material factors etc. must be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in
the wrong manner or arrived at an unreasonable result.14
[15] Whether interference is warranted, will depend on the materiality of the error
or irregularity and its relation to the result. This must be assessed and determined
with reference to the effect it may or may not have had upon the decision -maker
conception of the inquiry, the comprehension of the issues to be determined and the
ultimate outcome. If but for the complained of error or irregularity a different outcome
would have resulted, it will be material to the determination of the dispute and thus
possibly an unreasonable result.
[16] The reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant factors informing the decision; the nature of
the competing interests impacted upon by the decision; and then ask whether a
reasonable equilibrium has been struck in accordance with the objects of the
LRA.15 Provided, therefore that the right question was asked and answered by the
decision-maker, a wrong answer will not necessarily be unreasonable. By the same
token also, an irregularity or error material to the determination of the dispute may
constitute a misconception of the nature of the enquiry so as to lead to no fair trial of
the issues, with the result that the award may be set aside on that ground alone. The
decision-maker ultimately mu st be shown to have deviated from the correct path in
the conduct of the proceedings and as a result failed to address the question raised
for determination.16
for determination.16
[17] The sanction imposed by the first respondent ultimately is a sanction he was
empowered to impose in terms of the Regulations having considered all of the facts
14 Herholdt supra at paragraphs 21–25.
15 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15; 2004 (4) SA
490 (CC) at paragraphs 49-54.
16 Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266 (SCA) para 52 -
78, 85-88.
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and circumstances. The imposition of the sanction does not have the effect that the
trial between the parties was not fair. This is particularly so given that the employer’s
representative himself requested leniency and requested that this sanction be
imposed.
[18] This Court recently in similar circumstances has held that state entities who
do not agree with the findings of their disciplinary chairpersons or appeal authorities,
must understand that a review under section 158(1)(h) cannot be successful merely
because the decision in question is labelled ‘irrational’ or ‘unreasonable’. The
application must identify the grounds in law on which it is based and should not just
differ with the factual findings of the decision maker or just label these as ‘irrational,
unreasonable or irregular.’ A review will not be successful if it is brought just because
the State entity believes the decision was incorrect
17.
[19] On the basis of the discussion above, the sanction imposed by the first
respondent cannot be said to be irrational or unreasonable. It follows therefore that
the application for condonation does not have prospects of success.
[20] In view of the above the application for condonation and review stands to be
dismissed and I make the following order.
Order
1. The application is dismissed.
C May
Acting Judge of the Labour Court of South Africa.
Appearances
For the Applicant: M Ramabulana instructed by State
Attorney, Kimberley
17 National Commissioner of Police Service and Another v Bobie NO and Another (2018) 39 ILJ 1140
(LC) at paragraphs 14-15.
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