x n me,
| $12 |]
a> Ay
K OF SOK. >
Not reportable
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
Case no: C242/2023
In the matter between:
SOLIDARITY OBO R BURGER Applicant
And
SOUTH AFRICAN POLICE SERVICE First Respondent
WARRANT OFFICER HARTZENBERG Second Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL Third Respondent
CLARENCE RANDALL N.O. Fourth Respondent
Heard: 3 July 2025
Delivered: 9 July 2025
Page 2
Date of Judgment: This judgment 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 judgment is
deemed to be 10h00 on 9 July 2025
Summary: application to review — review dismissed — applicant failed to prove
that arbitrator failed to properly consider the evidence or that the decision is one
that a reasonable decision maker could not reach.
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter concerns an application by Solidarity, on behalf of R Burger
to review and set aside an arbitration award given by the fourth
respondent (Randall) in his capacity as an arbitrator of the third
respondent (SSSBC). The application has been brought in terms of
section 145 of the Labour Relations Act’ (‘the LRA’).
[2] The matter arose from an alleged unfair labour practice regarding the
first respondent’s (SAPS) failure to promote Burger to the position of
warrant officer. The arbitration proceedings before Randall took place on
13 December 2021 and concluded on 15 February 2023. Randall,
following the conclusion of the arbitration proceedings, issued an award
dated 19 April 2023 wherein he found that SAPS did not commit an
unfair labour practice against Burger when it, instead, appointed
Hartzenberg to the post in question, i.e., to the post of warrant officer. It
is this determination that gave rise to the current review application.
1 Act 66 of 1995 (as amended).
Page 3
The relevant background
[3] Most of the background facts are common cause and will be briefly
summarised. Burger applied for post 4301, which was advertised on or
about 28 August 2020. The post was for the rank of warrant officer and
in the division known as Forensic Detective Services and in the
Explosive Section, previously known as Local Crime and Criminal
Record Centre (LCRC). The post was advertised and formed part of
Post Promotions Phase 1: 2020/2021 Financial Year; Division Forensic
Services.
[4] Candidates were shortlisted and interviewed, who included Burger and
Hartzenberg. Burger was the highest scoring candidate, scoring 73%
and he was recommended for the post. Hartzenberg was the third
highest scoring candidate, scoring 65%. There was another candidate
who was scored the second highest score, but he was recommended
and appointed to another post. For purposes of the arbitration
proceedings, Burger obtained the highest scoring for post 4301 and
Hartzenberg the second highest scoring.
[5] Burger was however not appointed, and Hartzenberg (a Coloured male)
instead was appointed. The decision to appoint Hartzenberg, and not
Burger, was to address equity. The appointment date was announced
on 6 April 2021 and applied from 1 April 2021.
[6] SSSBC agreement 3 of 2011 (SSSBC 3/2011) and National Instruction 3
of 2015 (NI 3/2015) are applicable to the dispute. For purposes of the
dispute, Coloured males were underrepresented by 8, and White males
were overrepresented as per the relevant SAPS employment equity
figures, by 116. The interview panel, being aware of SAPS’ applicable
Employment Equity profile, still recommended Burger for the post. The
divisional commissioner appointed a moderation committee after