ACDIC >
y ad
he
LY Ske NO
- “4 : ue ho
i gw gag S)
cas - ay
OF SOUS
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN >
“Not Reportable
Case No: €549/2023
In the matter between: fYr™
THE SOUTH AFRICAN POLICE SERVICE Applicant
and
THE SAFETY AND SECURITY SE: L
BARGAINING COUNCIL First Respondent
CLARENCE RANDALL N. O. Second Respondent
SOLIDARITY obo SONJA ESTERHUIZEN Third Respondent
Heard: 14A =,
Delivered: 25 Augus 2025
\ = JUDGMENT
NIEUWOUWDT, AJ
Introduction
(1] This is an application to review and set aside the arbitration award under case
number PSSS 397-21/22 issued by the second respondent (Commissioner) on
7 February 2023 in terms of which he ordered that the applicant should pay the
amount of R370 890 to Ms Esterhuizen (employee).
2
[2] The application was launched significantly out of time and was accompanied
by an application for condonation, which is the only aspect that the court dealt
with on 14 August 2025.
The test for condonation
[3] The test to be applied when considering such an application is trite On appeal
in Grootboom?, the Constitutional Court, in a majority decisio frei at:
‘... the standard for considering an application for condonation isi e interests
of justice. However, the concept 'interests of justice’ is so elastic that it is not
capable of precise definition. As the two caSes“@emonstrate, it includes: the
nature of the relief sought; the extent and ca use of the delay; the effect of the
delay on the administration of justice and other litigal ts; the reasonableness of
the explanation for the delay; the importance of the issue to be raised in the
intended appeal; and the prospects of success. It is crucial to reiterate that both
Brummer and Van Wyk emphasize that the ultimate determination of what is in
the interests of justice fous flect due regard to all the relevant factors but it
is not necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these factors are relevant.’
[4] In Melane supra the Court stated that the factors were interrelated and not
individually decisive. What was needed was an objective conspectus of all the
factssithérefore, slight delay and a good explanation may help to compensate
we pectsiof success which are not strong. The importance of the issue and
strong prosp@cts of success could also compensate for a long delay.
[5] A further principle is important. In Colett v Commission for Conciliation,
Mediation and Arbitration and others? the Labour Appeal Court (LAC) stated as
ollows:
‘[38] There are overwhelming precedents in this Court, the Supreme Court
of Appeal and the Constitutional Court for the proposition that where
1 See: Melane v Santam Insurance Co Ltd (Melane) 1962 (4) SA 531 (A); Foster v Stewart Scott Inc.
(1997) 18 ILJ 367 (LAC) and Grootboom v National Prosecuting Authority & another (2013) 34 ILJ 282
(LAC).
2 Grootboom v National Prosecuting Authority & another (2014) 35 ILJ 121 (CC) at para 22.
3 [2014] 6 BLLR 523 (LAC).
3
there is a flagrant or gross failure to comply with the rules of court
condonation may be refused without considering the prospects of
success. In NUM v Council for Mineral Technology, it was pointed out
that in considering whether good cause has been shown the well-known
approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA
531 (A) at 532 C-D... should be followed but:
“There is a further principle which is applied and. that is without
a reasonable and acceptable explanation for the jdela the
rospects of success are immaterial, ane v withouitingood
ae
prospects of success, no matter how good the explanation for
the delay, an application for —« refused.”
[39] The submission that the court a quo had to co ‘the prospects of
success irrespective of the unsatisfactory and unacceptable
explanation for the gross and agrant disregard of the rules is without
merit.’ (Own emphasis) © }
[6] In Nair v Telkom SOC Ltd and Others* the Pabour Court emphasised that every
period of the delay should be explained:
‘In order to exercise iscretion whether or not to grant condonation, this court
must be appi d of all'the facts and circumstances relating to the delay. The
applicant for con ion must therefore provide a satisfactory explanation for
each period of delay. See NUMSA and another v Hillside Aluminium, where
Murphy AJ held that an unsatisfactory explanation for any period of delay will
Ca . y be fatal to an application, irrespective of the applicant's prospects of
[7] Although a strict application of the test discussed above could entail not having
g regard to the prospects of success at all, the Court will nevertheless have
gard to them.
Application of the test
Period of the delay
4 (JR59/2020) [2021] ZALCJHB 449 (7 December 2021) at para 15.