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[2025] ZALCPE 25
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South African Police Services v Scheun and Others (PR249/2023) [2025] ZALCPE 25 (3 November 2025)
THE
LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not
Reportable
Case
No: PR249/2023
In
the matter between:
SOUTH
AFRICAN POLICE SERVICES
Applicant
and
M
J
SCHEUN
First Respondent
SOUTH
AFRICAN POLICE UNION
Second Respondent
PUBLIC
SECTOR CO-ORDINATING
BARGAINING
COUNCIL
Third Respondent
I
DE VLIEGER-SEYNHAEVE, N.O.
Fourth Respondent
Heard:
10 September 2025
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 3 November 2025.
JUDGMENT
DE KOCK, AJ
Introduction
[1]
This matter came before the court as an
application to review the jurisdictional ruling and the arbitration
award issued by the
fourth respondent (the commissioner). The
applicant raised various grounds of review alleging that the first
respondent committed
various irregularities and arrived at a decision
that is firstly incorrect, and a decision that a reasonable
decision-maker could
not reach on the merits.
Background to the
dispute
[2]
From 10 January 1994 until 30 September 2017, the first
respondent (Scheun) was an employee of the applicant (SAPS). However,
on
account of his enduring and chronic ill-health, Scheun was
ultimately retired from the service due to ill health.
[3]
The medical conditions that had underpinned Scheun's
ill-health retirement, including inter alia serious osteoporosis,
epilepsy,
multiple back vertebra fractures and long-term depression,
commenced in and during 2015 and continue unabated.
[4]
Within the context of this dispute, Scheun's retirement from
the SAPS (on account of his ill-health) was premised on the self-same
medical conditions that were foundational to his applications for
temporary incapacity leave (TIL), which applications emanated
from
paragraph 7.5 of the Resolution.
[5]
During the course of 2015, Scheun's assorted ailments caused
him to exceed his sick leave entitlement. As a result hereof, he
applied
for 68 days of temporary incapacity leave, which application
was granted.
[6]
Scheun's various medical conditions only worsened with the
passage of time. As a result, he was required to take further sick
leave
in 2016, on account of the further decline in his health.
[7]
Consequently, Scheun was allocated ordinary (paid) sick leave
for the period 8 June 2016 up to and including 14 July 2016; at which
juncture his sick leave was depleted. It is undisputed that Scheun's
last working day was 7 June 2016.
[8]
On 9 June 2016, Scheun formally applied for ill-health
retirement. By that stage, it had become irrefutable that Scheun's
deteriorating
health had rendered him permanently incapable of
carrying out his employment obligations.
[9]
In parallel hereto, Scheun was booked off sick from 15 July
2016 up to and including 30 September 2017, which is the date
whereupon
his retirement came into effect.
[10]
Given that his ordinary sick leave had already been exhausted as
early as 14 July 2016, Scheun had accordingly applied for TIL
for the
period spanning 15 July 2016 to 30 September 2017.
[11]
Through no fault of his own, Scheun was suspended in limbo between
the date that he had applied to be retired on account of his
ill-health (9 June 2016) and the date whereupon that application
eventually took effect (30 September 2017).
[12]
From this it follows that Scheun's applications for TIL were made in
respect of the entire period during which Scheun was stuck
in this
no-man's land, in that he was incapable of reporting for duty (on
account of his enduring ill-health) yet had not been
formally
discharged from service.
[13]
Scheun did not receive an outcome vis-a-vis his applications for TIL
until after he was already on retirement. It was only at that
belated
point in time, i.e., on 18 October 2017, that he received an e-mail
from the SAPS, in terms of which he was advised that
the periods he
had applied for temporary incapacity leave had been captured as
unpaid leave.
[14]
It accordingly followed that Scheun received no salary for the entire
period that he was left in the lurch, namely 14 July 2016
to 30
September 2017, which is equivalent to more than 14 months.
[15]
This extensive period of non-payment occurred despite the fact that
the medical reports from both parties' medical specialists
(regarding
Scheun's health issues) were never contentious; in addition, whereto
it is uncontroversial that Scheun's ill-health
retirement was
approved as a result of the identical maladies that had precipitated
his applications for temporary incapacity leave.
Scheun contends that
it is self-evident that the SAPS' refusal to grant Scheun TIL for the
period in question is thus irreconcilable
with its contemporaneous
approval of his application to be retired on account of his
ill-health.
[16]
Scheun
referred a dispute to the third respondent (PSCBC) in terms of
section 24(2) of the Labour Relations Act
[1]
(LRA), which dispute pertained to the interpretation and application
of a collective agreement, namely the PSCBC Resolution 7 of
2000, as
amended (the resolution). Pursuant to the referral of the dispute,
the commissioner issued the jurisdictional ruling and
award that form
the subject matter of this review.
The jurisdictional
ruling
[17]
The SAPS raised a preliminary objection in
the form of a special plea of prescription in terms of which it
sought to aver that Scheun’s
claim in respect of TIL had
prescribed. The commissioner issued a jurisdictional ruling dated 5
June 2023 in which she dismissed
the contentions by the SAPS that any
of Scheun’s claims had prescribed.
[18]
The commissioner therefore found that there
was no jurisdictional bar to Scheun’s referral of a dispute to
the third respondent
(PSCBC) and the matter therefore proceeded to
arbitration.
The arbitration award
[19]
The arbitration proceedings led to an
arbitration award dated 6 October 2023. Scheun was the sole witness
during the arbitration
proceedings. The SAPS’ did not adduce
any oral evidence.
[20]
The commissioner applied her mind to
whether the dispute is an interpretation and application of a
collective agreement or an unfair
labour practice dispute; whether
the SAPS correctly interpreted and applied Resolution 7 of 2000 with
regard to Scheun’s
TIL applications; and whether any cost order
should be made and what rate of interest any monetary award should
carry.
[21]
The commissioner found in Scheun’s
favour, albeit that she did not grant any monetary relief to Scheun.
Instead, the commissioner
ordered that the SAPS had to consider and
determine Scheun’s applications for TIL. The commissioner, in
essence, found that
the SAPS was in breach of the resolution. The
specific relief ordered was that the SAPS must forward the seven TIL
applications
to the HRM within 14 days after receipt of the award in
order for a decision to be made whether or not the TIL applications
will
be approved.
[22]
The commissioner also issued an adverse
costs order against the SAPS, in alignment with clause 6.2 of
Resolution 5 of 2005, on the
basis that it had defended Scheun’s
dispute in a vexatious manner.
Grounds of review
[23]
The SAPS has advanced the following grounds
of review in support of its application to set aside the
commissioner’s award:
1.
Prescription – that Scheun’s
claim had prescribed, and the commissioner lacked jurisdiction to
hear the dispute.
2.
Jurisdiction – that the dispute was
not a section 24 (interpretation and application of a collective
agreement) matter but
rather a section 186(2)(b) (unfair labour
practice) matter and accordingly fell outside the PSCBC’s
jurisdiction.
3.
Procedural irregularities – that the
arbitration hearing was conducted unfairly by reason of: (a) the
virtual hearing format;
(b) the granting of an opening statement to
Scheun; and (c) the failure of SAPS to give evidence.
4.
Irrationality of the remedy and exceeding
authority – that the remedy ordered was irrational, incoherent,
or incapable of
implementation, and/or that the commissioner exceeded
her authority by ordering an investigation of a former employee years
after
the relevant events.
Review Test
[24]
The SAPS challenges both the jurisdictional
ruling and the reasonableness of the arbitration award. It is trite
that the review
test regarding jurisdiction is one of “correctness”,
and that the review test regarding arbitration awards on the merits
of a dispute is that of “reasonableness”.
[25]
Regarding
the “correctness test”, the authorities were correctly
cited by Scheun in the heads of argument. The Labour
Appeal Court in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[2]
,
held as follows:
“…
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise…”
[26]
In
Trio
Glass t/a The Glass Group v Molapo NO and Others
[3]
14 it was held that:
"The Labour Court
thus, in what can be labelled a 'jurisdictional' review of CCMA
proceedings, is in fact entitled, if not
obliged, to determine the
issue of jurisdiction of its own accord. In doing so, the Labour
Court is not limited only to the accepted
test of review, but can in
fact determine the issue
de novo
in order to decide whether
the determination by the commissioner is right or wrong."
[27]
The
Labour Appeal Court in in
Universal
Church of the Kingdom of God v Myeni and Others
[4]
held
as follows:
“…
the value
judgment of the commissioner in a jurisdictional ruling has no legal
consequence and that it is only a ruling for convenience,
Therefore,
the applicable test is simply whether, at the time of termination of
his relationship with the church, there existed
facts which
objectively established that Mr Myeni was indeed the employee of the
church. If from an objective perspective such
jurisdictional facts
did not exist, the CCMA did not possess the requisite jurisdiction to
entertain the dispute regardless of
what the commissioner may have
determined."
[28]
Regarding
the “reasonableness” review test, in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
,
[5]
the Court held that “
the
reasonableness standard should now suffuse section 145 of the LRA”
,
and that the threshold test for the reasonableness of an award was:
“…
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach?...”
[6]
.
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[7]
the Court applied this reasonableness consideration as follows:
‘…
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
any consequence if their effect is to render the outcome
unreasonable.’
[29]
This test has thus been applied as a
two-stage review enquiry. Firstly, the review applicant must
establish that there exists a
failure or error on the part of the
arbitrator. If this cannot be shown to exist, that is the end of the
matter. Secondly, if this
failure or error is shown to exist, the
review applicant must then further show that the outcome arrived at
by the arbitrator was
unreasonable. If the outcome arrived at is
nonetheless reasonable, despite the error or failure, that is equally
the end of the
review application. In short, in order for the review
to succeed, the error or failure must affect the reasonableness of
the outcome
to the extent of rendering it unreasonable.
[30]
Further,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome of the arbitrator arrived at can nonetheless be sustained as
a reasonable outcome, even if it may be
for different reasons or on
different grounds.
[8]
This
necessitates a consideration by the review court of the entire record
of the proceedings before the arbitrator, as well as
the issues
raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator. In the end, it would only be if the
outcome arrived at by the arbitrator cannot be sustained
on any
grounds, based on the material, and the irregularity, failure or
error concerned is the only basis to sustain the outcome
the
arbitrator arrived at, then the review application would succeed.
[9]
[31]
This court will now proceed to consider the
review application by the applicant against the above principles and
the test applicable
to review applications.
Evaluation of grounds
of review
GROUND 1: PRESCRIPTION
[32]
SAPS’s first ground of review is that
Scheun’s claim had prescribed by the time it was referred to
the PSCBC on 1 October
2020, and accordingly the commissioner lacked
jurisdiction to hear the dispute.
[33]
The argument proceeds as follows: The cause
of action arose when SAPS failed to investigate Scheun’s TIL
applications within
30 days of application. The earliest such
application was made in July 2016. Three years’ prescription
would thus have expired
in July 2019. By October 2020, the claim had
prescribed and was legally barred. This argument faces several fatal
difficulties.
[34]
Prescription runs from the date when a debt
arises. However, for a breach of an ongoing contractual or collective
bargaining obligation,
the debt does not crystallise into a completed
breach until the obligation is finally breached. That is, when it
becomes clear
that the obligation will not be performed.
[35]
In the present case, Scheun’s TIL
applications were submitted during his active employment (July 2016
to 30 September 2017).
During this period, Scheun remained an
employee with an ongoing employment relationship with SAPS. The
obligation to investigate
was an ongoing obligation that SAPS could
still perform. The requirement that an investigation must be done
within 30 days, and
was not done, does not amount to a debt arising.
Nothing would have prohibited SAPS to conduct the required
investigation beyond
the 30-day period.
[36]
It would be unreasonable to expect an
employee to refer a dispute to arbitration when the obligations he is
disputing remain capable
of being performed by his employer. An
employee in Scheun’s position might reasonably expect that,
once his ill-health retirement
was finalised and he had departed the
organisation, SAPS would then address the outstanding TIL
applications.
[37]
More tellingly, only upon Scheun’s
departure from SAPS (30 September 2017) and SAPS’s formal
rejection of his TIL applications
on 18 October 2017 would it have
become clear that SAPS did not intend to investigate. It is from this
date, i.e., 18 October 2017,
that the breach crystallised into a
completed and incurable breach, or put differently, when a debt arose
in respect of all TIL
applications submitted.
[38]
This Court finds the SAPS submissions quite
contradictory regarding the issue of prescription in that it is
argued, at para 13 of
the heads of argument, that once the TIL
applications were declined (and critically, once Scheun was notified
of that decision)
the uncertainty surrounding the approval of the TIL
ceased to exist. SAPS argued further that, consequently, the debt
becomes actual
and enforceable from the moment it became due. This
type of argument in fact supports Scheun’s argument that the
debt arose
when Scheun was notified of the rejection on 18 October
2017.
[39]
Scheun’s
heads of argument relies on the Labour Appeal Court judgment in
Solidarity
v Eskom
[10]
(Solidarity)
.
For sake of completeness, this Court rejects the reliance on
Solidarity
in support of Scheun’s opposition on the claim of prescription.
The facts of that case and the case of Scheun are distinguishable
and
Solidarity
cannot
be relied on by Scheun. This, however, does not mean that Scheun’s
argument and his reliance on section 12(1) of the
Prescription
Act
[11]
is rejected. This
Court agrees with Scheun’s argument that the debt only arose on
18 October 2017 when the SAPS advised that
the TIL applications are
rejected.
[40]
If prescription is calculated from 18
October 2017, then the three years’ prescription would expire
on 18 October 2020. The
referral to the PSCBC on 1 October 2020 was
made approximately 17 days before the prescription deadline.
[41]
On the prescription ground, therefore, SAPS
argument fails. The commissioner did not err in finding that
prescription had not been
breached. The outcome was correct, and the
award is not reviewable on the “correctness” test.
GROUND 2: JURISDICTION
(Section 24 v section 186(2)(b))
[42]
SAPS’s second argument concerns the
characterisation of the dispute. SAPS argues that the dispute is not
a section 24 matter
(interpretation and application of a collective
agreement) but rather a section 186(2)(b) matter (non-provision of
benefits / unfair
labour practice).
[43]
SAPS’s contention is that Scheun is
fundamentally seeking payment of benefits. Payment of benefits, so
SAPS contends, falls
within section 186(2)(b). Therefore, SAPS
argues, the PSCBC lacked jurisdiction, and the matter should have
been referred as an
unfair labour practice dispute.
[44]
However,
this argument is fundamentally misconceived. The Labour Appeal
Court’s decision in
Public
Servants Association of South Africa obo De Bruyn v Minister of
Safety and Security and Another
[12]
(De Bruyn)
directly addresses this issue.
Du
Bruyn
established
the following principle: Where a collective agreement clause contains
an express provision for an investigation, assessment,
or
determination by an employer, a claim for failure to provide that
investigation is a dispute about the interpretation and application
of a collective agreement (section 24), not a claim for non-provision
of benefits (section 186(2)(b)). SAPS’s contention
that
De
Bruyn
cannot be relied on is rejected. Although the Court dealt with a
section 158(1)(h) referral, the Court concluded that the appellant
had an alternative remedy, which was section 24 of the LRA. The LAC
was very clear that TIL is derived from the provisions of the
PSCBC
resolution and that the appellant is confined to its remedy in terms
of section 24 of the LRA.
[45]
The rationale is clear. The interpretation
and application of collective agreement are disputes that are within
the ambit of section
24 and any party aggrieved by the application of
the TIL provided for is entitled to refer a dispute in terms of
section 24.
[46]
Clause 7.5.1 of Resolution 7 of 2000
explicitly provides:
“
The
employer shall investigate the application for TIL within 30 days of
application to determine whether the employee is incapable
of
performing their duties by reason of incapacity.”
[47]
This clause does not simply provide for TIL
as a benefit. It provides for an investigative process to determine
TIL eligibility.
The collective agreement specifies precisely how the
determination should be made: by investigation within 30 days.
[48]
This Court therefore rejects SAPS’s
contention that the dispute ought to have been referred in terms of
section 186(2)(b)
of the LRA. The commissioner was correct to
conclude that the PSCBC has jurisdiction to determine the dispute in
terms of section
24 of the LRA.
GROUND 3: PROCEDURAL
FAIRNESS
[49]
SAPS contends that the arbitration hearing
was conducted unfairly by reason of procedural irregularities. The
first alleged procedural
irregularity is that the hearing was
conducted virtually (via video conferencing) rather than in person,
allegedly disadvantaging
SAPS and preventing proper
cross-examination. SAPS contends that the commissioner committed an
irregularity by unilaterally ordering
a virtual hearing despite SAPS’
express objection. It is further contended that this decision
exceeded the commissioner’s
permitted authority. SAPS contends
that the commissioner undermined the principle of
audi
alteram partem
.
[50]
SAPS, however, presents no evidence of what
specific prejudice it suffered from the virtual format. The hearing
transcript reveals
that all parties participated fully in the
hearing; that SAPS’s counsel conducted comprehensive
cross-examination of Scheun
spanning multiple pages of the
transcript; and counsel had adequate opportunity to test Scheun’s
evidence. This Court finds
it difficult to comprehend what prejudice
SAPS suffered because the hearing was conducted virtually. The
requirements of
audi alteram partem
and
the constitutional right to procedural fairness were not breached.
[51]
SAPS has failed to demonstrate any actual
prejudice flowing from the virtual hearing format and this ground of
review therefore
fails.
[52]
SAPS’s challenge to the commissioner
criticising SAPS for not delivering an opening statement has no merit
in this review
application. SAPS now, in review, seems to criticise
the commissioner for not facilitating a pre-arbitration minute and,
therefore,
curtailed SAPS’s right to a fair hearing. Nothing
prohibited SAPS to initiate and conclude a pre-arbitration minute.
Criticising
the commissioner for its own failure to do so, and to
present an opening statement and to lead evidence is completely
unwarranted
and there is no merit in this challenge. The Court notes
that SAPS made a deliberate tactical choice not to call witnesses,
and
SAPS must stand or fall by their decision to do so. SAPS was not
prevented from presenting evidence by the calling of witnesses.
GROUND 4:
IRRATIONALITY OF THE REMEDY
[53]
SAPS contends that the commissioner’s
directive that SAPS has to investigate Scheun’s TIL application
post facto
is
reviewable. SAPS claims that the directive was outside the scope of
the dispute and prejudiced SAPS, who was unprepared to address
it.
SAPS also contends that it lacks authority to investigate TIL
applications of former employees, making the order legally
unenforceable
and beyond the commissioner’s powers.
[54]
This Court rejects SAPS's contentions in their entirety. The
commissioner simply ordered SAPS to do what they were legally obliged
to do upon receipt of the TIL applications, namely to "investigate
the application for TIL within 30 days of application to
determine
whether the employee is incapable of performing their duties by
reason of incapacity." This order is entirely rational
and flows
logically from the commissioner's finding that SAPS had breached its
obligations under Clause 7.5.1 of Resolution 7 of
2000.
[55]
The remedy fashioned by the commissioner is not merely
rational; it is the only rational remedy available. Where an employer
breaches
an express contractual or collective agreement obligation to
investigate, the natural and reasonable remedy is to order the
employer
to perform that investigation. This is not a remedy that
goes beyond the scope of the breach or creates new obligations; it is
the enforcement of an obligation already owed. A reasonable
arbitrator could readily arrive at such a remedy, as it represents
the necessary and proportionate response to the breach found. The
remedy does not seek to impose punishment; it seeks to restore
Scheun
to the position he should have been in had SAPS complied with its
obligation at the time the applications were submitted.
[56]
SAPS contends that the commissioner exceeded her authority by
ordering an investigation of a former employee. This argument
misconceives
the nature of the commissioner's remedial powers. Under
section 24(2) of the LRA, where a dispute concerning the
interpretation
or application of a collective agreement is referred
to an arbitrator, the arbitrator is empowered to make an award that
is binding
on the parties. This necessarily includes the power to
craft an appropriate remedy to vindicate the rights arising from the
collective
agreement.
[57]
The commissioner's authority to order investigation stems directly
from her finding that SAPS breached Clause 7.5.1 of the Resolution.
The clause itself prescribes the investigation as the mechanism
through which TIL eligibility is determined. Having found the breach,
the commissioner possessed ample authority to order its remedy.
Indeed, if the commissioner could find a breach of an explicit
contractual obligation but lacked the power to order its performance,
the collective agreement would be rendered meaningless and
enforcement would be illusory.
[58]
Moreover, SAPS's argument conflates the
subject matter
of the
investigation (a former employee's past eligibility for a benefit
during active employment) with the
capacity
to conduct it. The
fact that Scheun is now retired does not extinguish SAPS's duty to
determine, in the manner prescribed by the
collective agreement,
whether he was entitled to TIL for the periods he applied. That
investigation concerns a historical question:
was Scheun incapable
during July 2016 to September 2017? This is entirely capable of
determination, notwithstanding Scheun's current
retired status.
[59]
SAPS further contends that the "post facto" nature of the
investigation order prejudiced it, as it was allegedly unprepared
to
address such a remedy. This argument must fail for several reasons.
Firstly, SAPS had full notice of the relief sought by Scheun:
that
the SAPS investigate his TIL applications and determine his
eligibility. This was the core of the dispute before the
commissioner.
SAPS claim of surprise is therefore untenable at an
order directing investigation when investigation was the precise
remedy Scheun
sought throughout the arbitration.
[60]
Secondly, any prejudice SAPS suffered flows from its own breach, not
from the commissioner's remedy. SAPS was obliged to investigate
the
applications within 30 days of receipt in 2016–2017. The
investigation should have been conducted then. The delay that
now
exists is entirely attributable to SAPS's own failure to comply with
its obligation. SAPS cannot rely on its own wrongdoing
to avoid
remedying that wrongdoing.
[61]
Thirdly, the materials necessary to conduct the investigation remain
readily available. The TIL applications themselves exist.
The medical
reports from both parties' medical specialists—which were never
contentious—remain available. Scheun gave
evidence before the
commissioner, which evidence the commissioner accepted and which
established the incapacity during the relevant
periods. Indeed,
SAPS's own conduct in approving Scheun's ill-health retirement,
premised on the identical medical conditions,
constitutes powerful
corroborating evidence of his incapacity during the TIL application
periods. The investigation is not impossible;
it is entirely
straightforward.
[62]
SAPS contends that the order is "legally unenforceable"
because SAPS lacks authority to investigate TIL applications
of
former employees. This contention fundamentally misunderstands both
the nature of the order and SAPS's legal capacity. The order
does not
require SAPS to do something outside its powers. SAPS, as the
employer, necessarily possesses the authority to investigate
whether
an employee (whether current or former) was entitled to benefits
during his period of employment. This is a core management
function
well within the ordinary competence of any employer.
[63]
The remedy ordered is specific, clear, and entirely actionable. SAPS
must: (1) forward the seven TIL applications to its HRM; (2)
conduct
an investigation in accordance with Clause 7.5.1; and (3) reach a
determination within 14 days. These are discrete, measurable
steps.
SAPS is not ordered to do something impossible (e.g., reverse the
passage of time) or something outside its sphere of authority
(e.g.,
adjudicate matters not before it). Rather, SAPS is ordered to perform
the very investigation it was contractually bound
to perform when the
applications were first submitted.
[64]
Furthermore, the remedy is capable of being enforced. Should
SAPS refuse or fail to comply, the Court possesses the full panoply
of enforcement mechanisms available to it to ensure compliance with
its orders. This matter may be returned to the Court, and
non-compliance may be pursued through the procedures applicable to
any breach of a Court order, including the possibility of a contempt
finding. The order is therefore neither legally unenforceable nor
beyond the commissioner's authority to make.
[65]
This ground of review therefore fails entirely. The remedy is
rational, flows logically from the breach established, is well within
the commissioner's authority to fashion, and is entirely capable of
enforcement. SAPS's arguments on this ground amount to an invitation
to this Court to revisit the reasonableness of the commissioner's
judgment—an invitation this Court declines, as the outcome
is
one that a reasonable arbitrator could plainly reach on the evidence
and the law as applied.
[66]
The final matter concerns the costs order made by
the commissioner against SAPS. SAPS contends that the costs order was
unjustified.
This Court respectfully disagrees. Clause 6.2 of
Resolution 5 of 2005 empowers the commissioner to award costs where a
matter has
been defended vexatiously or without reasonable cause. The
commissioner's finding that SAPS's defence fell within this category
is entirely justified by the facts. The record demonstrates that SAPS
breached an unambiguous obligation to investigate Scheun's
TIL
applications within 30 days. SAPS then compounded this breach by
maintaining, for years thereafter, that no investigation had
been
conducted, yet offered no credible explanation for either the failure
to investigate or the protracted silence. At the arbitration
hearing,
SAPS mounted technical objections premised on prescription,
jurisdiction, and procedural irregularity—all without
adducing
any evidence in support of these contentions. Most tellingly, SAPS
called no witnesses and advanced no substantive defence
on the merits
of the dispute. Under these circumstances, the commissioner's
characterisation of the defence as vexatious and without
reasonable
cause was amply justified. The costs order accordingly warrants no
interference by this Court.
Costs
[67]
In
terms of the provisions of section 162(1) of the LRA, this court has
wide discretion when it comes to the issue of costs.
The court
is mindful of the
dictum
of
the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[13]
when it comes to the issue of costs in employment disputes.
[68]
The employment relationship between the parties
has come to an end. Both parties requested that costs be awarded.
This Court sees
no reason therefore why SAPS should not be ordered to
pay Scheun’s costs.
Order
[69]
In the premises, the following order is
made:
1.
The application for the arbitration award
to be reviewed and set aside is denied.
2.
The applicant is ordered to comply with the
arbitration award within 30 days from the date of this judgment. Any
non-compliance
may be pursued in this Court through the normal
procedures applicable to any non-compliance of a Court order.
3.
The applicant is ordered to pay the first
respondent’s costs, including the costs of counsel.
C.
de Kock
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
M Thys
Instructed
By:
State Attorney
For the Third
Respondent: FE
Le Roux
Instructed
by:
AC Greyling and Associates Inc.
[1]
Act
66 of 1995, as amended.
[2]
(2008)
29 ILJ 964 (LAC).
[3]
(2013)
34 ILJ 2662 (LC) at para 22.
[4]
(2015)
36 ILJ 2832 (LAC) at para 27.
[5]
(2007)
28 ILJ 2405 (CC); 2008 (2) SA 24 (CC).
[6]
Id
at para 110.
[7]
(2013)
34 ILJ 2795 (SCA);
[2013] 11 BLLR 1074
(SCA) at para 25.
[8]
Fidelity
at
para 102.
[9]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers & others
(2016) 37 ILJ 116 (LAC);
[2016] 1 BLLR 1
(LAC) at para 32;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others
(2015) 36 ILJ 1453 (LAC);
[2015] 4 BLLR 394
(LAC) at para 12.
[10]
(2008) 29 ILJ 1450 (LAC).
[11]
Act 68 of 1969.
[12]
[2012] ZALAC 14
;
[2012] 9 BLLR 888
(LAC); (2012) 33 ILJ 1822 (LAC).
[13]
(2018) 39 ILJ 523 (CC).