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[2026] ZALCCT 19
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South African Police Service v Safety and Security Sectoral Bargaining Council and Others (C434/2023) [2026] ZALCCT 19 (4 February 2026)
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Case no: C434/2023
In the matter between:
THE SOUTH AFRICAN
POLICE SERVICE
Applicant
and
THE SAFETY AND
SECURITY SECTORAL
BARGAINING
COUNCIL
First Respondent
PAUL BOTH,
N.O.
Second Respondent
SOLIDARITY obo ERNST
VAN SCHALKWYK
Third
Respondent
Heard:
30 October 2025
Delivered:
4 February 2026
Summary:
Review and condonation application, Applicant not shortlisting the
Third Respondent allege the same tantamount to an unfair
labour
practice. Applicant’s stance being failure to shortlist was
because of Third Respondent’s failure to comply
with policies:
National Instruction 3 of 2015 and the
Safety and Security Sectoral Bargaining Council Agreement 3 of 2011
,
Labour Relations Act and South African Police Act. The common cause
the applicants were allowed to make type – written
applications, Applicant used the wrong year/phase indication on the
application, although the correct post number was used; portion
regarding re-enlistment; the Applicant put in code of his driver’s
licence next to the word yes; next to the driver’s
licence
question. Applicant had never left employment nor re-enlisted. Thus,
Applicant was not shortlisted as a result of these
errors.
R280 000.00 quantum granted, application of reduction, if this
court finds that indeed Applicant committed an unfair
labour
practice.
JUDGMENT
GURA AJ
Introduction
[1]
This
is an opposed review application. The Applicant seeks to review the
Commissioner’s award under case number SSS341-22/23
dated 17
May 2023 in terms of section 145 of the Labour Relations Act
[1]
(LRA). The same was delivered by the Second Respondent (The
Commissioner) under the auspices of the First Respondent namely the
Safety and Security Sectoral Bargaining Council (the Bargaining
Council). The applicant’s point of departure, commences with
an
application for condonation of the late filing of the supplementary
affidavit. The application is opposed by the Third Respondent
,
Solidarity Labour Union acts on behalf of Mr Ernest van Schalkwyk.
[2]
The contention by the Third Respondent is
that the award by the Commissioner is not at all unreasonable as it
is clear that
the Commissioner properly applied his mind to the
evidence and came to a correct conclusion,that the Third Respondent
was subjected
to an unfair labour practice in relation to promotion.
The Third Respondent denies any unfairness in this regard.
[3]
The Third Respondent is employed by the
Applicant as a Lt Colonel, with a gross salary of R45 152,37 per
month, and was appointed
on 27 December 1985. The Third Respondent
claims an unfair labour practice in respect of the fact that he was
not shortlisted for
the position of Colonel in post number 418 Flash
Commander Phase 2021 in the Western Cape.
[4]
The Third Respondent was still in agreement
that the portion in the award that was noted under common cause were
not contested in
the review application and that the same is
incorporated in this review application, with the Third Respondent’s
emphasis.
4.1.
The Applicants for the position were allowed to make
word-processed (type written) applications.
4.2.
The Applicant used the wrong year/phase indication on the
application, although the correct post number was
indicated.
4.3.
The Applicant did not complete the portion on the application
regarding re-enlistment, and added the code
of his driver’s
licence next to the word “yes”, in response to the
question as to whether he had a license.
4.4.
The Applicant had never left employment nor re-enlisted.
4.5.
The Applicant was not shortlisted for interviews as a result of these
errors on his application form.
[5]
The argument by the Applicants in not
shortlisting the Third Respondent was placed on record as an act of
compliance with:
5.1.
The instructions which are in the very first page of the application
form at the issue. The same which was
argued by the Applicant was
written: “
READ SSSBC AGREEMENT 3 OF 2011 and National
Instruction Of 2015…”.
5.2.
The instructions genetically flow from the policy; and
5.3.
The policy genetically flows from the South African Police Service
Act
[2]
(SAPS Act) and the Labour
Relations Act (LRA);
[3]
5.4.
The policy in question is the National Instruction 3 of 2015
handed
into court and marked Exhibit E and the Safety and Security Sectoral
Bargaining Council Agreement 3 of 2011 (Agreement Number
3 of
2011)
[4]
, handed into Court and
marked Exhibit D.
Condonation
application for late filing of the Supplementary Affidavit by the
Applicant
[6]
The Applicant brought the evidenced form
from paragraph 14 to 22 of its Heads of Argument, served on the Third
Respondent on 24
October 2025 and 27 October 2025, the morning of the
Set Down herein. That the Court grant leave to the Applicant to
withdraw its
Rule 7 A(8)(b) notice (the precursor of Rule37 (20)(b)
so that the Applicant will have its Rule 37(20)(b). The Supplementary
Affidavit
late filing condoned, and thereafter the review application
was framed on the hallmark of the Supplementary Affidavit.
[7]
The
Applicant placed on record the case of
Nadasen
v Laragh Courseware (Pty) Ltd
[5]
.
In that the Court relied on
Steenkamp
and Others v Edcon Ltd
,
the Constitutional Court case, to say:
‘
The
standard of considering an application for condonation is the
interests of justice.
[6]
’
[8]
The
Constitutional Court in delineating what the interests of justice
are, held that the meaning of ‘interests of justice’
includes the nature of relief sought; the extent and cause of delay;
the effect of the delay on administration of justice and other
litigants; the reasonableness of explanation for the delay; the
importance of the issue to be raised in the intended appeal (in
the
intended supplementary affidavit for this case’s context) and
the prospects of success
[7]
.
[9]
The
Applicant placed on record the legal principles following from
Academic
and Professional Staff Association v Pretorius NO and Others
[8]
,
the Honourable Court relied in the matter of
Robin
[9]
that the Applicant must explain:
9.1.
The degree of lateness or non-compliance with the prescribed time
frame; the Applicant argued that it sufficed
to place on record that,
when the Rule 37(20)(a) Supplementary Founding Affidavit became due,
the Applicant
bona fide
delivered a Rule 37(20)(b). The
Applicant thus argued that in the light of re-characterizing and
correctly bringing the grounds
of review to their proper context and
adding more relevant grounds, the Applicant relied on the principle
that former Justice Sisi
Khampempe held in the case of
University
of Johannesburg v Auckland Park Theological Seminary and Another
[2021]ZACC 13-that “
I make bold to say it is not just
for the sake of poetry that the old adage ,context is everything
,holds true. In so many scenarios
.words alone ring hollow. Context
gives life and meaning to what is said or written …”
.
Thus argued that in the event of this court granting leave to file
Supplementary Affidavit, the review application will be cured;
brought to its proper context and correctly re- characterized all for
the fount of justice to remain untainted.
9.2.
The explanation of or failure to comply with time frames; this court
interprets the Applicant’s argument
above as synonymous with
the explanation of lateness, the degree of lateness, or
non-compliance with the prescribed time frame.
9.3.
The prospects of success or
bona fide
defence in the main
case; the Applicant argued that the interests of justice demand that
this case, whether won or lost, must be
factually and legally
well-reasoned and well explained to the losing party. Further that in
the Commissioner’s Arbitration
Award, the same has not
happened. That the Commissioner’s decision is one which no
reasonable Commissioner, in his reasonable
sense, could have arrived
at. Thus, vital to prune the evidence that the Court should focus on
and the same raises the prospects
of success, and/or at least setting
a precedent that adds guidance to the jurisprudence of this
Honourable Court.
9.4.
The importance of the case; the Applicant argued that the importance
of the case is crucial as it will bring
clarity and or certainty, or
will rule out between following the law, the policy, the regulations
and subjecting employees to unfair
labour practice. In other words,
whether the employer can be accused of having practiced unfair labour
practice when the employer’s
Human Resource Management’s
prescriptions are or were an incident of legislative uniformity,
policy adherence and/or regulation
uniformity and compliance with the
law. Argued that this case is
sui generis
as the Commissioner
failed to deal with the evidence pertaining to this dispositive
aspect of the matter hence the matter remains
unresolved.
9.5.
Avoidance of unnecessary delay in the administration of justice that
if the Court were to refuse to grant
the condonation , the
administration of justice would be delayed because the Court would
still preside over a matter whose grounds
for review have not been
ventilated and contextualised.
9.6.
Prejudice; the Applicant placed on record that they greatly apologize
to the Respondent for the prejudice
that this may cause. However, the
Respondent argued that the Respondent was in possession of the record
and that the supplementary
additions would be based on the record.
Thus, the Respondent at liberty to file a further supplementary
answering affidavit. That
Applicant was open to a postponement to the
extent same will be occasioned by the necessity of the supplementary
founding affidavit
being allowed to ventilate the grounds of review
effectively and further offered costs for the postponement.
Grounds for Review as
per the Applicant
First Ground :The
Commissioner’s view of the kernel of the issue between the
parties lacked focus; particularity; and the
point of departure
[10]
The Applicant placed on record that the
centrality and or the stem of the issue between the employee and the
employer is the application
form and the instructions therein. Had it
not been for the application form parties would not have gone to the
Arbitration hearing,
and the Commissioner would not have had to
preside over the proceedings under case number: PSSS341-22/23. Thus,
if the application
form and the instructions therein were to be
thought away, the dispute before the Commissioner would have
disappeared into thin
air as well. Thus, the Commissioner, in being
fair and reasonable, would have had to zoom in on the application
form and its instructions,
a device used to exert the unfair labour
practice. The common cause is that the application form is the root
cause of the dispute
and was one of the primary pieces of evidence
before the Commissioner in both bundles of the litigants and in their
evidence in
chief and in cross-examination. That the application form
speaks for itself with a bold inscription on it:
“
Important
notice (read before you complete application)”
.
Argued further that the very first
bullet of the instructions in the application form reads as follows:
“
Read SSSBC Agreement 3 of 2011
and National Instruction of 2015 …”.
[11]
The
Third Respondent’s contention is that the outcome of the
arbitration award is not unreasonable. Further submitted to this
Court that the Commissioner after properly considering evidence
before the Commissioner, could not find other than that the Applicant
committed an unfair labour practice against the Third Respondent, in
relation to promotion. Thus, the Third Respondent placed on
record
the specific words or phrase used in paragraph 11 of the award
[10]
,
argued that the Commissioner expressed himself in what he perceived
were the submissions and provided context in his reasoning.
Quoted
and cited the full paragraph likewise does this court:
‘
I
am aware that the respondent holds the view, apparently based on
other decisions of other presiding officers in other fora, that
even
a minor error in an application somehow disqualifies an application
for promotion. I am not convinced that even if the arcane
approach of
the respondent in this matter is what other presiding officers
supported, that this is the correct approach in employment
law. I
find this approach to be slavishly pedantic and not supportive of the
general notion of fairness. All this approach of the
respondent does
is include for consideration for promotion, applicants who happened
to fill in the form precisely the way the panel
wants it done, and
exclude applicants who made incorrect entries on the form that are
insignificant in the overall context of evaluating
the
appropriateness of a candidate for review. As far as I can tell from
evidence, the respondent knew who the applicant was, what
post he was
applying for, and could assess the form to allow screening and
consideration. The applicant was however, excluded from
short-listing
over a few trifling , finicky , non -decisive entries or lack thereof
on an application form.’
[12]
The Third Respondent conceded that they
filed in an incorrect post number on the application form, same was a
bona fide
mistake. Thus held:
‘
There
is no substance to the bald statement that acceptance of the
applicant’s application would have been unfair to the other
applicants for the position. The peculiar view that applicants should
not be alerted to obvious errors on their application forms,
if
indeed these minor errors might prejudice the applicant, is also
absurd. It is most probable that the applicant has been the
victim of
an unfair labour practice in this regard. Minor errors should not
disqualify a candidate
[11]
.
The common cause factor also argued by the Third Respondent being
fact that Applicant used a type written form and not the original
form, irrelevant as it was agreed during the arbitration
[12]
.
Third Respondent argued that it stood uncontested that they did not
comply with requirements or instructions. However, submitted
that it
was not material in nature or prevented the Applicant from
considering short listing the Third Respondent in the scope
of
fairness.’
[13]
Third Respondent conceded that they filed
in an incorrect post number on the application
form, same was a
bona fide
mistake. Thus held:
‘
There
is no substance to the bald statement that acceptance of the
applicant’s application would have been unfair to the other
applicants for the position. The peculiar view that applicants should
not be alerted to obvious errors on their application forms,
if
indeed these minor errors might prejudice the applicant, is also
absurd. It is most probable that the applicant has been the
victim of
an unfair labour practice in this regard. Minor errors should not
disqualify a candidate
[13]
.
The common cause factor also argued by the Third Respondent being
fact that Applicant used a type written form and not the original
form, irrelevant as it was agreed during the arbitration
[14]
.
Third Respondent argued that it stood uncontested that they did not
comply with requirements or instructions. However, submitted
that it
was not material in nature or prevented the Applicant from
considering short listing the Third Respondent in the scope
of
fairness.’
Second Ground: The
shortlisting panel was complying with the law
[14]
The Applicant argued that the
Commissioner’s finding that the panelists were slavishly
pedantic is an inevitable misdirection
that the Commissioner had
subjected himself to when he failed to scrutinize the evidentiary
document, the application form. The
Commissioner practically observed
and saw that the parties relied on this application form, as to
establish
policy-relatedness to this
application form and the instructions therein.
The
Applicant argued further that, hence, it is written in the
application form’s instructions that the National Instruction
3
of 2015 must have been read first, it is only 26 pages. Further, the
SSSBC agreement must have been read it is only 8 pages.
Thus, placed
on record that the panelists followed the law by rejecting an
application form that was either not prescribed or not
filled out
accordingly.
[15]
The Third Respondent conceded that they
filed in an incorrect post number on the application form, same was a
bona fide
mistake. Thus held:
‘
There
is no substance to the bald statement that acceptance of the
applicant’s application would have been unfair to the other
applicants for the position. The peculiar view that applicants should
not be alerted to obvious errors on their application forms,
if
indeed these minor errors might prejudice the applicant, is also
absurd. It is most probable that the applicant has been the
victim of
an unfair labour practice in this regard. Minor errors should not
disqualify a candidate
[15]
.
The common cause factor also argued by the Third Respondent being
fact that Applicant used a type written form and not the original
form, irrelevant as it was agreed during the arbitration
[16]
.
Third Respondent argued that it stood uncontested that they did not
comply with requirements or instructions. However, submitted
that it
was not material in nature or prevented the Applicant from
considering short listing the Third Respondent in the scope
of
fairness.’
Third Ground:
Shortlisting the Applicant would have been at odd with the principle
of legal certainty
[16]
The
Applicants argued the Constitutional Court, in
Le
Roux and Another v Johannes G Coetzee and Seuns and Another
[17]
,held that the law must have a sense of certainty, predictability and
uniformity, which are inseparable components of the rule
of law. The
Applicants argued that they have chronologically sourced the evidence
pointing to the policy which begets the application
form and the
instructions therein. Thus, the Applicants argued that it is
difficult to understand why the Applicant must have deviated
from the
order of doing things, because this could have created legal
uncertainty. This Court cannot find any submissions from
the Third
Respondent’s Heads of Argument, directed specifically and or in
relation to this ground.
Fourth Ground The
Commissioner failed to apply his mind to the policy that was before
him and relied upon by the parties
[17]
As a point of departure, the Applicant
argued and placed on record that the Commissioner is heard or read
about at page 1 of the
record, saying that arbitration proceedings
are taking place under the auspices of the Safety and Security
Bargaining Council.
The Third Respondent also had the benefits of the
application form, which was the genesis of the contention between the
parties,
thus, the same invited the Commissioner to have regard to
the Agreement 3 of 2011 and the National Instruction 3 of 2015. I
thus
quote the Agreement as quoted by the Third Respondent, telling
the latter that. The Agreement at paragraph 1:
‘
The
implementation of the Promotion and Grade Progression Policy will be
effected through issuing of National Instruction. Such
National
Instruction will be consulted at the Safety and Security Bargaining
Council. Harmoniously, The National Instruction 3
of 2015 says, this
national Instruction 3 of 2015 says, “this National Instruction
must be read in conjunction with the aforementioned
Agreement”.’
Paragraph 4.1.1 of the
Safety and Security Sectoral Bargaining Council (SSSBC) says “
Grade
Progression for member appointed in terms of the South African Police
Service Act must be handled in terms of this policy…”.
Paragraph 4.2.2 (b) of
the SSSBC Agreement says that Post Promotions are based on the
following principles: (b) Advertisement and
selection process…
Paragraph 5.1 says,
Requirements for grade Progression “
A member may only be
considered for grade progression if he or she applied …”
.
Paragraph 1 of the
National Instruction 3 of 2015 says “
the purpose of this
National Instruction is to regulate the promotion and grade
progression of employees...”
.
The paragraph immediately
below this one above says that “
this National Instruction is
applicable to all employees of the Service who have been appointed in
terms of the South African Police
Service Act…”
.
Paragraph 3 (a) says a
member who qualifies for grade progression must:
Complete any form
prescribed by the National Commissioner…
Paragraph 3 (a)(iv) says
“
failure by the member to submit the prescribed form …may
result in the member being not considered for grade progression
during the specific process”
.
[18]
The
Third Respondent argued that their suitability remained uncontested,
citing the Commissioner who found that: “
The
respondent is unable to establish that the applicant was not a
qualified contender”
[18]
.
Argued further that it was common cause that the Third Respondent
never left the service of Applicant, and failure to mark or
tick the
box for this category is superfluous,
[19]
argued that same included marking the license box with the specific
license. That transcript, page 58, Major General Dyantyi confirmed
that the SAPS system also record whether an employee has a driver’s
license. Thus argued, the Commissioner’s determination
cannot
be deemed as unreasonable.
[19]
The
Third Respondent argued that the averment by the Applicant that other
candidates were disqualified for the same reason as the
Third
Respondent should be rejected, for no substantive evidence was put
forward during the arbitration. The Third Respondent quoted
the case
of the Labour Appeal Court of
Head
of Department of Education v Mofokeng & Others
[20]
submitting that a comparison was made involving other employees, thus
arguing and submitting that the Commissioner must have embarked
upon
an evaluation of the probabilities. Third Respondent highlighted the
following paragraphs :
‘
[32]
… Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: 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…
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the
inquiry.’
[20]
The
Third Respondent thus placed on record that the award for
compensation was just and equitable and that the Applicant failed
to
articulate that the relief awarded was arbitrary in nature or
excessive. Further, the matter of
Adams
v General Public Service Sectoral Bargaining Council and Others
[21]
- not reportable case in paragraph 22 stated the following:
‘
This
matter, properly considered, was a dispute about an unfair selection
(shortlisting) process for promotional post in the Public
Service.
The applicant was denied a fair opportunity to compete (
Minister
of Police v Safety and Security Sectoral Bargaining Council &
Others
(JR2339/15) [2018] ZALCJHB 136).
Neither the Commissioner, nor the Court was able to compare the
applicant’s qualifications
against others who applied for the
post, because the Department was not prepared to disclose these.
However, I am of the view that
on the advertisement properly
construed, and on employment equity principles properly applied, the
applicant should have been among
those shortlisted for the post. I am
also of the view that he should receive compensation on account of
the unfair procedure he
was subjected to (
Noonan
v SSSBC & Other
(2012 ) 33 ILJ (LAC) P2608. Compensation must be fair and equitable
and not exceed 12 months’ remuneration. I am of the view,
taking all the circumstances into account, including the extent of
the breach of the rules of fairness, that six months’
compensation would be fair and equitable.’
Fifth Ground: Confusion
that was caused by not writing the word “Not Applicable (N/A)”.
[21]
The
common cause is that the Third Respondent’s response in
relation to the above was to the effect that there was no need
for
him to respond thereto because the employer knew that his service was
terminated. The Third Respondent argued that clearly
the Third
Respondent ‘s reasoning flows from a misdirected understanding
of the needs of the question. Paragraphs 56.1 until
56.5 of the Third
Respondent’s Heads of Argument in incorporated herein.
[22]
The Law
[22]
Arbitration awards are reviewable in terms
of section 145 of the LRA. In terms of Section 145:
‘
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices
of the Commission may apply to the
Labour Court for an order setting aside the arbitration award-
…
(2)
A defect referred to in subsection (1), means–
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceed the commissioner’s powers; or
(b)
that an award has been improperly obtained.’
[23]
The Applicant placed on record that for
them to succeed herein, they thus have to establish one of the
defects above. Thus,
their bone of contention being that the
Commissioner herein committed misconduct in relation to his duties as
an arbitrator by
not considering all the evidence, did not take all
the evidence into consideration, or the arbitrator made a
decision a reasonable
decision maker could not have reached.
[24]
The
Sidumo test, as per the Applicant argued that the better approach is
that section 145 is now suffused by the constitutional
standard of
reasonableness
[23]
. The test
in deciding whether to review and set aside an arbitration award is
well established. It is the reasonableness test as
postulated by the
Constitutional Court
[24]
:
‘
The
better approach is that section 145 in now suffused by the
constitutional standard of reasonableness. That standard is the one
explained in
Bato Star
:
Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect
not only
to the constitutional right to fair labour practices, but also to the
right to administrative action which is lawful,
reasonable and
procedurally fair.’
The
test for determining whether arbitration awards are reasonable or
unreasonable is whether the commissioner’s decision
or finding
“
is
one that a reasonable decision-maker could not reach”
.
[25]
The Third Respondent
quoted Ngcobo J at paragraph 254, page 134 with emphasis that: “…
It
is therefore for a party alleging a defect in the arbitration
proceedings to show that the facts alleged constitute gross
irregularity
or misconduct or show that the power conferred has been
exceeded, as the case may be. This will require litigants to specify
the
grounds relied upon and the facts alleged as constituting the
ground of review relied upon”.
[25]
The
proper application of the test on review is summarized by the Supreme
Court of Appeal in the
Herholdt
judgment
[26]
. For an award to
be reviewable, the arbitrator must have misconceived the nature of
the inquiry or arrived at an unreasonable result.
Most importantly, 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.
Third Respondent in their
Heads of Argument quoted at paragraph 3.3 and summarized
Sidumo
as follows:
‘
[14]
After
Sidumo
the position in regard to reviews of CCMA arbitration awards
should have been clear. Reviews could be brought on the
unreasonableness
test laid down by the Constitutional Court and the
specific grounds set out in ss 145 (2)(a) and (b) of the LRA. The
latter had
not been extinguished by the Constitutional Court but were
to be ‘suffused’ with the constitutional standard of
reasonableness.
What this meant is that a gross irregularity in the
conduct of the arbitration proceedings’ as envisaged by s 145
(2)(a)(ii)
of the LRA, was not confined to a situation where the
arbitrator misconceives the nature of the enquiry, but extended to
those
instances where the result was unreasonable in the sense
explained in that case. Beyond that there was no reason to think that
their meaning had been significantly altered provided they were
viewed in the light of the constitutional guarantee of fair labour
practices.’
[27]
[26]
Herholdt
further
held as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of CCMA awards is this: A review of a CCMA award
is
permissible if the defect in the proceedings falls within one of the
grounds in s 145 (2)(a) of the LRA. For a defect in the
conduct of
the proceedings to amount to a gross irregularity as contemplated by
s 145(2)(a), the arbitrator must have misconceived
the nature of the
inquiry or arrived at an unreasonable result.
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 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.’
(Own emphasis)
[27]
The
Labour Appeal Court has further confirmed that where a gross
irregularity in the arbitration proceedings is alleged, the enquiry
extends to whether the result was unreasonable. If the decision
arrived at by arbitrator is one that falls within a band of decisions
to which a reasonable decision-maker could come on the available
material, then the award is not reviewable
[28]
.
In short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her, evaluated the
facts
presented at the hearing and came to a conclusion that is
reasonable. The review Court is not required to take into
account every factor individually, consider how the arbitrator
treated and dealt with each of those factors and then determine
whether a failure by the arbitrator to deal with it is sufficient to
set the award aside. This piecemeal approach of dealing with
the
award is improper, as the reviewing Court must consider the totality
of the evidence and then decide whether the decision made
by the
arbitrator is one that a reasonable decisionmaker could make. Held
further that a reviewing court must ascertain whether
the
commissioner considered the principal issue before him/he, evaluated
the facts presented at the hearing and came to a reasonable
conclusion. The Third Respondent’s argument in relation to the
Gold
Fields
case argued that a review based solely on the fact that the
Commissioner did not take certain factors into account, or placed
undue importance on certain factors (process related factors) does
not comply with the
Sidumo
test and will likely therefore not succeed.
[28]
A
CCMA (or bargaining council) arbitrator must conduct an arbitration
in a manner that he or she considers appropriate in order
to deal
with the dispute fairly and quickly but must deal with the
substantial merits of the dispute with the minimum of legal
formalities
[29]
. The Labour
Appeal Court has held that a court must be careful not to pass an
award by a commissioner of the CCMA in the same fashion
as one would
an elegant judgment of the Supreme Court of Appeal or the
Constitutional Court. Awards must be read for what they
are, awards
made by arbitrators, who are not judges. “
When
all the evidence is taken into account, when there is no irregularity
of a material kind in that evidence was ignored, or improperly
rejected, or where there was not a full opportunity for an
examination of all aspects of the case, then there is no gross
irregularity…”
[30]
.
It is trite that the test applicable in arbitrations conducted under
the auspices of the CCMA is the balance of probabilities
[31]
.
According to the test, where the evidence permits more than one
reasonable inference, the selected inference must, by the balancing
of probabilities, be the more natural and plausible conclusion of the
possible inferences. The credibility of witnesses and the
probability
of what they say should not be regarded as separate enquiries to be
considered piecemeal. They are part of a single
investigation into
the acceptability or otherwise of the employer version
[32]
.
[29]
In
Bestel
v Astral Operations Ltd and Others
[33]
the LRA considered the limited scope possessed by the Labour Court to
review an arbitration award and accepted that an arbitrator’s
finding will be unreasonable if the finding is unsupported by any
evidence, if it is based on speculation by the arbitrator, if
it is
disconnected from the evidence, if it is supported by evidence that
is insufficiently reasonable to justify the decision
or if it was
made in ignorance of evidence that was not contradicted.
[30]
In
Stocks
Civil Engineering (Pty) Ltd v Rip NO and another
[34]
,
the court held that; “
The
Labour Court has no inherent common law powers of review. Its powers
are to be found within the confines of its enabling act.
In the case
of reviews of awards of commissioners of the CCMA it is section 145
of the LRA, in the review of functions, acts and
omissions under the
LRA section 158 (1)(g) of that Act , and in the case of private
arbitrations section 33(1)”.
[31]
The
role of the reviewing Court is limited to deciding issues that are
raised in the applicant’s founding (and supplementary)
affidavit. This was confirmed by the Constitutional Court in
Commercial
Workers Union of SA v Tao Ying Metal Industries & others
(CUSA)
[35]
where it was held that:
‘…
the
role of the reviewing court is limited to deciding issues that are
raised in the review proceedings. It may not on its own raise
issues
which were not raised by the party who seeks to review an arbitral
award. There is much to be said for the submission by
the workers
that it is not for the reviewing court to tell a litigant what it
should complain about. In particular, the LRA specifies
the grounds
upon which arbitral awards may be reviewed. A party who seeks to
review an arbitral award is bound by the grounds contained
in the
review application. A litigant may not on appeal raise a new ground
of review. To permit a party to do so may very well
undermine the
objective of the LRA to have labour disputes resolved as speedily as
possible.’
[32]
The issue which this court must thus decide
is as to whether or not to grant the Applicant’s prayers
as enumerated in
Applicant’s Notice of Motion, in
lieu
of the Commissioner’s reasoning in his award. In so doing,
apply the jurisprudence above in relation to reviews, and as argued
by the litigants. Beforehand, pivotal to the court’s ruling is
whether the court has granted condonation for the late filing
of the
Applicant’s Supplementary Affidavit, which the court has
accordingly granted. Moreover, the same is in furthering
the
interests of justice.
[33]
This court, in applying the law to the
facts, will have to deal with all five grounds for review raised by
the Applicant. In so
doing, this court will not categorically list
the grounds as per the Applicant and as listed above in this
judgment. The Constitutional
Court held in the case of
CUSA
that:
‘
In
deciding what the real dispute between the parties is, a commissioner
is not necessarily bound by what the legal representatives
say the
dispute is. The labels that parties attach to a dispute cannot change
its underlying nature. A Commissioner is required
to take all the
facts into consideration, including the description of the nature of
the dispute, the outcome requested by the
union and evidence
presented during the arbitration. What must be borne in mind is that
there is no provision for pleadings in
the arbitration process, which
helps to define disputes in civil litigation. Indeed, the material
that a commissioner will have
prior to a hearing will consist of
standard forms which record the nature of the dispute and the desired
outcome.’
[34]
The Commissioner must have made a point of
his departure, the Agreement 3 of 2011 of the SSSBC and National
Instruction 3 of 2015,
with focus and particularity. The same being
the motherboard of the application form and the instructions therein.
From the Commissioner’s
reason and outcome of the award,
clearly and to a large extent, the Commissioner missed this point of
departure. Further, in so
doing, the Commissioner arrived at a
decision which another Commissioner could not have arrived at;
therefore, unreasonable. It
is common cause that the Third Respondent
did not complete the application form, even though the wrong
application form he completed
had the same instructions as the
National Instruction 3 of 2015 and the SSSBC Agreement 3 of 2011.
[35]
The
Commissioner failed to appreciate that the application form is a
requirement in terms of the SAPS policy as mentioned above
and in the
preceding paragraph, which flawed his decision. This is further
evidenced by the common cause fact in relation to the
Applicant’s
failure to fill in the word ‘Not Applicable (NA)’. The
argument by the Third Respondent that the
same implied that the Third
Respondent was expecting his application form to be dealt with
personally, that is, his personal circumstances
must have been at the
prefrontal cortex - the personal memory of whosoever was shortlisting
him, moreover, at the Pretoria head
office. That people are going
through their own life problems to specifically check in the system
the work history of a certain
employee. Argued further that the same
can be viewed as a trigger for nepotism, all to cure a defect for not
following an instruction
on an application form. Further, responding
negatively or positively to the question whether one’s service
was once terminated
or not, was material as the same was a
requirement for the post for the employer-Applicant to verify if the
Third Respondent has
rendered services for an uninterrupted number of
years. In this regard , the Applicant correctly quoted the case of
South
African Police Service v Solidarity obo Gibbons and Others
[36]
:
‘
It
is not in dispute that Mr Gibbons did not have four years of
continuous uninterrupted service as a Warrant Officer at the date
of
his application to be promoted to the post
of
Captain.
It is common cause that he had a break in service, and he had less
than four years of continuous service after re-
enlistment in
the position of Warrant officer. Having regard to the plain meaning
of the words, the language used in the light of
the ordinary rules of
grammar and syntax and the context in which the words are used, it is
apparent that uninterrupted service
meant that Mr Gibbons had to have
four years after re-enlistment at the time of application.’
[36]
The shortlisting panel followed the law, by
not shortlisting an employee who had not followed the law. The Third
Respondent had
not filled in the correct form, moreover, on more than
one occasion had not filled in the form accordingly. It would be a
miscarriage
of justice to define same as falling under the umbrella
of unfair labour practices. It is the common cause that the Third
Respondent
did not run the race did not end up at the interviews. It
can thus not be argued as to whether he would have qualified for the
post or not qualified for the post.
[37]
The R280 000,00 (Two Hundred and
Eighty Thousand Rand) compensation is submitted by the Applicant as
being quite excessive
and unreasonable. Thus, in the event that
this court finds that not shortlisting the Third Respondent is an
unfair labour
practice, the amount of R50 000,00 (Fifty Thousand
Rand) or the amount the court deems fit, lesser than the R28 000,00,
would
be fair. The Applicant argued for the reduction of the quantum
awarded, only if this court finds that the Applicant committed the
irregularity.
[38]
The Applicant has not at all committed an
irregularity, and I thus grant the Applicant the prayers prayed for
in their Heads of
Argument that:
Order
1 . The Applicant’s
late filing of this review is condoned in terms of section 145 ( 1 A
) of the
Labour Relations Act 66 of 1995
2.That the findings and
or ruling handed down by Second Respondent on 17 May 2023 under the
auspices of the First Respondent bearing
case number PSSS42-22/23 are
set aside.
3.The said ruling is
substituted with a finding that Applicant did not commit an unfair
labour practice in terms of
section 186
(
2
) ( a ) of the
Labour
Relations Act 66 of 1995
4.No order as to costs
L.
Gura
Acting
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant: Adv
Zithulele
Instructed by: State
Attorney per Mr Mawethu Dyalivae
For the Respondent :Mr
Ian Stockenstrom
Instructed by:
SOLIDARITY
[1]
Act
66 of 1995, as amended.
[2]
Section
48
of the
South African Police Service Act, No 68 of 1995
.
[3]
Section
23
and
30
of the
Labour Relations Act, No 66 of 1995
.
[4]
Page
2 at para 4 of the Applicant’s heads of argument.
[5]
[2025]
ZALCCT 57 at para 7.
[6]
Ibid.
[7]
[2019]
ZACC 17
at para 36.
[8]
[2007]
ZALCJHB 4.
[9]
Supra
,
note1 at para 9.
[10]
Amended
Pleadings, page 53, paragraph 11 of the award.
[11]
Amended
Pleadings , page 53, at para 12 of the award.
[12]
Transcript
, page 56 , from line 16-20.
[13]
Amended
Pleadings , page 53, at para 12 of the award.
[14]
Transcript
, page 56 , from line 16-20.
[15]
Amended
Pleadings , page 53, at para 12 of the award.
[16]
Transcript
, page 56 , from line 16-20.
[17]
[2023]
ZACC 46
at para 162.
[18]
Amended
index to pleadings, page 53, paragraph 13 of the award.
[19]
Transcript,
page 12, from line 22.
[20]
(2015)
36 ILJ 2802 (LAC).
[21]
[2021]
ZALCCT 46.
[22]
Pages
24 to 25 of the Third Respondent’s Heads of Argument.
[23]
Sidumo
at
para 110.
[24]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others (Sidumo)
[2007]
12 BLLR 1097
(CC) at para 110 of Navsa AJ’s judgment.
[25]
(At
para 110 of the
Sidumo
case).
[26]
Herholdt
v Nedbank Ltd (Herholdt)
[2013]
11 BLLR 1074 (SCA).
[27]
Ibid at para 14.
[28]
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others (Gold Fields)
[2014]
1 BLLR 20 (LAC).
[29]
Section
138
(1) of the LRA.
[30]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2008)
29 ILJ 2899 (LAC), at 2906 D to F.
[31]
Potgietersrus
Platinum Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(1999)
20 ILJ 2679 (LC).
[32]
Marapula
& others v Consteen (Pty) Ltd
(1999)
20 ILJ 1837 (LC) at para 33.
[33]
[2011]
2 BLLR 129
(LAC) at para 18.
[34]
[2002]
3 BLLR 189
(LAC) at para 30.
[35]
(2008)
29 ILJ 2461 (CC).
[36]
[2024]
ZALCCT 72 at para 34.