(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
26/02/2026
____________ ______________
Signature Date
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR1196/22
In the matter between:
MINISTER OF POLICE Applicant
and
SAFETY & SECURITY SECTORAL
BARGAINING COUNCIL First Respondent
MAHUBEDU SIMON RANTHO Second Respondent
POPCRU Third Respondent
TUMISI SAMUEL MAREMANE Fourth Respondent
MOSHATE JACK MATSHA Fifth Respondent
PHUTI PIET MOREMA Sixth Respondent
Heard: 4 December 2025
Delivered: 26 February 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand- down is deemed to be on 26 February
2026.
2
JUDGMENT
HORN, AJ
Introduction
[1] This is an application in terms of which the applicant seeks to show good
cause why the review application under the above case number ought to be
retrieved from the archive and/or reinstated.
[2] The application is opposed by the fourth, fifth and sixth respondents
respectively (the employees). The sixth respondent (Mr Morema) has, in the
meantime, become deceased.
[3] For their part, the employees have brought a counter-application seeking (i)
confirmation that the review application is archived and considered dismissed
(ii) that the first and second respondents (Messrs. Maremane and Matsha) be
retrospectively reinstated and (iii) that the third respondent (Mr Morema) “be
posthumously retrospectively reinstated and payments due shall be payable
to his surviving spouse”.
1
[4] The application and counter -application were made whil st the erstwhile
Rules2 and Practice Manual 3 of this Court applied. This application is
accordingly determined with reference thereto.
[5] It is useful to commence with a brief chronology of relevant events.
1 No substitution appointing an administrator/executor to act on behalf of Mr Morema’s late estate has
taken place. The employees’ attorneys have no authority to act on behalf of the estate. See Booysen
and Others v Booysen and Others 2012 (2) SA 38 (GSJ) (25 March 2011).
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
3 Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from
July 2024.
3
Chronology of Relevant Events
[6] In relation to the reasons for the employees’ dismissal, it was inter alia alleged
that certain suspects had been arrested by the South African Police Service
(SAPS) for selling non -essential goods during the COVID -19 lockdown in
breach of the prevailing regulations issued under the Disaster Management
Act.4
[7] The suspects were permitted to pay an admission of guilt fine in the amount of
R2,500.00 each. Despite paying those amounts, they were issued with
receipts indicating that they had only paid R1,000.00 each. The balance of the
payments was purportedly misappropriated by the employees.
[8] In response to these allegations , the employees stated inter alia that the
suspects had been arrested for failing to confine in breach of the COVID -19
regulations, not for selling non- essential goods. The applicable admission of
guilt fine was accordingly R1,000.00. This was the amount that had been paid
by the suspects, who had signed the relevant receipts.
[9] On 15 October 2021, the second respondent ( the commissioner ) issued an
arbitration award under the auspices of the third respondent (the bargaining
council) in terms of which he found the dismissal of the employees
substantively unfair and ordered their retrospective reinstatement (the
award).5
[10] Suffice it to say that, f or a variety of reasons, the commissioner found it
improbable that the suspects had been arrested for selling non- essential
goods instead of for failing to confine in accordance with the regulations . He
was not convinced on a balance of probabilities that the employees had
misappropriated any monies.
[11] On 9 June 2022, the applicant filed its review application seeking inter alia to
review and set aside the award and substitute it with a finding that the
dismissal of the employees was substantively fair.
4 Act 57 of 2002, as amended.
5 The applicant states in its review application that the award was received by the parties on 21
October 2021. The review application ought to have been delivered prior to 2 December 2021.
4
[12] The review application was filed approximately six and a half months late. The
application for condonation - brought together therewith - states that the
relevant person at SAPS only became aware of the review in late December
2021, that it was thereafter allocated to the state attorney on 6 January 2022,
that Counsel subsequently received a brief on 21 February 2022 and that the
first consultation with Counsel was subsequently scheduled “…at counsel’s
earliest convenience…” on 11 April 2022. The review papers were thereafter
only finali sed by 10 May 2022 (and subsequently served and filed in early
June 2022).
[13] In respect of the condonation application for the late filing of the review , it is
worth noting that a proper explanation for each period of the delay is not
provided and, for this reason alone, the condonation application in the main
review may suffer from limited prospects of success.
[14] The applicant thereafter received an incomplete copy of the audio recordings
of the arbitration proceedings from the bargaining council on 18 July 2022
(although it was unaware that the record was incomplete at the time). 6 After
transcription, the record was sent to the applicant’s Counsel on 3 August
2022.
[15] The applicant’s Counsel had apparently identified that certain portions of the
audio recordings were missing, at which stage Ms Makhamathe of the offices
of the s tate attorney was alerted to the problem . Ms Makhamathe thereafter
followed up with the bargaining council concerning the missing recordings by
way of email on 3 November 2022 and 18 November 2022.
[16] No explanation for the delay between 3 August 2022 and 3 November 2022
has been provided. The relevant email correspondence from Ms Makhamathe
to the bargaining council is also not attached to the founding affidavit.
[17] At some unidentified point thereafter, Ms Makhamathe resigned from the
offices of the state attorney . At some further unidentified point, the file was
offices of the state attorney . At some further unidentified point, the file was
6 The audio recordings of the arbitration proceedings on 26 January 2021, 11 and 12 March 2021, 13
May 2021, 20 and 21 July 2021 were missing.
5
apparently re-allocated to a new attorney at the offices of the state attorney ,
namely a Mr Masete.
[18] Mr Masete apparently made two telephone calls to the bargaining council
during which he was informed that it had dispatched the complete record.
When Mr Masete corrected the bargaining council officials and noted that the
record was substantially incomplete, those officials had then promised to
dispatch the complete record, but thereafter failed to do so.
[19] There is no indication on the papers before this Court when Mr Masete made
these phone calls, with whom he spoke, or why he did not follow up after the
promised missing portions of the record did not subsequently materialise.
[20] Suffice it to say that it was only in November 2023, almost a year after the
offices of the state attorney had initially followed up with the bargaining
council, that Colonel Makobela, the deponent to the founding affidavit, took it
upon himself to travel to the offices of the bargaining council to rectify the
issue.
[21] Colonel Makobela’s intervention resulted i n additional parts of the record
being dispatched on 1 December 2023 (which was again believed to be all of
the missing audio recordings). The additional audio records could, however,
not be accessed as a result of being in a file format that was not accessible by
SAPS or the offices of the state attorney.
[22] It then took until 19 February 2024 for these audio recordings to be placed in
a format that they could be accessed. The additional audio recordings were
subsequently sent for transcription, although the specific date that this
transpired is also not disclosed.
[23] The transcription of the recordings was ultimately returned on 3 May 2024, at
which stage it was determined that the record was still in complete. In
particular, the audio recordings of the arbitration proceedings after lunch on
12 March 2021 were missing, the entirety of the proceedings of 13 May 2021
12 March 2021 were missing, the entirety of the proceedings of 13 May 2021
were missing, and the evidence on 20 and 21 July 2021 w as missing (with
6
only the housekeeping issues being recorded on 20 Jul y 2021 being
available).
[24] At the time of launching this application, the applicant states as follows in
relation to the record:
‘The applicant has not as yet taken the next step of furnishing the transcribed
record as well as the amended notice of motion and supplanted (sic) affidavit,
such shall await the direction of this court.’
and
‘The applicant will take the necessary steps required to compel the
respondent to dispatch the remainder of the record, should the court grant the
applicant the indulgence of having this matter put back on the roll.’
[25] Thus, at the time of the hearing of this matter on 4 December 2025, in excess
of four years after the arbitration award was issued and three and a half years
after the (late) review application was instituted, the record remains fatally
defective, and the applicant’s further notices and affidavits remain
outstanding.
[26] Even if the matter were to be reinstated, it is common cause that the record
would require substantial rectification before the review application could be
heard.
Counter-application
[27] Both parties filed comprehensive heads of argument, for which this Court is
grateful. It is useful to begin with the employees’ counter-application.
[28] Firstly, in relation to the relief that Mr Morema be posthumously and
retrospectively reinstated, this is obviously not possible. A deceased person
cannot factually or legally be reinstated.
[29] It may well be that the executor and/or administrator of the late estate of Mr
Morema could institute a claim against the applicant for the value of the
7
remuneration that he would have been entitled to until the date of death of Mr
Morema.7
[30] This Court, however, is not well placed to make any findings in that regard.
For one thing, the attorneys for the employees have failed to demonstrate any
authority whatsoever to act on behalf of the estate of Mr Morema.
[31] For another thing, even if substitution had taken place, the total amount due to
the estate would have to be quantified before any meaningful order could be
made. This has not been done.
[32] Finally, a proper application setting out the legal basis for such a claim would
also have to be placed before this Court . The papers in the counter -
application manifestly fail to plead any legal basis for affording the estate of
Mr Morema any relief.
[33] As a means of addressing this , a direction will be issued at the end of this
judgment requiring the employees’ attorneys to provide a copy hereof to Mr
Morema’s widow, with whom they are evidently in contact in circumstances
where she has deposed to a confirmatory affidavit . Mr Morema’s widow may
thereafter decide whether to provide the same to the executor and/or
administrator of the estate, assuming the estate has not been wound up. 8 The
relevant person/functionary can then determine what further steps, if any,
might be taken.
[34] In respect of the balance of the relief sought for the other two employees ,
suffice it to say that they do not require a declaration that the review
application is archived and considered dismissed. This has already transpired,
hence the applicant’s application.
[35] In respect of the prayer that this Court should order that Messrs. Maremane
and Matsha be retrospectively reinstated, this relief is incompetent. Both
Messrs. Maremane and Matsha already have an arbitration award granting
7 See Estate Late W G Jansen van Rensburg v Pedrino (Pty) Ltd (2000) 21 ILJ 494 (LAC) . See also
National Union of Metalworkers of SA on behalf of Fohlisa & o thers v Hendor Mining Supplies (A
Division of Marschalk Beleggings (Pty) Ltd) (2017) 38 ILJ 1560 (CC).
8 The Master may re-open a deceased estate where new assets, debts or claims are discovered after
the estate has been wound up in certain circumstances.
8
them retrospective reinstatement . At best, this Court could order that the
arbitration award be made an order of court, although this is not necessary for
the reasons appearing hereunder.
[36] Suffice it to say that i f this revival application fails , Messrs. Maremane and
Matsha would be entitled to tender their service and, should the applicant fail
to reinstate them, they would, in the ordinary course, be entitled to proceed
with contempt of court proceedings under section 143(4) of the Labour
Relations Act .9 This is the ordinary mechanism through which the LRA and
the Rules allow a party to enforce a reinstatement arbitration award in their
favour.
[37] In my view, the employees’ counter-application amounts to little more than an
attempt to bypass the normal enforcement processes in the LRA . It must fail
for that reason.
[38] As an aside, an unfortunate trend appears to have developed in terms of
which applications to revive review applications are met not only with
opposition (often justified) but also with a litany of other counter-applications
in relation to enforcement . This, of course, might be understandable on the
part of unrepresented litigant s who may be desirous of securing immediate
relief in the form of a Court Order and unaware of the applicable enforcement
provisions.
[39] It is worth reiterating, however, that in the vast majority of cases , such
counter-applications are entirely unnecessary and also create unnecessary
work for this Court. W here an application for reinstatement of a review is
dismissed, the parties should thus in the ordinary course follow the
enforcement procedures set out in section 143 of the LRA.
The Reinstatement Application
[40] Turning then to the merits of the main application. At the outset, t he
applicant’s Counsel conceded, rightly, that the explanation put up by the
applicant for the delay is exceedingly poor.
9 Act 66 of 1995, as amended (the LRA).
9
[41] Perhaps predictably, the applicant’s Counsel sought to place emphasis on the
issue of prospects of success and prejudice, especially given the nature of the
allegations of misconduct made against the employees and the public trust
required in SAPS. Given the nature of the allegations, it is indeed troubling
that a review should be dismissed without SAPS having the right to test the
reasonableness of the commissioner’s award simply as a result of a delay in
prosecution of the review. Issues related to the protection of the public interest
weigh in favour of the applicant.
[42] On the other hand, the employees argue inter alia that they had been
criminally charged and found not guilty and also that the applicant had failed
to follow the provisions of item 11.2.3 of the Practice Manual in circumstances
where the record would not be timeously filed.
10
[43] This Court’s attention was also drawn to the decision in Sol Plaat jie Local
Municipality v South African Local Government Bargaining Council and
Others11 which contains a useful summary of the steps to be taken where
incomplete records are filed by the CCMA or a bargaining council.
[44] In respect of the failure of the state’s criminal prosecution, this has either little
or no bearing on these proceedings. 12 I am fortified in this view by the fact
that a criminal burden of proof is not the same standard that the commissioner
was called upon to apply in the matter. Thus, the fact of a criminal acquittal is
of no moment in this matter.
[45] What would ordinarily follow is this Court’s application of the factors set out in
Melane v Santam Insurance Company Limited13 in determining whether or not
the applicant has shown good cause for the matter to be revived.
[46] It appears to me, however, that a more fundamental issue that this Court must
grapple with is the fact that the record remained fatally defective at the time
this application was launched (and subsequently argued).
this application was launched (and subsequently argued).
10 That item deals with the ability of a party to request an extension and, if said request is refused,
approach the Judge President for an extension. It is common cause that this was not done by the
applicant. The consequence is that the application was deemed to be withdrawn.
11 (PR192/15) [2017] ZALCPE 11 (13 June 2017).
12 See Hollington v Hewthorn & Co Ltd 2 1943 All ER 35.
13 1962 (4) SA 531 (A).
10
[47] In this regard, the ratio decidendi in Kock v C ommission for C onciliation,
Mediation and Arbitration and Others (Kock)14 is relevant. In Kock, this Court
held as follows:
‘[54] Because the reinstatement application is in essence a condonation
application, the applicant’s reinstatement application brought on 27
August 2018 faces what is in my view an insurmountable difficulty.
When the application was brought, the record still had not been filed.
Surely, condonation is sought to show good cause why an action
taken in contravention to a legal prescript should be allowed. It must
follow that the action must already have been taken in order to
condone it. In casu, it must mean that the record has already been
filed and the condonation is intended to validate this action because it
was done out of time. It is impossible to ask for condonation for the
late filing of the record where the record has still not been filed.’
[48] As appears from the facts set out above, despite several years having passed
with the applicant being aware of the fatal defects in the record of
proceedings, it has failed to take the requisite steps to rectify that issue.
15 It
neither brought an urgent application to compel the bargaining council to file
the missing audio recordings, nor was there any application to the bargaining
council to re- construct the missing portion of the record to the extent that
these could not be located. The applicant is content to state that the Court
should first revive the matter and then mero motu take the requisite steps to
address the fatally defective record by issuing appropriate directions.
[49] The facts above demonstrate an entirely apathetic and unacceptable
approach to resolving the issue of the defective record, and more generally
towards prosecuting the review as a whole. It is not sufficient to say that this
Court should, at the eleventh hour, issue directions to resolve a defective
Court should, at the eleventh hour, issue directions to resolve a defective
record where the parties are required to take those steps in the first instance
and thereafter seek condonation for any delay.
14 (JR764/18) [2021] ZALCJHB 101 (31 May 2021).
15 It neither brought an application to compel the bargaining council to file the record, nor did it apply
for the reconstruction of the record.
11
[50] In circumstances where this application was both made and argued before the
record was rectified, it is premature and falls to be dismissed for the reasons
articulated by this Court in Kock.
[51] Even if the application were not premature, however, the prospects of
success would not have saved the applicant. Several years have gone by with
scant or no explanation whatsoever being put up for the various delays. The
state has simply not prosecuted this review with a sufficient degree of
diligence to allow this Court to come to its assistance and condone what
amounts to a wholesale departure from the expeditious dispute resolution
procedure required by the LRA.
[52] This application must accordingly fail for all of these reasons.
Costs
[53] I am of the view that this is a matter where the interests of justice will be best
served by making no order as to costs.
[54] I am mindful of the ongoing relationship between the parties. I am also mindful
of the legally untenable counter-application brought by the employees.
[55] In the premises, I make the following order:
Order
1. The applicant’s application to retrieve the review application from
archive and/or reinstate the review application is dismissed.
2. The fourth, fifth and sixth respondents’ counter-application is
dismissed.
3. The fourth, fifth and sixth respondents’ attorneys are directed, within
fifteen (15) days of receipt of this j udgment, to take all reasonable
steps to provide a copy thereof to the widow of the sixth respondent ,
Mrs Morema Maserole Rahab.
4. There is no order as to costs.
12
______________________
J Horn
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Advocate V. Rikhotso
Instructed by: State Attorney
For the Third Respondent: Mr M. Moitsi (Moitsi and Associates Incorporated)