THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: A2025-117691
In the matter between:
SOLIDARITY obo ROBERTS Appellant
and
D NGWENYA N.O. First Respondent
THE SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL Second Respondent
THE NATIONAL COMMISSIONER OF THE SOUTH
AFRICAN POLICE SERVICE Third Respondent
BRIGADIER NF VAN GRAAN N.O. Fourth Respondent
Heard: 7 May 2026
Delivered: 21 May 2026
Coram: Van Niekerk JA, Djaje AJA et Masipa AJA
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
VAN NIEKERK, JA
Introduction
[1] This is an appeal against a judgment delivered by the Labour Court on 10 August
2022, when that Court dismissed an application for review filed on behalf of
Colonel Roberts (to whom I shall refer as ‘ the appellant ’) in respect of both a
decision by the fourth respondent (Van Graan) to dismiss him , and a
jurisdictional ruling issued by the first respondent ( the arbitrator) in a dispute that
concerned the fairness of his dismissal.
Material facts
[2] On 14 January 1988, the appellant commenced employment with the South
African Police Service (SAPS). At the time of his dismissal on 7 January 2017, he
had attained the rank of colonel and maintained a clean disciplinary record during
his almost 30 years of service.
[3] The dispute concerning the appellant’s dismissal stems from events that
occurred more than ten years ago, on the night of 16 October 2015, when the
appellant responded to a call from a community patroller who had reported a
suspected vehicle hijacking. The appellant was accompanied by warrant officer
Goldblatt, a police reservist, who requested assistance from other police vehicles
in the vicinity. When the appellant and Goldblatt arrived on the scene, the
community patroller had parked in front of the suspected vehicle, a Ford Everest.
A number of SAPS vehicles had already arrived. As the appellant got out of his
vehicle, shooting broke out. The appellant ordered a cease- fire. When the
shooting ceased, the appellant approached the Ford Everest and discovered that
it was not the hijacked vehicle. The occupant of the vehicle, an innocent civilian,
3
had been wounded during the shooting and died at the scene. All but one of the
police vehicles hurriedly left the scene, but the appellant prevented a vehicle
used by Constables Machabaphala and Makgamatha from leaving. Subsequent
ballistics tests revealed that the appellant had not fired any shots but that the
firearms of the two constables could be linked to the body of the deceased.
[4] Machabaphala and M akgamatha were charged with culpable homicide and
failing to verify the details of the hijacked vehicle before using deadly force. The
appellant was charged with witnessing the shooting, failing to assist the victim of
the shooting, and exercising his powers irresponsibly. A disciplinary hearing
commenced in February 2016 and concluded on 27 September 2016, when
Machabaphala, Makgamatha, and the appellant were found guilty of the
misconduct alleged against them . The chairperson of the disciplinary hearing
recommended dismissal in each case.
[5] On the same day, 27 September 2016, the appellant lodged an internal appeal
against his dismissal in terms of Regulation 17 of the South African Police
Service Regulations 2006. On 29 September 2016, Brigadier Rambachan-
Naidoo, the section head: legal support services, recommended that the
dismissals be confirmed. The outcome of the disciplinary hearing and the
brigadier’s opinion were forwarded to the provincial commissioner for Gauteng
for determination in terms of Regulation 16.
[6] On 19 October 2016, the provincial commissioner for Gauteng, Lt Gen de Lange
(De Lange), acting under Regulation 16 of the Police Regulations, upheld the
dismissals of Makgamatha and Machabaphala but varied the appellant’s
sanction, reducing the dismissal to a final written warning. On 20 October 2016,
Lt. Colonel CL Booysen, Section Head: Employee Relations Gauteng, forwards a
letter to the Divisional Commissioner: Personnel Management, attaching the
appellant’s internal appeal and De Lange’s Regulation 16 variation of the
dismissal.
4
[7] The appellant learned of the variation on 21 October 2016 and resumed his
duties the same day.
[8] On 29 December 2016, more than two months after resuming duty and despite
the variation in sanction determined by D e Lange, the appeals authority, in the
form of Van Graan, decided to confirm the sanction of dismissal imp osed at the
disciplinary hearing. On 7 January 2017, the appellant was informed by Van
Graan of the outcome of the appeal and was summarily dismissed.
[9] On 17 January 2017, the appellant referred a dispute to the bargaining council
under section 191 of the Labou r Relations Act
1 (LRA) contending that he had
been unfairly dismissed and seeking reinstatement. After a failed attempt at
conciliation, the dispute was referred to arbitration. The arbitration hearing
extended over 20 days and concluded only on 7 April 2019. The arbitrator issued
an award dated 15 April 2019. In his award, in relation to submissions made by
the parties’ representatives on the determination by De Lange, the arbitrator
concludes:
’16. It is apparent from the aforementioned arguments that both parties
required of the Council to consider and pronounce on the validity of the
Determination. It is trite law that an administrative tribunal such as the
Council has no power to pronounce on the validity of an administrative
act. The power to declare an administrative act a nullity vests with a court
of law. I thus determine that the proper course of action available to either
of the parties is to refer the matter for review as the Council has no
jurisdiction to entertain the dispute.’
[10] On this basis, the arbitrator ruled that ‘ the Council lacks jurisdiction to entertain
the dispute as the matter falls within the preserve of the Labour Court’.
Labour Court
1 Act 66 of 1995.
5
[11] On 20 May 2019, the appellant filed an application to review and set aside both
the decision of Van Graan dismissing his appeal against his dismissal and the
arbitrator’s jurisdictional ruling. The application before the Labour Court thus
comprised two parts. In Part A, the appellant sought, in terms of s ection
158(1)(h) of the LRA, to review and set aside the decision by Van Graan, made
on 29 December 2016 in his capacity as the SAPS appeal authority, to confirm
the appellant’s dismissal, and, to the extent necessary, to condone the late filing
of the review application. The review was sought on the basis that the impugned
decision constituted a breach of the principle of legality. In particular, the
appellant contended that Van Graan’s decision was ultra vires and unlawful. In
Part B, in the alternative, the appellant sought, in terms of s ections 145 and
158(1)(g) of the LRA, to review and set aside the arbitrator’s jurisdictional ruling
issued on 15 April 2019.
[12] The Labour Court dealt first with the merits of the application for condonation for
the late filing of the legality review . The Court noted the appellant’s submission
that the arbitrator’s jurisdictional ruling ‘had the effect of promoting the fourth
respondent’s Appeal Authority to centre stage’ and that the ‘ a review of the
Appeals Authority decision has now emerged as the most convenient and
effective way of disposing of the underlying unfair dismissal dispute. ’ The Labour
Court held that it was incumbent on the appellant to provide a full explanation for
the inordinate delay in filing the review application and that he had failed to do
so. The Court concluded that the appellant had failed to make out a proper case
for the grant of condonation and granted an order in the following terms:
‘1. The application for review is dismissed.
2. There is no order as to costs’.
[13] The Court’s reasoning is apparent from the following paragraph:
[13] The Court’s reasoning is apparent from the following paragraph:
‘[19] Given his failure to lodge the review application within a reasonable time
following the 29 December 2016 confirmation of outcome, it was
incumbent upon the applicant to make a full explanation for the inordinate
6
delay in launching the review application. Instead, condonation is sought
by means of a remarkable superficial and unconvincing explanation that
paints a picture of a litigant who was not really serious about pursuing his
remedy. I need hardly state that condonation is not there for the asking.
Due to the fact that an applicant seeking condonation seeks an
indulgence, he bears the onus to show good cause and make a proper
case before the indulgence may be granted.
[20] As I have already indicated, the applicant’s shortcoming is plain from his
own words when he explains that a review of the appeals authority’s
decision has now emerged as the most convenient and effective way of
disposing of the underlying dismiss al dispute. The applicant fails to make
out a proper case for the grant of condonation’.
[14] The Labour Court’s reasoning in support of the order dismissing the application
for condonation can only relate to Part A of t he notice of motion, i.e. that which
sought to review the decision made by Van Graan. There is no dispute that the
review of the arbitrator’s jurisdictional ruling sought in Part B of t he notice of
motion was filed within the time limit established by s ection 145 of the LRA. It is
not disputed that the Labour Court gave no consideration to the relief sought in
Part B.
[15] In respect of Part A, the appellant contends that proper grounds to condone the
late filing of the review application had been established, and that the Labour
Court erred in refusing to condone the late filing of the application. In respect of
Part B, the appellant contends that the Labour Court erred by failing to consider
the grounds for the review sought of the jurisdictional ruling issued by the
arbitrator on 15 April 2019, that application having been timeously delivered.
[16] The appellant seeks an order on appeal condoning the late filing of the review
application under section 158 (1)(h), setting aside Van Graan’s decision made on
application under section 158 (1)(h), setting aside Van Graan’s decision made on
29 December 2016 in his capacity as the appeal authority , and ordering the
SAPS to reinstate the appellant with effect from the date of his dismissal. In the
alternative, the appellant seeks to review and set aside the jurisdictional ruling
7
issued by the arbitrator on 15 April 2019 and to have the matter referr ed f or
arbitration with reference to t he proceedings already conducted, alternatively, for
a fresh arbitration hearing before another arbitrator.
Discussion
[17] I first address the appellant’s submissions regarding Part A of the notice of
motion and the refusal to condone the late filing of the legality review. A review
sought under s 158(1)(h) must be brought within a reasonable time. The
guideline for what constitutes a reasonable time is the six -week time limit
established by section 145 for review applications filed under that section. The
principles governing condonation applications are well established. They were
reaffirmed by the Constitutional Court in Van Wyk v Unitas Hospital and Another
(Open Democratic Advice Centre as Amicus Curiae),
2 where the Court held that
the applicable standard is the interests of justice. While e ach case must be
decided on its own facts, the interests of justice enquiry encompasses the nature
of the relief sought; the extent and cause of the delay; the effect of the delay on
the administration of justice and other litigants; the reasonableness of the
explanation for the delay; the importance of the issue to be raised in the intended
appeal; and finally, the prospects of success. In this Court, the approach has
long been to place less emphasis on the prospects of success where there is no
satisfactory explanation for an inordinate delay.
3 In Van Wyk, the Constitutional
Court affirmed that the prospects of success in the main proceeding pale into
insignificance whe n an inordinate delay is coupled with the absence of a
reasonable explanation for that delay.4
2 2008 (2) SA 472 (CC). See also Grootboom v National Prosecuting Authority and Another (2014) 35 ILJ
121 (CC); Government Printing Works v Public Service Association and Another (2025) 46 ILJ 915
(LAC).
3 NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).
4 Fn 2 at para 68.
8
[18] When a court balances the factors relevant to the seeking of the indulgence of
condonation, it does so in the exercise of inherent discretion . Unless that
discretion is exercised arbitrarily or capriciously, or some manifest injustice
otherwise results, an appeal court should be slow to interfere with the conclusion
reached by the court a quo.
5
[19] In the present instance, the decision sought to be reviewed was issued on 29
December 2016, and the review application was filed on 17 May 2019. The
Labour Court cannot be faulted for refusing to condone the late filing of the
application to review and set aside Van Graan’s ruling. On his own version, the
appellant became aware of the ruling immediately after it was made on 29
December 2016, and there was no substantive bar to his then seeking to set
aside the decision by filing a review application within a reasonable time. The
delay in filing the section 158 (1)(h) review application was inordinate. The
explanation for the delay was unsatisfactory. To suggest that the delay was
attributable to the pending unfair dismissal dispute before the bargaining council ,
which related directly to the fairness of the dismissal that the section 158(1)(h)
review sought to challenge, is a suggestion that finds no basis in logic or in law .
While the outcome of both proceedings may have resulted in a setting aside of
the appellant’s dismissal, the application for review and the referral of the unfair
dismissal dispute to the bargaining council, respectively, were brought on entirely
different legal grounds , the outcome of one proceeding not dependent on the
outcome of the other. In short, there was no bar to the appellant filing the review
within a reasonable period of Van Graan having made the decision to uphold his
dismissal.
[20] Insofar as counsel for the appellant submitted that it was in the public interest to
grant condonation, if only to lay bare what he submitted was incompetence and
grant condonation, if only to lay bare what he submitted was incompetence and
negligence by the SAPS appeals authority in overruling the provincial
commissioner’s decision to vary the sanction of dismissal to a final written
5 See: Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and
Another 2015 (5) SA 245 (CC).
9
warning, this is not a sufficient basis to outweigh an unsatisfactory explanation
for an inordinate delay. The same consideration applies to the appellant’s
prospects of success in the review application.
[21] There is thus no basis to interfere with the Labour Court’s refusal to condone the
late filing of that portion of the review application reflected in Part A of the notice
of motion.
[22] I turn next to the appeal against the Labour Court’s dismissal of the relief sought
in prayer B of the notice of motion, i.e., the review of the arbitrator’s jurisdictional
ruling. It is not disputed that the relief sought in Part B wa s an alternative to the
review of Van Graan’s decision. There is also no dispute that the Labour Court
simply omitted to consider the alternative presented by Part B, notwithstanding
that the review of the arbitrator’s jurisdictional ruling had been timeously filed.
[23] It is no answer to suggest, as did counsel for the respondent, that there is
nothing against which the appellant might appeal. It is trite that an appeal is
directed against the substantive order of the court a quo , not against the reasons
for judgment. In the present instance, the Labour Court’s ordered that the review
application be dismissed. The order is not limited to Part A of the notice of motion
– it extends to the entire application. The fact that the review application was
brought in two parts and that the Court dealt only with the first and not the
second is of no consequence. The fact that the Labour Court articulated no
reasons for its decision to dismiss Part B is not a basis on which to find that the
order granted is in part not appealable, or that , as counsel submitted, the
appropriate remedy is to remit the matter to the Labour Court with a directive to
give consideration to Part B. The Labour Court’s order dismissing both Parts of
the review application effectively upheld the arbitrator’s jurisdictional ruling, a
the review application effectively upheld the arbitrator’s jurisdictional ruling, a
ruling that properly served before the Labour Court and which serves before us
on appeal.
[24] Insofar as the merits of the application to review are concerned, it is well-
established that the threshold for a review application challenging a jurisdictional
10
ruling is correctness, not the Sidumo 6 test of reasonableness.7 The Labour Court
was thus required to determine whether the arbitrator’s ruling was correct.
[25] After hearing evidence for 20 days, the arbitrator concluded that the parties had
in effect requested the bargaining council to pronounce on the validity of De
Lange’s variation of the sanction of dismissal originally imposed on the appellant,
and that since the council lacked the power ‘ to pronounce on the validity of an
administrative act’, the ‘proper course of action available to either of the parties ’
was to refer the matter to the Labour Court for review.
[26] There are at least two reasons why the arbitrator’s decision is wrong. First, the
dispute referred to arbitration concerned Van Graan's decision to uphold the
appellant's dismissal (and particularly the fairness of that decision), and not De
Lange’s prior decision to reduce the sanction to a final written warning. The
validity of De Lange’s variation of the sanction of dismissal originally imposed
was never a matter referred to arbitration. Secondly, contrary to what the
arbitrator held, De Lange’s decision did not constitute administrative action.
[27] The dispute referred to the bargaining council on 17 January 2017 concerned the
fairness of the appellant’s dismissal. As I have indicated, t he dispute was not
concerned with the validity of De Lange’s variation of the sanction of dismissal.
Specifically, the appellant contended that his dismissal was substantively unfair
and that there were ‘ several discrepancies regarding procedures in the
Disciplinary Investigation and hearing’. This is manifestly a dispute that falls
within the bargaining council’s jurisdiction. It was thus incumbent on the arbitrator
to determine the substantive and procedural fairness of the appellant’s dismissal
by applying section 192(2) of the LRA and requiring the SAPS to prove that the
dismissal was fair. Although it may on occasion be necessary for an arbitrator to
dismissal was fair. Although it may on occasion be necessary for an arbitrator to
identify the real dispute between the parties after considering all the facts , it is
not for arbitrators to recast a clearly defined dispute referred to arbitration in
6 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC).
7 SA Rugby Players Association (SARPA) and Others v SA Rugby (Pty) Ltd & Others; SA Rugby (Pty) Ltd
v SARPA and Another [2008] 9 BLLR 845 (LAC) at paras 39-40.
11
entirely different terms and dictate to the parties how it should be litigated. In the
present instance, the dispute referred to arbitration was unequivocally framed as
an alleged unfair dismissal for misconduct. That is a dispute over which the
bargaining council had jurisdiction.
8
[28] In any event, contrary to the arbitrator’s finding, De Lange’s decision did not
constitute administrative action. In Chirwa v Transnet Ltd and Others9 and Gcaba
v Minister of Safety and Security and Others 10 the Constitutional Court made
clear that employment-related decisions by the state in its capacity as employer
do not co nstitute administrative action capable of review under Promotion of
Administrative Justice Act 11, and must be challenged in terms of the rights of
recourse established by the LRA. 12 Moreover, the fact remains t hat even i f De
Lange’s decision is completely removed from the equation, the decision subject
to challenge by the appellant is that made by Van Graan, i.e., the decision to
uphold the appellant’s dismissal. That was the only decision under consideration
and scrutiny at the arbitration hearing.
[29] In short, the arbitrator committed an error of law by decli ning jurisdiction to
entertain the unfair dismissal dispute that served before him. His ruling wa s
incorrect and stands to be set asi de. The Labour Court erred by failing to
consider the appellant’s submissions on the jurisdictional ruling and fail ed to set
aside that ruling. The appeal succeeds to this extent.
[30] Finally, it should be recalled that the incident that gave rise to the appellant’s
dismissal occurred in October 2015. The appellant was dismissed on 7 January
2017. The arbitration hearing was completed in April 2019, and the review
application was filed in May 2019. The review was finalised only in August 2022
8 Section 191(5)(a)(i).
9 2008 (4) SA 367 (CC).
10 [2009] 12 BLLR 1145 (CC).
11 Act 3 of 2000.
9 2008 (4) SA 367 (CC).
10 [2009] 12 BLLR 1145 (CC).
11 Act 3 of 2000.
12 See also PSA obo De Bruyn v Minister of Safety and Security and another (2012) 33 ILJ 1822 (LAC). A
state employee is not precluded, though, from seeking the review of an employment-related decision
under section 158(1)(h) based on the principle of legality – see Hendricks v Overstrand Municipality and
another [2014] 12 BLLR 1170 (LAC); Minister of Police and Another v Kgopa and Another [2019] 1 BLLR
16 (LAC).
12
and comes before this Court in May 2026. The inordinate delay s in this matter
run completely counter to the fundamental principle of expeditious dispute
resolution that underlies the LRA. The delay, largely attributable to the bargaining
council and the inefficiency of the arbitration proceedings, has left unresolved a
dispute rooted in events more than ten years ago.
[31] Given the conclusion reflected above, this Court has little option but to remit the
matter to the bargaining council for a determination of the merits of the unfair
dismissal disput e. While it remains for the appointed arbitrator to conduct the
arbitration hearing in a manner he or she considers appropriate, consideration
might be given to determining the dispute based on the existing record, subject to
any further submissions that may be invited. The record of the 20- day arbitration
hearing is complete, and little purpose would be served by a de novo hearing.
[32] In the premise, the following order is made:
Order
1. The appeal is upheld to the extent that the Labour Court’s order is varied
to read:
“1. Condonation for the late filing of the application to review the fourth
respondent’s decision in terms of s 158 (1)(h) is refused.
2. The first respondent’s jurisdictional ruling issued on 15 April 2019 is
reviewed and set aside.
3. The unfair dismissal dispute between the appellant and the third
respondent is remitted to the second respondent for arbitration
before an arbitrator other than the first respondent, to be heard on
terms determined by the appointed arbitrator”
2. There is no order as to costs.
______________________
13
A van Niekerk
Judge of the Labour Appeal Court of South Africa
Djaje AJA and Masipa AJA concur.
APPEARANCES:
For the Applicant : Adv PH Kirstein
Instructed by: Serfontein Viljoen & Swart Attorneys
For the Respondent : Adv MH Mhambi
Instructed by: State Attorney