Not reportable
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C31/2024
In the matter between:
SOLIDARITY OBO BRIG G VAN NIEKERK Applicant
and
SOUTH AFRICAN POLICE SERVICES First Respondent
COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION Second Respondent
JAMES NGOAKO MATSHEKGA N.O. Third Respondent
Date of Hearing: 27 August 2025
Date of Judgment: 24 June 2026
Summary: (Review – condonation ruling – extensive delay – inadequate
explanation of significant delays – affidavits in condonation application providing
insufficient basis for condonation – prospects of success poor)
________________________________________________________________
JUDGMENT
_______________________________________________________________
2
T ERASMUS A.J.
Introduction
[1] This is a n opposed review of the Condonation Ruling (“the Condonation
Ruling”) handed down by the Third Respondent, a CCMA Commissioner
(“the Commissioner ”) on 14 December 2023 under case number
PSSS558-23/24. The Commissioner dismissed the applicant’s application
for the condonation of the late referral for conciliation of the applicant’s
unfair labour practice dispute.
The material facts
[2] The applicant applied for the pos t 22/07/3392 of the District Commander
Overberg and Post 22/07/3391 of Distric t Commander Winelands of
Levels 14 and rank of Major General.
[3] Major General M Groenewald and Major General M M Mochologi were the
successful candidates.
[4] The Applicant submitted that she complied with the minimum requirements
and applied for the position. The Applicant was not shortlisted nor invited
for an interview, despite being the best candidate for the position.
[5] The first respondent announced the appointments on 2 November 2022.
[6] The applicant submitted a PAJA application on 6 October 2022. The
information received in terms of PAJA was insufficient , the minutes
indicated that the a pplicant’s applications were rejected, as she allegedly
submitted the wrong application from page 2 and her matric certificate was
not attached and her driver’s licence was unclear.
[7] The applicant lodged a grievance on 21 October 2022, which grievance
remained unresolved , a mediation certificate was issued on 31 January
2023, being the date on which the internal process was exhausted in
terms of the SSSBC Collective Agreement.
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[8] Solidarity on behalf of t he applicant referred a dispute to the SSSBC on
the 6 th of February 2023, together with joinder of the successful
candidates.
[9] The Mediation Certificate confirming that the mediation process was
requested and that the first respondent did not comply with the timeframe,
was attached to the SSSBC referral form.
[10] The mediation certificate was issued on 31 January 2023, and the
Applicant referred the dispute to the SSSBC on 6 February 2023, within
the 30-day period, prescribed by the SSSBC Collective Agreement.
[11] The dispute was set down for Con-Arb on 13 October 2023.
[12] The third respondent issued a ruling that the CCMA lacks jurisdiction to
deal with the dispute as the dispute was referred outside the 90- day
referral period prescribed by section 191(2) the Labour Relations Act,
66/1995, as amended.
[13] The referral was made in terms of the SSSBC agreement at the time and
took place prior to the withdrawal of the SSSBC’s accreditation by the
CCMA on 1 June 2023, at which time the dispute was transferred directly
to the CCMA.
[14] The applicant brought a Condonation Application in compliance with the
third respondent’s ruling.
Test on Reviews
[15] The Court may only review and set aside an award/ruling by a CCMA
Commissioner if the Court is satisfied that the decision reached is not one
that a reasonable decisionmaker could have made, on the available
material. In Fidelity Cash Management Service v CCMA & Others
1 the
1 (2008) 29 ILJ 964 (LAC)
4
Labour Appeal Court, at para 100, elaborated on this test and said the
following:
‘The test enunciated by the Constitutional Court in Sidumo for determining
whether a decision or arbitration award of a CCMA commissioner is
reasonable is a stringent test that will ensure that such awards are not
lightly interfered with. It will ensure that, more than before, and in line with
the objectives of the Act and particularly the primary objective of the
effective resolution of disputes, awards of the CCMA will be final and
binding as long as it cannot be said that such a decision or award is one
that a reasonable decision maker could not have made in the
circumstances of the case.’
[16] The test formulated above accords with later pronouncements of the LAC
and SCA (see, for example, Herholdt v Nedbank Ltd & Another at para
252; Goldfields Mining SA (Pty) Ltd v CCMA & Others at paras 14 – 153).
The review application
[17] The Commissioner was required to establish whether to condone the
applicant’s referral outside of the 90-period prescribed in terms of section
191(2) of the LRA, 66/1995, of her unfair labour practice dispute to the
CCMA;
[18] The applicant referred an unfair labour practice dispute to the CCMA on 6
February 2023, stating that the unfair labour practice dispute allegedly
arose on 1 October 2022 (being the date on which she became aware of
the act/omission).
[19] The third respondent (“the Commissioner”) issued a Jurisdictional Ruling
on the 13
th of October 2023, that the CCMA lacked jurisdiction to
adjudicate the dispute, as the referral took place outside of the 90-day
period.
2 2013 (6) SA 224 (SCA)
3 [2014] 1 BLLR 20 (LAC)
5
[20] The applicant brought a condonation application on 1 November 2023.
[21] The applicant should have referred the dispute to the CCMA by 30
December 2022, being 90-days from the date of the act/omission or when
the applicant became aware of the act/omission.
[22] The Commissioner found that the applicant’s referral was 282 days late,
applicant’s union representatives, Solidarity stated that they were
mistaken with the calculation of the 90- day period and argued that the
referral was in time in the light of the Ruling under case number:
PSSS410-22/23.
[23] The third respondent found that the applicant failed to make any
submissions in support of merits of success and failed to show good
cause for lateness, as no reasons were advanced on behalf of the
applicant in explanation for the lateness of the referral.
[24] The third respondent found that t he application must fail both on grounds
of degree of lateness and lack of prospects of success.
[25] The applicant in her argument in support of her application for the review
of the third respondent’s condonation ruling, place d emphasis on the
assertion that the third respondent erred in his summary that the applicant
referred her unfair labour practice dispute to the CCMA, instead of to the
SSSBC, before their accreditation was withdrawn.
[26] It is argued on behalf of the applicant that a different time frame applied in
terms of the SSSBC, with which time frames the applicant complied. On 1
June 2023 when the CCMA withdrew the SSSBC’s accreditation, the
dispute was referred to the CCMA.
[27] The applicant disputes the third respondent’s finding that she failed to deal
with the prospects of success in her founding affidavit in the condonation
application. She submits that she dealt with the prospects of success and
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clearly indicated that she complied with the minimum requirements for the
position.
[28] The advertisement did not require a matric certificate, and the alleged
unclear drivers’ licence is unjustified and arbitrary.
[29] The applicant submitted that the third respondent erred in his finding that
she failed to deal with the reasons for lateness in her condonation
application, in that she referred to grievance procedure, the mediation
certificate and the SSSBC process that was complied with. The applicant
submits that the late referral was a bona fide mistake.
[30] The applicant argues that the third respondent erred in his finding that the
90-day period must be calculated from 1 October 2022, instead of from the
date of the mediation certificate, 31 January 2023.
[31] The third respondent erred in that he failed to consider that the SSSBC
followed a different approach prior to the withdrawal of the SSSBC’s
accreditation by the CCMA.
[32] The first respondent, SOUTH AFRICAN POLICE SERVICE’s opposition
was based on the following:
32.1 the applicant was not shortlisted because she completed the incorrect
application form, she failed to annex her drivers’ licence and matric
certificate, which were both requirements for the position.
32.2 The first respondent disputed that the internal process was only exhausted
on 31 January 2023, when the medication certificate was issued.
Legal principles and analysis
7
[33] Section 191(2) of the LRA is a statutory requirement, therefore an unfair
labour practice dispute must be referred to the CCMA or relevant
Bargaining Council within 90 days from the date of the act/omission or
from the date when the applicant became aware of the act/commission.
[34] It is common cause the applicant referred an unfair labour practice dispute
to the CCMA on 6 February 2023, whilst the applicant was aware of the
act/omission constituting an unfair labour practice dispute on 1 October
2022 whereafter she lodged a grievance on 21 October 2022.
[35] It is common cause that the mediation certificate required in terms of the
SSSBC’s rules was issued on 31 January 2023.
[36] The applicant averred in her referral to the SSSBC on 6 February 2023
that the dispute arose on 31 January 2023 when the mediation certificate
was issued.
[37] This is in direct conflict with the applicant’s own evidence that she lodged
a grievance on 21 October 2022, because she was not shortlisted for the
position.
[38] Therefore, the applicant should have referred her unfair labour practice
dispute to the relevant Bargaining Council or the CCMA by no later 30
December 2022, within the 90- day period prescribed in terms of section
191(2) of the LRA.
[39] The applicant brought an application for condonation on 1 November
2023, which was severely late. The applicant provided no explanation for
the late referral other than to provide a detailed explanation of the
SSSBC’s rules, which provides for a referral to the SSSBC within 30-
period after a mediation certificate has been issued.
[40] It is common cause that the SSSBC’s accreditation was withdrawn by the
CCMA on 1 June 2023.
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[41] Section 191(2) contains a statutory prescription and cannot be overruled
by the rules of a Bargaining Council.
[42] In IMATU OBO JEFFREY KHOZA vs GREATER GIYNAI LOCAL
MUNICIPALITY4:
‘Employer raised a point in limine that the unfair labour practice dispute was
referred to the SALGB prematurely in that the employee did not lodge a
grievance and exhaust all three steps before referring the matter to the SALGBC.
The Commissioner found that there is no duty on the employee to exhaust all
internal remedies before referring the matter to the Council.’
[43] In IMATU obo Mythic Matthys & others vs City of Tshwane Metropolitan
UNIV5:
‘The Commissioner ruled that there is no requirement for party to first exhaust
internal processes before referring an unfair labour practice dispute to the
bargaining council. The Commissioner at paragraph 20 stated the LRA does not
state that an ULP must be referred to the council once the parties have
exhausted internal processes. It would defeat the intent and spirit of the LRA.’
[44] The Applicant could have referred the alleged unfair labour practice
dispute to the Council, although the internal process was still underway.
There was nothing preventing the Applicant to refer the dispute to the
Council/CCMA timeously.
[45] However, insofar as her claim only concerns an unfair labour practice
relating to promotion, this court has held that such disputes are of a
discontinuous nature and arise at the time the appointment is made. See
for example Eskom Holdings SOC Ltd v NUM , where employees had
referred to an unfair labour practice dispute relating to promotion, their
argument was that the 90- day limit did not apply as from the date of the
alleged unfair act by the employers because the dispute was likewise of a
4 LPD051909- 7 OCT 2019
5 GMD031809 -26 SEPT 2019
9
continuous nature. The court decided that disputes even where non
promotion amounts to an unfair labour practice, it cannot be said that the
employer continues to commit it on a month to month basis until the
dispute is referred to the CCMA, because that ‘ would render the 90- day
time limit under section 191(1)(b)(ii) completely valueless’.
[46] The prescribed 90- day time period in terms whereof an employee must
refer an unfair labour practice dispute to the Council as prescribed by
section 191 (1) (a) of the LRA 66/1995, is calculated from the dated of the
act/omission or the date on which the Applicant became aware of the
act/omission, in this case being the 30 June 2021. Therefore, the referral
should have taken place before or on the 30 th of December 2022. The
referral was 282 days late.
[47] The third respondent correctly took the time periods prescribed in terms of
section 191(2) of the LRA into account and the explanation provided by
the applicant for the lateness of the referral amounted to nothing other
than the denial of the lateness.
[48] The referral was extremely late, and under the circumstances where the
lateness is seen to be severe, the Commissioner does not have to
consider the merits of success.
[49] The third respondent did however find that there was no explanation of the
merits, other than a denial that the matric certificate and drivers’ licence
was a requirement and that she met all the requirements of the position.
[50] Having considered all the facts, and submissions, I accept the
commissioner’s findings that the delay is excessive, the explanation was
weak and failed to cover the entire period of the delay. In addition, I agree
that the applicant’s prospects of success are slim to non- existent.
Accordingly, I find that the commissioner was correct to dismiss the
application for condonation.
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Costs
[51] As it appears that the applicant was simply misguided by her union
representative’s incorrect calculation of the applicable time period in case
of an unfair labour practice dispute, mistakenly believing that the rules of
the SSSBC overruled the statutory requirement laid down by section 191
(1) of the LRA. I am disinclined to make a cost order against her.
Order
1. The review application is dismissed.
2. There is no order as to costs.
____________________
T ERASMUS A.J.
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Ms T du Preez
Instructed by: Solidarity
For the First Respondent: Adv. K Ngqata
Instructed by: State Attorney, Cape Town
For the Third Respondent: N.A.
Instructed By: N.A.