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Solidarity obo Matthews v South African Police Service Commission for Conciliation, Mediation and Others (C650/2022) [2026] ZALCCT 117 (30 July 2026)
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THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C500/2024
In the matter between:
SOLIDARITY
obo J M MATTHEWS
Applicant
and
SOUTH
AFRICAN POLICE SERVICE
First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
JANINE
CARELSE N.O.
Third Respondent
Heard:
28 July 2026
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for hand-down is deemed to be
10h00 on Thursday, 30 July 2026.
JUDGMENT
DE KOCK AJ
Introduction
[1]
This
is an application in terms of section 145, alternatively section
158(1)(g), of the Labour Relations Act
[1]
(‘the LRA’) to review and set aside an arbitration award
of the third respondent, Commissioner Janine Carelse (‘the
commissioner’), issued under the auspices of the second
respondent (‘the CCMA’) under case number PSSS514-22/23
on 8 November 2024 (‘the award’). The applicant,
Solidarity acting on behalf of Sergeant J M Matthews, further seeks
an order correcting the award with a finding that the first
respondent committed an unfair labour practice relating to promotion,
and directing that Ms Matthews be promoted, retrospectively and with
effect from 1 March 2022, to the post of Driver / Close Protector
to
the Provincial Commissioner: Western Cape at the rank of warrant
officer. The successful candidate for the post was Warrant
Officer Z
Bhesi.
[2]
The application is opposed by the first
respondent, the South African Police Service (‘the SAPS’),
which seeks its dismissal.
Before the merits are reached, three
preliminary matters arise: a point
in
limine
, taken by the SAPS, that the
review has been deemed withdrawn; the SAPS’s application for
condonation of the late filing
of its answering affidavit; and its
application for leave to file a supplementary affidavit in the
condonation application. The
applicant, for her part, objected under
rule 36(2), read with rule 37(22), to the late answering affidavit.
[3]
The award is reviewed on the reasonableness
standard: it will not be disturbed unless the decision the
commissioner reached is one
that a reasonable decision-maker could
not reach on the material before her. For the reasons that follow,
this Court grants condonation,
admits the supplementary affidavit,
dismisses the point
in limine
,
and dismisses the review. There is no order as to costs.
Background
[4]
The following facts are common cause, or
were not seriously disputed, and appear from the pre-arbitration
minute and the record.
The applicant has been employed by the SAPS
since 7 January 2004. She holds the rank of sergeant and serves as an
operational member
of the Western Cape Flying Squad. On 2 December
2021 the SAPS advertised a number of posts for promotion, among them
the post of
Driver / Close Protector to the Provincial Commissioner:
Western Cape at the rank of warrant officer, under reference
WC02/12/2021.
The filling of the post was governed by National
Instruction 3 of 2015, National Instruction 6 of 2005 and SSSBC
Agreement 3 of
2011.
[5]
The applicant applied, met the minimum
requirements, and was one of four candidates shortlisted from among
13 who had been scored.
She was interviewed by a panel chaired by
Major General Voskuil, with Colonels Terblanche and Flie as members.
The successful candidate,
Warrant Officer Bhesi, was recommended and
appointed.
[6]
The candidates were assessed in two
components: a score out of 20 for qualifications, courses and
experience, and an interview out
of 30. The applicant scored 11 out
of 20 and 19.32 out of 30, a total of 30.32; Warrant Officer Bhesi
scored 10 out of 20 and 25.32
out of 30, a total of 35.32. The
applicant thus scored higher than the successful candidate on the
first component, but lower overall,
the difference lying in the
interview.
[7]
The pre-arbitration minute recorded, as
common cause, that the applicant met the requirements for the post
and was shortlisted and
interviewed, and recorded, as in dispute,
among other things, the scoring of both the applicant and the
successful candidate against
the relevant criteria, and whether the
process adopted by the SAPS was fair. The arbitration was heard on 22
October 2024, closing
arguments were filed in writing, and the award
issued on 8 November 2024.
The award
[8]
The commissioner identified the issue as
whether the SAPS had committed an unfair labour practice relating to
promotion. She summarised
the applicant’s evidence (in essence,
that she was the most suitable candidate and had been incorrectly
scored on her courses
and experience, while the successful candidate
had been over-scored) and the evidence of Colonel Terblanche, a
member of the panel,
who explained the criteria applied and the basis
on which the candidates were scored.
[9]
Applying
the principles governing promotion disputes, and citing
Noonan
v Safety and Security Sectoral Bargaining Council and Others
[2]
(
Noonan
)
and
Arries
v CCMA and Others
[3]
(
Arries
),
the commissioner accepted Colonel Terblanche’s evidence that
the applicant, although scoring well on qualifications, courses
and
experience in the field, lacked experience in the function of the
post, having never acted as a close protector. She found
that the
panel had not acted arbitrarily in reducing the applicant’s
experience score, and that it was entitled to have regard
to its own
knowledge of the post rather than to accept the applicant’s
curriculum vitae at face value. She dealt expressly,
at paragraph 28
of the award, with the applicant’s complaint that certain
evidence had not been put to her in cross-examination,
and concluded
that it would be a miscarriage of justice to decide the matter as
though that evidence stood unchallenged. She was
satisfied with the
scoring, found that the applicant had not discharged the onus of
proving unfairness, and dismissed the claim.
The record
[10]
A word must be said about the record, which
is not an ordinary one. The recording of the arbitration by the CCMA
was incomplete.
What was recorded and transcribed on the CCMA’s
behalf captured only the resumed proceedings (the re-examination of
the applicant,
the evidence of Colonel Terblanche, and argument) and
did not capture the opening of the arbitration, the applicant’s
evidence-in-chief,
or her cross-examination. That missing portion
exists only because the applicant’s representative had made his
own recording;
the parties agreed that it be transcribed, and it was
delivered as a supplementary transcript on 12 November 2025. Both
transcripts
are certified only in so far as the proceedings were
audible, and passages are marked inaudible.
[11]
Rule
37(27) of the Rules of this Court
[4]
addresses precisely this situation, where the record has been lost,
or the recording is inaudible or of such poor quality as to
compromise its integrity: the applicant must take reasonable steps to
reconstruct the record, the matter being referred, if necessary,
to
the Judge President for directions. Here the parties sensibly
reconstructed the record by agreement and argued the review upon
it.
The evidence material to the issues in this review (the applicant’s
account, the evidence of Colonel Terblanche, the
interview and
scoring documents, and the parties’ argument) is contained in
the reconstructed record, and neither party contended
that it was
inadequate for the determination of the review. This Court is
satisfied that the review can properly be decided on
the
reconstructed record. The incomplete state of the original record
does, however, bear directly on the point
in
limine
,
to which this Court now turns.
Whether the review was
deemed withdrawn
[12]
In its answering affidavit the SAPS took
the point
in limine
that the review had been deemed withdrawn under rule 37(15),
alternatively had lapsed for want of prosecution, on the footing that
the applicant had filed the transcribed record out of time. Rule 37
requires the body whose award is under review to dispatch the
complete record (rule 37(2)(b)), and obliges the applicant to deliver
the transcribed record within 60 days of being advised by
the
registrar that the record has been received (rule 37(14)), failing
which the application is deemed to have been withdrawn (rule
37(15)).
It is common ground that the registrar advised that the record had
been received on 9 January 2025, and that the applicant
delivered the
transcribed record on 3 April 2025.
[13]
The point was not developed in the SAPS’s
heads of argument and was, properly, abandoned in argument. The
period allowed by
rule 37(14) is reckoned in court days: ‘day’,
as defined in rule 1, excludes Saturdays, Sundays and public
holidays,
and every day in the period from 16 December to 15 January,
both days inclusive. The registrar’s notice of 9 January 2025
fell within that excluded period, so that the 60 court days began to
run only on 16 January 2025 and had not expired when the transcribed
record was delivered on 3 April 2025. The record was therefore
delivered within time, and no deemed withdrawal was triggered.
Counsel for the SAPS, who had initially indicated that she had no
instructions to withdraw the point, correctly accepted as much
once
the computation was addressed. In any event, and as set out above,
the record initially received was incomplete; the position
where the
record is incomplete is governed by rule 37(27), which the parties
addressed by the agreed reconstruction, and not by
the deemed
withdrawal in rule 37(15). The point
in
limine
is accordingly dismissed, and
the review is properly before this Court.
Condonation
for the late answering affidavit
[14]
The
principles governing condonation are well settled. This Court
exercises a judicial discretion, upon a consideration of all the
relevant factors, in the interests of justice. Those factors include
the degree of lateness, the explanation for it, the prospects
of
success, the importance of the matter, the prejudice to the parties
and the interests of finality; they are interrelated, and
none is
individually decisive (
Melane
v Santam Insurance Co Ltd
[5]
(
Melane
)).
Where the delay is not slight, the explanation must be reasonable and
must cover the entire period of the delay (
Van
Wyk v Unitas Hospital and Another
[6]
;
eThekwini
Municipality v Ingonyama Trust
[7]
).
[15]
The delay was substantial. The SAPS’s
answering affidavit was served only on 10 March 2026, and its
condonation application
some six weeks later, on 22 April 2026. Its
explanation, in summary, is that the record remained incomplete until
the supplementary
transcript was provided in November 2025; that
counsel was engaged on an acting judicial appointment; that the
attorney with conduct
of the matter took early retirement, on 31
March 2026, necessitating the reassignment of the file; and that the
answering affidavit
and the condonation application were finalised in
that context.
[16]
The
explanation is not free of difficulty. It does not account, with
precision, for every interval: the applicant computed some
50 court
days between the delivery of the supplementary transcript in November
2025 and the service of the answering affidavit,
and a further 28
court days before the condonation application was served, and
pointed, in addition, to the late filing of the
answering affidavit
under rule 10. The founding affidavit was deposed to by a candidate
attorney who was not involved during the
relevant period and who
reconstructed the chronology from the file, and no affidavit was
procured from the attorney who had conduct
of the matter throughout
the delay. Relying on
Collett
v Commission for Conciliation, Mediation and Arbitration
[8]
,
the applicant submitted that a flagrant or gross failure to comply
with the rules may be met with a refusal of condonation without
regard to the prospects of success; and, invoking
MEC
for Health, Eastern Cape v Kirland Investments (Pty) Ltd
[9]
,
she stressed the higher duty that rests on the state to respect the
law and to comply with procedural requirements. These criticisms
are
not without force.
[17]
Weighing
all of the relevant factors, however, this Court is satisfied that
the interests of justice favour the grant of condonation.
The higher
duty on the state is real, and the SAPS is held to it; but the delay
here was substantially attributable to the incomplete
state of the
record (a difficulty not of the SAPS’s sole making, and to
which the applicant’s own late and incomplete
record
contributed) and to
bona
fide
institutional transitions within the office of the State Attorney.
There is no suggestion of wilful default, or of
mala
fides
.
Such prejudice as the applicant has suffered is limited, and capable
of remedy. Of particular weight, the SAPS enjoys strong prospects
of
success: for the reasons given below, the review must fail. It is
established that strong prospects of success may compensate
for an
explanation that is less than complete.
[10]
The dispute, moreover, concerns the exercise of public power and the
position of the successful candidate, and ought to be determined
on
its merits. Condonation is granted; and it follows that the
applicant’s objection under rule 36(2) does not preclude
consideration of the answering affidavit.
Leave to file the
supplementary affidavit
[18]
The SAPS seeks leave to file a
supplementary affidavit in the condonation application, in order to
place before this Court the confirmatory
affidavits omitted from the
original papers, to clarify the deponent’s authority and the
supervisory framework within which
he acted, to correct an
inadvertent reference to the erstwhile attorney of record having
‘resigned’ rather than retired,
and to amplify the
averments concerning prospects of success. The applicant objected
that the Rules make no provision for a further
affidavit. That is so;
but the admission of further affidavits is a matter for the
discretion of this Court, exercised in the interests
of justice. The
material is curative, and responsive to the very points raised by the
applicant in opposition; it introduces no
new cause of action; and
the applicant has had the opportunity to answer it. No prejudice
incapable of remedy has been shown. The
interests of justice favour
the admission of the material, and leave is granted.
The test on review
[19]
A
review under section 145 is not an appeal, and the distinction is
decisive of this application. The award will not be disturbed
merely
because the commissioner may have erred, or because another
decision-maker might have decided differently. It will be set
aside
only if the decision the commissioner reached is one that a
reasonable decision-maker could not reach on the material before
her
(
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[11]
(
Sidumo
)),
that is, only if it falls outside the band of decisions to which a
reasonable decision-maker could come on the available material
(
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others
[12]
(
Gold
Fields
)).
Material errors of fact, and the weight and relevance to be attached
to particular facts, vitiate the award only where their
effect is to
render the outcome unreasonable (
Herholdt
v Nedbank Ltd
[13]
).
The onus rests on the applicant to bring the award outside that band.
[20]
That
hurdle is the higher in the present context, because the
subject-matter is a promotion. An employee has no right to promotion
in the ordinary course, but only to a fair opportunity to compete for
the post, and neither a commissioner nor this Court sits
in appeal
over the employer’s selection. The employer’s exercise of
its discretion in the scoring and selection of
candidates is not to
be interfered with unless it is shown that the discretion was
exercised capriciously, or for insubstantial
reasons, or upon a wrong
principle, or in a biased manner (
Arries
[14]
).
The like formulations in
Department
of Rural Development and Agrarian Reform, Eastern Cape v General
Public Service Sectoral Bargaining Council and Others
[15]
and
City
of Cape Town v SAMWU obo Sylvester and Others
[16]
,
on which the applicant herself relied, are to the same effect: the
decision must be shown to have been arbitrary or capricious,
actuated
by bad faith, discrimination or some other unacceptable reason, taken
for insubstantial reasons or upon a wrong principle,
or in a biased
manner. It follows that a mistake in the evaluation of a candidate
does not, of itself, establish unfairness. The
applicant must
therefore surmount a twofold hurdle: she must show not only that the
panel’s scoring was unfair in that sense,
but that the
commissioner’s conclusion to the contrary was one that no
reasonable decision-maker could have reached. It is
against that
standard that her grounds must be measured.
The grounds of review
[21]
The applicant’s grounds, though
numerous, may conveniently be grouped under four heads: that the
commissioner misdirected
herself as to the applicable criterion; that
she relied upon evidence not put to the applicant in
cross-examination; that she failed
properly to interrogate the
panel’s scoring of the applicant; and that she failed to deal
with the scoring of the successful
candidate and the asserted
inconsistency in the treatment of the two candidates. This Court
deals with each in turn, and has, in
doing so, considered each of the
passages of the record footnoted in the applicant’s heads of
argument.
The criterion applied
[22]
The applicant contends that the
commissioner decided the matter on the basis that she had no
experience ‘in the post’,
whereas the relevant criterion
was experience ‘in the field of the post’. This ground
cannot succeed. The minute of
the shortlisting records, among the
criteria, presence in or previous experience in the environment of
the post; qualifications
and courses relevant to the post (advanced
driving, VIP, TRT and NIU courses are given as examples); and some,
or no, experience
in the field of the post. National Instruction 3 of
2015 lists, as criteria for the selection of candidates for
promotion, not
only experience gained in the field of the post, but
also competence based on the inherent requirements of the job, and
suitability;
and its provisions governing the interview require an
assessment of the candidate’s ability to function in the post,
and
of experience in its core functions. The advertisement, in turn,
required competency in the post-specific functions of the post.
The
applicant herself accepted, in her closing argument, that suitability
(the ability to function effectively in the requirements
of the post)
is a criterion for promotion. The commissioner’s acceptance
that the applicant’s want of experience in
the actual functions
of the close-protection post was a relevant consideration was
therefore consistent with the governing instruments,
and discloses no
misdirection.
Evidence not put in
cross-examination
[23]
The
applicant contends that the commissioner relied upon evidence, in
particular concerning the scoring, that had not been put to
her in
cross-examination. It is indeed an incident of a fair hearing that a
party who intends to impugn a witness’s account
must put its
case to that witness (
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[17]
);
the applicant pressed the same principle with reference to
Absa
Brokers (Pty) Ltd v Moshoana NO and Others
[18]
and
Urban
Africa Security (Pty) Ltd v CCMA and Others
[19]
.
The principle is not in doubt. But the record does not bear out the
premise of the complaint. When the applicant’s representative
placed on record his concern that the panel witness might testify to
matters not put to the applicant, the SAPS’s representative
acknowledged that she had not put certain questions, was permitted to
re-open her cross-examination, and put the material points
to the
applicant, who dealt with them. The substantive evidence concerning
the scoring was, in any event, given by Colonel Terblanche,
whom the
applicant’s representative cross-examined. The commissioner
considered this very complaint at paragraph 28 of the
award and
concluded that it would be a miscarriage of justice to decide the
matter as though the evidence stood unchallenged. That
conclusion was
reasonably open to her and discloses no reviewable irregularity.
The panel’s
scoring of the applicant
[24]
The third head concerns the panel’s
scoring of the applicant, and it is the ground on which the review
must principally stand
or fall. The applicant contends that she was
under-scored on her courses and her experience, such that on a proper
scoring she
would have been the preferred candidate. She relies, in
particular, on Colonel Terblanche’s concession, in
cross-examination,
that her SWAT 2 course could have been counted as
a relevant course, and on the panel’s reduction of her
experience score
from an initial 10 out of 10, which was scratched
out on the scoring minute and replaced with a 6, a change Colonel
Terblanche
accepted appeared from the document. Because the
reasonableness standard is central to the disposition of this ground,
this Court
addresses it in some detail, and asks directly whether the
applicant surmounts it.
[25]
It is convenient to begin with what was,
and what was not, decisive of the outcome. The assessment comprised
two components: a score
out of 20 for qualifications, courses and
experience, and an interview out of 30. On the first component the
applicant in fact
out-scored the successful candidate, by 11 to 10.
The difference that determined the appointment lay in the interview,
in which
the successful candidate scored 25.32 and the applicant
19.32. The applicant did not seriously impugn the interview scoring:
she
accepted that her answers had drawn mostly sixes and sevens,
while an answer of the successful candidate put to her had drawn a
nine, an eight and a nine. On her own calculation, she would have
overtaken the successful candidate only if her score on the first
component were raised from 11 to at least 17 out of 20.
[26]
That arithmetic identifies precisely what
the applicant must establish. Her score on the first component
comprised 3 out of 5 for
her qualification (which she did not
challenge), 2 out of 5 for her courses (the panel counting three
courses as relevant), and
6 out of 10 for her experience. Her own
evidence was that she should have scored 5 out of 5 for seven
relevant courses, and 10
out of 10 for her experience, for a total of
18 out of 20. Even if she were awarded the maximum of 5 for her
courses (considerably
more than the single conceded omission would
justify), her total on this component would rise only to 14 out of
20, short of the
17 she requires. Her case is therefore, ultimately
and unavoidably, dependent upon the reversal of the reduction of her
experience
score from 10 to 6, alternatively upon the reduction of
the successful candidate’s scores, to which this Court returns
below.
The conceded error in the scoring of her courses, taken on its
own, does not carry her over the threshold; and a solitary error
of
evaluation of that order does not, of itself, render the outcome
unreasonable.
[27]
It is at the reduction of the experience
score that the reasonableness standard bears most heavily against the
applicant. The reduction
reflected the panel’s assessment, on
the members’ direct knowledge of the post, that the applicant’s
curriculum
vitae overstated her experience in the actual functions of
the close-protection post, in which she had never acted. National
Instruction
3 of 2015 expressly contemplates that a candidate be
assessed on her suitability, and on her experience in the core
functions of
the post; and it can hardly be unfair, still less
irrational, for a panel to decline to accept at face value a
curriculum vitae
assertion of experience which its members know, from
their own involvement in the post, to be overstated; for, on the
contrary
approach, any candidate might inflate a curriculum vitae to
the prejudice of the others. Whether the panel was unduly severe, or
(as Colonel Terblanche put it) unduly lenient, and whether a
differently constituted panel might have scored the experience at
8
or 10 rather than 6, are matters upon which reasonable assessors
could legitimately have differed.
[28]
It follows that, even on the view most
favourable to the applicant, the reduction of her experience score
lay within the range of
reasonable evaluative judgment. The
commissioner’s acceptance of it, and her conclusion that the
applicant had not shown
the promotion process to be unfair,
accordingly fell within the band of decisions to which a reasonable
decision-maker could come.
That a different decision-maker might have
scored the applicant’s experience more generously, or might
even have found in
her favour, does not avail her: where more than
one conclusion is reasonably open, the conclusion the commissioner
reached cannot
be said to be one that a reasonable decision-maker
could not reach. To hold otherwise would be to convert this review
into the
appeal it is not.
The scoring of the
successful candidate and the asserted inconsistency
[29]
The fourth head concerns the panel’s
treatment of the successful candidate. The applicant’s evidence
was that his experience
in the post dated only from 2020, when he
began to act in it; that his earlier association with the post was
limited; and that,
on a consistent approach, he ought to have scored
1 rather than 5 out of 10 for experience. On her recalculation (her
own first
component restored to 18, and the successful candidate’s
experience reduced), she would have scored 37.32 against
approximately
31 for the successful candidate, and would have been
the highest-scoring candidate. She contended, further, that his
curriculum
vitae contained no certificate for the TRT course for
which he was credited, and that, after his appointment, the core
driving
function has continued to be performed by the erstwhile
incumbent, Captain Lehaba, the successful candidate riding as the
protector
in the vehicle.
[30]
These complaints do not carry the review
over the threshold, for four reasons. First, the premise that only
the acting period could
count was disputed: Colonel Terblanche’s
evidence was that the successful candidate’s involvement in the
driving and
close-protection work of the office dated from 2015, some
six to seven years by the closing date, and that this is what the
score
of 5 out of 10 reflected. The panel’s view of what
counted as relevant experience was, again, a matter of evaluative
judgment
on which reasonable assessors could differ. Secondly, the
recalculation on which the applicant’s arithmetic depends
requires
this Court to re-score both candidates in her favour at
once: to restore her experience to 10, to award her the full 5 for
courses,
and to reduce the successful candidate’s experience to
1. That is the business of an appeal against the panel’s
assessment,
not of a review of the commissioner’s award.
Thirdly, the applicant in fact out-scored the successful candidate on
experience,
6 to 5, and on the first component as a whole, 11 to 10;
the asserted inconsistency, even if it were established, did not
produce
the appointment. What produced the appointment was the
interview, which the applicant did not seriously impugn. Fourthly,
the evidence
that the successful candidate does not perform the
driving function was disputed by Colonel Terblanche, who testified
that he does
drive; and the manner in which the post has been
performed after the appointment is, in any event, not the measure of
the fairness
of the selection process that preceded it. The
commissioner did not deal expressly with each of these contentions;
but an award
is not reviewable merely because every submission is not
separately traversed. The question remains whether, on the totality
of
the evidence, the conclusion reached is one a reasonable
decision-maker could reach, and it is.
[31]
The applicant pointed, finally, to the fact
that the successful candidate, although a party to the arbitration,
did not give evidence.
He was not obliged to. The case the applicant
had to meet was the fairness of the panel’s process and
scoring, and the appropriate
witness on that question was a member of
the panel, Colonel Terblanche, who testified and was cross-examined
at length. No adverse
inference arose from the successful candidate’s
silence that could render the award unreasonable.
[32]
The
applicant has therefore failed to surmount the hurdle imposed by
section 145. Her remaining complaints (as to the relevance
of the
successful candidate’s degree and courses, the completeness of
his application under National Instruction 3 of 2015,
and the
inferences she submitted should have been drawn from the evidence as
a whole
[20]
) are of the same
evaluative character, and, whether taken singly or cumulatively, do
not render the outcome unreasonable. Viewed
holistically, the award
is one that a reasonable decision-maker could reach on the material
before the commissioner. The review
must fail.
Joinder and relief
[33]
Two
matters raised at the hearing should be recorded. The first is the
position of the successful candidate, Warrant Officer Bhesi,
who,
although joined as a party at the arbitration, was not cited in the
review. When this was raised, the applicant explained
that the review
impugns the conduct of the employer and the reasonableness of the
commissioner’s award, and not the suitability
of the successful
candidate, and that he was not joined for that reason. Whether, that
explanation notwithstanding, the successful
candidate (a party to the
arbitration, with a direct and substantial interest in an award that
the applicant sought to have set
aside and corrected) ought to have
been joined is a question on which it is unnecessary to express a
concluded view, since the
review fails in any event. The second is
that the applicant disclosed, in argument, that Ms Matthews has in
the meantime been promoted
to the rank of warrant officer with effect
from 4 February 2026, so that, had the review succeeded, the relief
could not have extended
to her appointment to the post, but would at
most have been confined to compensation for the period of
non-promotion up to that
date. As the review fails, neither the
question of relief, nor the exceptional remedy of substitution
(
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
[21]
),
arises for decision.
[34]
Finally, nothing in this judgment detracts
from the acknowledgement, by Colonel Terblanche and, implicitly, by
the commissioner,
that the applicant is an experienced and capable
member of the Service. The question was never her merit in the
abstract, but whether
the promotion process had been shown to be
unfair. It was not.
Costs
[35]
In terms of section 162 of the LRA, costs
are awarded according to the requirements of the law and fairness,
and do not follow the
result as a matter of course. The parties
remain in an ongoing employment relationship; and it was, moreover,
the first respondent’s
own delay that necessitated the
condonation application on which it has succeeded. Having regard to
the requirements of the law
and fairness, this Court makes no order
as to costs.
Order
[36]
In the premises, the following order is
made:
1.
Condonation is granted for the late filing
of the first respondent’s answering affidavit.
2.
The first respondent is granted leave to
file the supplementary affidavit in the condonation application.
3.
The point
in
limine
that the review application has
been deemed withdrawn is dismissed.
4.
The review application is dismissed.
5.
There is no order as to costs.
C de Kock
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
applicant:
I Stockenström of Solidarity
For the first
respondent: Adv P Magona-Dano, instructed by the
State Attorney, Cape Town
[1]
Act
66 of 1995.
[2]
[2012]
ZALAC 9
; (2012) 33 ILJ 2597 (LAC).
[3]
(2006)
27 ILJ 2324 (LC).
[4]
Rules
for the Conduct of Proceedings in the Labour Court, GN 4775,
Government Gazette 50608, 3 May 2024, with effect from 17 July
2024.
[5]
1962
(4) SA 531
(A) at 532C to 532F.
[6]
[2007]
ZACC 24
;
2008 (2) SA 472
(CC) at para 22.
[7]
[2013]
ZACC 7
;
2014 (3) SA 240
(CC) at paras 27 to 28.
[8]
[2014]
6 BLLR 523
(LAC), as cited in the applicant’s heads of
argument.
[9]
[2014]
ZACC 6
;
2014 (5) BCLR 547
(CC);
2014 (3) SA 481
(CC) at para 82.
[10]
Melane
above
fn 5;
National
Union of Mineworkers v Council for Mineral Technology
[1998] ZALAC 22
;
[1999] 3 BLLR 209
(LAC) at para 10, as quoted in
the applicant’s heads of argument.
[11]
[2007]
ZACC 22
;
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at para 110.
[12]
[2013]
ZALAC 28
; (2014) 35 ILJ 943 (LAC) at para 14.
[13]
[2013]
ZASCA 97
;
2013 (6) SA 224
(SCA); (2013) 34 ILJ 2795 (SCA) at para
25.
[14]
Id
fn 3.
[15]
(2020)
41 ILJ 1321 (LAC), as cited in the applicant’s heads of
argument.
[16]
[2012]
ZALCCT 40; (2013) 34 ILJ 1156 (LC), as cited in the applicant’s
heads of argument.
[17]
[1999]
ZACC 11
;
2000 (1) SA 1
(CC) at paras 61 and 63.
[18]
(2005)
26 ILJ 1652 (LAC) at paras 38 to 39, as cited in the applicant’s
heads of argument.
[19]
(2012)
33 ILJ 2201 (LC) at para 19, as cited in the applicant’s heads
of argument.
[20]
South
African Post Office Ltd v De Lacy and Another
2009
(5) SA 255
(SCA) at para 35, as cited in the applicant’s heads
of argument.
[21]
[2015]
ZACC 22
;
2015 (5) SA 245
(CC) at paras 42 and 47.