South African Police Service v Safety and Security Sectoral Bargaining Council and Others (JR2087/2015) [2021] ZALCJHB 147 (21 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2087/2015

In the matter between:

SOUTH AFRICAN POLICE SERVICE

Applicant

and

SAFETY AND SECURITY SECTORAL BARGAINING

COUNCIL

First Respondent

COMMISSIONER NH MATSEPE N.O

Second Respondent

CONSTABLE A MASHIANE

Third Respondent

Heard:

27 January 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 21 June 2021 at 18:00

JUDGMENT

TLHOTLHALEMAJE, J:

Introduction and background:

[1] Before the Court are multiple applications, viz, applications by the applicant (SAPS) to review and set aside the ‘jurisdictional ruling’ issued by third respondent

(Arbitrator), and an application for condonation for the late filing of that review application. In opposing both applications, the third respondent (Mr Mashiane), has also approached the Court in terms of Rule 11 of the Rules of the Court, to have both the review and condonation applications dismissed on account of lack of timeous prosecution.

[2] The dispute between the parties have a long history dating back to 16 January 2012, when Mashiane was dismissed by the SAPS following a disciplinary enquiry. The SAPS contends that in terms of the provisions of Regulation 17(4) of its Discipline Regulations, Mashiane ought to have lodged an internal appeal to the Appeal Authority within 10 days from receipt of the outcome of the disciplinary hearing. In this case, the appeal was however lodged on 19 March 2015, some three years since the

outcome. The appeal was accompanied by an application for condonation, which the Appeal Authority had dismissed on 23 April 2015.

[3] Mashiane subsequently referred an alleged unfair dismissal dispute to the first respondent, Safety and Security Sectoral Bargaining Council (SSSBC). When the matter came before the Arbitrator, the SAPS contended that the SSSBC lacked jurisdiction to entertain the referral since it was not lodged within 30 days as contemplated in section 191(1)(b)(i) of the Labour Relations Act (LRA)[1]. The SAPS had further contended that since the application for condonation for the lodging of the internal appeal was dismissed, the date of the dispute remained the date of the dismissal, being 16 January 2012.

[4] Mashiane’s case before the Arbitrator was that to the extent that he had lodged an appeal with an application for condonation, and further to the extent that the Appeal Authority made its decision in that regard on 23 April 2015, that remained the date on which internal procedures were deemed to have been exhausted for the purposes of the 30 days contemplated in section 191(1)(b)(i) of the LRA.

[5] The Arbitrator having heard the matter, issued a ruling on 14 August 2015 dismissing the SAPS’ preliminary points, and held that the SSSBC had jurisdiction to determine the dispute. The Arbitrator further directed the SSSBC to set the matter down for a Con/Arb hearing.

[6] The SAPS contends that it received a copy of the ruling on 3 September 2015, and had launched an application to review and set aside the Arbitrator’s ruling on 4 November 2015, which was served on Mashiane on 23 October 2015. On 2 December 2015, the SAPS had filed its Notice in terms of Rule 7A(8)(b) of the Rules of this Court, standing by its Founding Affidavit.

[7] Mashiane had filed his opposing affidavit on or about 30 March 2016. The matter initially came before the Court for pre-enrolment on 28 February 2017. Prinsloo J had other than enrolling the matter for a hearing on 7 November 2017, also directed SAPS to file an application for condonation for the late filing of the review application by no later than 14 March 2017,

failing which it would be barred from taking any further steps in respect of the review application.

[8] The SAPS failed to comply with the time frames as set by Prinsloo J, and only did so a month later on 10 April 2017. On 24 May 2017, and after receipt of the applications for condonation, Mashiane launched an application in terms of Rule 11 to dismiss the review and condonation applications.

[9] The Rule 11 application came before Barnes AJ on 7 November 2017, who had postponed the matter with costs, further directing SAPS to file its answering affidavit to the application within seven days of the order. The matter once again came before the Court on 7 November 2018 and the SAPS was not in attendance. Prinsloo J had set aside the application for condonation, dismissed the review application, and mulcted the SAPS with a punitive costs order.

[10] Following an application for rescission of Prinsloo J’s order, the matter came before Mabaso AJ on 27 August 2019, who had condoned the late filing of the rescission application, and also rescinded Prinsloo J’s order of 7 November 2018.

The Rule 11 application:

[11] For obvious reasons, this application ought to be determined before all the other applications in view of the consequences that flow from its determination. It is trite that any delays in expeditiously resolving labour disputes undermines the primary object of the LRA, and that such delays are not only detrimental to employees who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years[2]. The principles as applicable to Rule 11 applications were set out in Karan t/a Karan Beef Feedlot and Another v Randall[3], where Van Niekerk J held as follows;

‘[14] In summary: despite the fact that the rules of this court make no specific provision for an application to dismiss a claim on account of the delay in its prosecution, the court has a discretion to grant an order to dismiss a claim on account of an unreasonable delay in pursuing it. In the exercise of its discretion, the court ought to consider three factors:

o the length of the delay;

o the explanation for the delay;

o and the effect of the delay on the other party and the prejudice that that party will suffer should the claim not be dismissed.

This is subject to the consideration that an application to dismiss is a drastic remedy, and should not be granted unless the dilatory party has been placed on terms, and when appropriate, after any further steps as may have been available to the aggrieved party to bring the matter to finality have been taken...’

[12] The basis of the Rule 11 application was that the SAPS had not complied with the order issued by Prinsloo J at the pre-enrolment hearing to file an application for condonation for the late filing of the review application, and had only done so a month after the deadline, without seeking an indulgence from Mashiane. He had complained that the SAPS had displayed a complete disregard for the order, and had no excuse for its failure to comply with the order.

[13] The application for condonation of the late filing of the review application and condonation for instituting the condonation after 14 March 2017 was served on Mashiane on 10 April 2017, some 18 court days outside the time period set by Prinsloo J. It is therefore not correct that the SAPS took over a month to comply with Prinsloo J’s order. Those two applications remained unopposed and Mashiane had instead launched the Rule 11 application.

[14] In opposing the Rule 11 application, the deponent to the answering affidavit, Theodorah Kgaole averred that the SAPS was not aware of it until at the hearing of the review application on 7 November 2017 before Barnes AJ, and were granted an indulgence to file an answering affidavit. In regards to the order of Prinsloo J of 28 February 2017, he averred that he was only informed of it by an official of the State Attorney on 17 March 2017, and the need to file an application for condonation in respect of the review application. Consultations were then held on 23 March 2017 with the new State Attorney allocated the matter, resulting in the filing on 10 April 2017.

[15] Having had regard to the delay between the deadline set by Prinsloo J, which in my view is not excessive, and further having had regard to the explanation for that delay, there is no basis for any conclusion to be reached that this Court ought to exercise its discretion in favour of Mashiane and dismiss the review application or the applications for condonation in that regard. Inasmuch as it is acknowledged that the SAPS was to be ordinarily barred from taking any further steps post 14 March 2017, this did not imply that such a drastic measure would ordinarily follow where there was non-compliance. Where an explanation was proffered for non-compliance with a court order, and the explanation is deemed to be reasonable and acceptable, clearly the defaulting party must be granted an indulgence.

[16] Equally fatal to the Rule 11 application is that notwithstanding the service of the application for condonation for the late filing of the review application and an application for condonation for non-compliance with Prinsloo J’s order, Mashiane did not oppose those applications. It is therefore not known on what basis the SAPS’ explanation for the delay can be deemed not to be acceptable, nor can it be known what the effect of the delay on Mashiane was and the prejudice that he would suffer should

the review and condonation applications not be dismissed. Even then, given the delays in either filing the review application or

condonation in that regard, it can hardly be said that any prejudice to Mashiane is as a consequence of these delays, more particularly

when regard is had to the delays caused by him in the first place in seeking to challenge his dismissal that took place in April 2012.

[17] In any event, to the extent that prior to the filing of the condonation applications, the SAPS had not been placed on terms, and further in the light of what has already been said in regards to the net effect of Prinsloo J’s order where the deadline was not met, it follows that since the Rule 11 application was launched after the condonation applications were filed and served, it can clearly not be in the interests of justice to simply regards those applications as an irregular step and ignore them, and grant the Mashiane the relief he seeks. This point is even more significant when regard is had to the SAPS’ prospects of success on the merits, which merits I will deal with below. It follows therefore that the Rule 11 application ought to be dismissed.

The application for condonation for the late filing of the review application:

[18] The principles applicable to applications for condonation are trite. An applicant seeking an indulgence from the Court is required to show good cause[4]. In Brummer v Gorfil Brothers Investments (Pty) Ltd, it has since pointed out that an application for condonation should be granted if it is in the interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors outlined in Melane,[5] including the nature of the relief sought, the nature and cause of any other delay in respect of which condonation is sought, and the effect of the delay on the administration of justice[6].

[19] Significant with a determination of such applications is that condonation cannot be had for the mere asking, and that a party is required to make out a case entitling it to the court’s

indulgence by showing sufficient cause, and giving a full, detailed, and accurate account of the causes of the delay[7]. In the end, the explanation must be reasonable enough to excuse the default.[8]

[20] Equally important is that an application for condonation must be filed without delay and/or as soon as the applicant becomes aware of the need to do so[9]. Thus, where the applicant delays filing the application for condonation despite being aware of the need to do so, or despite being put on terms, the Court may take a dim view, absent a proper and satisfactory explanation for the further delays.[10]

[21] In this case, the delay in filing the review application is exactly five days, which delay is clearly insignificant. The deponent to the founding affidavit, Griffith Mudau, averred that a copy of the Arbitrator’s award was received on 3 September 2015, and that the matter was immediately referred to the Office of the State Attorney. Counsel was then briefed on 24 September 2015, resulting with consultations on 8 and 29 September 2015. The Notice of Motion and the founding affidavit were then commissioned and sent back to the Office of the State Attorney on 29 September 2015. Mudau cannot explain the reasons why the application was only served on 23 October 2015. Even if it can be said that the explanation for the five days is not explained, clearly the SAPS cannot be deprived an opportunity to have the matter heard in the light of the insignificant nature of the delay.

[22] To the extent that following from the pre-enrolment hearing before Prinsloo J SAPS was directed to file an application for condonation, Mudau had explained that he also was informed of the need to do so, and this came as a surprise as he was under the impression that the review application was timeously filed and served. Be that as it may, the delay between the deadline set by Prinsloo J and the filing of the condonation applications has already been dealt with in this judgment, and in the end, I am satisfied that

there is a reasonable and acceptable explanation in that regard, and SAPS cannot be accused of further delays upon becoming aware of the need to file an application for condonation in respect of the review application.

[23] Of paramount importance in this matter are the parties’ prospects of success on the merits of the review application. In Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd,[11] it was held that a consideration of prospects of success merely implies a determination of the likelihood or chance of success when the main case is heard. In Mulaudzi[12], the Supreme Court of Appeal held that it is advisable in such applications, to set forth briefly and succinctly such essential information as may enable the court to assess an applicant's prospects of success.

[24] In this case, the SAPS has set out in details in the founding affidavit and the review application itself, the basis upon which it averred that it had greater prospects averments in regards to its prospects of success on review than Mashiane. I do not deem it necessary to spell out in detail what the averments in the founding affidavit are as these are repeated in the application for review, which I propose to deal with. In the end however, and having regard to those averments, there is no doubt that the interests of justice dictate that condonation be granted in respect of all delays.

The review application:

[25] The background material leading to the referral of the dispute to the SSSBC are hardly in dispute. It is not for this Court to deal with the circumstances leading to the dismissal of Mashiane or the fairness thereof in the light of the jurisdictional factors that Arbitrator was seized with. It is however worth repeating that Mashiane did not lodge his internal appeal after his dismissal within ten days in accordance with the provisions of Clause 17(4) of the SAPS Discipline Regulations. The appeal was lodged more than three years after the dismissal, and the primary question before the Arbitrator was the date of the dismissal, being either 16 January 2012, or 23 April 2015 when the application for condonation for the late filing of the internal appeal was dismissed.

[26] In review proceedings regarding jurisdictional rulings, the question before the Court is whether the Arbitrator’s decision is correct. Thus, the issue is whether, objectively speaking, the facts which would give the SSSBC jurisdiction to determine the alleged unfair dismissal dispute before it existed. If such facts did not exist, then it would have lacked jurisdiction[13].

[27] Upon a consideration of the background of this matter, the import of Clause 17(4) of the Regulations, its effects, the ruling by the Appeals Authority, and the conclusions reached in the ‘jurisdictional ruling’, the invariable conclusion to be reached is that the Arbitrator completely got it all wrong, and that his ruling is indefensible.

[28] From the ruling, the Arbitrator appeared to have had regard to the Regulations, the Constitution of the SSSBC, and the outcome of the Appeals Authority, and for inexplicable reasons, made the following primary conclusions;

a) the SAPS Regulations accommodated condonations;

b) the Regulations do not ‘indicate the degree of lateness within which the applicant may still apply for condonation’.

c) the SAPS Regulation do not ‘place a cut-off limit on lateness, meaning that an employee who is two years late will apply for condonation the same as the employee with two months of lateness’ (Sic).

d) There is a lacuna in the appeal rules processes of SAPS (Sic)

e) An interpretation to be accorded to the Regulations is that it ‘is possible for employees of SAPS to bring condonation application in respect of the lateness of the appeal, even if two years later’

f) It is up to SAPS to amend and modernise its rules and orders to avoid this type of lacuna

g) Since the ‘dispute was referred within 30 days of the appeal outcome, the Council has jurisdiction to entertain the Con/Arb’ (Sic)

[29] It is clear from the above findings that the Arbitrator completely misconceived the nature of the enquiry before him. The enquiry before him was not the interpretation of the SAPS Regulations or to make pronouncement or pass judgment on those Regulations. Clearly the Arbitrator exceeded his powers by venturing into this arena, which conduct resulted in an incorrect finding.

[30] The issue before the Arbitrator was uncomplicated. The jurisdictional question before him turned on the interpretation of section 191(1)(b)(i) of the LRA, and whether the jurisdictional requirements were met in that case. Thus, the question was whether the SSSBC had the requisite jurisdiction in view of the dismissal having taken place on 16 January 2012, and where, after the decision of the Appeals Authority on condonation on 23 April 2015, the subsequent referral to the SSSBC complied with the provisions of section 191(1)(b)(i) of the LRA.

[31] The Appeals Authority decision was clear. It did not condone the late submission of the appeal. That decision effectively meant that the dismissal of Mashiane on 16 January 2012 stood without any further determination on it. The 30 day period therefore ran from the date of the dismissal, and not from when the Appeals Authority declined condonation. This much is clear from the provisions of section 191(1)(b)(i), which provides that even if the referral is made at a later date, the referral must still be within 30 days of the employer making a final decision to dismiss or uphold the dismissal [my emphasis]. The decision of the Appeal Authority did not have the effect of making a final decision or to uphold the dismissal.

[32] The decision not to condone the late appeal did not at all deal with the merits of the appeal against Mashiane’s dismissal for the purposes of compliance with the provisions of section 191(1)(b)(i) of the LRA. The reliance therefore by Mashiane on Fidelity Guards Holdings (Pty) Ltd v Epstein & others[14] for the proposition that it is reasonable for an employee to believe that the date of the dispute is when he/she is told finally that an appeal has been refused is misplaced. In this instance, when the Appeals Authority refused condonation, it did not refuse an appeal on its merits, but had simply refused to hear it because it was lodged out of time.

[33] Clearly the Arbitrator failed to appreciate the consequences of the nature of the decision of the Appeals Authority. Thus, to the extent that the dispute for the alleged unfair dismissal was lodged some three years after the fact, and without an application for condonation, the Arbitrator or the SSSBC lacked jurisdiction to determine the alleged unfair dismissal dispute. In the end, all the other conclusions and pronouncements made by the Arbitrator in regards to the Regulations and its interpretation were not only irrelevant, but were devoid of any logic.

[34] To the extent that the Appeals Authority had declined to condone the late submission of the appeal, that ought to have been the end of the matter. As correctly pointed out on behalf of the SAPS, Mashiane's remedy would have been to approach this Court under the provisions of section 158(1)(h) of the LRA, to review and set aside the Appeal Authority’s refusal to grant condonation rather than approaching the SSSBC. The Arbitrator therefore did not even have jurisdiction to pronounce on the outcome of the Appeals Authority.

[35] In summary, and in the light of the above conclusions, it follows that other than the Rule 11 application having no merit, SAPS has on the other, demonstrated good cause in respect of the late filing of the review application and the applications for condonation in that regard. Furthermore, in the light of the findings made, no purpose would be served by remitting this matter back to the SSSBC, and the Court is in a position to substitute the Arbitrator’s ruling. I have further had regard to the requirements of law and fairness in regards to an order of costs, and given the history of this application and the multiple applications before the Court, I do not deem it appropriate to make any award as to costs

[36] Accordingly, the following order is made;

Order:

1. The Third Respondent’s application in terms of Rule 11 of the Rules of this Court is dismissed.

2. The Applicant’s late filing of the review application, and the late filing of the condonation application itself is condoned.

3. The ‘Jurisdictional Ruling’ issued by the Second Respondent is reviewed, set aside and substituted with an order that;

‘The First Respondent (SSSBC) lacks jurisdiction to determine the alleged unfair dismissal dispute referred by the Third Respondent (Constable Mashiane)’

4. There is no order as to costs.

____________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: MS Mphahlele SC, instructed by State Attorney, Pretoria

For the Respondent: K Mthethwa, Makgahlela Mashaba Attorneys

[1] Act 66 of 1995, as amended

[2] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration and Others (2016) 37 ILJ 313 (CC) at para [1]

[3] (2009) 30 ILJ 2937 (LC)

[4]Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532b-E, where it was held; ‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually

relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily

these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked”

[4]Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532b-E, where it was held;

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually

relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily

these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked”

[5] Supra

[6] [2000] ZACC 3; 2000 (5) BCLR 465; 2000 (2) SA 837 (CC) at para 3; See also Ndlovu v S 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC) (15 June 2017) at paras 22 – 23; Van Wyk v Unitas Hospital (Open Democratic Advice Centre as amicus curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) at 477A-B; SA Post Office Ltd v CCMA [2012] 1 BLLR 30 (LAC) at para [23], where Waglay DJP (as he was then) stated that; ‘In my view, each condonation application must be decided on its own facts bearing in mind the general criteria. While the rules are there to be applied, they are not inflexible but the flexibility is directly linked to and apportioned in accordance with the interests of justice; prejudice; prospects of success; and finally, degree of delay and the explanation thereof. The issue of delay must be viewed in relation to the expedition with which the law expects the principal matter to be resolved’

[6] [2000] ZACC 3; 2000 (5) BCLR 465; 2000 (2) SA 837 (CC) at para 3; See also Ndlovu v S 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC) (15 June 2017) at paras 22 – 23; Van Wyk v Unitas Hospital (Open Democratic Advice Centre as amicus curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) at 477A-B; SA Post Office Ltd v CCMA [2012] 1 BLLR 30 (LAC) at para [23], where Waglay DJP (as he was then) stated that;

‘In my view, each condonation application must be decided on its own facts bearing in mind the general criteria. While the rules are there to be applied, they are not inflexible but the flexibility is directly linked to and apportioned in accordance with the interests of justice; prejudice; prospects of success; and finally, degree of delay and the explanation thereof. The issue of delay must be viewed in relation to the expedition with which the law expects the principal matter to be resolved’

[7] Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017 (6) SA 90 (SCA) at para 6

[8] Ndlovu v S at para 31 supra at fn 3

[9] See All Round Tooling (Pty) Ltd v NUMSA (1998) 8 BLLR 847 (LAC); Rennie V Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) At 129G where it was held: 'whenever an appellant realises that he has not complied with a rule of court he should apply for condonation without delay.'

[9] See All Round Tooling (Pty) Ltd v NUMSA (1998) 8 BLLR 847 (LAC); Rennie V Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) At 129G where it was held:

'whenever an appellant realises that he has not complied with a rule of court he should

apply for condonation without delay.'

[10] See Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) At 449G

[11] 2009 30 ILJ 347 (LC) at para 27

[12] Supra fn 5 at para [34]

[13] See Jonsson Uniform Solutions (Pty) Ltd v Lynette Brown and Others [2014] JOL 32513 (LAC) at para 35; SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC); (2008) 29 ILJ 2218 (LAC) at para 41

[14] (2000) 21 ILJ 2382 (LAC) at para 21