South African Police Service v Solidarity obo Gibbons and Others (C626/2021) [2024] ZALCCT 72; (2025) 46 ILJ 985 (LC) (3 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Reportable

Case No: C626/2021

In the matter between:

THE SOUTH AFRICAN POLICE SERVICE

Applicant

and

SOLIDARITY obo AP GIBBONS

First Respondent

THE SAFETY AND SECURITY SECTOR OF

THE BARGAINING COUNCIL

Second Respondent

BELLA GOLDMAN N.O

Third Respondent

Heard: 22 November 2023

Delivered: 3 September 2024

JUDGMENT

MAHALELO, AJ

Introduction

[1] This is an application in terms of section 145(1) of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award under case number PSSS81619/20 dated 18 August 2021 issued by the third respondent wherein he ruled that Mr Gibbons was subjected to an unfair labour practice relating to promotion as per section 186(2)(a) of the LRA and ordered the applicant to place him in the post of Captain at Woodstock Police Station by no later than 1 October 2021. The Review is opposed by the first respondent on behalf of Mr Gibbons.

[2] The applicant delayed in bringing the review application and filed an application to have the delay condoned. A decision to grant or refuse condonation requires this Court to exercise its discretion when deciding whether

the applicant has shown good cause why the late filing should be condoned. Any applicant seeking condonation must set out the grounds

established in Melane v Santam Insurance Company Limited.[2] This, in turn, must deal with the degree of lateness, the reasons for lateness, the prospects of success and any prejudice to the other party. The delay in this matter is not excessive; the explanation proffered by the applicant in terms of his condonation

application is reasonably valid, the outcome of this review will serve the interests of justice as the outcome will bring legal

certainty; and in any event, the first respondent has not opposed the application for condonation.

[3] The late filing of the review application is therefore granted.

Background Facts

[4] Mr Gibbons was employed by the South African Police Service (SAPS) in December 1988. In 1996, he was promoted to the rank of Warrant Officer. On 28 February 2017 he resigned and was again employed by SAPS in December 2017 as a Warrant Officer posted to Philippi East police station. On 24 August 2018, certain posts were made available for promotion purposes in terms of notice 8/1/1(volume 69) headed “Post promotions: phase 1: 2018-2019 financial year: employees of the South African Police Service”.

[5] During October 2018, Mr Gibbons applied for the advertised position of Captain based at Woodstock Police Station. He was shortlisted and interviewed, he scored the highest points and was recommended by the panel for the position. The panel, when recommending him indicated that he complied with the experience and qualification requirements. Subsequently, a letter dated 13 November 2018 was sent from the office of the National Commissioner to all provincial Commissioners with reference “8/1/1(Volume 70)(the conditional approval)” informing them of the conditional approval of promotion of the employees whose names were included in the list. Mr Gibbons’ name was amongst them. The letter further stated the conditions under which the promotion of employees would become effective.

[6] On 7 December 2018, Mr Gibbons was informed at station level that his promotion to the rank of Captain was conditionally approved with effect from 1 December 2018 and he was asked to sign a letter of acceptance of his conditional promotion. On 13 December 2018, his Commander signed a certificate confirming his suitability for the post. On 9 December 2018, Mr Gibbons took part in a ceremonial parade where his new rank was bestowed on him and the required epaulettes were affixed to his uniform.

[7] Thereafter the Provincial Promotions Office of the applicant conducted a verification process in order to ensure that all the requirements for promotion had been complied with. Mr Gibbons was by then already six months into the position of Captain. Through its verification process, the applicant found that Mr Gibbons lacked compliance with the minimum requirement for length of service in the current post. He was informed that his promotion could not be confirmed because he did not have the required four-year uninterrupted service as a Warrant Officer at the time of his application. On 28 December 2018, he was given a letter to this effect. He was given 14 days to make representations as to why his position should not be withdrawn. On 11 January 2019, he made representations to the Provincial Commissioner which were unsuccessful.

[8] On 10 July 2019, he was advised to report back to Philippi East SAPS, as a Warrant Officer. On 17 July 2019, he lodged a grievance which was never resolved. On 4 October 2019, he referred an unfair labour practice dispute to the second respondent. The matter was mediated on 5 October 2019 but was not resolved. It was thereafter referred for arbitration. On 18 August 2021, the arbitrator issued an award.

The award

[9] The arbitrator acting under the auspices of the Safety and Security Sector Bargaining Council (SSSBC) issued an award dated 18 August 2021 in which she held that:

‘I find that the applicant was subjected to an unfair labour practice relating to promotion as per Section 186(2)(a) of the LRA. The respondent, the South African Police Service, is ordered to place the applicant, Anthony Gibbons in the post of Captain at Woodstock Station by no later than 1 October 2021. The respondent is ordered as from 1 October 2021 to pay the applicant the salary appropriate for a Captain. The applicant’s years of service as a Captain must run as from 1 January 2019 and the persal system must reflect the same. The payback, which is the difference between the applicant salary as a Warrant Officer and that of a Captain from 1 January 2019 to 1 October 2021 amounts to R275 634.00.” She reasoned that “the case hinges on the meaning of uninterrupted service. The law of interpretation states that if the meaning of the word is clear, then a literal interpretation is applied. Should the words be ambiguous, vague, or misleading, or a strict literal interpretation of this result in an absurdity, then one can deviate from the literal meaning and use such aids as contextualization (purposive approach).’

Test for review

[10] The test on review is well-established, and for an applicant to be successful, the Court must be persuaded that the award or the decision arrived at by the Arbitrator is one that a reasonable decision-maker would not have made in the light of the material presented to him or her. The enquiry is not whether the decision is correct or not, but whether the Arbitrator properly

applied her mind to the issues before her, considered all the material before, and adopted an approach that gave effect to the

purpose of the provisions of the agreement.

[11] As it was stated in Ekurhuleni Metropolitan Municipality v SA Municipal Workers Union & others;[3]

‘…The test is concerned with outcomes, not the process by which the outcomes are achieved. Only when the outcome is one which no reasonable

arbitrator, with the material that was to hand, could produce, is an award liable to be set aside. The frailties of an arbitrator’s

reasoning, or inattention to mentioning every facet of relevance, or clumsiness in articulation are unimportant, unless they are causally connected to an unfair outcome.’[4]

[12] The courts have been clear that the failure by an arbitrator to attach particular weight to evidence or attachment of weight to the relevant evidence and the like is not in itself a basis for review; the resultant decision must fall outside of a band of decisions to which reasonable decision-makers could come on the same material.

[13] In Head of the Department of Education v Mofokeng and others[5] the Labour Appeal Court provided comprehensive restatement of the test on review as follows:

‘[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (“the SCA”) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.

[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.

[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to “defects” as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.

[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’

Grounds for review

[14] The following grounds of review appear in the applicant’s founding affidavit:

1. The arbitrator committed a material error of law when she interpreted the term uninterrupted service as including the first respondent’s period of service before his resignation. The arbitrator found that section 3 of the LRA requires her to interpret the wording to give effect to the primary objectives of the provision, but then failed to consider the purpose of the provision and distil a sensible meaning that does not undermine the purpose of the provision. Instead, she substituted what she regarded as a clear meaning for the word actually used.

2. The arbitrator misconstrued the law on interpretation as set out in paragraph 27 of the Award.

3. The arbitrator erred when attributing meaning to the provision, in that she failed to weigh the possible meaning in light of the ordinary rules of grammar and syntax, the context in which the terms appear and the apparent purpose for which the provision is directed. The arbitrator, in the process of attributing meaning to the term uninterrupted service, failed to give due weight to the definition of uninterrupted service.

4. The arbitrator made a material error of law in that she failed to take into account the principle of legality which places on SAPS, a constitutional obligation to take steps to remedy irregularities and prevent unlawful appointments.

5. The arbitrator misconstrued the evidence in finding that the first respondent was required to have four years of uninterrupted service when he re-enlisted. Further, that no reasons were given for the first respondent's representation not being successful and that the appointment was not conditional because there was a formal ceremony held at a parade to appoint him to the position and he was allowed to report to Woodstock Police Station and perform the duties of a Captain.

6. The arbitrator erroneously took into account irrelevant factors and/ or gave undue weight to the fact that the first respondent did not hide the fact that he had a break in service therefore SAPS could have corrected the error at the shortlisting stage or interview stage.

[15] In accordance with the provisions of section 23 of the LRA collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all.[6] The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk & others.[7] These are that:

‘i. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.

iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.

iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;[8]

v. The “parol evidence” rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.

vi. Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.’

Interpretation generally

[16] The Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality[9] (Endumeni), described the process of interpretation as:

‘Attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.’ [Footnotes omitted]

[17] In Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk[10], the SCA held that:

‘Whilst the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is ‘essentially one unitary exercise.’ [Footnotes omitted]

[18] In applying the above-quoted dictum from Endumeni, the Constitutional Court in Association of Mineworkers & Construction Union & others v Chamber of Mines of SA & others[11] added that:

‘All interpretations of law are themselves in a sense ‘factual’: certain textual and other sources (for example, statutes, common and customary law) are excavated and marked out as factually ‘law’, in contradiction to non-law. But this process itself involves a contextual analysis of those source… Indeed, interpretation and application are simultaneous and intricated. The most imaginative exponent of this insight is Ronald Dworkin. See Dworkin Law’s Empire (Harvard University Press Cambridge 1986) at vii: ‘legal reasoning is an exercise in constructive interpretation’, in

which we advance ‘the best justification of our legal practices as a whole’.’

[19] In University of Johannesburg v Auckland Park Theological Seminary and another[12] (University of Johannesburg), the constitutional court held as follows regarding the impact of Endumeni on the interpretation process:

‘[66] The approach in Endumeni “updated” the previous position, which was that context could be resorted to if there was ambiguity or lack of clarity in the text. The Supreme Court of Appeal has explicitly pointed out in cases subsequent to Endumeni that context and purpose must be taken into account as a matter of course, whether or not the words used in the contract are ambiguous. A court interpreting a contract has to, from the onset, consider the contract's factual matrix, its purpose, the circumstances leading up to its conclusion, and the knowledge at the time of those who negotiated and produced the contract.

[67] This means that parties will invariably have to adduce evidence to establish the context and purpose of the relevant contractual provisions. That evidence could include the pre-contractual exchanges between the parties leading up to the conclusion of the contract and evidence of the context in which a contract was concluded…’

[20] Central to this review application is the allegation that the arbitrator committed various reviewable irregularities in coming to her decision when she incorrectly interpreted the words “uninterrupted service” to include a break in service. The applicant’s argument is that the arbitrator interpreted the term “uninterrupted service” to permit an interruption in service which is contrary to the ordinary meaning of uninterrupted and continuous service. The applicant argued that if it was the intention of SAPS to consider previous employment for promotion to a post this would have been expressly stated in the National Instruction. On the other hand, the respondent submitted that the correct interpretation of “uninterrupted service” as defined by the National Instruction means continuous service, without interruption and on the required level or rank, but excludes any period of acting on the required level or rank. It is the respondents’ argument that if it was the intention of the SAPS to exclude employees with a break in service, they would have included such an exclusion just as they included the words “but excluded any period of acting on the required level or rank.” Thus, the respondent argued that even if the words “uninterrupted service” were interpreted as literal or where a purposive approach was needed, the interpretation would still have come down to Gibbons having the necessary experience as he was serving in the rank of Warrant Officer for more than twenty years. The respondent therefore submitted that the Commissioner's interpretation and reasoning is one which a reasonable decision maker would have made in the same position and the review must fail.

Legal Requirement for promotion to Captain within the SAPS

[21] The Minimum requirements for promotion to Captain are set out in the SSSBC Agreement 3 of 2011 read with the National Instruction 3 of 2015. The SSSBC agreement defines post promotion as defined in the SAPS policy on promotion and grade progression as the movement of an employee from his or her current post to an advertised, vacant and funded post on the next higher level or band or rank with increased responsibilities or complexities of duties.

[22] The following general principles are applied to post promotions within the SAPS in terms of their agreement.

‘4.2.1 In addition to the requirements referred to in subparagraph 5. 2.1. and 5.2.2 (below), an employee must also comply with any statutory or specific qualification or other requirements of a post which may be determined by the Service or governed by a regulatory authority pertaining to a specific occupation.

4.2.2 Post promotions are based on the following principles.

(a) Availability of vacant funded post,

(b) Advertisement and selection process,

(c) Satisfactory performance,

(d) Years of service on a salary level or rank,

(e) Suitability, and

(f) The National Commissioner is under no obligation to fill an advertised post.’

[23] In terms of clause 5.2.2 of the Agreement “In addition to general requirements referred to in subparagraph 4.2.1 and 4.2.2 a member must comply with the relevant requirements for post promotion as set out below. The requirements for promotion from Warrant Officer to Lieutenant and from Lieutenant to Captain “is a minimum of two years uninterrupted service on the level of Lieutenant”.

[24] The position of Lieutenant in the SAPS has fallen away and the minimum requirement for promotion from Warrant Officer to Captain is therefore calculated as an accumulative period of four years of uninterrupted service on the level of Warrant Officer at the date of application.

[25] The National Instruction provides that it must be read with the Agreement and that it applies to all employees of SAPS who have been appointed in terms of the South African Police Service Act 1995.

[26] Paragraph 2 of the National Instruction defines uninterrupted service as follows:

‘continuous service in the Service and Public Service without any interruption and on the required level or rank, but exclude any period of acting on the required level or rank.’

[27] Paragraph 4(1)(b) of the National Instruction provides that:

‘(b) The fact that a candidate obtained the highest rating by an evaluation panel appointed in terms of this instruction or highest marks or percentages during his or her PEP evaluation or was recommended by his or her Commander or by an evaluation panel for promotion, does not establish any right or legitimate expectation on the part of the candidate to be promoted to the advertised post or any other post or to a higher rank.’

[28] Paragraph 4(3) of the Agreement sets out the general requirements for promotion, amongst others:

‘(a) An employee must comply with the relevant requirements for post promotions as set out in the policy.

…

(e) In addition to the requirements for promotion set out in subparagraphs 5.2.1 and 5.2.2 in the policy an employee must also comply with any statutory specific qualification or other requirement for a post which may be determined by the Service or governed by the regulatory authority pertaining to a specific occupation.

(h) An employee who applies for an advertised post must, before or on the closing date for applications, comply with the relevant requirements as set out in the Policy.’

[29] In interpreting the collective agreement, the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract.[13] Since the Arbitrator derives her powers from the LRA, she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements, namely, to promote the effective, fair and speedy resolution of labour disputes.[14] In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.

[30] In determining the issues in this review application the starting point is the language used in the agreement. The SSSBC Agreement uses the word “uninterrupted service”, which is defined as “continuous service in the service without any interruption and on the required level of rank”. The Oxford Dictionary defines “uninterrupted” as without a break, in continuity and continuous as forming an unbroken whole, without interruption. The Oxford Dictionary definition of continuous is characterized by continuity, extending in space without interruption of substance, and having no interstices or breaks.

[31] The wording of the provision which caters for the requirements for promotion from the rank of Warrant Officer to Captain is clear and unambiguous. The applicant for a promotion post (Captain) must have been in an uninterrupted continuous service as a Warrant Officer for a period of four years at the time of applying for the promotion post.

[32] In reaching his conclusion, the arbitrator reasoned that if SAPS had intended not to accept prior periods of employment before resignation, then the words break in service would have been used. This, in my view, is contradicted by the ordinary meaning of uninterrupted and continuous service in the rank of Warrant officer at the time of application. The arbitrator clearly strained the interpretation of the wording “uninterrupted service”. The arbitrator, in the process of attributing meaning to the term uninterrupted service failed to give due weight to the plain meaning thereof. The definition of uninterrupted service requires continuous service without any interruption at the time of application. Paragraph 4.3 of the National Instruction requires that an employee who applies for an advertised post must, before or on the closing date of applications,

comply with the relevant requirements as set out in the policy. These provisions indicate that the employee is required to have four years of uninterrupted service at the time of the application. Further, the arbitrator failed to consider the context provided by Colonel Gwanya who testified that service must be continuous and unbroken, that resignation constitutes a break or interruption of service and that for purposes of promotion, the service starts from the date of enlistment and not the date of previous appointment in a similar position. By reading the uninterrupted period of service to include a break in service prior to employment in the current position the arbitrator defeated the purpose of the provision. The arbitrator’s interpretation is therefore contrary to plain language, inconsistent with the context and undermines the purpose of the provision. The interpretation by the arbitrator thus constitutes a patent error of law which is not justified.

[33] The arbitrator further committed a material error of law in that she failed to take into account the principle of legality which places on SAPS a constitutional obligation to take steps to remedy irregularities and prevent unlawful appointments. The arbitrator misconstrued the evidence in finding that Mr Gibbons was not required to have four years of uninterrupted service when he applied for the advertised post and that no reasons were given for his representation not being successful. Mr Gibbons was informed that his representations were unsuccessful because he did not meet the minimum requirements for post promotion to Captain at the time of his application. The arbitrator further found that the appointment was not conditional because there was a formal ceremony held at a parade ostensibly appointing Mr Gibbons to the position of Captain, and he was allowed to report to Woodstock Police Station and perform the duties of Captain. It is clear from the evidence that the offer of promotion expressly stated that it was conditional, and Mr Gibbons was informed of such. He was informed in writing on 28 December 2018 before taking up his post at Woodstock Police Station that he did not meet the minimum requirements for the promotion and that his promotion could not be confirmed.

[34] It is not in dispute that Mr Gibbons did not have four years of continuous uninterrupted service as a Warrant Officer at the date of his application to be promoted to the post of Captain. It is common cause that he had a break in service, and he had less than four years of continuous service after re-enlistment in the position of Warrant officer. Having regard to the plain meaning of the words, the language used in the light of the ordinary rules of grammar and syntax and the context in which the words are used, it is apparent that uninterrupted service

meant that Mr Gibbons had to have four years after re-enlistment at the time of application.

[35] It is therefore apparent that the arbitrator in the process of attributing meaning to the term “uninterrupted service” failed to give due weight to the definition of “uninterrupted service” which required continuous service without any interruption or break. Consequently, Mr Gibbons did not meet the clearly stated requirements for promotion to the post of Captain. The interpretation adopted by the Arbitrator was not fair to the parties, and the essence of the collective agreement. In the end and having considered all the factors pertinent to this case, I am not satisfied that the arbitrator properly applied his mind and adopted an approach that gave effect to the spirit and purpose of the provisions of the collective agreement, and those of the LRA. Thus, the conclusions reached by the arbitrator are not a correct decision that is justified by the material placed before her and it does not fall within a band of reasonableness. The arbitrator incorrectly interpreted the words uninterrupted service in finding differently. The Commissioner committed a material error of law.

[36] In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)[15], the Court made it clear that:

‘A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.’

[37] This error committed by the arbitrator in this review is of such a material nature that it resulted in a decision which, on a proper interpretation of the term uninterrupted service was one that a reasonable arbitrator on the material before them could not reach.

[38] It follows for these reasons that the review must succeed.

Costs

[39] This then only leaves the issue of costs. In terms of the provisions of section 162(1) of the LRA, I have a wide discretion when it comes to the issue of costs. In consideration of law and fairness, I do not intend to burden the first respondent with an order of costs.

[40] In the result I make the following order:

Order

1. The condonation for the late filing of the review is granted.

2. The award of the third respondent under case number PSSS81619/20 dated 18 August 2021 is reviewed and set aside.

3. There is no order as to costs.

M B Mahalelo

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate J Williams

Instructed by:

State Attorney, Cape Town

For Respondents:

A Nel

Instructed by:

Solidarity

[1] Act 66 of 1995, as amended.

[2] 1962 (4) SA 531(A).

[3] [2018] 3 BLLR 246 (LAC); (2018) 39 ILJ 546 (LAC).

[4] At para 18.

[5] [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 at paras 30-33.

[6] See Public Servants Associations on behalf of Liebenberg v Department of Defence & others (2013) 34 ILJ 1769 (LC) at para 2.

[7] (2014) 35 ILJ 3078 (LAC) at para 22. See also North East Cape Forests v SAAPAWU and others [1997] 6 BLLR 711 (LAC).

[8]See Natal Joint Municipal Pension Fund v Endumeni Municipality (2012) 2 All SA 262 (SCA).

[9] Supra.

[10] [2013] ZASCA 176; [2014] 1 All SA 517 (SCA).

[11] (2017) 38 ILJ 831 (CC) at fn 28.

[12] 2021 (6) SA 1 (CC); [2021] ZACC 13 at paras 66 – 67.

[13] Western Cape Department of Health v Van Wyk & others (CA1/2013) (2014) ZALAC 25 (2014) 35 ILJ 3078 (LAC), at para 22.

[14] SA Municipal Workers Union v SA Local Bargaining Council & others (2012) 33 ILJ 353 (LAC), at para 15.

[15] (2013) 34 ILJ 2795 (SCA) at para 25.