Minister of Police v Safety and Security Sectoral Bargaining Council and Others

Citation: [2026] ZALCJHB 49

Presiding Judge: Horn AJ

Court: Labour Court of South Africa, Johannesburg

Nature of the Application

[1] This was an application in which the applicant sought to show good cause why a review application ought to be retrieved from the archive and/or reinstated.

Factual Matrix

[6]–[10] The employees were dismissed following allegations that they misappropriated funds from admission of guilt fines paid by suspects arrested during the COVID-19 lockdown. The suspects paid R2,500 each but received receipts for R1,000 only. The employees contended the applicable fine was R1,000 for failing to confine, not for selling non-essential goods.

[9] On 15 October 2021, the commissioner issued an arbitration award finding the dismissals substantively unfair and ordering retrospective reinstatement.

[11]–[25] The review application was filed approximately six and a half months late. The record of proceedings remained fatally incomplete at the time of the reinstatement application, with missing audio recordings from multiple arbitration dates. Despite awareness of the defects, the applicant failed to take requisite steps to rectify the record.

Legal Principles: Practice Manual and Reinstatement Test

[2]–[5] The Practice Manual (prior to repeal) regulated practical application of the Rules. Clause 11.2.3 provided that failure to file a record within sixty days resulted in the application being deemed withdrawn, unless consent for extension was obtained or an application made to the Judge President.

[6] The test for reinstatement is akin to condonation, applying the Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A) factors: length of delay, adequacy of explanation, prospects of success, and prejudice.

[7] The Court cited Overberg District Municipality v Independent Municipal & Allied Trade Union on behalf of Spangenberg & others (2021) 42 ILJ 1283 (LC):

"[31] ... If effect is to be given to the deemed status of the review application, it seems the correct approach is that the application must be reinstated and that a condonation application for the non-compliance alone cannot be brought because an interlocutory application relating to a non-existent review application makes no sense. It appears that most judgments favour the approach that a reinstatement application has to be brought together with the condonation application. [32] However, even though this approach seems to be formally correct, when it comes to deciding whether or not to reinstate the review application that decision will always be inextricably linked with whether or not the non-compliance with the manual should be condoned. It is difficult to envisage how any review application could be reinstated, unless the act of non-compliance is also condoned. ... [39] On the approach adopted, as one pre-condition for reinstatement, the court needs to be satisfied that the non-compliance with the manual which led to the application being deemed inactive, should be condoned."

[9]–[10] The applicant was required to furnish explanations for three distinct periods: (i) the initial sixty-day period; (ii) the period between non-compliance and filing of reinstatement; and (iii) provisional steps taken to ensure expeditious finalisation if reinstated.

Judicial Analysis

[47] The Court applied Kock v Commission for Conciliation, Mediation and Arbitration and Others [2021] ZALCJHB 101:

"[47] In Kock, this Court held as follows: '[54] Because the reinstatement application is in essence a condonation application, the applicant's reinstatement application brought on 27 August 2018 faces what is in my view an insurmountable difficulty. When the application was brought, the record still had not been filed. Surely, condonation is sought to show good cause why an action taken in contravention to a legal prescript should be allowed. It must follow that the action must already have been taken in order to condone it. In casu, it must mean that the record has already been filed and the condonation is intended to validate this action because it was done out of time. It is impossible to ask for condonation for the late filing of the record where the record has still not been filed.'"

[48]–[49] The applicant's approach was criticised:

"[48] As appears from the facts set out above, despite several years having passed with the applicant being aware of the fatal defects in the record of proceedings, it has failed to take the requisite steps to rectify that issue. It neither brought an urgent application to compel the bargaining council to file the missing audio recordings, nor was there any application to the bargaining council to re-construct the missing portion of the record to the extent that these could not be located. The applicant is content to state that the Court should first revive the matter and then mero motu take the requisite steps to address the fatally defective record by issuing appropriate directions. [49] The facts above demonstrate an entirely apathetic and unacceptable approach to resolving the issue of the defective record, and more generally towards prosecuting the review as a whole."

[51]–[52] Prospects of success and prejudice:

"[51] Even if the application were not premature, however, the prospects of success would not have saved the applicant. Several years have gone by with scant or no explanation whatsoever being put up for the various delays. The state has simply not prosecuted this review with a sufficient degree of diligence to allow this Court to come to its assistance and condone what amounts to a wholesale departure from the expeditious dispute resolution procedure required by the LRA. [52] This application must accordingly fail for all of these reasons."

Order

"1. The applicant's application to retrieve the review application from archive and/or reinstate the review application is dismissed. 2. The fourth, fifth and sixth respondents' counter-application is dismissed. 3. The fourth, fifth and sixth respondents' attorneys are directed, within fifteen (15) days of receipt of this judgment, to take all reasonable steps to provide a copy thereof to the widow of the sixth respondent, Mrs Morema Maserole Rahab. 4. There is no order as to costs."