POPCRU obo Kekana v South African Police Service & others [2026] ZALCJHB 375

Date of Judgment & Seat of Court: 8 October 2026, Labour Court, Johannesburg

Case No: JR2627/21

Name of Judge(s): Whittington AJ

Summary of Factual Matrix:

The employee, a police officer and full-time POPCRU shop steward, addressed mourners at a funeral on 28 July 2019 as a COSATU representative, invoking his status as a police officer and identifying alleged suspects in an ongoing investigation. He was charged under the SAPS disciplinary regulations with conduct bringing the service into disrepute and was dismissed on 10 March 2020. The bargaining council arbitrator, the third respondent, found the dismissal fair in an award of 9 June 2021, holding that the trade-union protections in clauses 10.2 and 10.3 of the collective agreement did not extend to such misconduct.

The review application under section 145 of the LRA was filed on 3 December 2021, some four months and twelve days late. The employee sought condonation, attributing the delay to ignorance of the right of review and to counsel’s maternity leave. The issues were whether good cause for condonation had been shown, including the strength of the prospects of success on review.

Summary of Findings:

[21] ‘The explanation tendered for the delay in paragraphs 4.8 to 4.15 of the application is nothing more than a listing of significant events which took place during the period in question. More importantly, the events listed are no more than what would ordinarily be expected in the preparation of review papers, and no explanation is provided as to why those steps could not have been completed within six weeks of 30 July 2021, even treating that date, in the applicant’s favour, as the point from which the subsequent delay should be assessed.’

[24] ‘The affidavit does not explain why counsel was briefed two days after giving birth, when the papers were already late; when it became apparent that counsel would not be able to settle the application promptly; or why other counsel was not briefed. Nor does it explain the periods between counsel’s request for information, the provision of that information on 15 November 2021 and the filing of the application on 3 December 2021.’

[25] ‘The explanation therefore does not cover the full period of the delay. It records certain events but does not explain the periods of inactivity between them, including the period from 30 July to 25 August 2021, the time taken to prepare the initial draft, the period preceding the provision of further information on 15 November 2021, and the further period until the application was filed on 3 December 2021.’

[27] ‘The allegation that POPCRU was informed of the applicant’s right of review only on 30 July 2021 necessarily suggests that POPCRU had previously been unaware that the award could be reviewed. In circumstances where the applicant was represented by POPCRU at the arbitration and was himself a full-time shop steward, the suggestion that neither the applicant nor POPCRU was aware that an arbitration award could be reviewed is inherently improbable and, in any event, does not provide a reasonable explanation for the delay.’

[29] ‘The reliance by the applicant on his ignorance of the right to review the award is unsustainable on the facts.’

[31] ‘Accordingly, I find that the delay is unreasonable and the explanation tendered is inadequate.’

[32] ‘In the circumstances, the applicant is required to demonstrate strong prospects of success.’

[33] ‘In my view, the applicant’s prospects of success are not strong. The principal difficulty is that, although the grounds are expressed in the language of review, they largely invite the Court to reconsider the evidence, attach different weight to it and substitute its own conclusions. Those contentions are more apposite to an appeal.’

[34] ‘A review is not concerned with whether the third respondent’s decision was correct or whether this Court would have reached a different conclusion. The question is whether the third respondent misconceived the nature of the enquiry or arrived at a result that no reasonable decision-maker could reach on the material before him.[9] Errors concerning facts, the weight attached to evidence or the relevance of particular facts do not, without more, establish a reviewable irregularity.[10] They are material only if their effect is to render the outcome unreasonable.[11]’

[35] ‘The contentions arising from the applicant’s status as a full-time shop steward were expressly considered by the third respondent. The third respondent also considered the application of clauses 10.2 and 10.3 of the collective agreement and recorded his conclusions in the award.’

[36] ‘The complaint by the applicant in paragraphs 5.12 to 5.14 of the heads of argument is therefore not accurately characterised as a failure to consider the agreement. It is, in substance, a contention that the Commissioner interpreted or applied it incorrectly. That contention does not, without more, establish a reviewable irregularity. The question is not whether that was the only possible interpretation of the agreement, but whether it was a reasonably available interpretation reached after consideration of the relevant provisions and evidence.’

[37] ‘Whether or not that conclusion was the only possible interpretation of the agreement, it was reached after consideration of the relevant provisions and the evidence.’

[40] ‘In the light of the Commissioner’s express consideration of the collective agreement and the evidence relevant to its application, the applicant has not demonstrated strong prospects of establishing that the conclusion on this issue was unreasonable.’

[41] ‘The distinction drawn above between grounds of appeal and grounds of review is further borne out by the argument that the third respondent failed to attach sufficient weight to the fact that the applicant had introduced himself as a COSATU official. To be clear: this aspect was expressly dealt with in the award and considered together with countervailing evidence.’

[42] ‘The third respondent’s conclusion was supported by the applicant’s invocation of his status as a police officer, the identification of alleged suspects during an ongoing investigation, the context in which the statements were made and the reaction of the mourners. There was accordingly a rational and material connection between the evidence and the finding that the conduct was capable of bringing the first respondent into disrepute. The applicant has therefore not established strong prospects of demonstrating that the result was unsupported by, or disconnected from, the record.’

[43] ‘The contention that there was no proof of an intention to bring SAPS into disrepute is also weak.’

[44] ‘The applicant’s heads do not demonstrate that this legal proposition is incorrect. They instead attempt to distinguish Timothy because it concerned a private employer. That distinction does not, without more, establish that the Commissioner’s approach was unreasonable.’

[45] ‘With regard to the contention that the third respondent failed adequately to identify or define the alleged incitement arising from the applicant’s utterances, I note that the third respondent considered the applicant’s actual words, their context, the reaction of the mourners and the implication of invoking his status as a police officer.’

[46] ‘The third respondent also considered the seriousness attached by the disciplinary regulations to conduct bringing SAPS into disrepute and the applicant’s previous similar misconduct, in respect of which an earlier dismissal sanction had been replaced with a suspended sanction. There was accordingly an evidential basis for the conclusion that dismissal was fair. The possibility that another reasonable commissioner might have imposed a lesser sanction does not establish that the outcome fell outside the range of reasonable decisions.’

[47] ‘In sum, the review does not identify a convincing misconception of the nature of the enquiry, denial of a fair hearing, material procedural irregularity or material evidence that was genuinely overlooked.’

[48] ‘In the manner in which they are advanced, these contentions principally invite a reconsideration of the merits and the weight of the evidence. They do not demonstrate that any alleged error had the effect of rendering the outcome one that a reasonable decision-maker could not reach.’

[49] ‘The applicant’s prospects of success are therefore not sufficiently strong to compensate for the inadequate explanation for the delay.’

[50] ‘I have taken into account that the applicant seeks reinstatement and that the dispute is therefore important to him. I have also considered his allegation that the respondents will suffer no prejudice if the review is entertained. Those considerations do not, however, outweigh the material delay, the absence of a complete and satisfactory explanation, the statutory imperative that labour disputes be resolved expeditiously and the absence of strong prospects of success.’

[51] ‘Having considered the extent of the delay, the inadequate explanation, the prospects of success, the importance of expedition in labour disputes, the importance of the matter to the applicant and the absence of demonstrated prejudice, I am not satisfied that the applicant has shown good cause for condonation.’

[52] ‘I am accordingly disinclined to grant the applicant condonation and, in the absence of condonation, the review application is not properly before the Court and cannot be entertained.’

[53] ‘Having regard to the requirements of law and fairness, I consider it appropriate that there be no order as to costs.’

Relief: The application for condonation was dismissed and, in the absence of condonation, the review application was not entertained. No order as to costs was made.

Judgment on SAFLII