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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG 

Not Reportable

Case no: JR2023/17

In the matter between:

POPCRU OBO GR MALUNGANE                                               Applicant

and

JACKSON MTHUKWANE            N.O                                          First Respondent

SAFETY AND SECURITY SECTORAL

BARGAINING COUNCIL                                                              Second Respondent

SOUTH AFRICAN POLICE SERVICE                                          Third Respondent

Heard:      01 July 2020 (via Zoom)

Delivered:     This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 08 September 2020.

Summary:     Review application – principles of condonation in a review application are much stricter than those which apply in normal circumstances.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1]           The applicant, the Police and Prisons Civil Rights Union (POPCRU) is acting on behalf of its member, Mr Given Refiloe Malungane (Mr Malungane). It seeks an order reviewing and setting aside the arbitration award dated 14 June 2017 issued by the first respondent (arbitrator) acting under the auspices of the second respondent, Safety and Security Sectoral Bargaining Council (SSSBC), under case number PSSS594-15/16. POPCRU also seeks condonation for the late delivery of the review application.

[2]           The third respondent, South African Police Service (SAPS), is opposing both applications.

Factual Background

[3]           Mr Malungane commenced his employment with SAPS in July 2007. On 22 February 2013, he was arrested and criminally charged for corruption involving, a member of the public, Mr David Mahlakoane (Mr Mahlakoane). On 20 February 2013, Mr Mahlakoane went to the Traffic Department to register his motor vehicle (a truck). Whilst attending to its registration, his truck was stolen from the parking lot. He immediately went to report the theft of his stolen motor vehicle at Akasia Police Station. He was assisted by a police officer by the name of Mahlangu to open a case of theft of a motor vehicle.

[4]           Whilst at the police station, he telephoned his wife and related the incident to her. His wife (Mrs M Mahlakoane) insisted on coming to the police station, but did not know its exact location. Mr Mahlakoane then asked Mr Malungane to give his wife directions to Akasia Police Station over the cellular phone.  

[5]           Mrs Mahlakoane eventually arrived at the police station with the assistance of Mr Malungane. She was emotional, saddened by the theft of their motor vehicle which they had recently purchased. Apparently, Mr Malungane informed her that he knew the individuals who steal that type of motor vehicles and that he could assist them to recover theirs.

[6]           Mrs Mahlakoane informed her husband that Mr Malungane has promised her that he could assist them and recover a stolen motor vehicle. It was at that stage that Mr Mahlakoane discussed the matter with Mr Malungane who told him that in order to get their motor vehicle back, they must be prepared to compensate those individuals. Mr Malungane then telephoned those individuals and Mr Mahlakoane was given the phone by Mr Malungane so that he could negotiate with them. Their asking price for the return of their motor vehicle was R10 000,00, with an upfront deposit of R5000,00. Mr Mahlakoane informed them that he could not withdraw R5000,00 as he had a daily limit of R2500,00 on his bank account.

[7]           Mr Mahlakoane went to withdraw R2500,00 from an ATM in Akasia. Mr Malungane refused to receive the amount in public. They went to the restrooms at the police station where Mr Malungane received the R2500,00. Mr Malungane assured Mr Mahlakoane that his contacts would be able to return the motor vehicle before the end of the day. He then provided Mr Mahlakoane with the contact details of a certain Mr Sithi.

[8]           Later that evening, Mr Mahlakoane called Mr Sithi and he was told that his motor vehicle had been traced to a place in Midrand, and was already sold for R20 000,00. Mr Mahlakoane was told that he needed to pay R20 000,00 in order to get his motor vehicle back. When he informed Mr Malungane about the new figure that was being demanded, Mr Malungane instructed them not to make any further payments.

[9]           Mr and Mrs Mahlakoane got suspicious and decided to go to the police station in Pretoria West to seek further assistance. They were referred to the Pretoria North Police Station. The entrapment was arranged between the members of SAPS from Pretoria North Police Station. Mr Mahlakoane then called Mr Sithi and arranged for a meeting on 22 February 2013. On 22 February 2013, Mr Mahlakoane was informed that Mr Sithi would send a certain lady by the name of Precious.

[10]        Precious was arrested and, thereafter, divulged the whereabouts of Mr Sithi and another male person, who were then also arrested and taken to the Pretoria North Police Station. Mr Sithi and the other male person implicated Mr Malungane.

[11]        It was then that Mr Malungane was called to present himself at the Pretoria North Police Station. He was interviewed on the whereabouts of Mr Mahlakoane’s motor vehicle and the R2500,00. The circumstances surrounding the ultimate refund of the R2500,00 are controversial. However, the refund was done through Mrs Malungane who allegedly called Mr Mahlakoane and sent a pin for the withdrawal of R2500,00 at Shoprite’s money market.

[12]        On 19 July 2013, Mr Malungane was released from custody and the criminal charges against him were withdrawn. He resumed duties on 3 September 2013 and the suspension of his salary was uplifted on 6 September 2013.

[13]        On 2 October 2013, Mr Malungane was charged with acts of misconduct on allegation of corruption pertaining to Mr Mahlakoane’s motor vehicle incident. On 28 January 2015, he was found guilty and a sanction of dismissal was proclaimed. He accordingly appealed the outcome of the disciplinary enquiry. On 4 January 2016, the appeal authority dismissed his appeal and the dismissal became effective immediately thereafter.

[14]        POPCRU challenged Mr Malungane’s dismissal at the SSSBC. The arbitrator delivered the impugned award wherein he found that the dismissal Mr Malungane was substantively and procedurally fair. 

Condonation

[15]        It is common cause that the delay in the delivery of the review application is 49 days as the award was received by POPCRU on 29 June 2017. The delay is attributed to POPCRU’s administrative flaws. Apparently, on 5 July 2017, Mr Clouw, an official from POPCRU Thaba Tshwane Local Office, sought permission with the Provincial Office to launch these proceedings. On 11 July 2017, the Provincial Secretary, Mr Lerata Motsiri (Mr Motsiri) requested the POPCRU National Office to appoint a law firm to represent Mr Malungane.

[16]        The instructions were only issued on 28 July 2017, authorising the attorneys of record to provide an opinion on the prospects of success. The attorneys of record collected the files on 14 August 2017 and only consulted with Mr Clouw on 31 August 20217. There is no explanation proffered as to what transpired thereafter. The review application was ultimately delivered on 17 October 2017. In essence, the six-week period expired on 10 August 2017 and the delay is almost 10 weeks with six weeks thereof obviously unaccounted for. 

[17]        It must always be remembered that condonation is not a mere formality. A party must give a full explanation for the non-compliance with the time frames provided for in the legislation or the Rules. Importantly, the explanation must be reasonable enough to excuse the default.[1] In Steenkamp and Others v Edcon Limited,^[2] the Constitutional Court endorsed the factors that must be considered in determining whether it is in the interest of justice to grant condonation as set out in Grootboom v National Prosecuting Authority.^[3] It was stated: 

‘[36]     Granting condonation must be in the interests of justice. This Court in Grootboom set out that:

“[T]he standard for considering an application for condonation is in the interests of justice.  However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

…

The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted.  However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party.  As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.”

[37]      All factors should therefore be taken into account when assessing whether it is in the interest of justice to grant or refuse condonation.’^[4] (Emphasis added)

[18]        Turning to the present case, even though the delay is not too excessive, the explanation is wholly unsatisfactory. The importance of timeous action when it comes to disputes pertaining to individual dismissals cannot be overstated.[5] The threshold for the grant of condonation is set high because of the dictates of the LRA for speedy resolution of disputes. Moreover, the delay resulting from the ineptness of legal representatives or the internal procedures of trade unions may not constitute a compelling reason for the grant of condonation even if the client or member is not culpable.^[6] These labour law specific factors and considerations are trite and have since been endorsed by the Constitutional Court in Steenkamp.^[7]

[19]        At the risk of repetition, I must once more beat the drum for this Court’s stern warning to trade unions and its officials to sort out their bureaucratic hindrances and to attend to court processes timeously in the interest of their members.[8] It cannot be countenanced that a trade union of the POPCRU’s calibre would still not comply with statutory time frames solely because it depends on lawyers for legal opinions and to draft mundane review application papers. I am not convinced that its union officials have no requisite skills. In any event, this Court has various pro forma court documents (like affidavit, statement of case, notice of motion, etc.) that are easy to complete or adapt. To date, they have been utilised by typically unsophisticated and unrepresented litigants with great success.

[20]        The Labour Appeal Court’s (LAC) unreported judgment in Khosa v Absa Bank Limited,[9] referred to by POPCRU, is distinguishable. In that matter, the applicant employee sought condonation of the late delivery of the statement of claim as opposed to a review application. The LAC, in granting condonation, reiterated that the doors of justice should not be closed to a party where, prima facie, there appears to be reasonable prospects of success.[10]

[21]        The converse is true in the present case. As stated above, a review application is inherently urgent. Furthermore, the controversy between the parties was properly ventilated during arbitration proceedings, hence a much stricter scrutiny is applied when it comes to condonation. As succinctly stated in Makuse v Commission for Conciliation, Mediation and Arbitration and Others:[11]

‘[4]     Labour law litigation is unique in that it takes place within a system designed to ensure the effective (and thus expeditious) resolution of labour disputes – this being one of the primary objects of the LRA. The need for this, and the implications of delays, were explained as follows by Ngcobo J in CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC):

“The LRA introduces a simple, quick, cheap and informal approach to the adjudication of labour disputes. This alternative process is intended to bring about the expeditious resolution of labour disputes. These disputes, by their very nature, require speedy resolution. Any delay in resolving a labour dispute could be detrimental not only to the workers who may be without a source of income pending the resolution of the dispute, but it may, in the long run, have a detrimental effect on an employer who may have to reinstate workers after a number of years.” (Emphasis added)     

[5]     It follows from this that condonation for delays in all labour law litigations is not simply there for the taking. But this is particularly so when it comes to delays in the launching of section 145 review applications, especially in the context of individual dismissals. Here the courts have made it clear that applications for condonation will be subject to “strict scrutiny”, and that the principles of condonation should be applied on a “much stricter” basis. This can be traced back to this important dictum of the LAC (per Conradie JA) in Queenstown Fuel Distributors CC v Labuschagne N.O and Others [2000] 1 BLLR 45 (LAC), which was decided in 1999: 

“In principle, therefore, it is possible to condone non-compliance with the time-limit. It follows, however, from what I have said above, that condonation in the case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand.

By adopting a policy of strict scrutiny of condonation applications in individual dismissal cases I think that the Labour Court would give effect to the intention of the legislature to swiftly resolve individual dismissal disputes by means of a restricted procedure, and to the desirable goal of making a successful contender, after the lapse of six weeks, feel secure in his award.” (Emphasis added.)        

[6]     This dictum, which has been followed by the LAC in other judgments, was explained as follows by Sutherland AJ (as he then was) in Lentsane & others v Human Sciences Research Council (2002) 23 ILJ 1433 (LC):

“In that decision Conradie JA pointed out that the principles of condonation should be much stricter than those which were applied ‘in normal circumstances'. This remark I understand to be an endeavour to distinguish the considerations pertinent to challenging an award granted by a commissioner of the CCMA, in relation to other litigious issues, such as for example an application for condonation of the late referral of a statement of case or of defence. The policy reasons for that distinction are clear. Once a party has an award in his or her favour, the failure to respond within the six-week period to challenge that award gives rise to considerations which are absent at the outset of litigation, where the table is being set for debate.” (Emphasis added.)’

[22]        For completeness sake, I have considered the prospects of success. Mr Malungane’s defence is fraught with farrago of facts and coincidences. The R2500.00 that was allegedly received by Mr Malungane from Mr Mahlakoana was once more refunded via his wife. Mr Malungane could not explain why he exchanged telephone numbers with the Mahlakoana’s and what was the reason for the telephone calls exchange. As correctly held by the arbitrator, the evidence of Mr and Mrs Mahlakoana was coherent and logical and substantiated. Whilst on the other hand, Mr Malungane’s evidence constitutes a bear denial of the series of events that directly implicated him. 

[23]        The only issue that was raised on the procedural fairness was the delay in finalising the appeal. SAPS contended that Mr Malungane was not prejudiced by the delay. In terms of Regulation 17(9), the appeal must be concluded within 30 days. In this instance, it took almost a year to finalise the appeal. 

[24]        In Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others,[12] the Constitutional Court endorsed the application of the following criminal factors in labour matters when considering the delay in instituting or finalising the disciplinary proceedings:[13]

 ‘(a)   The delay has to be unreasonable.  In this context, firstly, the length of the delay is important. The longer the delay, the more likely it is that it would be unreasonable.

(b)     The explanation for the delay must be considered.  In this respect, the employer must provide an explanation that can reasonably serve to excuse the delay.  A delay that is inexcusable would normally lead to a conclusion of unreasonableness.

(c)     It must also be considered whether the employee has taken steps in the course of the process to assert his or her right to a speedy process.  In other words, it would be a factor for consideration if the employee himself or herself stood by and did nothing.

(d)     Did the delay cause material prejudice to the employee?  Establishing the materiality of the prejudice includes an assessment as to what impact the delay has on the ability of the employee to conduct a proper case.

(e)     The nature of the alleged offence must be taken into account.  The offence may be such that there is a particular imperative to have it decided on the merits.  This requirement however does not mean that a very serious offence (such as a dishonesty offence) must be dealt with, no matter what, just because it is so serious.  What it means is that the nature of the offence could in itself justify a longer period of further investigation, or a longer period in collating and preparing proper evidence, thus causing a delay that is understandable.

(f)      All the above considerations must be applied, not individually, but holistically.’

[25]        It is common cause that SAPS could not account for the delay. Still, POPCRU is not without blame. Unlike in Stokwe,[14] POPCRU  failed to take steps in the course of the process to assert Mr Malungane’s right to a speedy appeal process. Instead, it adopted a wait and see approach. Also, Mr Malungane himself conceded that he was not prejudiced by the delay. Likewise, the arbitrator’s finding on procedural fairness cannot not be faulted. 

[26]        To my mind, it is beyond question that the award is reasonable and accordingly unassailable. By the same token, the review application has no prospects of success.

Conclusion

[27]        In the circumstances, the application for condonation stands to be dismissed. In the light of the dipositive nature of the finding on condonation, it is superfluous to deal with all the other issues that arose in this matter.

Costs

[28]        It is trite that costs do not follow the result in this Court. Moreover, there is a persisting collective agreement relationship between the parties.

[29]        In the circumstances, I make the following order:

Order

1.         The condonation application is dismissed.

2.         There is no order as to costs. 

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P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:                           Advocate AL Cook

Instructed by:                                  Allardyce & Partners

For the Third Respondent:              Advocate S Nhlapo  

Instructed by:                                   State Attorneys

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