- The Labour Court has rejected the Minister of Police’s attempt to resurrect a long-stalled review, finding the delay unexplained and the record fatally incomplete.
- Acting Judge J Horn described the State’s approach as “entirely apathetic and unacceptable”, ruling that condonation cannot be granted where the record has not been properly filed.
- A counter-application seeking retrospective and posthumous reinstatement was also dismissed, with directions issued regarding the late employee’s widow.
The Labour Court has dismissed an application by the Minister of Police to revive an archived review application challenging an arbitration award that reinstated three dismissed SAPS members.
Acting Judge J Horn found that the State had failed to pursue the matter with the diligence required under the Labour Relations Act, and that the application was premature because the arbitration record remained fatally incomplete. Judge Horn was delivering judgment in Minister of Police v Safety and Security Sectoral Bargaining Council and Others.
The court addressed not only the Minister’s attempt to retrieve the review from the archive, but also a counter-application by the affected employees seeking confirmation of the dismissal of the review and enforcement of the reinstatement award.
Background and arbitration award
The three employees, Tumisi Samuel Maremane, Moshate Jack Matsha, and the late Phuti Piet Morema, were dismissed following allegations that they misappropriated portions of admission of guilt fines collected during the COVID-19 lockdown.
It was alleged that suspects arrested for selling non-essential goods paid R2 500 each, but were issued receipts for only R1 000, with the balance allegedly misappropriated.
The employees disputed this version, maintaining that the suspects had been arrested for failing to confine, for which the applicable admission of guilt fine was R1 000, and that this was the amount paid and receipted.
On 15 October 2021, an arbitrator under the auspices of the Safety and Security Sectoral Bargaining Council found the dismissals substantively unfair and ordered retrospective reinstatement. The arbitrator was “not convinced on a balance of probabilities that the employees had misappropriated any monies.”
The Minister launched a review application approximately six and a half months late. Although condonation was sought, Acting Judge Horn observed that “a proper explanation for each period of the delay is not provided and, for this reason alone, the condonation application in the main review may suffer from limited prospects of success.”
Years of delay and a defective record
What followed was a protracted and poorly explained delay in prosecuting the review. The State received incomplete audio recordings of the arbitration proceedings, failed to promptly address the missing portions, and provided no clear timeline for key follow-ups.
By the time the reinstatement application was argued on 4 December 2025, more than four years after the arbitration award, the record remained incomplete.
The applicant had stated that it had “not as yet taken the next step of furnishing the transcribed record as well as the amended notice of motion and supplanted affidavit” and that it would only take steps to compel the missing portions “should the court grant the applicant the indulgence of having this matter put back on the roll.”
Judge Horn found this approach untenable. Relying on authority, the court quoted with approval that “it is impossible to ask for condonation for the late filing of the record where the record has still not been filed.”
The court emphasised that the applicant had neither brought an urgent application to compel the bargaining council to file the missing recordings nor sought reconstruction of the record. Instead, it expected the court to revive the matter first and then issue directions.
The judge was unequivocal: “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.”
He concluded that the reinstatement application was premature and had to be dismissed. Even if it were not premature, the years of unexplained delay would have been fatal.
The State had “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.”
Counter-application and posthumous reinstatement
The employees filed a counter-application seeking confirmation that the review was archived and dismissed, retrospective reinstatement of Maremane and Matsha, and posthumous retrospective reinstatement of Morema, with payments to be made to his surviving spouse.
Acting Judge Horn held that posthumous reinstatement was legally impossible, stating plainly that “a deceased person cannot factually or legally be reinstated.”
While acknowledging that the executor of the late employee’s estate might pursue remuneration due up to the date of death, the court found that no proper legal basis had been pleaded and that the employees’ attorneys had not demonstrated authority to act for the estate.
As for Maremane and Matsha, the court found that they already had an arbitration award granting retrospective reinstatement. If the revival application failed, they could tender their services and enforce the award through contempt proceedings under Section 143 of the Labour Relations Act. The counter-application was described as “little more than an attempt to bypass the normal enforcement processes in the LRA.”
The order
The court dismissed both the Minister’s reinstatement application and the employees’ counter-application. It directed the employees’ attorneys to take reasonable steps within 15 days to provide a copy of the judgment to the widow of Morema, Rahab.
No order as to costs was made, with the court noting the ongoing relationship between the parties and the legally untenable counter-application.
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