No excuse for delay: Labour court draws the line

In the case of South African Police Services v Safety and Security Sectoral Bargaining Council and Others (Labour Court, Cape Town, Case No: D131/2022), the South African Police Services (SAPS) sought to reinstate a review application that had lapsed due to procedural non-compliance. The dispute centred around an unfair labour practice relating to promotion, where a candidate was allegedly unfairly overlooked due to manipulated scores. However, the Labour Court dismissed the reinstatement application, citing excessive delay, lack of explanation, and no prospects of success.

This judgment serves as a cautionary tale about the importance of procedural compliance, the limits of condonation, and the discretionary nature of reinstatement applications.

Legal implications

Reinstatement as condonation

The court reaffirmed that an application for reinstatement of a lapsed review is effectively an application for condonation. The principles governing condonation are well-established in cases such as Melane v Santam Insurance Co Ltd and Grootboom v National Prosecuting Authority. The court must consider:

• The length of the delay
• The explanation for the delay
• The prospects of success
• The importance of the issue
• Prejudice to the parties
• The effect on the administration of justice
• The applicant’s constitutional right to a fair hearing
• The interests of justice

In this case, the delay was extensive, over two years, and the explanation provided by SAPS was vague and inadequate. The court found this to be a flagrant disregard of the rules.

Procedural non-compliance

SAPS failed to comply with Rule 7A(6) and (8) of the Labour Court Rules and clauses 11.2.2 and 11.2.3 of the Practice Manual. These provisions require the filing of the record and transcript within 60 days of receipt and deem the application withdrawn if not complied with. SAPS only filed the necessary documents nearly a year later and launched the reinstatement application even later, without a reasonable explanation.

Prospects of success and merits

Despite the procedural failings, the court considered the merits of the case. The dispute involved a promotion where the scores were allegedly altered under instruction from the Provincial Commissioner to favour a preferred candidate. The arbitrator found this to be an unfair labour practice and awarded protective promotion to the aggrieved candidate.

SAPS argued that the arbitrator exceeded her powers by awarding protective promotion. However, the court confirmed that such a remedy is permissible under section 193(4) of the Labour Relations Act in exceptional cases, citing Minister of Safety and Security v SSBC and Willemse v Patelia NO.

The court found the arbitrator’s decision to be reasonable, rational, and supported by the evidence. Therefore, the review had no prospects of success.

Key takeaways

For employers

• Respect procedural timelines: Failure to comply with court rules and practice manuals can result in your case being deemed withdrawn.
• Provide full and reasonable explanations: Courts require detailed justifications for delays. Vague references to workload or resource constraints are insufficient.
• Understand the scope of remedies: Protective promotion is a valid remedy in unfair labour practice disputes, especially where manipulation or irregularity is proven.

For employees

• Document irregularities: Evidence of unfair treatment, especially in promotion processes, can be crucial.
• Know your rights: Section 193(4) of the LRA allows for appropriate remedies beyond compensation, including protective promotion.
• Be proactive: If you suspect unfair labour practices, act promptly and follow the correct dispute resolution channels.

For legal practitioners

• Advise clients on procedural compliance: Ensure that clients understand and meet all deadlines and filing requirements.
• Prepare thorough condonation applications: A successful condonation application must cover the entire period of delay with a reasonable explanation.
• Assess prospects realistically: Even if the merits are strong, procedural failings can be fatal.

Final thoughts

This case underscores the principle that justice delayed can indeed be justice denied, especially when the delay is caused by procedural neglect. The Labour Court’s decision reflects a balanced approach: while recognising the importance of the dispute, it upheld the integrity of the legal process by refusing to condone unjustifiable delay.

For public institutions like SAPS, the judgment is a reminder of their constitutional duty to support the courts and uphold the rule of law. For all litigants, it reinforces the message that procedural rules are not mere formalities, they are essential to the fair and efficient administration of justice.

For advice or more information, please contact Riona Kalua, head of our Labour and Employment team.