Kenny Johnson Seunane v South African Police Service and Others

The Applicant was employed by the South African Police Service (SAPS) as a police Constable since 2013 at Yeoville Police Station, Gauteng Province. He was charged with misconduct in May 2021 for allegedly demanding and receiving approximately R800 in cash and R950 through e-wallet from a complainant (John Masamba) in exchange for releasing the complainant's children from custody. After the complainant requested a case number, the Applicant allegedly returned the money and informed the complainant that no case was registered. The Applicant was charged with conducting himself in an improper, disgraceful and unacceptable manner and contravening the prescribed Code of Conduct. He was dismissed on 22 April 2022. On 8 December 2022, the Applicant referred the dismissal dispute to the Safety and Security Sectoral Bargaining Council (SSSBC), 200 days out of time (approximately 8 months late), together with an application for condonation. The Applicant claimed he was admitted by a Traditional Healer from 23 April 2022 to 28 November 2022, which prevented him from referring the dispute timeously. A condonation hearing was held on 22 August 2023. The Second Respondent (Commissioner) refused the condonation application due to insufficient explanation for the delay and lack of prospects of success. The Commissioner noted anomalies in the sick note provided, which was dated 28 November 2022 but made no mention of admission for treatment during the claimed period.

• Whether the Commissioner committed gross irregularities in refusing the application for condonation for late referral of a dismissal dispute
• Whether the correctness test or reasonableness test applies in reviewing jurisdictional rulings by CCMA commissioners
• Whether the Applicant provided a satisfactory explanation for the 200-day delay in referring the dismissal dispute
• Whether the Applicant demonstrated prospects of success in the main dismissal dispute
• Whether it was in the interests of justice to grant condonation despite the excessive delay
• Whether the CCMA had jurisdiction to arbitrate the dismissal dispute in the absence of condonation

The application to review and set aside the Second Respondent's jurisdictional ruling was dismissed. There was no order as to costs.

The binding legal principles established are: (1) In reviewing jurisdictional rulings by CCMA commissioners (including condonation decisions), the Labour Court applies the correctness test to determine whether the Commissioner was right or wrong in law, not the reasonableness test applicable to substantive arbitration awards. (2) An applicant for condonation of late referral of a dismissal dispute must provide a full, detailed, accurate and satisfactory explanation for each period of delay. (3) The factors in Melane v Santam Insurance Co. Ltd (degree of lateness, explanation for delay, prospects of success, importance of the case, respondent's interest in finality, convenience of court, and avoidance of delay in administration of justice) are interrelated and must be weighed collectively, not individually or in a piecemeal manner. (4) Without a reasonable and acceptable explanation for delay, the prospects of success are immaterial; similarly, without prospects of success, no matter how good the explanation for delay, condonation should be refused. (5) Where an applicant fails to provide a satisfactory explanation for an inordinate delay, the CCMA lacks jurisdiction to arbitrate the dispute, and such finding is not reviewable unless the Commissioner applied the wrong legal test or committed material irregularities in evaluating the evidence. (6) Condonation is an indulgence requiring judicial discretion to be exercised in the interests of justice, considering fairness to both parties. (7) New evidence or submissions not placed before the Commissioner during the condonation hearing cannot be entertained by the Labour Court on review.

The Court made several non-binding observations: (1) The Court noted that condonation applications in cases of individual dismissals will not readily be granted, and the excuse for non-compliance must be compelling. (2) The Court observed that one of the purposes of the LRA is speedy resolution of disputes, and when a party is dilatory in referring a dispute, they defeat this purpose and frustrate the opponent. (3) The Court commented that the CCMA is a creature of statute and not a court of law, and as a general rule cannot decide its own jurisdiction but can only make a ruling for convenience; whether it has jurisdiction is ultimately a matter for the Labour Court to decide. (4) The Court noted in passing that the legal representative's attempt to blame the Traditional Healer's lack of formal education for the anomaly in the sick note was "meritless." (5) The Court observed that an unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant's prospects of success. (6) The Court emphasized that the Applicant's founding affidavit did not point to any reviewable conduct committed by the Commissioner regarding the finding on the sick note, which was the main explanation for delay. (7) The Court noted that the Applicant's defence on the merits consisted of bare denials, without proper explanation of the circumstances, which weakened the prospects of success even if the explanation for delay had been adequate.

This case reinforces the strict approach South African labour law courts take toward condonation applications for late referral of dismissal disputes. It clarifies that: (1) the correctness test applies when reviewing jurisdictional rulings by CCMA commissioners, not the reasonableness test used for substantive decisions; (2) applicants for condonation must provide a full, detailed and accurate explanation for each period of delay; (3) anomalies or inconsistencies in evidence supporting the explanation for delay will be fatal to the application; (4) prospects of success are immaterial without a satisfactory explanation for delay; (5) condonation is not granted merely for the asking and requires compelling reasons; (6) the interests of justice include considerations of efficient administration of justice and the purpose of the LRA for speedy resolution of disputes; and (7) new submissions or evidence not placed before the Commissioner cannot be entertained on review. The case demonstrates the interplay between procedural compliance and access to justice in labour disputes, emphasizing that while courts recognize the importance of labour rights, they will not condone unreasonable delays that frustrate the statutory scheme for timely dispute resolution.