Labour Court Review.
Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 6 2025 [Copyright: Marius Scheepers/15.6.1])
** Review
CCMA Ruling
Ruling on condonation not award
A ruling, like any act other than an award, must be reviewed in terms of s158(1)(g) of the LRA
JR822/01
Mould v Roopa NO & Others
Record
the employer was obliged in terms of the LC Rules to transcribe the Commissioners handwritten notes as part of the record
DA15/02
Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA & Others
it was competent to review the arbitrators decision even though it was interlocutory
refuse condonation
C1034/02
Hangana v Education Labour Relations Council & Others
procedure
no record
referred back to CCMA
JR1453/06
Doornpoort Kwik Spar CC v Odendaal & Others
Missing record
employer was in a position to demonstrate its grounds for review on portions of the available records and that it was not prejudiced and should gain no advantage simply because certain portions, not relevant to its grounds for review, were missing.
JR1333\05
New Clicks SA (Pty) Ltd v CCMA & Others
Court has a discretion to substitute an award or a ruling made by a commissioner
(1) Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order that tribunal or functionary to reconsider the matter; (2) Where a further delay would cause unjustifiable prejudice to the applicant; (3) Where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again; (4) Where the court is in as good a position as the administrative body to make the decision itself.
JR2397/06
Emfuleni Local Municipality v Sekhabisa N.O. & Others
Reasonable period; Parties applying for review of awards must prosecute their applications to finality within a reasonable period of time or face dismissal of their applications; Justice and fairness the key criteria for determining whether or not to dismiss application
JR2113/05
NUMSA obo Ntobeng & Others v Witbank Foundry & Others
where a party alleges a gross irregularity, this allegation must be made clear in the review application
JR398/07
Ngobeni v Redding N.O. & Another
Arbitration
referred merits of matter to be heard by another arbitrator; second arbitrator not bound by the first arbitrators ruling on admissibility; ruling; reviewed and set aside
JR3217/06
Sondolo IT (Pty) Ltd v Howes & Others
Arbitration
Private Arbitration
Narrow test
JR917/06
Steyn v Middelburg Ferrochrome (A Division of Samcor Limited) & Others
Arbitration
Private Arbitration
Other case law cited
Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA)
JR917/06
Steyn v Middelburg Ferrochrome (A Division of Samcor Limited) & Others
Technical
Not same requirements as on factual issues review
Biased
JR3121/09
Raswisi v CCMA and Others
Incomplete proceedings
undesirable for the court to entertain applications to review and set aside rulings made in uncompleted proceedings.
J1186/11
Workforce Group (Pty) Ltd v National Textile Bargaining Council and Another
REVIEW test?
The court, by necessity, had to scrutinize the reasons of the commissioner not to determine whether the result was correct; or for that matter substantively reasonable, but to determine whether there was a latent irregularity, that is, an irregularity that had taken place within the mind of the commissioner, which would only be ascertainable from his or her reasons.
DA20/2010
Herholdt v Nedbank Ltd
Right to an interpreter
JR 1006/11
Mabitsela v Department of Local Government & Housing and Others
Sidumo test expanded
“to defer to the decision of the employer on the basis that the employer was better placed to make a decision. That approach would not be correct”
Test
The court further held that an important aspect of the reasonable decision-maker test is for the emphasis to fall on the range of reasonable outcomes and not on the correctness of the outcome. This means that a decision unsupported by any evidence or supported by insufficient evidence, or where there is a glaring inconsistency between the facts established by the commissioner and the final conclusion arrived at, will be unreasonable and stands to be set aside.
JR649/07
Tile Africa, Germiston v Hintsho N.O. & Others
record
Employee failed in his duty to provide court with full transcript of arbitration proceedings; Essential evidence to evaluate commissioners decision not submitted; Application dismissed
JR1281/06
Solidarity v CCMA & Others
filed late; does not stay enforcement of proceedings, urgency self-created
Appl to stay proceedings
J1765/10
Spar Group Limited t/a Spar South Rand Distribution Centre v CCMA & Others
Test for
Issue before the commissioner one that went to jurisdiction of the commissioner, i.e. whether there had been a dismissal.
C481/10
Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others
Test for
Other case law cited
Sidumo test not applicable
C481/10
Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others
private arbitration review in terms of s 33 of Arbitration Act; Act review principles apply
JA2/07
National Union of Mineworkers obo 35 Employees v Grogan NO & Another
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Legality, reasonableness and fairness of arbitration
Commissioner:
Misconduct exist
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Commissioner:
fairness sanction; was there a breach of workplace rule; Was there a reasonable response when considering evidence in front of them
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Court:
Not to substitute view of own opinion
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Scope:
reasonable outcome that which were justifiable in relation to the reasons given
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Scope:
A “better” decision is irrelevant
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Guilt:
reasonable decision maker
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
Commissioner makes value judgment on own sense of fairness
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
each case to be decided on totality of circumstances
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
Seriousness of misconduct
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
Gravity of misconduct iro continued employment relationship
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
previous disciplinary records
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
personal circumstances
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
nature of job
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
Sanction:
circumstances of infringement
JA38/09
Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others
REVIEW test??
whether the decision, based on the material admitted as evidence was one which a reasonable decision-maker could not reach
DA20/2010
Herholdt v Nedbank Ltd
REVIEW test?
duties of a commissioner was to determine the material facts and then to apply the provisions of the LRA had to be determined objectively, with due regard to all the evidence that was before him or her and what the issues were.
DA20/2010
Herholdt v Nedbank Ltd
REVIEW test?
The threshold for interference was lower than that; it being sufficient that the commissioner had failed to apply his mind to certain of the material facts or issues before him, with such having potential for prejudice and the possibility that the result may have been different
DA20/2010
Herholdt v Nedbank Ltd
REVIEW test?
the line between a review on the grounds of substantive reasonableness and an appeal on the merits was a fine one and at times difficult to draw.
DA20/2010
Herholdt v Nedbank Ltd
Edcon Ltd v Pillemer NO and Others [2010] 1 BLLR 1 (SCA) had decided that the standard of review in Sidumo was conceptually no different to what had previously applied since the earlier decision in Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC).
JA12/10
Matsekoleng v Shoprite Checkers (Pty) Ltd
Record of Arbitration
No reference to the record in terms of the application, Rule 7A need to relate to such grounds.
D 183/2010
Msibi v CellC
Quantification of compensation.
Arbitrator awarding compensation but failing to give reasons for his quantification of compensation. Not a reviewable irregularity.
(JR 3289/11) [2014] ZALCJHB 11
Molatudi v Sikwane NO and Others
Test
Herholdt v Nedbank Ltd (Congress of Trade Unions of SA as amicus curiae) (2013) 34 ILJ 2795; Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others [2014] 1 BLLR 20. [Commercial Workers Union of SA v Tao Ying Metal Industries and Others 2009 (2) SA 204: did not constitute a binding precedent for what the applicant referred to as the process related test on review]. Accordingly, the test to be applied in determining the application was as set out in SCA in Herholdt and the LAC in Goldfields.
On consideration of the totality of the evidence, the decision of the commissioner that the applicant had failed to discharge the onus of proving that the dismissal of the employee was fair, was not one that could be said to be a decision to which no reasonable arbitrator could come.
(D884/2012) [2014] ZALCJHB 257
Derivco (Pty) Ltd v CCMA and Others
Record not kept / destroyed
And also taking into account the circumstances of the matter, were reason enough to set the award aside and remitted the matter back to the first respondent for hearing de novo.
JR2262/2011) [2014] ZALCJHB 276
Strocam Projects (Pty) Ltd v Metal and Engineering Industries Bargaining Council (MEIBC) and Others
s 145(2)(a)(ii)
For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii) the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result would only be unreasonable if it were one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, were not in and of themselves sufficient for an award to be set aside but were only of any consequence if the effect was to render the outcome unreasonable.
PA4/13) [2014] ZALAC 44
Shatterprufe (Pty) Ltd v Seasani NO and Others
Grounds
Applicant on review could not simply make a broad allegation that an arbitrator had failed to apply their mind to the facts. Applicant has to substantiate the allegation by alluding to those facts which it claimed the arbitrator failed to consider.
(JR1560/12) [2014] ZALCJHB 348
City of Johannesburg v South African Local Government Bargaining Council and Others
Variation of Award by arbitrator, Without notice to one of parties
Audi alteram partem principle not infringed where arbitrator corrected manifest error on basis of evidence that emerged at arbitration itself.
(JR 818/2011) [2014] ZALCJHB 185
Ellerines Furnishers (Pty) Ltd v CCMA and Others
If award was reviewable, that the dispute was not automatically remitted to the arbitrating authority:
It would depend on the nature of the dispute; the reasons of the court in support of the decision to review; the relief sought; as well as any other factors relevant to the dispute.
(CA 13/2013) [2015] ZALAC 9
IMATU v City of Cape Town and Others
Sidumo test
JA01/14
FIRST GARMENT RENTAL (PTY) LTD
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007] ZACC 22; 2008 (2) SA 24 (CC); [2007] 12 BLLR 1097 (CC) where the Constitutional Court held at para 110 that To summarise, Carephone (Pty) Ltd v Marcus NO and Others [1998] 11 BLLR 1117 (LAC) held that s 145 of the LRA was suffused by the then constitutional standard that the outcome of an administrative decision should be justifiable in relation to the reasons given for it. The better approach is that s 145 is now suffused by the constitutional standard of reasonableness. That standard is the one explained in Bato Star (Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC). Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to a fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair.
HEROLDT TEST
CA 12/2014
GEORGE ALEXANDER GREY
Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA)
For a defect in the conduct of the proceedings to have amounted to a gross irregularity as contemplated by Section 145 (2)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable
incomplete record –
JA 41/14
Henred Fraunhauf (Pty) Ltd and Another v Marcus N.O and Others
record showing that applicant relying on evidence not forming part of the transcribed record – Impossible to determine merits of dispute in the circumstance
Test
JR 2610/12
Sepang v Dibakwane and Others (JR 2610/12) [2015] ZALCJHB 235 (4 August 2015)
In Goldfields Mining South Africa (Pty) Ltd v CCMA
held that provided that the arbitrator gave the parties a full opportunity to state their respective cases at the hearing, identified the issue that he or she was required to arbitrate, understood the nature of the dispute and dealt with its substantive merits, the function of the reviewing court is limited to a determination whether the arbitrators decision is one that could not be reached by a reasonable decision-maker on the available material
Herholdt, the SCA
Constructive dismissal
JR1579/11
Armaments Corporation of South Africa Ltd v Nowosenetz N.O. and Others (JR1579/11) [2015] ZALCJHB 241 (5 August 2015)
1) review of first-stage of constructive dismissal is whether facts establish jurisdiction, (2) review of second-stage of constructive dismissal is reasonableness.
Test
J3277/12
Wholesale Housing Supplies (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (J3277/12) [2015] ZALCJHB 239 (6 August 2015)
13] What this analysis requires where what is at issue is any assessment of whether a reviewable defect and/or irregularity has occurred or what its impact is to be upon an award, is a determination first of the nature of the error alleged to have been committed by the arbitrator and any distorting effect that the error may have had on the outcome of the arbitrators award. If it is reasonably clear that but for the identified error relied upon the award would have been different or cannot stand on its own reasoning, then it is prima facie an unreasonable award. The court must then have regard to the issues and the evidence as a whole to determine whether or not the outcome is nevertheless capable of being sustained on the Sidumo test.
Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC)
The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisaged in the distinctive review grounds developed at common law, now codified and mostly specified in section 6 of the promotion of administrative Justice act (PAJA).; such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith arbitrarily or capriciously etc . The Court must nonetheless still consider with apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence (at paragraph 31).Further: Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had on the arbitrators conception of the enquiry, the determination of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. The material error of this order would point to at least a prima facie unreasonable result.
further re-emphasized that the reviewing court should intervene in circumstances where the decision of the Commissioner is entirely disconnected with the evidence or is unsupported by any evidence and involves speculation by the Commissioner
Grounds for review
JR1103/2009
South African State And Allied Workers’ Union and Another v General Service Public Sector Bargaining Council and Others (JR1103/2009) [2015] ZALCJHB 253 (7 August 2015)
Naidoo v NBCCI [2012] 9 BLLR 915 (LC)
In Naidoo v NBCCI[6] it was held that it is incumbent on an applicant in a review application to establish the grounds for review with reference to the award and the evidence. An applicants bald statement that an arbitrator has failed to apply his/her mind is insufficient. The factual basis for the allegation must be given.[7]
Application to dismiss review Rule 11.
JR698/2013; J271/2015
Edcon (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others; In re: Thulare and Others v Edcon (Pty) Limited (JR698/2013; J271/2015) [2015] ZALCJHB 392; (2016) 37 ILJ 434 (LC) (13 November 2015)
No general principle that a respondent must place an applicant on terms before seeking dismissal of review, especially where Rule 16.2 is of application which allows such applicant to enrol its review for default judgment
Review of a private arbitration award in terms of section 33(1) of the Arbitration Act 42 of 1965.
JR1342/12
Mkhize v Antrobus SC and Another (JR1342/12) [2015] ZALCJHB 398 (13 November 2015)
gross dereliction of duty alternatively gross incompetence and alternatively gross negligence in respect of, inter alia, payments made to the South African Revenue Services
SACCAWU v Pick n Pay Retailers Pty Ltd and others
[7] The specific grounds upon which a private arbitration award can be reviewed on account of the conduct of the arbitrator are those grounds (strictly interpreted) set out in s 33(1)(a) and (b) of the Arbitration Act, ie misconduct; gross irregularity; or excess of powers. Neither s 33 (just administrative action) nor s 34 (access to courts) of the Constitution apply directly to private arbitrations, and thus cannot serve as a basis for extending the grounds upon which a private arbitration award can be reviewed. In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and another 2009 (4) SA 529 (CC), O’Regan J, writing for the majority, set out the policy basis for the limited scope of intervention in private arbitrations: ‘Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated. ‘This cautionary sentiment is reflected in the conclusion reached by Van Dijkhorst AJA in Stocks Civil Engineering: ‘A court is entitled on review to determine whether an arbitrator in fact functioned as arbitrator in the way that he upon his appointment impliedly undertook to do, namely by acting honestly, duly considering all the evidence before him and having due regard to the applicable legal principles. If he does this, but reaches the wrong conclusion, so be it. But if he does not and shirks his task, he does not function as an arbitrator and reneges on the agreement under which he was appointed. His award will then be tainted and reviewable…. An error of law or fact may be evidence of the above in given circumstances, but may in others merely be part of the incorrect reasoning leading to an incorrect result. In short, material malfunctioning is reviewable, a wrong result per se not (unless it evidences malfunctioning). If the malfunctioning is in relation to his duties that would be misconduct by the arbitrator as it would be a breach of the implied terms of his appointment.’
Test
JR2467/10
SACCAWU obo Tsoku v Commission for Conciliation, Mediation and Arbitration and Others (JR2467/10) [2016] ZALCJHB 21 (26 January 2016)
Head of the Department of Education v Mofokeng and others[2015] 1 BLLR 50(LAC)at 60-1, para[33].
Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it willex hypothesibe material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.
Test
R1279/09b
National Commissioner of the South African Police Service v Radebe and Others (JR1279/09b) [2016] ZALCJHB 54 (9 February 2016)
The first respondent (Sipho Radebe) did not make his own decision in arbitrating the dispute, he, however cut and pasted the previous arbitration award as if it was his own. Matter is remitted back to the second respondent for arbitration hearing afresh before an arbitrator other than the first respondent.
Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC), paragraph 33. Following the Supreme Court of Appeal judgment in Herholdt [2013] 11 BLLR 1074 (SCA). and the Labour Appeal Courts judgment in Gold Fields [2014] 1 BLLR 20 (LAC).
Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.
Shoprite Checkers v CCMA and others (2015) 36 ILJ 2908 (LC).
determining when the failure by an arbitrator to consider facts will be reviewable. The Court accepted the following mode of analysis: a. the first enquiry is whether the facts ignored were material, which will be the case if a consideration of them would (on the probabilities) have caused the commissioner to come to a different result’s. if this is established, the (objectively wrong) result arrived at by the commissioner is prima facie unreasonable. a second enquiry must then be embarked upon it being whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness; and d. if the answer to this enquiry is in the negative, then the award stands to be set aside on review on the grounds of unreasonableness (and vice versa). … In summary: Where it is alleged in review proceedings that an arbitrator ignored certain material facts, the enquiry is whether indeed this was the case, and if so, whether these facts were material. If it is found that they were indeed ignored as alleged, and were material, it follows that the arbitrator would have come to a different conclusion had he taken them into account, and therefore the result arrived at would prima facie be unreasonable.
Different tests
JR923/2013
Steenwerke v Bobbejan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016)
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para 110.
whether the decision reached by the arbitrator is one that a reasonable decision maker could not reached. The Constitutional Court very clearly held that the arbitrator’s conclusion must fall within a range of decisions that a reasonable decision maker could make.
In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.
record and transcript of the proceedings are lost
JR516-11, J2735/13
Cashbuild (Pty) Ltd v Merwe NO and Others (JR516-11, J2735/13) [2016] ZALCJHB 108 (22 March 2016)
Shoprite Checkers Ltd v Commission for Conciliation, Mediation and Arbitration & Others (2010) 31 ILJ 1337 (LC) at para 10.
an Applicant has a fundamental right to review before the Labour Court and, further, it is not the Applicants fault that the record and transcript of the proceedings are lost. It will be unfair to dismiss the application as it was not the applicants fault that no record was provided. When deciding to refer the matter back to the CCMA one must consider not only the interests of the third respondent but those of the applicant as well. The choice is either to let the award in the third respondents favour stand, or set it aside and to refer the matter for a hearing de novo. If the award is allowed to stand, then the applicants right of review will be completely frustrated, thereby prejudicing it.
Goldfields Mining South Africa v Moreki (2014) 35 ILJ 943 (LAC).
Bias
JR1706/13
Mkhonza and Another v Scottish Clothing Company and Others (JR1706/13) [2016] ZALCJHB 130 (5 April 2016)
SA Commercial Catering & Allied Workers Union & others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC); (2000) 21 ILJ 1583 (CC), at 714-5
[14] The Court in Sarfufurther alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but the apprehension itself must in the circumstances be reasonable. This two-fold aspect finds reflection also in S v Roberts, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds. [15] It is no doubt possible to compact the “double” aspect of reasonableness inasmuch as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. [16] The “double” unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a Judge will be biased – even a strongly and honestly felt anxiety – is not enough. The court must carefully scrutinize the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant’s anxieties. It attributes to the litigant’s apprehension a legal value and thereby decides whether it is such that it should be countenanced in law. [17] The legal standard of reasonableness is that expected of a person in the circumstances of the individual whose conduct is being judged.
Band of decisions
DA17/14
Ethekwini Municipality v Hadebe and Others (DA17/14) [2016] ZALAC 14; [2016] 8 BLLR 745 (LAC) (10 May 2016)
In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold Fields) [2014] 1 BLLR 20 (LAC)
where a gross irregularity in the arbitration proceedings is alleged, the enquiry extends to whether the result was unreasonable, in particular, whether the decision arrived at by the arbitrator is one that falls within a band of decisions to which a reasonable decision-maker could come on the available material
[25] Therefore, the upshot of both Herholdt and Goldfields is that a process failure on the part of a commissioner does not in itself render an award unreasonable. In order for it to be unreasonable, it has to be established that such failure caused the result of the award to be unreasonable. Thus, a process failure is of no consequences if the final result of the award is, nevertheless, capable of reasonable justification.
error of law
CA17/2014
Democratic Nursing Organisation of South Africa (DENOSA) obo du Toit and Another v Western Cape Department of Health and Others (CA17/2014) [2016] ZALAC 15; (2016) 37 (ILJ) 1819 (LAC) (12 May 2016)
City of Johannesburg Metropolitan Municipality v Gauteng development Tribunaland Others2010 (6) SA 182(CC) at para 91; see also the remarks of Malan J (as he then was) with regard to the implications of Hira, supra in the constitutional dispensation in South African Jewish Board of Deputies v Sutherland N.O and Others2004 (4) SA 368(W) at para 27.
courts are given the power to review every error of law provided that it is material; that is that the error affects the outcome.
errors in relation to the facts
JA12/2015
Rustenburg Platinum Mines Limited (Amandelbult Section) v NUM obo Monageng and Others (JA12/2015) [2016] ZALAC 21 (26 May 2016)
Head of Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC)
Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it willex hypothesibe material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination
[13] What is therefore required when dealing with gross irregularities is firstly to determine the materiality of the error or irregularity and secondly to determine whether that irregularity resulted in an unreasonable outcome.
Private Arbitration: Arbitration Act
Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC).
Brand, FDJ “Judicial Review of Arbitration Awards” (2014)Stell LR2 247-264.
Telcordia Technologies Inc v Telkom SA Ltd[2006] ZASCA 112;2007 (3) SA 266(SCA) at para 51;National Union of Mineworkers obo Employees v Grogan NO and Another(2010) 31ILJ1618 (LAC) at para 33.
Private Arbitration
JR173/2014
Pikitup Johannesburg Soc Limited v Tokiso Dispute Settlement (Pty) Ltd and Others (JR173/2014) [2016] ZALCJHB 179 (17 May 2016)
[26] While the wording of section 33(1) of the Arbitration Act and section 145(2) of the LRA is virtually identical, the standard for review in the Arbitration Act is not the same as that of the LRA. Section 33(1) of the Arbitration Act is not infused with a reasonableness standard.
Clear Channel Independent (Pty) Ltd v Savage NO and Another (2009) 5 BLLR 439 (LC) at para 36.
[29] It was incumbent upon the Applicant to properly submit grounds for review in terms of section 33(1) of the Arbitration Act in its founding affidavit. In light of the differing standards of review in section 33(1) of the Arbitration Act and s 145 of the LRA, a failure to do so would indeed constitute a fatal defect. It does not suffice to simply make general submissions or allegations of gross irregularities on the part of the Second Respondent.
gross irregularity still has the meaning attributed to the term inEllis v Morgan and Goldfields Investment. That means it is purely procedure based. It has nothing to do with outcome. It can only be invoked where, as a result of something that went wrong procedurally, the aggrieved party can be said to not to have had a fair trial. Under the LRA, on the other hand, gross irregularity is now also focused on outcome, albeit that it is still clearly distinguishable from an appeal.
ile a complete record of arbitration proceedings within 60 days in terms of clause 11.2.3 of Practice Manual
JR874/13
Shaik v Commission for Conciliation, Mediation and Arbitration and Others (JR874/13) [2016] ZALCJHB 239 (8 July 2016)
Clause 11.2.3 of the Practice Manual makes it abundantly clear that if the Applicant fails to file the record within the prescribed period of 60 days, the Applicant will be deemed to have withdrawn the application, unless the Applicant has during that period requested the Respondents consent for an extension of time and consent has been granted.
The test on review
JR2946/2010, J494/13
Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016)
Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) at paras 30-33.
[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to defects as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (My emphasis)
The test on review
JR178/14
Ramatswi v South African Local Government Bargaining Council and Others (JR178/14) [2016] ZALCJHB 405 (18 October 2016)
Palluci Home Depot (Pty) Ltd v Herskowitz & others (2015) 36 ILJ 1511 (LAC)
‘Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidence in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc, must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.’
Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 101.
.Nothing said in Sidumo means that the grounds of review in s 145 of the Act are obliterated. The Constitutional Court said that they are suffused by reasonableness. Nothing said in Sidumo means that the CCMA’s arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in s 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. Also if the CCMA made a decision that exceeds its powers in the sense that it is ultra vires its powers, the reasonableness or otherwise of its decision cannot arise.
Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) at para 18. See also Chabalala v Metal and Engineering Industries Bargaining Council and Others (2014) 35 ILJ 1546 (LC) at para 13.
What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity.
Recusal refused
JR2103/12
Premier Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Meditation and Arbitration and Others (JR2103/12) [2016] ZALCJHB 426; (2017) 38 ILJ 658 (LC) (8 November 2016)
recusal application: the second respondent never came close to deciding the issue of his recusal based on these principles.
The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.’
A review application can still succeed without a review applicant having to show that the outcome arrived at by the arbitrator is unreasonable, where the review grounds are founded on the text of Section 145(2)(a) itself.[3]For example, if an arbitrator commits misconduct in the course of conducting the arbitration, it does not matter whether the outcome arrived at is reasonable, as the misconduct itself vitiates the proceedings, resulting in the award being set aside.
Sasol Infrachem v Sefafe and Others (2015) 36 ILJ 655 (LAC) at para 54.
To summarise, in cases where it was held that the presiding officer ought to have recused himself or herself at the outset, but failed to do so, the entire proceedings before the arbitrator or presiding officer are a nullity.
jurisdictional ruling
JR693/15
Minister of Justice and Correctional Services and Another v Naude and Others (JR693/15) [2016] ZALCJHB 478 (2 December 2016)
Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 101.
.Nothing said in Sidumo means that the CCMAs arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in section 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. (emphasis added)
.in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions a reasonable decision maker could come to on the available material
[28]In short, the reasonableness test envisages a determination, based on all the evidence and issues before the arbitrator, as to whether there is a failure or error in the arbitrators award, and if so, whether the outcome the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds… In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on that material, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.
In Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.
.the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review.
Review tests simplified
JR693/15
Minister of Justice and Correctional Services and Another v Naude and Others (JR693/15) [2016] ZALCJHB 478 (2 December 2016)
(firstly) that there exists a failure or error on the part of the arbitrator in making the award…(Secondly) that the review applicant must then show that the outcome arrived at was also unreasonable (Then) if the outcome arrived at is nonetheless reasonable, despite the error or failure, that is equally the end of the review application… In short, for a review application to succeed, the error of failure must affect the reasonableness of the outcome, rendering it unreasonable.
Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA) at para 25.
. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14. The Gold Fields judgment was followed by the LAC itself in Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.
absence of a proper record
JR761/2014
Department of Agriculture v Peach and Others (JR761/2014) [2016] ZALCJHB 499 (13 December 2016)
Baloyi v MEC for Health and Social Development, Limpopo (2016) 37 ILJ 549 (CC); 2016 (4) BCLR 443 (CC); [2016] 4 BLLR 319 (CC).
[15] The LAC in Francis Baard did not refer to the recent Constitutional Court authority in Baloyi v MEC for Health and Social Development, Limpopo. The apex court held that, in the absence of a proper record, the Labour Court ought at least to have remitted the matter for rehearing.
commissioner failed to accord full and unbiased attention to the entire evidence before him
JR610/2015
Bold Moves 1991 v Mdluli and Others (JR610/2015) [2017] ZALCJHB 238 (20 April 2017)
[35] In my view, the commissioner failed to give complete and impartial attention to the totality of the evidence before him prior to drawing his conclusion which is not supported by the evidence led as reflected in the record.
Lukhanji Municipality v Nonxuba NO and Others[2007] 2 BLLR 130 (LC) at par 27 referred to Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA)
To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; their reliability; and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness candour and demeanour in the witness box.(ii) his bias, latent and blatant.(iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to(c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a courts credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.
commissioner: involvement
JR906/13
Cash Paymaster Services (Proprietary) Limited v Hlatswako N.O. and Others (JR906/13) [2017] ZALCJHB 217 (6 June 2017)
Vodacom Service Provider (Pty) Ltd v Phala 2007 28 IJL 1335 LC
13 A commissioner has a discretion about how the arbitration should be conducted. A commissioner may decide to adopt an adversarial approach or an inquisitorial approach. In an inquisitorial approach the commissioner is in control of the process. The commissioner plays a more active role in the hearing, calling witnesses and interrogating them to ascertain the truth. The commissioner cannot abandon the well-established rules of natural justice and must be careful to guard against creating a suspicion of bias. In this regard see Mutual and Federal Insurance Co Ltd v CCMA and Others [1997] 12 BLLR 1610 (LC) at 1619 20 and County Fair Foods (Pty) Ltd v Theron NO and Others (2000) 21 ILJ 2649 (LC)…. 15 A commissioner is required to conduct the proceedings in a fair, consistent and even handed manner. A commissioner cannot assist or be seen to assist, one party to the detriment of the other. A commissioner cannot put to witnesses his propositions, should not interrupt the witnesses answers, challenge the consistency of a witness with his own evidence, indicate that he doubted the witness’s credibility, or make submissions regarding the construction of evidence.
Jurisdiction
JR322/15
Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017)
Review concerning issue of jurisdiction. Test of rationality and reasonableness does not apply; award considered de novo on the basis of being right or wrong
JR2177/16
Danone Southern Africa (Pty) Ltd and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2177/16) [2017] ZALCJHB 252 (30 June 2017)
conduct by commissioner in coming to finding; commissioner mero motu making own enquiries without knowledge of parties; conduct irregular
Security
J779/2017
Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (J779/2017) [2017] ZALCJHB 261; (2017) 38 ILJ 2596 (LC); [2017] 11 BLLR 1161 (LC) (30 June 2017)
test
JR1115/15
Kommal and Another v South African Police Service and Others (JR1115/15) [2017] ZALCJHB 450 (5 December 2017)
National Union of Metalworkers of SA on behalf of Motloba v Johnson Controls Automotive SA (Pty) Ltd & others (2017) 38 ILJ 1626 (LAC)
[38] Following the decision of the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines Ltd & others on the review test this court provided further guidance on the test in a number of its decisions. In Head of Department of Education v Mofokeng & others, this court provided the following useful exposition on the test which needs to be quoted in extenso:[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) [(2013) 34 ILJ 2795 (SCA)] and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others [(2014) 35 ILJ 943 (LAC)], have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in s 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be a fair trial of the issues.[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LRA, confining review to defects as defined in s 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may I constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (Emphasis added.)
James and Another v Eskom Holdings SOC Ltd and Others (CA8/16) [2017] ZALAC 39; (2017) 38 ILJ 2269 (LAC); [2017] 10 BLLR 979 (LAC) (13 June 2017)
refusal by the employer, Director OD to implement a grievance outcome.
JR214/2016
City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union obo Matsheka and Others (JR214/2016) [2017] ZALCJHB 469 (14 December 2017)
[2] The Second Respondent lacked jurisdiction to adjudicate the dispute.
gross irregularity
JA5/15
Consol Glass v National Bargaining Council for the Chemical Industries and Others (JA5/15) [2017] ZALAC 12 (3 February 2017)
Toyota SA Motors (PTY) LTD v Commission for Conciliation, Mediation & Arbitration and Others (2016) 37 ILJ 313 (CC) at 343-345 paras 95 102.
[105]..As the authorities referred to above reveal, a gross irregularity is conduct on the part of an arbitrator or decision maker that prevents one of the parties from having its case fairly heard or that prevents a fair trial of issues. Any decision by the commissioner to prevent Toyota from cross-examining Mr Makhotla on such a crucial aspect of the case would be a gross irregularity justifying the setting aside of the commissioner’s award.
held that the jurisdiction of the CCMA should be established by employees pleaded case at the CCMA
CA8/16
James and Another v Eskom Holdings SOC Ltd and Others (CA8/16) [2017] ZALAC 39; (2017) 38 ILJ 2269 (LAC); [2017] 10 BLLR 979 (LAC) (13 June 2017)
Jurisdiction of the CCMA employees dismissed for contravening employers disciplinary code- stole watermelons belonging to a client CCMA dismissing employees unfair dismissal claim employees on review challenging the award on the validity of their dismissal employees now challenging the validity and lawfulness of the general managers decision to overturn the chairperson of the disciplinary initial sanction- employees contending that such decision contrary to the collective agreement held that the jurisdiction of the CCMA should be established by employees pleaded case at the CCMA – that the information on the referral form reveals that the employees referred a substantively and procedurally unfair dismissal dispute to the CCMA, thereby clothing the CCMA with jurisdiction. Court deems it unnecessary to deal with the validity and lawfulness allegation as the Constitutional Court in Edcon has not overruled the LACs dictum in the same Case Appeal dismissed and Labour Courts judgment upheld.
review vs rescission
JA83/2016
Bloem Water Board v Nthako NO and Others (JA83/2016) [2017] ZALAC 42; (2017) 38 ILJ 2470 (LAC); [2017] 11 BLLR 1073 (LAC) (28 June 2017)
The arbitrator arrived late for the hearing. The employer who had been in attendance had already left. The arbitrator concluded that the employer was obliged to attend for the whole day and that the employer had abandoned the arbitration and proceeded to hear evidence and issued an award. The employer did not seek to rescind the award in terms of section 144 of the LRA but instead launched an application to review the alleged misconduct of the arbitrator. Held on appeal that the although internal remedies should be exhausted and piecemeal reviews are to be avoided, the Labour Court may intervene in medias res where the interests of justice require it although this power is to be used sparingly and only in exceptional circumstances. As the interest of justice required it and exceptional circumstances were present the appeal was upheld.
Collet v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC).
[48] The reasonableness or unreasonableness of a delay is entirely dependent on the facts and circumstances of any particular case (see eg Setsokosane at 86G). The investigation into the reasonableness of the delay has nothing to do with the Courts discretion. It is an investigation into the facts of the matter in order to determine whether, in all the circumstances of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned (see Setsokosane at 86EF).
Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en n ander 1986 (2) SA 57 (A)
application of the rule requires consideration of two questions:(a) Was there an unreasonable delay?(b) If so, should the delay in all the circumstances be condoned?
[22] The result is that the commissioner was not justified in her finding that the rescission application was delivered late and she should have rescinded the award. It therefore follows that there are prospects of success as regards the appeal and the applications for condonation should be granted and the appeal reinstated and upheld.
Condonation period: application be brought in terms of section 158(1)(h) of the LRA.
JA86/2016
G4S Secure Solutions (SA) (Pty) Ltd v Gunqubele N.O. and Others (JA86/2016) [2017] ZALAC 52; [2017] 12 BLLR 1181 (LAC); (2018) 39 ILJ 131 (LAC) (5 September 2017)
[22] The result is that the commissioner was not justified in her finding that the rescission application was delivered late and she should have rescinded the award. It therefore follows that there are prospects of success as regards the appeal and the applications for condonation should be granted and the appeal reinstated and upheld.
Weder v MEC for Health, Western Cape [2013] 1 BLLR 94 (LC); (2013) 34 ILJ 1315 (LC).
that although an application should be brought within a reasonable time, an applicant should apply for condonation if the application was made after six weeks.
What, then, is a reasonable time in the context of s 158 of the LRA? It is tempting simply to assume that it should be six weeks, by analogy to the time period provided for in s 145. At the most, it cannot be more than the 180 days provided for in PAJA; in fact, given that PAJA does not apply and that the process is closely aligned to that set out in s 145 and rule 7A, I would suggest that anything more than six weeks should at least trigger an application for condonation.
Associated Institutions Pension Fund v Van Zyl 2005 (2) SA 302 (SCA).
applicable legal principles
JR2246/14
Fidelity Security Services (Pty) Ltd v SATAWU obo Richard and Others (JR2246/14) [2018] ZALCJHB 59 (1 February 2018)
Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA)
This court is entitled to interfere with an award made by a commissioner if and only if the commissioner misconceived the nature of the enquiry (and thus denied the parties a fair hearing) or committed a reviewable irregularity which had the consequence of an unreasonable result. The failure by an arbitrator to attach particular weight to evidence or attachment of weight to the relevant evidence and the like is not in itself a basis for review; the resultant decision must fall outside of a band of decisions to which reasonable decision-makers could come on the same material. In other words, the test is two-staged. First, the applicant must establish a misconception of the nature of the enquiry or some misconduct or misdirection on the part of the arbitrator. If that is established, whether a decision is unreasonable in its result ultimately requires this court to consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could still be reasonably reached in the light of the issues and the evidence.
Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC)
a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process-related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgement). Specifically, the questions for a review court to ask is whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with a substantial merits of the dispute and whether the decision is one that another decision-maker could reasonably have arrived at based on the evidence (see paragraph 20). So, when arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21).
the determination, by a court of review, of whether to remit the matter to the CCMA for reconsideration
JR2246/14
Fidelity Security Services (Pty) Ltd v SATAWU obo Richard and Others (JR2246/14) [2018] ZALCJHB 59 (1 February 2018)
Palluci Home Depot (Pty) Ltd Heskowitz and others [2015] 5 BLLR 484 (LAC)
Where all the facts required to make a determination on the disputed issues before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, see no reason why a reviewing court should not decide the matter itself. Such an approach is consistent with the paths of the Labour Court under s 158 of the LRA, which primarily directed at remedying a wrong, and providing effective and speedy resolution of disputes. The need for bringing a speedy finality to labour dispute is thus an important consideration in the determination, by a court of review, of whether to remit the matter to the CCMA for reconsideration, or substitute its own decision for that of the commissioner.
that once the Commissioner misconstrues the nature of the enquiry before him/her, the result will invariably be unreasonable.
test
JR2235/13
Harmony Gold Mining Company Limited v Lefosa and Others (JR2235/13) [2017] ZALCJHB 56 (7 February 2017)
[27]I am of the view that in this matter, the fact that the Commissioner misconstrued the nature of the enquiry before him, in fact resulted in an unreasonable finding.
Head of the Department of Education v Mofokeng and Others [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); [2015] 36 ILJ 2802 (LAC).
he relevant facts which the Commissioner ignored constitute material facts. Had the Commissioner considered these facts and the probabilities, he would have come to a different conclusion on the finding of Mr Lefosas guilt and on sanction. As a result, the award is prima facie unreasonable and there is no basis in the evidence to displace the prima facie case of unreasonableness. The Commissioners failure to consider a number of material facts distorted the outcome of the hearing and resulted in an unreasonable and thus reviewable award.
African Bank v Magashima & Others (JR2419/12) [2014] ZALCJHB 298 (5 August 2014) unreported case.
Comtech (Pty) Ltd v Molony NO and Others (DA12/05) [2007] ZALAC 40 (21 December 2007)
Rule 7A(2)(c) of the Labour Court Rules requires an applicant in a review to set out the factual and legal grounds of the review in the founding papers.
section158(1)(h) of the LRA
J2106/2013
Thaba Chweu Local Municipality v Koma and Others (J2106/2013) [2018] ZALCJHB 103 (13 March 2018)
[8]The Labour Court may in terms of section158(1)(h) of the LRA, review any decision taken or any act performed by the state in the capacity as employer on such grounds that are permissible in law.
Hendricks v Overstrand Municipality [2014] 12 BLLR 1170 (LAC) at para 29
t was held that a decision taken by the state in its capacity as employer could be reviewed on any grounds permissible in law, if no other remedy is available. The grounds permissible in law were identified as (i) those listed in PAJA, provided the decision constituted an administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) on the basis of the constitutional principle of legality.
[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others6 have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.
nit picking approach to charges particularly inappropriate given the scale of irregularities involved
JR1334/14
Nevehethalu v Commission for Conciliation, Mediation and Arbitration and Others (JR1334/14) [2018] ZALCJHB 109 (13 March 2018)
the court is confined to what is raised in the review application itself, except in limited exceptional circumstances such as the existence of a jurisdictional issue neither party had identified
Commercial Workers Union of SA v Tao Ying Metal Industries & others (2008) 29 ILJ 2461 (CC)
[67] Subject to what is stated in the following paragraph, the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.[68] These principles are, however, subject to one qualification. Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality. Accordingly, the Supreme Court of Appeal was entitled mero motu to raise the issue of the commissioner’s jurisdiction and to require argument thereon. However, as will be shown below, on a proper analysis of the record, the arbitration proceedings in fact did not reach the stage where the question of jurisdiction came into play.
Head of Department of Education v Mofokeng & Others(2015) 36 ILJ 2802 (LAC)
in adopting an overly technical approach in interpreting the allegations of misconduct
JR1091/2011
Xstrata South Africa (Proprietary) Limited – Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011) [2018] ZALCJHB 148 (11 April 2018)
It is whether the commissioner misconceived the enquiry he or she had to conduct or reached an unreasonable decision. The commissioner was enjoined by section 138 (1) of the Labour Relations Act[1] (the LRA) to conduct the arbitration fairly and to deal with the substantial merits of the dispute with minimum legal formalities. The applicant correctly relied on the authorities which provide that before taking the decision to dismiss an employee, an employer is required to afford an employee an opportunity to state a case.
JR243/16
Mohlala v MEIBC and Others (JR243/16) [2018] ZALCJHB 161 (24 April 2018)
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) at para 20
(1) In terms of his or her duty to deal with the dispute with the minimum of legal formalities, did the process used by the commissioner give the parties a full opportunity to have their say?(2) Did the commissioner identify the dispute he or she was required to arbitrate?(3) Did the commissioner understand the nature of the dispute he or she was required to arbitrate?(4) Did the commissioner deal with the substantial merits of the dispute?(5) Is the commissioners decision one that another decision maker could reasonably have arrived at based on the totality of the evidence? Even if the court might have taken a different view of the evidence that is not enough to overturn the arbitration award.
Principles
JR2578/14
WBHO Civil Construction (Pty) Ltd v Hlatshwayo N.O. and Others (JR2578/14) [2018] ZALCJHB 176 (10 May 2018)
[43] As to when a decision will be unreasonable, it will only be so if it is one that a reasonable decision-maker could not arrive at.[7] It must thus fall outside of a notional range of reasonable decisions that could be reached on a given set of facts.[8] It will fall outside this range if the decision is not capable of justification[9] (i.e. justifiable) or, put differently, cannot plausibly be reached on the material evidence.[10] This will be the case if the award is entirely disconnected with the evidence or is unsupported by any evidence and involves speculation by the commissioner.[11] It follows from this that [a commissioners] award will be reasonable when there is a material connection between the evidence and the result, or, put differently, when the result is supported by some [material] evidence.[12] In short, a wrong award is not, in itself, reviewable; to be so, it must be so wrong (obviously wrong[13]) as to be unreasonable. The result of this is that there will be many awards where this court differs with the decision of the commissioner awards that might rightly be described as unsatisfactory or poor but where the result is, nevertheless, not unreasonable, and the award thus not reviewable.[14]
[7] Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) at para 110.[8] Sidumo at paras 109 and 119.[9] Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ 1453 (LAC) at para 12.[10] Hillside Aluminium Ltd v Kuppusami and Others [2014] ZALCD 62 at para 15.[11] Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at para 13.[12] Anglo Platinum at para 11.[13] Goodyear SA (Pty) Ltd v CCMA & others (2004) 1 BLLR 7 (LAC) at para 6.[14] Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC) at para 101.
In these circumstances, a reasonable commissioner would, in my view, have found that the individual respondents were guilty of having intimidated sub-contractors outside the entrance gate. Although the misconduct of the individual respondents was serious, there are material mitigating factors in their favour. To begin with, as reasonably (not necessarily correctly) found by the commissioner: (i) it was inappropriate for the shift cancelling instruction to have been issued to the shop steward and it was bound to miscarry; (ii) the rationale for the instruction was without merit and the decision to cancel the shift was mala fide; and (iii) confusion reigned supreme on the Saturday. Each of these factors is compelling.
Sidumo not only ground: in determining jurisdiction to arbitrate an alleged unfair dismissal dispute
JR1679/16
Cronos Airlines International (Pty) Ltd v Ngwenya NO and Others (JR1679/16) [2018] ZALCJHB 212 (30 May 2018)
Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC).
I now turn to question of whether the CCMA had jurisdiction to deal with this dispute. Since the jurisdiction of the CCMA is intrinsic to the purported dismissal of the appellant as defined in s186 of the LRA, this Court must first determine whether, on an objective assessment of the evidence, the Labour Court was correct in setting aside the Commissioners finding that the appellant was dismissed by Delkor within the meaning of s186(1)(a) of the LRA. In determining whether the CCMA has jurisdiction to deal with a dispute, the Labour Court is not limited to the Sidumo (reasonableness) test of review, but may determine the issue de novo.
the employees unfair dismissal referral to arbitration, under case number GAEK9450/15 is dismissed.
Constructive dismissal
JA76/2016
Solidarity obo Van Tonder v Armanents Corporation of South Africa (SOC) Limited and Others (JA76/2016) [2019] ZALAC 55; [2019] 8 BLLR 782 (LAC); (2019) 40 ILJ 1539 (LAC) (8 March 2019)
Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others [2014] 10 BLLR 987 LAC at para 19 read with para 35 (and in SA Rugby Players’ Association and Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v Sarpu and Another [2008] ZALAC 3; [2008] 9 BLLR 845 LAC at para 41).
An applicant seeking review of a finding of constructive dismissal must show that the decision was objectively wrong. The review standard is correctness not reasonableness – as the issue is one going to jurisdiction.
Albany Bakeries Limited v Van Wyk and Others
security for costs
JA120/2017
City of Johannesburg v SAMWU obo Monareng and Another (JA120/2017) [2019] ZALAC 54; (2019) 40 ILJ 1753 (LAC) (20 March 2019)
Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (2017) 38 ILJ 2596 (LC)
what good cause entails: Good cause in the context of motivating a departure from the security provisions prescribed in s145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses 10 employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months’ salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security.
Court emphasised the importance of an employee exhausting reasonable alternatives to resignation. It stated: How will an employee ever prove that [the employment had been made intolerable] if he has not adopted other suitable remedies available to him? It is, firstly, also desirable that any solution falling short of resignation be attempted as it preserves the working relationship, which is clearly what both parties presumably desire. Secondly, from the very concept of intolerability one must conclude that it does not exist if there is a practical or legal solution to the allegedly oppressive conduct. Finally, it might well smack of opportunism for an employee to leave when he alleges that life is intolerable but there is a perfectly legitimate avenue open to alleviate his distress and solve his problem.
List of probable grounds for review application
CA3/2018
Khan v Commission for Conciliation Mediation and Arbitration and Others (CA3/2018) [2019] ZALAC 47 (3 May 2019)
Masuku v Score Supermarket (Pty) Ltd (2013) 34 ILJ 147 (LC) at para 10; Seardel Group Trading t/a Romatex Home Textiles v Petersen [2011] 2 BLLR 211 (LC) at para 13.
a party seeking to review or appeal the exercise of such a discretion required to show that the decision-maker acted capriciously, or upon a wrong principle, or in a biased manner, or for unsubstantiated reasons, or committed a misdirection or an irregularity, or failed to exercise its discretion, or exercised its discretion improperly or unfairly
section 14(2) of the Employment of Educators Act
CA10/2018
Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O and Another (CA10/2018) [2019] ZALAC 38; [2019] 10 BLLR 1110 (LAC); (2019) 40 ILJ 2318 (LAC) (13 June 2019)
[49]… The Labour Court accordingly did not err in setting aside the impugned decision on the grounds contemplated in sections 6(2)(e)(v) and (vi) of PAJA.
[43] The remaining question is whether the appellants decision that there was no good cause for reinstatement is reviewable. Various factors are relevant in determining whether good cause exists for reinstatement under section 14(2) of the EEA. In the interests of flexibility, it is inadvisable for courts to define the requirements of good cause too categorically. There is no numerus clausus of factors. Much will depend on the facts and circumstances of the case. Relevant considerations include: i) the reasons for the absence; ii) the duration of the absence; iii) the conduct of the educator prior and subsequent to his or her deemed discharge; iv) the impact of the absence on the employer; v) the whereabouts of the educator during the period of absence; vi) the practicality and tolerability of a continued employment relationship; and vii) the availability of alternative processes and solutions to the problem that led to the educators absence.
MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) (Weder).
MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) (Weder).
court held that it did not suffice for the employer to simply say without more, that the absence of the employee for the requisite period without a subsequent satisfactory explanation rendered the employment relationship intolerable.
that is challenged is a discretion such as the one exercised in terms of s 194(1) the test
JA41/2018
Bester (Scott) In re: Small Enterprise Finance Agency SOC Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA41/2018) [2019] ZALAC 73; [2020] 3 BLLR 244 (LAC); (2020) 41 ILJ 877 (LAC) (11 December 2019)
Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) at para 55.
the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision-maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether the decision-maker adopted incorrect approach.
errors
JR1909/15
BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (JR1909/15) [2018] ZALCJHB 217 (3 July 2018)
Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at 2813
[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.
evidence that had not served before the Commissioner
JR326/16
Jonker v Commission for Conciliation, Mediation and Arbitration and Others (JR326/16) [2018] ZALCJHB 247 (10 July 2018)
Xorile v CCMA [2014] ZALCJHB 512 (8 December 2014),
it is not permissible to introduce in the review proceedings evidence that had not served before the Commissioner hearing the arbitration. Such additional evidence was accordingly disregarded in the assessment of the review application.
no other remedy
J 2497-18
Mpele v Municipality Council of the Lesedi Local Municipality and Others (J 2497-18) [2018] ZALCJHB 383; [2018] 12 BLLR 1192 (LC); (2019) 40 ILJ 572 (LC) (13 August 2018)
[40] The Labour Appeal Court in Hendricks[7] found that public sector employees aggrieved by dismissal or unfair labour practices should ordinarily pursue the remedies available in sections 191 and 193 of the LRA, as mandated and circumscribed by s 23 of the Constitution Surveying the broad ambit of case law from Chirwa[8] through to Gcaba[9], the LAC found that challenges to the legality of decisions taken by the state in its capacity as employer could be reviewed on any grounds permissible in law, if no other remedy is available.
no portion of record
JR1992/2010
Nkosi v Cachalia NO and Others (JR1992/2010) [2018] ZALCJHB 293 (25 September 2018)
JDG Trading (Pty) Ltd t/a Russells v Whitcher [2005] ZALC 1; [2001] 3 BLLR 300 (LAC) 41 At 303 pars 1113
Labour Appeal Court held that the Labour Court should not have considered the review application before it because it had only been provided with the commissioners handwritten notes and an untranscribed tape recording. In the absence of the transcribed record, Goldstein AJA held, the court a quo was in no position to adjudicate properly on the application before it and ought accordingly to have dismissed it
arbitrator ignoring material facts
JR 1620/15
Moeketsi v Transnet Bargaining Council (JR 1620/15) [2018] ZALCJHB 398 (5 December 2018)
Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at paras 30 – 33; Subsequent to Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA) and Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2014] 1 BLLR 20 (LAC).
the award will be reviewable if the distorting effect of this misdirection was to render the result of the award unreasonable. However, the arbitrator must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.
Court not must consider the totality of the evidence and then decide
JR2333/2015
Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019)
[44] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with such is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence presented[3].
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2014) 35 ILJ 943 (LAC) at paras 18 and 19.
[30] The failure by an arbitrator to apply his or her mind to issue which are material to the determination of a case will usually be an irregularity. However, the [SCA] in Herholdt and this court in Gold Fields have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in the setting aside of the award. It must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome[31] Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues. (Emphasis added)
based on jurisdictional error
JR616/15
Mathopo,Moshimane and Mulangaphuma T/A DM5 INC v Commission for Conciliation, Mediation and Arbitration and Others (JR616/15) [2019] ZALCJHB 21 (5 February 2019)
SA Rugby Players Association v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) at para 41.
The issue was simply whether, objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA had no jurisdiction irrespective of its finding to the contrary.
outcome: court not referring matter to authority for reconsideration
JR1969-18
Putco (Pty) Ltd v SA Road Passenger Bargaining Council and Others (JR1969-18) [2019] ZALCJHB 137; (2019) 40 ILJ 2389 (LC) (11 April 2019)
Palluci Home Depot (Pty) Ltd v Heskowitz and others [2015] 5 BLLR 484 (LAC)
Review
J1048/19
State Information Technology Agency Soc Ltd (SITA) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (J1048/19) [2019] ZALCJHB 287; [2019] 9 BLLR 962 (LC); (2019) 40 ILJ 2850 (LC) (2 May 2019)
Uncomplete Arbitration- Review – where defect so patent that it would not lead to a fair hearing.
[36]… the Labour Appeal Court held that where all the facts required to make a determination of the disputed issues are before the reviewing court so that the court is in as good a position as the administrative tribunal to make the determination, the court should decide the matter itself. That approach, the court noted, was consistent with the powers of this court under s 158 of the LRA which are primarily directed at remedying a wrong, and providing the effective and speedy resolution of disputes. Expedited finality is thus an important consideration in the determination of whether to remit the matter for reconsideration, or to substitute.
the public sector is reviewable on grounds listed in PAJA
JR548/2018
Emalahleni Local Municipality v Sibanyoni N.O and Another (JR548/2018) [2019] ZALCJHB 111 (17 May 2019)
[32] The LAC thus confirmed that a determination by a presiding officer in the public sector is reviewable on grounds listed in PAJA, common law and the principle of legality.
Hoexter C Administrative Law in South Africa, 2nd edition, 340.
Rationality was defined by Hoexter[3] as follows:[t]his means in essence that a decision must be supported by the evidence and information before the administrator as well as the reasons given for it. It must also be objectively capable of furthering the purpose for which the power was given and for which the decision was purportedly taken.
Hendricks v Overstrand Municipality and Another [2014] 12 BLLR 1170 (LAC), (2015) 36 ILJ 163 (LAC) at para 29.
In sum therefore, the Labour Court has the power under section 158(1)(h) to review the decision taken by a presiding officer of a disciplinary hearing on i) the grounds listed in PAJA, provided the decision constitutes administrative action; ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or iii) in accordance with the requirements of the constitutional principle of legality, such being grounds permissible in law.
Refused to allow them an opportunity to lead evidence
JR725/17
Medi Logistics (Pty) Ltd v Ntsoane N.O and Others (JR725/17) [2019] ZALCJHB 107 (22 May 2019)
Dimbaza Foundries Ltd vs CCMA and Others (1999) 20 ILJ 1163 (LC).
This constituted an error in the conduct of proceedings by the arbitrator. Clearly the applicant had not anticipated that the De-Wet would change tact at the CCMA. No prejudice would have been suffered by De-Wet in standing the matter down for an hour to allow the witness to come and testify. For the arbitrator to refuse a party an opportunity to deal with something crucial and proceed to find against that party on the aspect he refused to allow them an opportunity to lead evidence, constitutes a reviewable irregularity.[2]
test expanded
JR2783/18
Idwala Industrial Holdings v Commissioner Pieterson N.O and Others (JR2783/18) [2019] ZALCJHB 176 (19 July 2019)
Following the Herholdt and Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others[4] judgments, the Labour Appeal Court handed down the judgment of Head of Department of Education v Mofokeng and Others
Head of Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC).
“[32] Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors .etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.
[17] The dictum in Mofokeng highlights many important things about the review test. The dictum provides for the following analysis:17.1 The first enquiry is whether the facts ignored were material, which will be the case if a consideration of them would (on the probabilities) have caused the commissioner to come to a different result;17.2 if this is established, the (objectively wrong) result arrived at by the commissioner is prima facie unreasonable;17.3 a second enquiry must then be embarked upon it being whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness; and17.4 if the answer to this enquiry is in the negative, then the award stands to be set aside on review on the grounds of unreasonableness (and vice versa).
Credibility finding
JR2803/16
NUMSA obo Mathonsi v SCAW Metals (Pty) Ltd and Others (JR2803/16) [2019] ZALCJHB 201; (2020) 41 ILJ 254 (LC) (20 August 2019)
National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others at para 31.
The issue of the importance of credibility findings made by the commissioner being accepted in this court on review was made by Mr Snider, who represented the third respondent. He submitted that it was the commissioner who sat in the arbitration proceedings, looked at the witnesses, listened to them, and assessed their credibility, and on review, this court should not readily interfere with this, as the commissioner was in the best position to make these findings. I agree with these submissions. This court should not readily interfere with credibility findings made by CCMA commissioners, and should do so only if the evidence on the record before the court shows that the credibility findings of the commissioner are entirely at odds with or completely out of kilter with the probabilities and all the evidence actually on the record and considered as a whole. Findings by a commissioner relating to demeanour and candour of witnesses, and how they came across when giving evidence, would normally be entirely unassailable, as this court is simply not in a position to contradict such findings. Even if I do look into the issue of the credibility findings of the second respondent in this case, I am of the view that the record of evidence in this case, if considered as a whole simply provides no basis for interfering with the credibility findings of the second respondent. There is simply nothing out of kilter between the evidence by the witnesses on record and the credibility findings the second respondent came to. The evidence on record in my view actually supports the second respondent’s credibility findings. The credibility findings of the second respondent therefore must be sustained.
Commissioner cross-examine witness
Vodacom Service Provider Co (Pty) Ltd v Phala No & others (2007) 28 ILJ 1335 (LC)
court reviewed and set aside an arbitration award in circumstances where the court held that amongst other things, that the commissioner concerned had questioned a party’s witnesses in a way that amounted to cross-examination and thus overstepped the boundaries of fair procedure in the conduct of arbitration proceedings. The court went on to note that a commissioner has a discretion about how an arbitration should be conducted and that the commissioner may decide to adopt an adversarial or an inquisitorial approach but that irrespective of the approach adopted, the commissioner is required to conduct arbitration proceedings in a fair, consistent and even-handed manner. At paragraph 15 of the judgment, the court said the following: A commissioner cannot assist or be seen to assist, one party to the detriment of the other. A commissioner cannot put to witnesses his propositions, should not interrupt the witness’s answers, challenge the consistency of a witness with his own evidence, indicated that he doubted the witness’s credibility, or make submissions regarding the construction of evidence.
Mere errors of fact or law may not be enough to vitiate the award
JR1190/16
Ramabulana v CCMA and Others (JR1190/16) [2019] ZALCJHB 232 (3 September 2019)
Head of Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC)
[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome[32] Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, if an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.
PAJA
CA 5/2019
Minister of Justice and Correctional Services and Others v Ramaila and Others (CA 5/2019) [2020] ZALAC 41 (9 November 2020)
[44] Against the background sketched, a collective agreement, regulating conditions of service of employees falling within its coverage, although adversely affecting Mr Ramaila, is purely contractual in nature and has no external legal effect outside the bargaining council. Therefore, it does not constitute an administrative action reviewable under PAJA.
[51]…As I see it, although s 5 changes the complexation of a collective agreement into a ministerial determination neither the deeming provision nor the Minister of DPSAs directive would mutate the contractual nature of a collective agreement, which regulates purely employees conditions of service, into administrative action. To hold otherwise would be a bridge too far. Not much needs to be said about the administrative nature of the Performance Management Policy. It remains purely an employment and labour relationship issue which does not fall within the ambit of administrative action.
Clauses 6 of the Incentive Policy Framework and the Performance Management Policy are not administrative action within the meaning of PAJA and therefore not reviewable under s 6 of PAJA.
section 158 (1) (h) is a legality review
J1652/19
South African Broadcasting Corporation (Soc) Ltd v Keevy and Others (J1652/19) [2020] ZALCJHB 31; [2020] 6 BLLR 607 (LC) (7 February 2020)
Ramonetha v Department of Transport Limpopo and others [2018] 1 BLLR 16 (LAC)
[40] What we glean from this is that the exercise of public power which is at variance with principle of legality is inconsistent with the Constitution itself. In short, it is invalid Relating all this to the matter before us, the award of the DoD agreement was exercise of public power. The principle of legality may thus be a vehicle for its review. The question is: did the award conform to legal prescripts? If it did, that is the end of the matter. If it did not, it may be reviewed and possibly set aside under legality review.[19]
[28] The net effect of Motau and other related judgments is that every decision must be one that falls within the confines of the law. It has now been authoritatively held that there is no longer a common law review. It is either a constitutional review – popularly known as legality/rationality review or a review under the Promotion of Administrative Justice Act[24] (PAJA) for administrative decisions. Since this is a review of own decision, it has been held that the only applicable review is that of legality/rationality.
if errors material to the determination of the dispute constitute a misconception of the nature of the enquiry which consequently affect the fair trial of the issues, an award may be set aside on that ground alone.
JR2099/16
Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020)
Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at paras 30-33; see also Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC). Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA).
[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome[32] Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, if an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (Emphasis added)
Two stage approach
JR2236/16
South African Police Service v Sotheni and Others (JR2236/16) [2020] ZALCJHB 57 (4 March 2020)
[22] What this means is a two stage review enquiry. Firstly, the review applicant must establish that there exists a failure or error on the part of the arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly, if this failure or error is shown to exist, the review applicant must then further show that the outcome arrived at by the arbitrator was unreasonable. If the outcome arrived at is nonetheless reasonable, despite the error or failure that is equally the end of the review application. In short, in order for the review to succeed, the error or failure must affect the reasonableness of the outcome to the extent of rendering it unreasonable.
[23] Further, the reasonableness consideration envisages a determination, based on all the evidence and issues before the arbitrator, as to whether the outcome the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds.[Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 102] In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on the material before the arbitrator as a whole, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.]
Clauses 11.2.1 -11.2.3 of the Practice Manual, Clause 16.2
JR 904/17
National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 904/17) [2020] ZALCJHB 184 (13 May 2020)
[27] The Applicants ought to have filed an application to have the review application reinstated, which they failed to do and instead they sought condonation for the late filing of a record without an application to reinstate the review application. Condonation for the late filing of a record cannot be granted in respect of a review application that is deemed to be withdrawn.
[23] There is a distinction to be drawn between the provisions of Clauses 11.2.1 -11.2.3 of the Practice Manual, which provide that a review application is deemed to be withdrawn when the record was filed outside the prescribed period and Clause 16 which provides for the archiving of files.[24] Clause 16 provides that the Registrar will archive a file in the case of a review application when a period of six months has elapsed without any steps been taken by the applicant from the date of filing the application or the date of the last process filed. Clause 16.2 provides that a party whose file had been archived, may submit an application, on affidavit and on notice to all the other parties to the dispute, for the retrieval of the file.[25] In casu, the Applicants file was not archived by the Registrar, but is deemed to be withdrawn by operation of the provisions of the Practice Manual.[26] There is no bar, either in the Rule of this Court or the Practice Manual to the Applicants filing an application to have the review application reinstated in the event it was deemed to be withdrawn. Logic dictates that the review should be reinstated and be alive before the late filing of the record could be condoned.
limited scope possessed by this Court to review an arbitration award: reasonableness
JR 1626/2017
Shan’s Transport and Logistics Agency (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR 1626/2017) [2020] ZALCJHB 84 (25 May 2020)
Bestel v Astral Operations Ltd and Others [2011] 2 BLLR 129 (LAC) at para 18.
arbitrators finding will be unreasonable [1] if the finding is unsupported by any evidence,[2] if it is based on speculation by the arbitrator,[3] if it is disconnected from the evidence,[4] if it is supported by evidence that is insufficiently reasonable to justify the decision or[5] if it was made in ignorance of evidence that was not contradicted.’ [My insertions]
.the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.
Irregularities or errors in relation to the facts or issues
JR 1626/2017
Shan’s Transport and Logistics Agency (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR 1626/2017) [2020] ZALCJHB 84 (25 May 2020)
Head of the Department of Education v Mofokeng
Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. (My emphasis).
[46] In my view, the termination letter was a material piece of evidence and it was incumbent upon the arbitrator to have considered it as such.
PAJA
JR 242/2018
Mashego v Commission for Conciliation, Mediation and Arbitration and Others (JR 242/2018) [2020] ZALCJHB 111 (15 July 2020)
Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC).
[32] Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the Arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the Arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the Arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the Arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the Arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The Arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.
evidence in the absence of it having been put to the opposing party’s witnesses under cross-examination
JR2456/17
Consolidated Power Projects (Pty) Ltd v Schoeman and Others (JR2456/17) [2020] ZALCJHB 112 (15 July 2020)
Urban Africa Security (Pty) Ltd v CCMA and others[(2012) 33 ILJ 2201 (LC) para 20. Followed in University of Venda v M and others (2017) 38 ILJ 1376 (LC) para 95] that to rely on evidence in the absence of it having been put to the opposing party’s witnesses under cross-examination constitutes a reviewable defect. And yet the Commissioner did so and without providing reasons why Schoeman was a credible witness and why his evidence is more reliable. This conclusion the Commissioner was not entitled to reach without an evaluation of the credibility of all the witnesses before him, and the reliability of their evidence. There is no evidence ex facie the award that he did so and this renders his award reviewable and liable to be set aside.
PAJA
J 617/2020
National Union of Metal workers of South Africa v Tshwane University of Technology (J 617/2020) [2020] ZALCJHB 216; [2020] 11 BLLR 1141 (LC) (20 July 2020)
[30] In Gcaba [Gcaba v Minister for Safety and Security and Others (2009) 30 ILJ 2623 (CC) at para 56] the Constitutional Court in considering the question whether the conduct complained of, was administrative action has held that: Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognised by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the state as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the state as employer and its workers. When a grievance is raised by an employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action._
[34] In my view, the matter does not involve the constitutionality of administrative action as organisational rights are limited to rights between a trade union and an employer. This matter does not fall within the purview of PAJA because no administrative action was taken by an organ of State, but the Respondent simply responded to the Lufil judgment to the extent that a trade union may not admit members when it is precluded to do so in terms of its own constitution.
[35] It follows that if the Applicant is by law not entitled to demand organisational rights, it is not entitled to an order reinstating such rights and a recognition agreement wherein those rights were afforded. The retraction of a recognition agreement under those circumstances does not constitute administrative action and this matter does not fall within the purview of PAJA. Absent the operation of PAJA, this dispute concerns the recognition agreement and it has to be resolved in terms of the statutory dispute resolution processes provided for in the LRA.[36] For these reasons the Applicant is not entitled to relief as it cannot rely directly on the Constitution, nor is the termination of a recognition agreement administrative action. In absence of a prima facie right, I need not consider the remaining requirements for interim relief. It follows that this application has to fail.
“deemed to have been withdrawn
PR193/2019
Zono v Minister of Justice and Correctional Services In re: Minister of Justice and Correctional Services v Zono and Others (PR193/2019) [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) (29 July 2020)
[17] An application for reinstatement of a review application deemed to, have been withdrawn is, in essence, an application for condonation. It is incumbent ‘?n the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] 6 BLLR’ 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [20.14} 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted.
Practice Manual, Clause 11.2.3. (sixty days)
JR 1215/18
Greater Taung Local Municipality v South African Local Government Bargaining Council and Others (JR 1215/18) [2021] ZALCJHB 16 (17 January 2021)
[13] If, for any reasons, the record cannot be uplifted and filed within a prescribed period of sixty days, the applicant party must[12]:13.1 Request consent for the extension of that sixty-day period from the respondent; and13.2 If consent is refused, on notice of motion (as prescribed in Rule 7) supported by an affidavit, apply to the Judge President in chambers for an extension of time;13.3 The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.
[14] If the applicant fails to file a record within the prescribed period of sixty days and has not followed the steps above, the applicant will be deemed to have withdrawn the application, through inordinate delays, and the application will be archived in terms of the provisions of clause 16 of the Practice Manual. The Manual provides further that where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The review application in the current matter should be deemed to be in that position presently, viz. as to further conduct by the registrar, withdrawn and archived; and the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The main subject in the last statement lies more in the phrase the same consequences than dismissed. This court has confirmed that an application can only be dismissed through a Court Order, and not a deeming provision in the Practice Manual[13].
clauses 11.2.3 and 16.1 are not a substitute for the provisions of rule 11 of the Rules
Minister of Justice and Correctional Service v Mashiya and Others [2017] ZALCJHB 140 (5 May 2017) at paras 23 to 27.
[14] If the applicant fails to file a record within the prescribed period of sixty days and has not followed the steps above, the applicant will be deemed to have withdrawn the application, through inordinate delays, and the application will be archived in terms of the provisions of clause 16 of the Practice Manual. The Manual provides further that where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The review application in the current matter should be deemed to be in that position presently, viz. as to further conduct by the registrar, withdrawn and archived; and the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The main subject in the last statement lies more in the phrase the same consequences than dismissed. This court has confirmed that an application can only be dismissed through a Court Order, and not a deeming provision in the Practice Manual[13].[15] In that regard, this Court in Minister of Justice and Correctional Service v Mashiya and Others[14] held as follows:[23] the provisions of the Practice Manual, and in particular, clauses 11.2.3 and 16.1 are not a substitute for the provisions of rule 11 of the Rules of this Court. Molahlehi J in his judgment specifically held that the provisions of the Practice Manual were simply a procedural tool to facilitate the management of review applications and did not trump the Rules of this Court.[24] There is a perception amongst practitioners in this Court that the raising of these provisions can lead to an application being dismissed, and this is premised on an incorrect interpretation of the provisions of clause 16.3 of the Practice Manual which provide that: Where a file has been placed in archives, it shall have the consequences as to further conduct by any respondent party as to the matter having been dismissed.[25] These provisions as already indicated above, cannot trump over the Rules of this Court. Thus, it cannot be correct that if a file is archived by way of a directive or as a result of an administrative action by the office of the Registrar, the implications thereof are that the matter is dismissed for all intents and purposes. In most instances, files are archived at the instance of the Registrar of this Court to the extent that there was non-compliance with the Rules of this Court. Where however, there is a directive from a Judge to archive a file, the effect thereof is that the file will remain dormant until such time that an application is launched in terms of the provisions of clause 16.2 to retrieve it. Only upon a consideration of that application can a Judge (normally in chambers) dismiss the application to retrieve the file, which would then have the effect of dismissing the review application. In this case, it was contended on behalf of Mashiya that a directive was sought from the Judge President in terms of the provisions of clause 16 of the Practice Manual, but that the matter was not attended to. It cannot however follow from those unsuccessful attempts be concluded that the review application in this matter is of necessity dismissed.[26] To reiterate, a mere directive or administrative action on the part of the office of the Registrar to have a file archived cannot have the status of a court order. A matter can only be dismissed through a court order. Thus, if a respondent party is of the view that the applicant party in review proceedings is not doing enough to expedite the finalisation of the matter, including even after the pleadings have been closed, the appropriate route would be to approach the court with a rule 11 application to dismiss that review application.[27] The net effect of clauses 11.2.3 and 16.1 of the Practice Manual if invoked is merely to deem applications as withdrawn, which can be reinstated by way of an application for condonation as it had happened in this case, or where a matter is archived in terms of clause 16 of the Practice Manual, it can equally be retrieved upon such an application by the affected party, unless determined otherwise by a Judge in chambers.
[16] A party to a dispute in which the file has been archived may therefore submit an application, on affidavit, for the retrieval and reinstatement of the matter, on notice to all other parties to the dispute. The provisions of Rule 7 will apply to an application brought in terms of this provision[15]. Alternatively, that party can duly file an application for condonation, with good cause shown, of the delays occasioned in the filing of the record within the prescribed period.[17] Either way, where there is no consent given by the respondent, the extension of the sixty-day time period for the filing of the record, or the granting of the condonation, following the delays occasioned by any party, including the Commission for Conciliation, Mediation and Arbitration, a bargaining council or the registrar’s office, can only be granted by the judge, either in chambers or in the open court. Prior to that, the application will be deemed as withdrawn and archived. The option availed for the applicant is the seeking of an order dismissing the review application, as in the present case; and for the respondent, seeking the judges directive and extension of time, or condonation[16] for the occasioned delays.
South African Municipal Workers Union obo Mlalandle v South African Local Government Bargaining Council and Others [2017] 1 BLLR 99 (LC)
To the extent that the defaulting party may contend that it would suffer prejudice on account of any application of clause 11.2.3 of the Practice Manual, or that it would be deprived of its right to access to court and to have its application fully ventilated, the proper order is to strike the review application from the roll. Once a matter has been struck off the roll, nothing prevents a party from filing an application to have the review application reinstated, together with an application in which condonation for the late filing of the record is sought.[18] (My emphasis)
This is in line with a normative principle expressed in a Latin maxim cursus curiae est lex curiae, meaning that the established practices of the court are the laws of the court.
legality: [26] The Applicant in the Founding and Supplementary Affidavits as well as the Heads of Argument does not rely upon PAJA. I shall therefore proceed to consider this matter under the provisions of the LRA as opposed to PAJA.
JR124/18
City of Johannesburg v Jacobs N.O and Others (JR124/18) [2021] ZALCJHB 12 (8 February 2021)
Firstly; it is by now settled that section 158(1)(h) of the LRA is available to review the decisions of the state in its capacity as an employer.
[18] Furthermore, the Applicant squarely places its reliance on the principle of legality. It is also settled that the principle applicable in section 158(1)(h) is that of legality.[9] As stated by the SCA in NDPP v Freedom under Law,[(2014) 4 SA 298 (SCA) 309B-D; see also MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) at para 33.] the legality principle has become well established in our law as an alternative pathway to judicial review of exercises of public power where Promotion of Administrative Justice Act[11] (PAJA) finds no application. The principle permits review on grounds of both legality and rationality.[12]
[19] Dealing with legality the Court in Hendricks[Hendricks v Overstrand Municipality & another (2014) 12 BLLR 1170 (LAC); (2015) 36 ILJ 163 (LAC) at para 28.] found that:. Legality includes a requirement of rationality. It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with the rule of law.[20] The Court in Khumalo & another v MEC for Education: KwaZulu-Natal[(2014) 35 ILJ 613 (CC).] also specifically dealt with the meaning of legality, in the context of a review application under section 158(1)(h), and held: The principle of legality is applicable to all exercises of public power and not only to ‘administrative action’ as defined in PAJA. It requires that all exercises of public power are, at a minimum, lawful and rational. [21] In MEC for the Department of Health, Western Cape v Weder; MEC for the Department of Health, Western Cape v Democratic Nursing Association of SA on behalf of Mangena,[(2014) 35 ILJ 2131 (LAC) at para 33.] the Court held that the principle of legality has developed over the past decade, to the extent that a parallel system of review for action which falls outside of the strict definition of administrative action, has developed. Having so held, the Court then proceeded to set out this development as follows:[] Public functionaries are required to act within the powers granted to them by law. See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council & others (1999) 1 SA 374 (CC) at para 58,[][22] Furthermore, in the seminal judgment in Pharmaceutical Manufacturers Association of SA & another: In re Ex parte President of the Republic of SA & others, the court laid down the core element of legality as follows:[[2000] ZACC 1; (2000) 2 SA 674 (CC) at para 85.]
[23] The Court in Weder[19] then proceeded to consider this component of rationality as part of the legality enquiry, and held: In later judgments the court has developed this concept of rationality requiring the executive or public functionaries to exercise their power for the specific purposes for which they were granted so that they cannot act arbitrarily, for no other purpose or an ulterior motive.[24] Furthermore, in Democratic Alliance v President of the Republic of SA & others,[(2013) 1 SA 248 (CC) at para 39.] the court held: ‘If in the circumstances of a case, there is a failure to take into account relevant material that failure would constitute part of the means to achieve the purpose for which the power was conferred. And if the failure had an impact on the rationality of the entire process, then the final decision may be rendered irrational and invalid by the irrationality of the process as a whole.'[25] Of further guidance when considering legality review grounds, is the following dictum in Ntshangase v MEC for Finance: KwaZulu-Natal & another[(2009) 30 ILJ 2653 (SCA) at para 18.], where it was held: All actions and/or decisions taken pursuant to the employment relationship between the second respondent and its employees must be fair and must account for all the relevant facts put before the presiding officer. Where such an act or decision fails to take account of all the relevant facts and is manifestly unfair to the employer, he/she is entitled to take such decision on review. Moreover, the second respondent has a duty to ensure an accountable public administration in accordance with ss 195 and 197 of the Constitution.
review and set aside an interlocutory ruling made by arbitrator
JR 2642/2019
South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23 (1 March 2021)
[3] Although the general rule is that rulings or decisions made during the course of arbitration proceedings may be subjected to review only after the issue in dispute has been finally determined by the CCMA, the court has a discretion in terms of section 158 (1B) of the Labour Relations Act (LRA) to hear the review application at an earlier stage. Given the nature of the arbitrators ruling and so is not to unduly delay the finalisation of the arbitration proceedings, in my view, it is just and equitable for the review application to be heard notwithstanding the fact that the arbitration proceedings remain incomplete.
[4] The ruling under review records that during the arbitration proceedings on 26 July 2019, the employees legal representative stated that they had requested the applicant to disclose certain documents, and that the latter had refused to do so on the basis that the documents were not relevant. Amongst the documents requested was an investigation report. The employees made a formal application for disclosure of the document. After an exchange of written submissions concerning the issue of professional legal privilege as it related to the investigation report, the arbitrator issued the ruling under review. His ruling records a brief summary of the submissions made by the parties. On behalf of the employees, it was submitted that the applicant was entitled to claim privilege in respect of communications which took place in preparation for the arbitration hearing, and in relation to the arbitration hearing itself. It is not in dispute that the investigation report was commissioned by the applicant, which instructed the firm Norton Rose Fulbright Inc. to undertake a forensic investigation and produce a report.
1. The ruling issued by the second respondent on 14 November 2019 and under case number HO 478-18 in which the applicant was ordered to disclose certain forensic investigation reports, is reviewed and set aside.
section 158(1)(h) of the LRA
JR 414/18
Gert Sibande District Municipality v Selepe and Others (JR 414/18) [2021] ZALCJHB 49 (29 March 2021)
[6] The principles applicable to review applications such as in casu are enunciated in Hendricks v Overstrand Municipality and Another[(CA24/2013) [2014] ZALAC 49; [2014] 12 BLLR 1170 (LAC); (2015) 36 ILJ 163 (LAC)], where it was inter alia held that the only remedy available to the employer aggrieved by the disciplinary sanction imposed by an independent presiding officer, is the right to seek administrative law review. It was further held that section 158(1)(h) of the LRA empowers this Court to hear and determine reviews in this regard[3] on the grounds (i) listed in Promotion of Administration of Justice Act (PAJA)[4], provided the decision constitutes administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) in accordance with the requirements of the constitutional principle of legality, such being grounds ‘permissible in law'[5].
[7] The Municipality seeks a review of the Chairpersons findings on various grounds of misconduct, legality, irrationality and misdirection, with reliance on Quest Flexible Staffing Solutions (Pty) Ltd (A division of Adcorp Fulfilment Services (Pty) Ltd v Legobatse[6]. This is notwithstanding the fact that the LAC in that matter dealt with a review of an arbitration award under the provisions of section 145 of the LRA, where the Sidumo[7] test found application.
(JA104/13) [2014] ZALAC 55; [2015] 2 BLLR 105 (LAC), where it was held;
[12] The test that the Labour Court is required to apply in a review of an arbitrators award is this: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrators award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrators reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.
[8] Clearly the legal approach postulated by the Municipality in the light of the test enunciated in Hendricks[8] is unsustainable as correctly argued on behalf of Selepe. The correct approach in relation to reviews under section 158(1)(h) of the LRA as pointed out on behalf of Selepe, is that as summarised by Snyman AJ in South African Police Service & another v Ndebele and Others[9], which is that a party seeking a review under section 158(1)(h) of the LRA can competently do so where reliance is placed on the constitutional principle of legality. It is therefore apparent that the Municipality conflated the different tests applicable in respect of reviews sought under sections 145 and 158(1)(h) of the LRA.
[13] Whether the findings and the decision of the Chairperson ought to be reviewed on the grounds of legality involves a consideration of whether that decision can be said to be rationally connected to the purpose for which the power was given to him, and whether the Chairperson took account of all the relevant facts placed before him; followed a process that was not only lawful but fair, and whether his decision fell within the powers vested in him in the light of the issues he was required to determine.
[15] In the end, I am satisfied that the Chairperson in arriving at his findings, took account all the relevant facts placed before him, followed a process that was not only lawful but fair, and that his decision falls within the powers vested in him in the light of the issues he was required to determine. Accordingly, the decision of the Chairperson met the requirements of the legality test, and the review application ought to fail.
Application: suspension of award? Need to provide security?
J396/21
Emalahleni Local Municipality v Phooko N.O and Others (J396/21) [2021] ZALCJHB 61 (5 May 2021)
Memorandum of objects, Labour Relations Amendment Bill, 2012 states the following as the object of subsection (7)
This section is amended by introducing certain measures to reduce the number of review applications that are brought to frustrate or delay compliance with arbitration awards, and to speed up the finalisation of applications brought to the Labour Court to review arbitration awards. At present, a review application does not suspend the operation of an arbitration award. This often results in separate or interlocutory applications to stay enforcement of awards pending review proceedings. It is proposed that the operation of an arbitration award would be suspended if security is provided by the applicant in an amount specified in the provisions, or any lesser amount permitted by the Labour Court.[9] The prevailing and accepted position achieved by the Labour Court at the time of the amendment was that launching a review application does not suspend the operation of an arbitration award. In and around that time Rule 49 (11) of the Uniform Rules provided that the following suspended an operation and execution of an order; namely; (a) noting of an appeal or application for leave to appeal; (b) rescission application; and (c) review. The rule was codifying the common law rule. In light of the common law rule, it was necessary to clarify the position with regard to arbitration awards in relation to suspension. The Labour Court held that bringing a review application does not suspend the operation of an arbitration award. This position ultimately found itself in the LRA and obtained codification under subsection (7). In my view this position existed alongside subsection (3) for a while though not codified. For the above reasons, in my respectful view, it is fundamentally wrong to conclude that in the absence of furnishing of security, this Court is not empowered to exercise its discretion fully within the contemplation of subsection (3).
Rustenburg Local Municipality v SALGBC[[2017] 38 ILJ 2596 (LC).]
[29] That being said, the Court should always bear in mind the security requirements when exercising its discretion[32] In simple terms, the default position must be that the Labour Court will require security to be provided as prescribed as a condition for any stay or suspension order being granted by the Court, unless the applicant can show good and proper cause in the application why this should not be the case.
National Department of Health v Pardesi and Another[[2016] ZALCJHB 492 (September 2016) at para 6.]
[6] There are no facts before me that enable me to exercise a discretion to order that security should not be furnished. The default position must therefore apply. That being so, the provisions of s145 (7) prevail, i.e. the institution of review proceedings does not suspend the operation of the arbitration award. The application to set aside or suspend the operation of the writ accordingly stands to be dismissed.
LAC in City of Johannesburg v Samwu obo Monareng and another[JA 120/ delivered on 20 March 2019.]
[7] The Labour Court has discretionary power under section 145 (3) of the LRA to stay enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending the finalisation of a review application against the award with or without conditions. It may in terms of section 145 (8) of the LRA dispense with the requirement of furnishing security. Properly construed, section 145 (3) read with section 145 (7) and (8) should be interpreted to mean where an applicant in a review application furnishes security to the Labour Court , the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of section 145 (3) of the LRA to stay the enforcement of the arbitration award.
[14] I read this part of the judgment to mean that as a corollary, an applicant may apply for a stay which may be granted with or without conditions. A stay would effectively suspend the operation of an arbitration award. Proper reading of the judgment suggests that there are two distinct applications that a party may bring. Those are, for a stay or for being absolved from furnishing security. The following paragraph makes the point:[8] However, should the employer wish to be absolved from providing security then it is required to make an application to the Labour Court for the stay of the enforcement of the arbitration award. The employer must make a proper case for the stay as well as for the provision of security in accordance with section
[16]…The general principles for the granting of a stay remains the following: 1. A Court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result. 2. Since the Court will be guided by factors applicable to interim interdicts, the Court must be satisfied that:(a) The applicant has a well-grounded apprehension that execution is taking place at the instance of the respondent;(b) Irreparable harm will result if the execution is not stayed and the applicant ultimately succeeds in establishing a clear right;(c) Irreparable harm will invariably result if there is a possibility that the underlying causa (arbitration award) may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties;(d) The court is not concerned with the merits of the underlying dispute the sole enquiry is simply whether the causa is in dispute.
[17]…Having traversed the authorities, I take a view that once a party satisfies the requirements spelled out above a stay must happen irrespective of whether a party has symbiotically sought to be absolved from the furnishing of security.
[21]…The LAC did not consider prejudice to an employer as being decisive. It considers it to be one factor but it is not decisive. It does seem that the LAC considers the sufficiency of assets as a crucial consideration. It held [25] In particular, because the facts more than adequately demonstrate that the appellant is in possession of sufficient assets to meet an order of the review court upholding the arbitration award in the dismissed employees favour.
power to interfere with the quantum compensation awarded by the arbitrator
JS926-18
One Asset Professional Engineering Services (Pty) Ltd t/a GE Power (JS926-18) [2021] ZALCJHB 112 (27 May 2021)
Ganga v St John’s Parish (2014) 35 ILJ 1294 (LC)
[4] The respondent, Slimane Bouktab, concedes that he is a peregrinus of this Court and that it is obliged to provide security for the applicant’s costs. The respondent tendered R50 000 as security. The applicant claims R200 000.[5] The dispute is only about the quantum of the security for costs. The Labour Court held that it has a wide discretion to be exercised by having regard to all relevant facts, including considerations of equity and fairness to both parties in the consideration of directing security.[1]
Power to interfere with the quantum compensation awarded
JA29/2020
Ekhuruleni Metropolitan Municipality v Mandosela and Others (JA29/2020) [2021] ZALAC 14; [2021] 10 BLLR 994 (LAC); (2021) 42 ILJ 2168 (LAC) (2 July 2021)
[24] It is submitted on behalf of the appellant that it is trite that when awarding compensation, the commissioner exercises a discretion which should not be too readily or easily interfered with by the Labour Court.[5] The appellant contends that the court a quo had no power to interfere with the quantum compensation awarded by the arbitrator, and in this regard relies on Kukard v GKD Delkor (Pty) Ltd[((2015) 36 ILJ 640 (LAC) at para 35] wherein the court held that: the courts power to interfere with quantum of compensation awarded by an arbitrator under s 194(1) of the LRA is circumscribed and can only be interfered with on the narrow grounds that the arbitrator exercised his or her discretion capriciously or upon the wrong principle, or with bias, or without reason or that she adopted a wrong approach. In the absence of one of these grounds, this court has no power to interfere with the quantum of compensation awarded by the commissioner. It is, therefore, for Delkor to persuade this court that the quantum of compensation awardee by the commissioner may be impugned on one of the narrow grounds referred to above
[29] On the facts set out in this matter, when granting an award of 12 months compensation, the court a quo did not advance any special circumstances justifying such a startling award given the provisions and the nature of the first respondents employment. The court a quo did not indicate whether the arbitrators exercise of his discretion was capricious, based on wrong principles, biased or whether the arbitrator misconducted himself.[Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC).]
cross-review
JR578/14
Bosch v JDG Group (Pty) Ltd and Others (JR578/14) [2021] ZALCJHB 171 (21 July 2021)
[9] It is acknowledged that Rule 7A of the Rules of this court does not make provision for a cross-review application. In the absence of any such provision, it follows that a party that wishes to challenge the findings of a commissioner in any material respects must comply with the provisions of Rule 7A even if another review application has been lodged by the other party. In essence, a separate review application must be launched with full compliance with the provisions of Rule 7A of the Rules of this Court. This point, which I align myself with, was emphasised in In SA Broadcasting Corporation Ltd v Grogan N O & another,[(2006) 27 ILJ 1519 (LC). See also Singh v First National Bank and Others (D397/2011) [2014] ZALCD 44 (9 September 2014).], where it was held that: Rule 7A makes no provision for an animal such as a ‘counter-review’. This is in contradistinction to rule A 5(5) of the Rules of the Labour Appeal Court, that provides for a notice of cross-appeal to be delivered within 10 days (or such longer period as may on good cause be allowed) after receiving notice of appeal from an appellant. The absence of a similar provision in rule 7A relating to a ‘counter-review’ does not, to my mind, mean that a respondent in a review application can sit on his hands and then, only after the applicant has filed a rule 7A(8) notice, file a counter-review without further ado. On the contrary, it appears to me that what is styled as a ‘counter-review’ is simply an application for review by a different name. The second respondent seeks to review different aspects of the findings of the arbitrator, and on different grounds. That would usually be the case where a respondent seeks to bring an application for a ‘counter-review’. He has to file a proper application for review, and has to do so within six weeks after publication of the award.
REINSTATEMENT AFTER DEEMED TO HAVE BEEN WITHDRAWN
JR 602/15
Mashego v Commission for Conciliation, Mediation and Arbitration and Others (JR 602/15) [2021] ZALCJHB 195 (27 July 2021)
[40] Be that as it may, the review application should be reinstated and be alive before the late filing of the record could be condoned. An application to have the review application reinstated could be filed together with an application in which condonation for the late filing of the record is sought, but an application to condone the late filing of the record, cannot be considered in circumstances where the review is deemed withdrawn, without an application for its reinstatement.
[37] The prevailing authority is that the withdrawal of a matter is not a bar to the reinstitution of the proceedings. For a deemed withdrawn application to be reinstated, the Applicant has to file a substantive application, which is then for the Court to consider and to decide whether or not to grant such an application.
[34] What is the status of a review application that is deemed withdrawn? This question was considered in SG Bulk v Khumalo and another[Unreported judgment handed down under case numbers JS 393/19 and JR 537/13.] where the Court held that it is by now settled law in this Court that where a review application is deemed withdrawn, there is no longer a live matter to be entertained.[Overberg District Municipality v IMATU obo Spangenberg and others case number C157-18 (08 June 2020) followed recently in Vesela Risk Services (Pty) Ltd v CCMA and others case number JR648-18 [2021] ZALCJHB 37 (28 January 2021)]
[35] In Robor Tube (Pty) Ltd V MEIBC and others[(2018) 39 ILJ 2332 (LC) at par 7] it was held that: In my view, there ought to be no reason, in principle, why an application that has been withdrawn ought not to be capable of reinstatement. First, the Labour Court is established as a court of law and equity, with the inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a division of the High Court has under its jurisdiction. The court therefore has the inherent jurisdiction to regulate its own proceedings and control its own process.
[36] This was confirmed by the LAC in Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(JA74/2018) [2020] ZALAC 33 (24 June 2020)] where it was held that: The withdrawal of a matter at the instance of a party is a unilateral act which results in the matter being removed from the roll in the same manner as if absolution from the instance had been granted. The fact that a matter has been withdrawn does not in principle bar either the reinstitution of proceedings or the institution of fresh proceedings (in which case the absolved defendant may not raise the defence of res judicata if sued again on the same cause of action). In finding differently, the Labour Court erred. Faced with an application to have the matter reinstated, it was for a court to determine whether or not to grant such application having regard to the relevant facts and issues of prejudice, while recognising that employment disputes by their nature are urgent and require speedy resolution.
[32] In Ralo v Transnet Port Terminals and Others [2015] ZAECPEHC 68 (17 June 2015), [2015] 12 BLLR 1239 (LC), (2015) 36 ILJ 2653 (LC), the Court accepted the legal definition of deemed as set out in the Namibian authority of Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 2 March 2010) where the Court held that the word deemed is considered to have a conclusive effect. This Court concluded by stating the following: The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.[33] In casu the Applicant had not filed the record within the prescribed 60 day period. Clause 11.2.3 of the Practice Manual makes it clear that if an applicant in a review application fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application. That being so, the Applicant in casu is deemed to have withdrawn the review application and there is consequently no lis between the parties.
[40] Be that as it may, the review application should be reinstated and be alive before the late filing of the record could be condoned. An application to have the review application reinstated could be filed together with an application in which condonation for the late filing of the record is sought, but an application to condone the late filing of the record, cannot be considered in circumstances where the review is deemed withdrawn, without an application for its reinstatement.
[45] In Randburg Towers (Pty) Ltd v Masilo and others[Unreported judgment handed down under case JR1758/2016, 19 February 2021.] the Court was also faced with a deemed withdrawn review application and held that: Simply put, there is no longer a review application that serves before the court. In those circumstances, in my view, the applicant in the present application is entitled to a declaratory order that gives effect to the consequences visited by clause 11.2.3 on an applicant that fails to comply with the time limits within which to file a record of proceedings sought to be reviewed.
[12] In Karan t/a Karan Beef Feedlot and Another v Randall,[(2009) 30 ILJ 2937 (LC) at para 14.] it was held: In summary: despite the fact that the rules of this court make no specific provision for an application to dismiss a claim on account of the delay in its prosecution, the court has a discretion to grant an order to dismiss a claim on account of an unreasonable delay in pursuing it. In the exercise of its discretion, the court ought to consider three factors: the length of the delay; the explanation for the delay; and the effect of the delay on the other party and the prejudice that that party will suffer should the claim not be dismissed.
Arbitrator failed to keep complete record
JR119/16
South African Police Services and Another v Kgolane and Others (JR119/16) [2021] ZALCJHB 197 (2 August 2021)
[16] It is apparent from the submissions that the reason for the delay of the filing of the recording, albeit incomplete, is due to the failure of the Arbitrator to secure the recordings of the arbitration proceedings. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[(CCT 228/14 [2015] ZACC 40 ; (2016) 37 ILJ 313 (CC)], it was stated that: It is the duty of the Commissioner of the CCMA conducting an arbitration to ensure that a proper and complete record of those proceedings is kept together with CCMA, to, ensure that if subsequently there is a review application a proper and complete record is made available to the registrar of the Labour Court. It may well be that a failure by the Commissioner to perform this important function constitutes misconduct or a gross irregularity as envisaged is section 145(2) and (b) respectively.[17] In Cashbuild (Pty) Ltd v Merwe NO and Others[JR 516-11, J2735/13 [2016] ZALCJHB 108], the Court held that:-The importance of the record cannot be overemphasised. The test for review has recently been affirmed by the Supreme Court of Appeal and the Labour Court requires this Court to examine the record and to determine ultimately whether notwithstanding any defects in the arbitrators reasoning or any other reviewable irregularity on the arbitrators part, the result of the proceedings can nonetheless be sustained by reference to the record. Where there is an incomplete record, this is obviously impossible where, as in a case such as the present one, the grounds for review are predicated on what are contended by the conclusions and findings that are not supported by evidence. The summary of evidence contained in the arbitrators award is intended to be precisely that. It is not a substitute for the record and is not by any means a basis from which reasonableness of any conclusion reached by the arbitrator can be ascertained.[18] In the present matter, it is apparent that the Applicants acted in good faith in an attempt to secure the record. The Applicants conduct was not intended at frustrating the First Respondents case nor was it aimed at abusing the Courts processes. This delay is wholly due to the failure of the Arbitrator to secure a complete record, a conduct which is described in Toyota SA supra as a gross irregularity.
[19] Based on the above, the application for an order for the reinstatement of the review application stands to succeed.
courts judgement of the case
J1136/16
Sisonke Partnership t/a DSV Health Care (formerly UTI Pharma) v GIWUSA obo Zwane and Others (J1136/16) [2021] ZALCJHB 459 (8 December 2021)
[111] The principles had been set out by the LAC in Palluci Home Depot (Pty) Ltd v Herskowitz[[2011] 2 BLLR 129 (LAC) at par 18.] as follows: Where all the facts required to make a determination on the disputed issues are before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, I see no reason why a reviewing court should not decide the matter itself. Such an approach is consistent with the powers of the Labour Court under s 158 of the LRA, which are primarily directed at remedying a wrong, and providing the effective and speedy resolution of disputes. The need for bringing a speedy finality to a labour dispute is thus an important consideration in the determination by a court of review of whether to remit the matter to the CCMA for reconsideration, or substitute its own decision for that of the commissioner.
security
J1535/21
Afgri Poultry (Pty) Ltd t/a Daybreak Farms v Seruwe (J1535/21) [2021] ZALCJHB 458 (17 December 2021)
[58] In City of Johannesburg v SAMWU obo Monareny and another[(2019) 40 ILJ (LAC) at para 7 -9.] the LAC considered the interpretation and application of section 145(3), (7) and (8) of the LRA and held that: The Labour Court has a discretionary power under s 145(3) of the LRA to stay the enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending finalisation of a review application against the award with or without conditions. It may in terms of s 145(8) of the LRA dispense with the requirement of furnishing security. Properly construed, s 145(3) read with s 145(7) and (8) should be interpreted to mean that where an applicant in a review application furnishes security to the Labour Court in accordance with s 145(8) of the LRA, the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of s 145(3) of the LRA to stay the enforcement of the arbitration award pending the finalisation of the review application. However, should the employer wish to be absolved from providing security or to provide security in an amount less than the threshold in subsection (8)(a) and (b), then it is required to make an application to the Labour Court, in terms of s 145(3), for the stay of the enforcement of the arbitration award pending its decision in the review application. The employer must make out a proper case for the stay as well as for the provision of security in accordance with s 145(8) to be dispensed with or reduced. The words unless the Labour Court directs otherwise in s 145(8) of the LRA must be construed broadly to mean that the Labour Court is afforded a discretion to either: (a) exempt the employer from paying security on the stay of the enforcement of an arbitration award pending its decision on review or (b) reduce the quantum of security to be furnished by the employer to an amount below the threshold in s 145(8)(a) and (b)of the LRA.[59] The LAC further held that: Before the Labour Court exercises its discretion under s 145(8), the employer seeking to dispense with the requirement to provide security for the suspension of the enforcement of the arbitration award, must show cause for why it should not do so.
[59] The LAC further held that: Before the Labour Court exercises its discretion under s 145(8), the employer seeking to dispense with the requirement to provide security for the suspension of the enforcement of the arbitration award, must show cause for why it should not do so. In Rustenburg Local Municipality, the Labour Court held as follows in relation to what good cause entails: Good cause in the context of motivating a departure from the security provisions prescribed in s 145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses ten employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months’ salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security. Material prejudice to the employer is but one factor that the Labour Court must give consideration to it is by no means decisive. In exercising its discretion, the Labour Court must have regard to the particular circumstances of the case as well as considerations of equity and fairness to both the employer and the employee. A factor that the Labour Court must take into consideration is whether the employer is in possession of sufficient or adequate assets to meet an order of the review court upholding the arbitration award; the principal concern being that the dismissed employee should not be left unprotected if the Labour Court decides the review application in his or her favour. The onus is on the employer seeking an exemption from furnishing security under s 145(8) of the LRA to establish that it has assets of a sufficient value to meet its obligations should the arbitration award be upheld.
[62]In short, the Applicants financial stability, its asset and income base demonstrate its ability to satisfy the arbitration award in the event of not succeeding on review and there is no risk that the Respondent would be left unprotected in that event, if security is not furnished at this point. As a result, I can see no reason why the Applicant should be ordered to put up security.
section158 (1) (h) of the LRA
JR 899/19
Department of Defence v Thamaga N.O and Another (JR 899/19) [2022] ZALCJHB 77 (9 March 2022)
[34] The conclusion I reach is that the decision to not dismiss is not an administrative action nor is it an exercise of public power within the contemplation of a legality review. However, I remain bound by Ntshangase and Hendricks. I then have to consider this matter under a legality review as opposed to it being an administrative action despite the character given to these type of matters by Ntshangase. It is by now settled law that a review of own decision can only happen under legality review[[2017] ZACC 40 (14 November 2017)].
[37] A decision is unreasonable if no other reasonable decision maker may reach it, as held in the Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others[35] judgment. With regard to rationality in Minister of Defence and Military Veterans v Motau[2014 (8) BCLR 930 (CC)]it was said:[69] The principle of legality requires that every exercise of public power, including every executive act, be rational. For the exercise of public power to meet this standard, it must be rationally related to the purpose for which the power was given
[39] It has been confirmed that rationality and reasonableness are conceptually different. In Albutt v Center for the Study of Violence and Reconciliation and others[2010 (3) SA 293 (CC)], the following was said: The Executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are related to the objective sought to be achieved. What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if, objectively speaking, they are not; they fall short of the standard demanded by the Constitution.
[45] Turning to rationality, Albutt decreed that what I assess is whether the means employed the alternative sanction of final written warning meets the purpose and the objective of the power endowed. Recently, the Constitutional Court under the hand of Khampepe J in National Energy Regulator of South Africa and Another v PG Group (Pty) Ltd and Another[(CCT 131/18) 2019 ZACC 28.] had the following to say about rationality:[64] Rationality is concerned with one question: do the means justify the end?
Review application had already been deemed withdrawn: Rescission application the Labour Court has no jurisdiction to entertain a Rule 11 application to dismiss a defunct review application. Application to reinstate the deemed withdrawn review application granted simply because fairness dictates that the review application be dealt with and disposed of on the merits rather than technicalities any prejudice could be cured by a suitable costs order.
JR2853/17
Ndlela v Department of Correctional Services: In Re: Department of Correctional Services v Ndlela and Others (JR2853/17) [2022] ZALCJHB 133 (9 June 2022)
[9] On the other hand, Mr Ngobese SC, who appeared for the DCS, contends that once the review application has lapsed, there is nothing before the Court to be dismissed and accordingly, this Court lacks jurisdiction to dismiss a lapsed review application.[National Union of Metal Workers of South Africa obo Matabane v Fabricated Steel Manufacturing and others unreported judgment under case no: JR1343/10 delivered on 7 February 2017.] To fortify this argument, the DCS places reliance on various decisions of this Court, particularly, the case of Ralo v Transnet Port Terminals and Others[(2015) 36 ILJ 2653 (LC) at paras 8 – 10.] (Ralo), per Van Niekerk J, where it was stated that:[8] The status of the Practice Manual was discussed by this court in Tadyn Trading CC t/a Tadyn Trading Consulting Services v Steiner & others (2014) 35 ILJ 1672 (LC). The court said the following, at para 11 of the judgment: The correct approach in my view, as to the force and effect of practice directives similar to the one in issue is the one adopted in In re Several Matters on the Urgent Roll [2013 (1) SA 549 (GSJ)] in which the court had to consider the force and effect of the provisions of the practice manual chapter 9.24 of the South Gauteng High Court regarding the failure by the applicant to set out the explicit circumstances which rendered the matter urgent. The court held that in law the Judge President was entitled to issue practice directives relating to the procedure of setting down matters on the roll.[9] I agree. The Practice Manual contains a series of directives, which the Judge President is entitled to issue. In essence, the manual sets out what is expected of practitioners so as to meet the imperatives of respect for the court as an institution, and the expeditious resolution of labour disputes (see clause 1.3). While the manual acknowledges the need for flexibility in its application (see clause 1.2) its provisions are not cast in the form of a guideline, to be adhered to or ignored by parties at their convenience.[10] To the extent that the applicant contends that the meaning of the word deemed is such that the dispute between the parties remains unresolved and that the application has not been withdrawn, the meaning of deemed in a context similar to the present has been the subject of an instructive judgment by the Labour Court of Namibia. While Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 12 March 2010) concerned the lapsing of appeals, the wording of the rule under consideration in that instance is not dissimilar. Rule 17(25) of the Rules of the Labour Court of Namibia provide that an appeal to which this Rule applies must be prosecuted within 90 days after the noting of such appeal, and unless so prosecuted it is deemed to have lapsed. The word deemed in this instance was clearly considered to have conclusive effect in the absence of the prosecution of the appeal within the prescribed period the appeal was held to have lapsed. (See also Pereira v Group Five (Pty) Ltd and others [1996] All SA 686, at 698, where the court referred with approval to Steel v Shanta Construction (Pty) Ltd 1973 (2) SA 537 (T), in which Coetzee J stated that the word deemed means considered or regarded and is used to denote that something is a fact regardless of the objective truth of the matter.) The plain and unambiguous wording of the Practice Manual is to the effect that the applicant must be regarded as having withdrawn the review application. (emphasis added)
[27] In the circumstances, the order of Mabaso AJ of 4 December 2018 stands to be rescinded. In addition, the DCS has successfully shown good cause for the reinstatement of the review application.
correctness and not reasonableness
JA 56/21
Ekurhuleni Metropolitan Municipality v Mabusela N.O. and Others (JA 56/21) [2022] ZALAC 112 (13 October 2022)
[27] It is now established that the applicable test on review of a CCMA or bargaining council arbitrators interpretation of a legal instrument is correctness and not reasonableness[3]. A reasonable arbitrator is not supposed to get a legal point wrong. In National Union of Metalworkers of SA v Assign Services and Others, [2017] 10 BLLR 1008 (LAC) (Assign Services)] the position was crisply stated as follows: An incorrect interpretation of the law by a Commissioner is logically a material error of law which will result in both an incorrect and unreasonable award. Such an award can either be attacked on the basis of correctness or for being unreasonable.
incomplete record
JR1661/12
Mphela v Metal Engineering Industries Bargaining Council and Others (JR1661/12) [2022] ZALCJHB 252 (6 September 2022)
[23] The position that is adopted by our courts, is summarised by Nkabinde AJA (as she was then) in Peter Fountas as follows: In my view there can be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in this matter when there was material evidence missing in the record. What the Court a quo was required to have done was to consider whether the first respondent as the applicant in the review application had taken all reasonable steps to search for such evidence and or to reconstruct the record. If the first respondent had taken all reasonable steps to either find the missing evidence or to reconstruct the record and these had been to no avail, it could then have had to deal with the question of what should be done. If, however, it was of the view that the first respondent had not taken all reasonable steps that it could and should have taken, it would have had to choose one of two options. The one would be to dismiss the application on the basis that the first respondent had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the Court a quo could have taken lightly because it would have shut the door in the face of the first respondent who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case. [(JA36/03) [2006] ZALAC 12 (17 May 2006).]
[24] Considering the remarks made by Nkabinde AJA, an enquiry must be conducted to determine whether the missing portion of the record is material, in other words is it possible to deal with this review application based on the record filed? If so, then the review must proceed on the basis of the available record.[25] If it is found that the missing portion of the record is such that the matter cannot be determined without it, then it must be determined whether or not the Applicant has taken all reasonable steps to reconstruct the missing portion of the record. If it is established that he has, then it may be that the review should succeed on this basis and be remitted certainly there is authority for this in Uee-Dantex Explosives (Pty) Ltd v Maseko and Others[[2001] 7 BLLR 842 (LC); See also: New Clicks SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 1972 (LC).].[26] As further stated in Francis Baard District Municipality v Rex N.O and Others[(2016) 37 ILJ 2560 (LAC).] there is an obligation on an administrative decision maker to keep an objective record and that an applicant should not be prejudiced for the unavailability of such a record where they have taken all reasonable and necessary steps to obtain it. However, if it is found that an applicant has not taken all the necessary and reasonable steps to locate the missing portion of the evidence or to reconstruct the missing portion of a record, then the Court has two further options as identified in Peter Fountas, which is to either postpone or dismiss the matter.
[28] Although it is not the Applicant’s duty to record and preserve the testimonies of witnesses, he had a duty to ensure that he places the best record before this Court. The Applicant should, therefore, take all reasonable steps to achieve this.
[31] In Lifecare Special Health the manner in which a reconstruction ought to be done was properly explained by the court as follows: A reconstruction of a record (or part thereof) is usually undertaken in the following way. The tribunal (in this case the Commissioner) and the representatives (in this the Applicant’s representative and the employer’s representative) come together, bringing their extant notes and such other documentation as may be relevant. They then endeavour to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow. This is then placed before the relevant court with such reservations as the participants may wish to note. Whether the product of their endeavours is adequate for the purpose of the appeal or review is for the court hearing same to decide, after listening to argument in the event of dispute as to accuracy or completeness.[(2003) 24 ILJ 931 (LAC).]
[33] It is imperative, as set out in the aforementioned cases, for one to, as a starting point, establish whether the missing parts of the record are material. The materiality would be decided upon considering, inter alia, the grounds of the review, the nature of the missing evidence and the attitude of the arbitrator and the parties.[(2016) 37 ILJ 2560 (LAC).]
[35] It is trite that there is a direct link between the record, the standard of review and the grounds of review. Each case will therefore depend on its own facts and circumstances.[20] There can be no one size fits all approach. A court may not set aside a finding of fact by a commissioner, unless there is no evidence to support it or, if in light of all the evidence, the finding is otherwise unreasonable.
[41]It is thus obvious that in the absence of a complete (or reasonably complete) record, unless there is a glaring defect, it is impossible for this Court to properly assess the reasonableness or otherwise of the decision without having the benefit of all of the material that was before the decision maker.
1. The application for review is dismissed.
supplementary affidavit
JR 38/2020
Motsei and Others v General Public Service Sector Bargaining Council and Others (JR 38/2020) [2022] ZALCJHB 253 (9 September 2022)
[8]… In any event, to the extent that Rule 7A (8) permits an applicant in a review application to amend, add to or vary the terms of the notice of motion and to supplement the founding affidavit, the Rule does not go so far as to permit an applicant by way of the delivery of a supplementary affidavit, effectively to deliver a new and different review application, relating to a different award or ruling and under a different section of the LRA. In Bafokeng Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2015) 36 ILJ 3045 (LC), this court held that Rule 7A (8) envisages that the supplementary affidavit contain a final statement of the applicants grounds for review, in relation to the award that is the subject of the review application. What the applicants have in effect done is sought to introduce a new and different application for review through the back door, under the guise of a supplementary affidavit, some two years after the ruling sought to be reviewed was issued, and long after the conclusion of the arbitration proceedings that form the subject of the main review application.
Incomplete record
JR 1912/2018
Eskom Holdings SOC Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR 1912/2018) [2022] ZALCJHB 335 (22 November 2022)
[36] The interest of justice will be best served by remitting the matter for arbitration de novo.
[26] In Department of Transport, North West Province v Sebotha No and others,[5] the Court held that in the absence of a proper record it is unable to determine whether or not there is a basis for the criticism against the commissioners findings and held that:[16] I now turn to deal with the issue of whether or not the award of the arbitrator is reviewable. In considering whether or not to review and set aside the arbitration award of the arbitrator the question that arises is whether or not the conclusion reached by the arbitrator falls outside the range of reasonableness so as to attract interference with the award by the court. The test to determine whether or not a conclusion reached by an arbitrator is reasonable or otherwise is that of a reasonable decision-maker. The question to be answered in considering the reasonableness or otherwise of an award is whether the conclusion of the arbitrator is one which a reasonable decision maker could not reach[17] In order to apply the above test the court needs to have before it the record of the arbitration proceedings. As a general rule the complete record of everything that transpired during the arbitration proceedings needs to be placed before the court[18] The responsibility to ensure that a proper and complete record is placed before the court rests with the applicant. Failure to place before the court a complete record by the applicant could result in the dismissal of the review application on that ground alone.
[27] In Balasana v Motor Bargaining Council and others,[6] the Court was faced with a difficulty in that there was no transcript of the arbitration proceedings. The Court held that the general view adopted in cases where there is a defective or incomplete record is to refuse to entertain the review, particularly where the applicant has failed to show what steps he took to find the missing parts or to have it reconstructed. It was however held that: I am of the view that dismissing the applicants review application and bringing the matter to finality on that basis would equal both an injustice and unfairness It is therefore my view that the practical approach based on the dictates of justice and fairness is to remit the matter to the first respondent for the dispute to consider afresh before a commissioner other than the second respondent.
[28] In Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and others,[7] the Labour Court dismissed an application for review on the merits, with the application having been determined on the basis of the commissioners handwritten notes. On appeal, the Constitutional Court acknowledged that there may be cases where it will be contentious to determine a review of arbitration proceedings in the absence of a proper record and considered the remedies to follow when no proper record is available. The Constitutional Court held that it was improper to dismiss the review application without a proper record of the arbitration proceedings. The Court held that: the Labour Court should have remitted the matter to the bargaining council as proposed by the arbitrator and the bargaining council itself. The mechanical recordings of the arbitration had been misplaced and could not be traced. This meant that the arbitration proceedings would commence afresh before a different arbitrator. None of the parties, including the applicant, were opposed to this proposal. The court chose to decide the matter on the defective record before it and made an order adverse to the applicant, when it should not have done so.
[29] In Fountas v Bolas Projects (Pty) Ltd and others,[8] the Labour Appeal Court was faced with an appeal where the Labour Court dealt with a review application, despite the absence of relevant portions of the record and held that:[31] In my view there can be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in this matter when there was material evidence missing in the record. What the Court a quo was required to have done was to consider whether the first respondent as the applicant in the review application had taken all reasonable steps to search for such evidence and or to reconstruct the record. If the first respondent had taken all reasonable steps to either find the missing evidence or to reconstruct the record and these had been to no avail, it could then have had to deal with the question of what should be done. If, however, it was of the view that the first respondent had not taken all reasonable steps that it could and should have taken, it would have had to choose one of two options.[32] The one would be to dismiss the application on the basis that the first respondent had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the Court a quo could have taken lightly because it would have shut the door in the face of the first respondent who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case.[33] The other option that the Court a quo could take would have been to postpone the review application or to strike it off the roll to enable the first respondent or all parties to take such steps as might not have been taken earlier to search for the missing evidence or to reconstruct the record. The latter option is one that a Court will usually adopt unless it is dealing with a case where considerations of fair play between the parties, finality of litigation and others demand that the application be dismissed without the consideration of the merits. This would occur where, for example, the matter had dragged on for a long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to do so.
[30] The principles had been set out by the LAC in Palluci Home Depot (Pty) Ltd v Herskowitz and others[9] as follows: Where all the facts required to make a determination on the disputed issues are before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, I see no reason why a reviewing court should not decide the matter itself.
when review and when CCMA rescission
JR292/19
Valinor Trading 133 CC t/a Kings Castle v CCMA and Others (JR292/19) [2023] ZALCJHB 33; (2023) 44 ILJ 1106 (LC); [2023] 4 BLLR 321 (LC) (3 February 2023)
[24] In two judgments of this Court, Glencore Operations SA (Pty) Ltd v CCMA and others[(2021) 42 ILJ 2446 (LC).] and Solomons v Phokela NO and others[ (JR99/2021) [2021] ZALCJHB 192 (2 August 2021).] a view was expressed that where a commissioner exercised a statutory function or a purported one, the appropriate remedy is to launch a review in terms of section 158 (1) (g) of the LRA. In commencing arbitration proceedings, Lebea purported to function in terms of the LRA.
Clause 11.2.4 of the Practice Manual: lost record
JR 1648/10 ; J 492/20)
South African Social Security Agency v Hartley and Others (JR 1648/10 ; J 492/20) [2023] ZALCJHB 50 (1 March 2023)
“[59] Clause 11.2.4 of the Practice Manual provides as follows:
‘If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.’”
[62] An applicant seeking such direction from the Judge President should set out in detail what steps were taken to ensure that a record, necessary for the review application, was placed before Court, why the available record is inadequate to proceed with the review and that the parties have done what they could to place a proper record before Court but are unable to do so.
[63] The Judge President and Judges in this Court are not to advise parties to file an application to compel in terms of Rule 7A(4) or to order them to reconstruct a record where the need to do so is obvious. Parties should explore and exhaust the remedies available to them before approaching this Court for direction on the further conduct of the review application.
“[69] In Balasana v Motor Bargaining Council and others,[(2011) 32 ILJ 297 (LC) at para 27.] the Court was faced with a difficulty in that there was no transcript of the arbitration proceedings. The Court held that the general view adopted in cases where there is a defective or incomplete record, is to refuse to entertain the review particularly where the applicant has failed to show what steps he took to find the missing parts or to have it reconstructed. It was however held that:
‘I am of the view that dismissing the applicant’s review application and bringing the matter to finality on that basis would equal both an injustice and unfairness… It is therefore my view that the practical approach based on the dictates of justice and fairness is to remit the matter to the first respondent for the dispute to consider afresh before a commissioner other than the second respondent.’”
[77] In my view, the Applicant has taken all reasonable steps to reconstruct the record and there is no possibility that a further attempt will result in a better record, wherefore I am not inclined to dismiss the application for lack of a complete record. This is not a case where the record was available, but the Applicant just took no steps to file it.
[91] In casu, the same fate meets the Applicant and the status of the review application is ‘archived’ and ‘regarded as lapsed’.
When a commissioner considers a condonation application an exercise of discretion is involved.
JR 1678/21
Mofokeng and Another v The GPSSBC and Others (JR 1678/21) [2023] ZALCJHB 64 (17 March 2023)
A Court of review may only interfere with the exercise of discretion if the decision maker (a) acted capriciously; (b) applied wrong legal principles; and (c) was actuated by malice. Thus the interference with the exercise of discretion is a limited one. Where a party laments a lack of hearing of a motion that party must establish that right in the rules of the bargaining council.
“[6]…The judgment concerned itself with the CCMA rules, in particular rule 31 (9) which required the CCMA to allocate a date for hearing of an application and to notify the parties of that date.
[7] The condonation application was entertained in the bargaining council. There is nothing suggested in the papers that the GPSSBC has a similar provision as rule 31 (9) which would have opportune the applicants to expect an allocation of a hearing of the motion. Accordingly, this Court is unable to conclude that De Wet was obliged to hear the condonation application before making a ruling.”
of own decision ito section 158(1)(h)
JR 998/19
Makhonjwa v Director General of the Department of Justice and Constitutional Development and Others (JR 998/19) [2023] ZALCJHB 90 (21 April 2023)
“[9]…In my view, the dispute between the applicant and the respondent does not concern either the administrative action or any exercise of public power. While it is correct that the applicant is an employee of the department, the present application does not concern the employment relationship between him and the department. Rather, the applicant seeks relief in his capacity as the nominated chairperson of a disciplinary hearing into the alleged misconduct of another employee (Mokatsane).
[10] I fail to appreciate how it can be said that in these circumstances, the applicant exercised a power that is reviewable by this court, at his instance. The court has previously entertained applications by employers to review and set aside decisions made by chairpersons of disciplinary hearings (be they employees or independent parties contracted for that purpose) at the instance of the employer (see, for example, Khumalo v MEC Education: KwaZulu Natal (2014) 35 ILJ (CC)). But these cases concern employers who seek to review their own decisions or, put another way, decisions taken on their behalf.”
approach is for the Labour Court to consider the totality of the evidence in deciding “whether the decision made by the arbitrator is one that a reasonable decision maker could make.”
JR 1054/2018
Tactical Reaction Services v Thompson and Others (JR 1054/2018) [2023] ZALCJHB 187 (19 June 2023)
“[6] More recently, in Securitas Specialised Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others [2021] 5 BLLR 475 (LAC) restated the review test in the following terms:
The test for review is this: “Is the decision reached by the arbitrator wonder that a reasonable decision maker could not reach?” To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justifications for reasons other than those given by the arbitrator. The result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.
This court has eschewed a piecemeal approach to a review application by the Labour Court. The proper approach is for the Labour Court to consider the totality of the evidence in deciding “whether the decision made by the arbitrator is one that a reasonable decision maker could make.”
“
[7]…In my view, the arbitrator’s conclusions cannot be said to be so unreasonable that they fall outside of the range of reasonable responses to the evidence.
Acceptability of record – Applicant opted to transcribe electronic version of record and not use a transcription company – Respondent objected to such a transcription – Suggested that record of proceedings was incomplete – Correct interpretation of Rule to be adopted – Transcription produced from an electronic record is sufficient irrespective of its manner of creation into a useable format – Labour Court Rule 7A(2)(b).
JR 1876/21
Van Straaten v Wehnke NO and Others (JR 1876/21) [2023] ZALCJHB 269 (12 September 2023)
“[7] Having said that, a poignant issue that is pointedly raised in this matter is whether an impecunious litigant should be denuded of its right to a review as guaranteed in section 145 (1) of the LRA simply because that litigant cannot afford to pay for the transcription of the record of proceedings. This matter fulcrum on the proper interpretation of rule 7A (7) of the Labour Court Rules[6]. In terms of subrule (6) of Rule 7A, an applicant for review is obligated to furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be. In terms of subrule (7) of the same rule, the following obtains:
‘(7) The costs of transcription of the record …must be paid by the applicant and then becomes the costs in the cause.’ [Own emphasis]”
[31] In summary, a transcription produced from an electronic record provided to the registrar of the Labour Court by a body contemplated in rule 7A (2) (b) of the Labour Court is sufficient irrespective of its manner of creation into a useable format. An applicant for review is the primary beneficiary of a record of review. A respondent is not barred from placing before Court a record it believes to be authentic. It must be remembered that a respondent also has a duty to ensure that a proper record is placed before a Court of review.[17] The contention that because the transcript has not been generated by a professional transcriber, then an incomplete record has been availed is not only against the principles discussed in this judgment, it is preposterous to the extreme. A transcription, irrespective of its manner of creation, completes a record of the proceedings sought to be reviewed and set aside. Accordingly, the present motion is doomed to fail.
the commissioner’s arbitration award was one which could reasonably be made. In this case, the Labour Court correctly pointed out that the question was, in the main, whether the commissioner considered and applied his mind to all the evidence presented before him and arrived at a conclusion that was reasonable.
JA90/22
Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29; [2024] 8 BLLR 881 (LAC) (13 June 2024)
“Head of Department of Education v Mafokeng and Others[[2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at para 33.] in which this Court said:
‘Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’”
Section 158(1B) piecemeal review
JR 604/23
South African Airways (SOC) Limited v South African Cabin Crew Association obo Members and Others (JR 604/23) [2024] ZALCJHB 19; (2024) 45 ILJ 887 (LC) (5 January 2024)
68. The unions referred to the case of Ngobeni v Prasa Cres and others[32] in which the Labour Court dismissed an urgent application to postpone a disciplinary hearing pending a review of a presiding officer’s points in limine rulings (relating to bias and recusal). The court explained why it should be slow to intervene in incomplete arbitration proceedings: the first reason is policy related in that intervention would undermine the informal nature of the system of dispute resolution; the second reason is that reviews on a piecemeal basis would frustrate the expeditious resolution of labour disputes. The court referred to the case Trustees for the time being of the Bioinformatics Network Trust v Jacobson and others[33] and its conclusion that “…justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court.”[34]
83. The section 158 (1B) point made by the unions is noted, and would ordinarily have merit, except that when one considers the facts of this case it is more arguable than not that it would be just and equitable to review the commissioner’s decision not to dismiss the matter. In Ntombela & others v United National Transport Union & others[39] the Labour Court upheld the principle that it could review a ruling before the finalisation of arbitration proceedings at the CCMA if it was “just and equitable” to do so.[40] The Ngobeni case which the unions rely on for its argument that the Labour Court should not intervene before an arbitration is complete is factually distinguishable. In that case the employee sought the court’s intervention on spurious grounds – for example that the presiding officer was biased because he was paid by the employer to chair the enquiry. SAA’s case in contrast has merit.
85. The power to dismiss arises from sections 138(1) and 138 (9)(b) of the LRA. Section 138(1) refers to the obligation on the commissioner to determine the dispute “fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.” Section 138(9) (b) enjoins a commissioner to make an award “that gives effect to the provisions and primary objects of this Act.” One of the primary objects of the LRA set out in section 1(d)(iv) is the “effective resolution of labour disputes’. One of the characteristics of effectiveness, is that of “expeditious”.
88. In summary, I am of the view that the commissioner committed a material error of law when he held that he did not have the power to dismiss the matter. Sections 138(1) and (9) read with section 1(d)(iv) gives him that power. Ferreira was the precedent setting case clarifying the legal position. His inadvertent reliance on Solomons was clearly misplaced. All in all he should have exercised the power that he had, in favour of SAA, noting the duration of the union’s delay, their lack of diligent preparation for the case, and the prejudice that SAA suffered preparing repeatedly for an arbitration (six set downs over 19 months) which failed to “fly”.
procedural unfairness: appointment of an external Presiding Officer
JR 328/21
Mariemuthoo v Matshaka N.O and Others (JR 328/21) [2024] ZALCJHB 4 (15 January 2024)
“[47] The Labour Appeal Court in Highveld District Council v CCMA and others[[2002] 12 BLLR 1158 (LAC) at 1162 at para 16.] dealt with the consequences of a deviation from a Disciplinary Code in a pragmatic manner. The LAC held:
‘… The mere fact that the procedure is an agreed one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed, does not in itself mean that the procedure actually followed was unfair” …’
[48] The applicant has failed to set out why he was prejudiced by the appointment of an external Presiding Officer or demonstrated how this impacted on his right to a procedurally fair hearing.
“
Commissioner watered down charge from gross negligence to negligence and contradicted earlier finding
JR2223/23
South African Revenue Service v Commission for Conciliation, Mediation and Arbitration (JR2223/23) [2024] ZALCJHB 69; (2024) 45 ILJ 1077 (LC) (26 January 2024)
Gross negligence – Fictitious transactions leading to financial loss – Commissioner found dismissal procedurally and substantively unfair – Review – Alleges arbitrator failed to properly evaluate evidence – Commissioner watered down charge from gross negligence to negligence and contradicted earlier finding – Not commissioner’s role to alter charge – Failed to consider gravity of charge – Committed an irregularity that distorted outcome – Dismissal procedurally and substantively fair.
17] There is no basis, on the totality of evidence before him, as considered by him, to alter the charge. It is not the commissioner’s role to alter the charge. The commissioner’s role in resolving a dispute is to properly construe the nature of the charge. He is then to properly consider the evidence before him and is to make a finding that is justifiable on the totality of evidence before him.
Set aside if both the reasons and the result are unreasonable
JR1367-23
Worldwide Staffing (Pty) Ltd v Metal And Engineering Industries and Others (JR1367-23) [2024] ZALCJHB 67; (2024) 45 ILJ 1128 (LC) (12 February 2024)
“[12] In Quest Flexible Staffing Solutions (Pty) Ltd (a division of ADCORP Fulfilment Services (Pty) Ltd) v Lebogate,[(2015) 36 ILJ 968 (LAC); [2014] ZALAC 136 at para 12.] the Labour Appeal Court appropriately summarised the test as follows:
‘[12] … Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is nevertheless capable of justification for reasons other than those given by the arbitrator…’
“
25] Because he proceeded from the wrong premise, the Arbitrator misconstrued the nature of the enquiry. Had the Arbitrator properly applied his mind, he would have at least considered that a protected picket is meant to be an extension of collective bargaining, not a licence to intimidate or to simply tarnish an employer’s reputation. The slogans written on the placards were undoubtedly defamatory and aimed at creating a hostile and intimidating atmosphere. Upon contravention of the picketing rules, the picket lost its protected status.[5] These offensive slogans most probably contributed to the ensuing violence. So did crossing of the picketing lines.
Security to satisfaction of court – Security provided in form of movable assets – Employee objects to security provided and urges court to reject it as unsatisfactory – No explanation how applicant would pay shortfall in event value of assets diminished – Security furnished is unsatisfactory and rejected – Applicant afforded an opportunity to provide security that satisfies court – Labour Relations Act 66 of 1995, s 145(7).
J145/24
Bhekani Abantu Services (Pty) Ltd v Redelinghuys and Others (J145/24) [2024] ZALCJHB 102; (2024) 45 ILJ 1242 (LC) (4 March 2024)
Prejudice in review applications
JR 2289/2021
“[56] It was held in Thilivali that when it comes to the issue of prejudice, the applicant
in fact has to show that a miscarriage of justice will occur if his or her case is
not heard.”
Labour Court may review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law
DA1/2022
Nzimande and Another v Newcastle Municipality (DA1/2022) [2024] ZALAC 34; [2024] 11 BLLR 1120 (LAC) (10 July 2024)
[14] The principle of legality requires all exercises of power to be, at a minimum, lawful and rational.[14] The conduct of a public official must not be mala fide or based on ulterior or improper motives. A court is obliged to intervene on review if an official did not apply their mind or exercise their discretion at all, or if they disregarded an express provision of a statute.[15]
[15] In proceeding as he did, Mr Mswane ignored the resolution.[16] By doing so, he contravened the Local Government: Municipal Systems Act[17] (Act). Section 55 of the Act provides that municipal managers are the head of the municipality’s administration. They are responsible and accountable for the appointment of certain staff, but this is subject to the policy directions of the council.[18] The Supreme Court of Appeal (per Nugent JA) has explained the relationship between municipal councils and municipal managers as follows:[19]
[18] As there is no prescribed time limit for launching a review under s 158(1)(h) of the LRA, there was no need for the Municipality to apply for condonation before the Labour Court.[22] The Constitutional Court has confirmed that a court should be slow to allow procedural obstacles to prevent it from considering a challenge to the lawfulness of an exercise of public power. Review proceedings must nevertheless be instituted within a reasonable time.
review test, the result of the award has to be so egregious that, as the test requires, no reasonable person could reach such a result
DA 9/23
AJ Charnaud and Company v SACTWU obo Members and Others (DA 9/23) [2024] ZALAC 33; [2024] 10 BLLR 1016 (LAC); (2024) 45 ILJ 2257 (LAC) (17 July 2024)
Makuleni v Standard Bank of South Africa [2023] ZALAC 4; (2023) 44 ILJ 1005 (LAC). where Sutherland JA said the following:
“‘… The court asked to review a decision of commissioner must not yield to the seductive power of a lucid argument that the result could be different. The luxury of indulging in that temptation is reserved for the court of appeal. At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only if the conclusion is untenable is a review and setting aside warranted.’
And further:
‘To meet the review test, the result of the award has to be so egregious that, as the test requires, no reasonable person could reach such a result.’[6]
“
Factors to be considered by the Labour Court when considering remitting a dispute back to the CCMA restated. The doctrine of separation of powers
JA60/23
Phakoago v SANCA Witbank Alochol and Drug Help Centre and Others (JA60/23) [2024] ZALAC 44 (18 September 2024)
41] In National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others[National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others [2021] ZACC 47; (2022) 43 ILJ 530 (CC) (NUMSA).], the Constitutional Court, after noting the wide discretion the Labour Court has in determining a dispute, cautioned against the Labour Court readily substituting its decision for that of the commissioner. The underlying consideration of the caution relates to the risk of the hasty use of discretion undermining the doctrine of separation of powers. The doctrine of separation of powers is critical in this regard because otherwise, the Labour Court could usurp the powers assigned to commissioners of the CCMA. It was for this reason that the Constitutional Court held that the Labour Court should exercise a measure of judicial deference and only substitute decisions in exceptional circumstances.” It went further and stated that “judicial deference should not be interpreted to mean that the Labour Court does not have the power to substitute… arbitration awards”.[11]
“[42] In Trencon Construction (Pty) Ltd v Industrial Development Cooperation of South Africa Ltd and Another[[2015] ZACC 22; 2015 (5) SA 245 (CC) at para 47.], the Constitutional Court held that the factors to take into account in considering whether to exercise the discretion to substitute the decision of an administrator are the following:
‘To my mind, given the doctrine of separation of powers, in conducting this enquiry there are certain factors that should inevitably hold greater weight. The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of an administrator is a foregone conclusion. These two factors must be considered cumulatively. Thereafter, a court should still consider other relevant factors. These may include delay, bias or the incompetence of an administrator. The ultimate consideration is whether a substitution order is just and equitable. This will involve a consideration of fairness to all implicated parties. It is prudent to emphasise that the exceptional circumstances enquiry requires an examination of each matter on a case-by-case basis that accounts for all relevant facts and circumstances.’”
“43] In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[13], the court set out the circumstances in which the Labour Court would rather correct the decision than refer it back to the CCMA as being:
‘(i) where the end result is a foregone conclusion and it would merely be a waste of time to order the CCMA to reconsider the matter;
(ii) where a further delay would cause unjustified prejudice to the parties;
(iii) where the CCMA has exhibited such bias or incompetence that it would be unfair to require the applicant to submit to the same jurisdiction again; or
(iv) where the court is in as good a position as the CCMA to make the decision itself.’”
“44] In Auto Industrial Group (Pty) Ltd and Others v Commission for Conciliation, Mediation and Arbitration and Others[[2018] ZALCPE 41; (2019) 40 ILJ 550 (LC) at para 60.], the Court held that:
‘A court will ordinarily substitute the decision of a commissioner where all of the available evidence is before the court and little purpose would be served in a rehearing.’”
Compulsory arbitrations: [5] Section 188A(8) of the LRA provides that the ruling of an arbitrator in an inquiry has the same status as an arbitration award, and that the provisions of sections 143 to 146 of the LRA apply.
JR1575/21
Musawenkosi Mkhwanazi v Tokiso Dispute Settlement (Pty) Ltd (JR1575/21) [2024] ZALCJHB 271 (5 July 2024)
“[2] I directed the parties to the decision in Volkswagen SA (Pty) Ltd v Koorts NO and others [2] and to consider if this was the correct review test to be applied.
[3] In Volkswagen the Court found that the parties could validly charge the arbitrator with the injunction to hear the matter as would a Commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA). The parties could not however review their matter on broader grounds than those in section 33 of the Arbitration Act[3] and could not prescribe to the Labour Court how it should review the award.[4] The Court was bound to follow the narrow grounds set out in section 33 of the Arbitration Act, and to act in accordance with the legal position as set out in Telcordia Technologies Inc v Telkom SA Ltd[5] and Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another[6]. “
“There is no private arbitration agreement entered into between the parties and Tokiso is (and was at the relevant point in time) an accredited organisation/agency to conduct an inquiry by arbitrator in terms of section 188A of the Labour Relation Act[7] (LRA).
[5] Section 188A(8) of the LRA provides that the ruling of an arbitrator in an inquiry has the same status as an arbitration award, and that the provisions of sections 143 to 146 of the LRA apply.
[6] Accordingly, section 145 of the LRA, review of arbitration awards and the review test as set out in Sidumo[8] would find application .”
“[7] Sidumo itself correctly distinguished between compulsory arbitrations and private arbitrations in the following terms:
“Compulsory arbitrations in terms of the LRA are different from private arbitrations. CCMA Commissioners exercise public power which impacts on the parties before them. In the language of the pre-constitutional administrative law order, it would have been described as an administrative body exercising a quasi-judicial function. I conclude that a commissioner conducting a CCMA arbitration is performing an administrative action.”[9]”
Review 2 stage test
JR194/20
Ferroland Ground Trust (Pty) Ltd v Commission For Conciliation Mediation And Arbitration (JR194/20) [2024] ZALCJHB 273 (25 July 2024)
“[29] This being a review as opposed to an appeal, the Labour Appeal Court (LAC) in Securitas Specialised Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[[2021] ZALAC 5; (2021) 42 ILJ 1071 (LAC) at paras 19 – 20.] stated the following in relation to the test on review:
‘[19] The test for review is this: “is the decision reached by the arbitrator one that a reasonable decision-maker could not reach?”[4] To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.[5]
[20] This court has eschewed a piecemeal approach to a review application by the Labour Court. The proper approach is for the Labour Court to consider the totality of the evidence in deciding “whether the decision made by the arbitrator is one that a reasonable decision-maker could make”.’[6]”
Question of jurisdiction should be decided before dispute is arbitrated – Pending finalisation of review proceedings, the arbitration is stayed: Section 158(1B) of the Labour Relations Ac
J787/2024
City of Johannesburg Metropolitan Municipality v Mphefo and Others (J787/2024) [2024] ZALCJHB 287 (30 July 2024)
“26] It is trite that the arbitrator or the SALGBC cannot assume jurisdiction where it does not exist, and they cannot decide their own jurisdiction – it is ultimately to be decided by this Court.
[27] The Applicant seeks to challenge the ruling which determined that the SALGBC has jurisdiction and that the dispute be enrolled for arbitration. The reality is that the review application could be dispositive of the matter and could bring an end to the Respondent’s unfair dismissal claim. Should the review court find that the Respondent was not dismissed, the underlying causa (namely unfair dismissal) would be removed and the jurisdiction of the SALGBC to adjudicate the dispute will be ousted and the matter will go no further.”
“[34] The common sense approach determines that if the applicant is successful later on review and the findings confirm that the matter was not arbitrable, then the applicant would have not only incurred unnecessary expenditure and time but was forced to participate in proceedings it did not concede to. In this instance, the applicant is further prejudiced as it has not pleaded to the statement of claim in light of the dispute. The prejudice suffered by the applicant most certainly outweighs the prejudice the respondent would suffer if the arbitration proceedings are not stayed.’
“
“[42] In National Gambling Board v Premier, Kwazulu-Natal and Others,[[2001] ZACC 8; 2002 (2) SA 715 (CC) at para 49.] the Constitutional Court considered interdict proceedings and held that:
‘An interim interdict is by definition
“a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination.”
The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute. At common law, a court’s jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo. It does not depend on whether it has the jurisdiction to decide the main dispute.’”
[9] As a general principle, the applicant in a review application must make out his or her case in the founding affidavit, as may be supplemented by a supplementary affidavit, if necessary, after the transcribed record becomes available.
JR 1209/2020
IPP Mining and Materials Handling (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration and Others (JR 1209/2020) [2024] ZALCJHB 294 (2 August 2024)
“[13] Grounds for review cannot be formulated for the first time in heads of argument. In Northam Platinum Ltd v Fganyago NO and others[5] it was held that:
‘In my view the law is very clear that a ground for review raised for the first time in argument cannot be sustained. The basic principle is that a litigant is required to set out all the material facts on which he or she relies in challenging the reasonableness or otherwise of the commissioner’s award in his or her founding affidavit.’”
20] The first difficulty relates to the test to be applied. The test to be applied in casu is the one of reasonableness. The Applicant must show that ultimately, considering the evidence placed before him, the arbitrator arrived at an unreasonable result.
determination of whether a decision is unreasonable
JR736/22
AMCU obo Mtya v Commission for Conciliation Mediation and Arbitration and Others (JR736/22) [2024] ZALCJHB 301 (12 August 2024)
31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.
[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to “defects” as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required.
just and equitable to intervene and review an interlocutory arbitration ruling of a commissioner by the Labour Court
JA98/22
Moolman v Commission For Conciliation, Mediation and Arbitration and Others (JA98/22) [2024] ZALCJHB 339 (22 August 2024)
“
[30] The first category of discretion, which is sometimes referred to as discretion in a true sense, discretion in a strict sense or unfettered discretion, is characterised by the repository’s power to choose between various permissible courses or options when deciding on an issue or exercising power.G106:O106″
[31] It is generally accepted that where the repository of power has performed his or her function of choosing among the available options or courses, the appeal court would not be entitled to interfere with such an exercise of discretion by substituting that option with its preferred option. In other words, in the court below or in the case of a review of a ruling in mediation or arbitration proceedings, the commissioner is free to decide which of the available and permissible options or courses he or she would adopt.
“[32] The definition of discretion, in the true sense, was formulated as follows in Media Workers Association of South Africa and Others v Press Corporation of SA Ltd [7] and accepted by the Constitutional Court in Trencon Construction:
“The essence of a discretion in this narrower sense (the true sense) is that, if the repository of the power follows any one of the available courses, he would be acting within his powers, and his exercise of power could not be set aside merely because a Court would have preferred him to have followed a different course among those available to him.””
33] This means that a discretion, in the true sense, is exceptionally appealable. In other words, the appeal court would only be justified to interfere with the exercise of power by the lower Court if it is satisfied that the discretion was exercised (1) capriciously or (2) upon wrong principles, or (3) the discretion was not exercised in an unbiased manner.[8]
“[34] In Naylor and Another v Janson[9] the Supreme Court of Appeal (SCA) held that:
“Where the law has given a judge an unfettered discretion, it is not for this court (the SCA) to lay down rules which, whilst purporting to guide the judge, will only have the effect of fettering the discretion. If, therefore, there are factors which the trial court, in the exercise of its discretion, can and legitimately does decide to take into account so as to reach a different result, a court on appeal is not entitled to interfere ─ even although it may or even probably would have given a different order.”
[35] The Constitutional Court made the same point in Florence v Government of the Republic of South Africa[10] (CC) as follows:
“Where a court is granted wide decision-making powers with a number of options or variables, an appellate court may not interfere unless it is clear that the choice the court has preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, an appeal court may not interfere only because it favours a different option within the range. This principle of appellate restraint preserves judicial comity. It fosters certainty in the application of the law and favours finality in judicial decision-making.””
“[37] In contrast to the standard of appealability in the first category, the restrictions applicable in that category do not apply to the second category, discretion in the loose sense, in that an appeal Court has authority, in general, to substitute the decision of the lower court with its own if it concludes that the discretion was wrongly exercised. The discretion in the loose sense is sometimes referred to as discretion in the narrow sense. In M R v N R[12] discretion in the loose sense is described as follows:
“24 Where a discretion in a loose sense applies, an appellate court is equally capable of determining the matter in the same manner as the court of first instance and can therefore substitute its own exercise of the discretion if it considers that the order of the first instance court was wrong.””
[40] The general rule of labour law practice, which finds application in both civil and criminal proceedings, is that the Labour Court is discouraged from reviewing any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the CCMA or bargaining councils before the main issue in dispute is finally resolved. The exception to the general rule is that the Labour Court may review such a decision or ruling if it deems it just and equitable to do so.
“43] It should be noted that the legislature did not introduce a total prohibition on reviews of interlocutory rulings in arbitration and mediation proceedings but rather allowed for an exception to the general rule. As a matter of principle, interference in uncompleted arbitration proceedings through review is only permissible in exceptional circumstances. The requirement to intervene in exceptional circumstances is underpinned by the legislative policy requiring speedy finalisation of labour disputes, which dictates that the court should not interfere with incomplete proceedings but allow a hearing to run its course. This underscores the importance of the Court’s role in ensuring a fair and just resolution, which should strike a balance between the interests of all parties involved. The correct approach to adopt in this regard was set out in South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others[16] as follows:
“A case must be truly exceptional to warrant a departure from the norm that a review is appropriate only once the dispute has been finally determined in a completed arbitration hearing. This is consistent with the statutory purpose of expeditious dispute resolution, which the LRA seeks to achieve.””
“[47] In State Information Technology Agency (SITA) v Commission for Conciliation Mediation and Arbitration,[19] the court correctly intervened when the commissioner erred in ordering the discovery of a privileged document. The harm that the other party would have suffered had the court allowed the ruling to stand and the privileged documents to be disclosed is that damage would not be adequately addressed upon the conclusion of the main proceedings. The court intervened earlier because the document which the applicant sought to disclose was legally privileged. The court reviewed and set aside the ruling and declared that the applicant was not compelled to disclose the copy of the document required by the respondents.
[48] Similarly, the Labour Court in South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Mediation Conciliation and Arbitration and Others[20] the Labour Court intervened earlier on the ground that the document required by the respondent was patently irrelevant to the dispute.”
Security ordered to be furnished
J822/24
Africabin Building Systems (Pty) Ltd v Mogaladi and Others (J822/24) [2024] ZALCJHB 345; (2024) 45 ILJ 2727 (LC) (6 September 2024)
Security from employer – Failure to furnish in terms of award – Award orders employer to reinstate employee – Employer decides to challenge award by way of review proceedings – Employer must comply with provisions by furnishing security – Employee is entitled to execute award absent security – Company failed to prove that it would suffer any prejudice if ordered to furnish security – Security ordered to be furnished – Labour Relations Act 66 of 1995, ss 145(7) and (8).
“[5] In Bhekani Abantu Services (Pty) Ltd v Redelinghuys & others[2], this Court observed a worrying trend on the part of some employers who choose deliberately to disregard the security provisions. This trend and behaviour often leads to employees enforcing their rights, as they must, and then employers rushing to Court on an urgent basis to stay the enforcement of the award in terms of section 145(3) and simultaneously apply for exemption from furnishing security.[3] In Panorama Park Retirement Village v Commission for Conciliation, Mediation and Arbitration and Others[4], Tlhohlalemaje J expressed his frustration with this trend. He said the following:
‘Sadly, it has become a practice in this court for parties seeking a review of unfavourable arbitration awards, to simply file such applications without furnishing the security required, and to only put an obscure prayer somewhere in the pleadings, seeking to be absolved from payment of security. In some instances, reviewing parties do not even make an attempt to be absolved from payment of security, and simply close their pleadings and request a set down date. It is appreciated that opposing parties in review applications can raise non-payment of security as preliminary point in the answering affidavit. Be that as it may, in most instances, as is in this case, it is only after a year or three when the matter comes before the court, that these preliminary points are addressed. By then, the reviewing party has, by default, been absolved from payment of security.
The above practices are an affront on the very purpose of the provisions of s 145(7) and (8) of the LRA, and must come to an end. The purpose of these provisions is essentially to dissuade employers in particular from bringing frivolous review applications with no prospects of success and ensure that they are timeously and expeditiously prosecuted.’[5]”
“City of Johannesburg v SA Municipal Workers Union on behalf of Monareng & another[6] (City of Johannesburg).
[12] However, the City of Johannesburg judgment does not advance the company’s proposition that proof of adequate or sufficient assets is the overriding requirement in the enquiry whether to exempt an employer from furnishing security. What is clear from this judgment is that employers who seek to be exempted from furnishing security must show good cause and make the necessary averments for such relief in their founding papers.
[13] The LAC continued that:
‘In Rustenburg Local Municipality, the Labour Court held as follows in relation to what good cause entails:
“Good cause in the context of motivating a departure from the security provisions prescribed in s 145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses 10 employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months’ salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security.”
Material prejudice to the employer is but one factor that the Labour Court must give consideration to – it is by no means decisive. In exercising its discretion, the Labour Court must have regard to the particular circumstances of the case as well as considerations of equity and fairness to both the employer and the employee. A factor that the Labour Court must take into consideration is whether the employer is in possession of sufficient or adequate assets to meet an order of the review court upholding the arbitration award; the principal concern being that the dismissed employee should not be left unprotected if the Labour Court decides the review application in his or her favour.
The onus is on the employer seeking an exemption from furnishing security under s 145(8) of the LRA to establish that it has assets of a sufficient value to meet its obligations should the arbitration award be upheld by the Labour Court on review. On a purposive or contextual construction, s 145(7) and (8) of the LRA must be construed as requiring all employers – whether in the public or private sectors – to provide security. I accordingly support the position adopted in Rustenburg Local Municipality that all employers whether in the public or private sector should be subject to the same requirement of providing security.’[7]”
20] During the hearing, I made it clear to Mr Naidoo, appearing on behalf of the company, that based on the pleadings, I was not inclined to grant full exemption and urged him to take instruction on the amount of security the company would furnish. This was raised in light of the fact that in its alternative relief, the company requested the Court to determine reasonable security. The company offered to furnish security in the amount of R272 000.00, which is the equivalent of backpay awarded to the employee in terms of the award. Having considered the papers and submissions, it was my view that fairness and equity to both parties required payment of 50% of the equivalent of 24 months’ remuneration. Accordingly, I ordered that security equivalent to 12 months’ remuneration (R408 000.00) be furnished.
award compensation in terms of section 193(1)(c) of the LRA is reviewable,
JR23/23
Odayar v Wilkes N.O and Others (JR23/23) [2024] ZALCJHB 350 (9 September 2024)
[39] The decision to award compensation in terms of section 193(1)(c) of the LRA is reviewable, and what is relevant is whether a reasonable decision maker would have arrived at that decision.[26] However, the decision as to the amount of compensation, awarded in terms of section 194(1), constituting the exercise of a narrow discretion, requires that this Court ascertain whether a limited ground for interference exists before it can vary the quantum.
[40] The assessment of what the employee should have received must, in turn, require the Court to examine factors such as the employee’s length of service with the employer, his or her prospects of finding alternative employment, the financial position of the employer, and so on.[28]
not open … to rely on the provisions of section 158(1)(h) of the LRA, which would be the only possible avenue available to it in terms of which to pursue a review application with regard to any decision by the Municipality, instead of the remedies specifically available to it under the LRA.
2024/107100
Democratic Municipal and Allied Workers union of South Africa (DEMAWUSA) obo Members v Bushbuckridge Local Municipality South African Local Government (2024/107100) [2024] ZALCJHB 413 (23 October 2024)
“36] Thus, and in my view, it is not open to DEMAWUSA to rely on the provisions of section 158(1)(h) of the LRA, which would be the only possible avenue available to it in terms of which to pursue a review application with regard to any decision by the Municipality, instead of the remedies specifically available to it under the LRA. It is only where relief cannot be obtained under any other provision of the LRA that the review jurisdiction of this Court in section 158(1)(h) would come into play.[31] But this is not the case in casu.
[37] Therefore, it is my view that it is not competent for DEMAWUSA to approach the Labour Court directly on review, seeking to review and set aside what is nothing more than action taken by the Municipality which, at best for DEMAWUSA, would be a breach of the recognition agreement. That being so, then what should DEMAWUSA then have done? The answer lies in the following dictum in Health and Other Services Personnel Trade Union of SA on Behalf of Tshambi v Department of Health, KwaZulu-Natal[32]:
‘… Logically, a dispute requires, at minimum, a difference of opinion about a question. A dispute about the interpretation of a collective agreement requires, at minimum, a difference of opinion about what a provision of the agreement means. A dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked. …’”
Summary: review of arbitration award – arbitrator ignoring application for rescission of a prior ruling and proceeding to hear the matter on its merits – decision to proceed in the circumstances constituting misconduct in relation to his duties as arbitrator, and unreasonable. Award set aside and remitted.
J986/2022
“
Bosch Uniform Supplies CC v SACTWU obo Marima and Others (J986/2022) [2024] ZALCJHB 420 (4 November 2024)”
jurisdiction of CCMA
JR101/2023
Mpe v Polokwane Local Municipality and Others (JR101/2023) [2024] ZALCJHB 426 (7 November 2024)
[25] ‘Reasonableness’ finds no application in casu. I already alluded to the test to be applied in an application such as this one supra.
“[26] In NUMSA obo Zahela and 3 others v Volkswagen SA (Pty) Ltd and others[Unreported judgment case no: PR 137/13, delivered on 18 November 2016 at paras 6 – 8.] (Zahela), an application for review was dismissed where the applicant incorrectly relied on ‘reasonableness’ instead of ‘correctness’ and it was held that:
‘[6] In other words, reasonableness ordinarily has no place in a review where the enquiry is whether or not the CCMA had jurisdiction. This is an assessment that must be made objectively, having regard to the facts placed before the commissioner. It amounts to a determination of whether the commissioner’s decision was correct.
[7] It follows that in a matter such as the present, where the proper right of review is one based on correctness that is the case that must necessarily be pleaded. The applicant, mistakenly, has pleaded on the basis of an attack on the reasonableness of the arbitrator’s decision. Mr Niehaus, who appeared for the applicant, did not dispute that the applicant had sought intervention on a basis that was incorrect. He requested the court to postpone the matter and to grant the applicant leave to file amended papers in order to address the error.
[8] There are a number of considerations that compelled me to conclude that a postponement and the concomitant further delay in the resolution of these proceedings was not appropriate in the circumstances. First, as I have indicated, the fact of the matter is that the applicant has approached this court on the basis of pleadings that posit the incorrect test. All of the submissions in the founding papers, to the extent that they suggest that the arbitrator failed to appreciate the nature of the enquiry that she was to conduct and that her decision fell outside of the band of decisions to which reasonable people could come on the available material, are irrelevant. The applicant would be obliged to make out an entirely new case for review. The present situation is not dissimilar to that where a plaintiff elects the wrong cause of action to pursue his or her claim. It is not open to a plaintiff, generally speaking, in those circumstances simply to seek to remove the matter from the trial roll and introduce a new cause of action.’”
Test for review
JR1303/2020
Bidvest Panalpina Logistics Now Bidvest International Logistics v Commission for Conciliation Mediation and Arbitration and Others (JR1303/2020) [2024] ZALCJHB 425 (8 November 2024)
“[19] The test for review of arbitration awards was comprehensively set out by the Labour Appeal Court (LAC) in Makuleni v Standard Bank of SA Ltd and others[[2023] 4 BLLR 283 (LAC) at paras 3 and 4.] wherein it was held that:
‘[3] The critical approach to reviews that turn on ‘unreasonableness’ was articulated by Murphy AJA in Head of Department of Education v Mofokeng & others at paras [30] to [33]. The significant passages are emphasized:
[30] The failure by/an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curia) and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.
[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in s 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant& considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The court must nonetheless still consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is/subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be a fair trial of the issues.
[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LA, confining review to ‘defects’ as defined in S/145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something, more is required. To repeat flaws in the reasoning of the arbitrator evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.
[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesis be material to the determination of to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to fine determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.”
[4] The import of these remarks demands reflection in order to digest the essence of the exercise that a commissioner embarks upon. The court asked to review a decision of commissioner must not yield to the seductive power of a lucid argument that the result could be different. The luxury of indulging in that temptation i.e. reserved for the court of appeal. At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only the conclusion is untenable is a review and setting aside warranted.’ “
“See: Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] ZACC 22; [2007] 12 BLLR 1097 (CC) at para 110; Super Group Autoparts t/a AutoZone v Hlongwane NO and others [2009] ZALCJHB 68; [2010] 4 BLLR 458 (LC) at 461 8E; Manana v Department of Labour and others [2010] ZALAC 26; [2010] 6 BLLR 664 at 668 20F; NUM and another v Samancor Ltd (Tubatse Ferrochrome) and others supra, Afrox Healthcare Ltd v Commission for Conciliation Mediation and Arbitration and others [2012] ZALAC 2; [2012] 7 BLLR 649 (LAC) at 657 21D-I; Herholdt v Nedbank Ltd (Congress of South African Trade Unions as “amicus curiae”) [2013] ZASCA 97; [2013] 11 BLLR 1074 (SCA) at 1084 24C-D; Goldfields supra; Derivco (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration [2014] ZALCJHB 257; [2014] 10 BLLR 1000 (LC) at 1007 37B; Shoprite
Checkers v CCMA [2015] 10 BLLR 1052 (LC) at 1056E-H 9-10; Mbatha v Safety and Security Sectoral Bargaining Council JR372/13 [2015] ZALCJHB 332 (30 September 2015) at para 25; Head of the Department of Education v Mofokeng and others [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at paras 60 – 61; Kock v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 1625 (LC) at para 27; and Ethekwini Municipality v Hadebe and others [2016] ZALAC 14, [2016] 8 BLLR 745 (LAC) at para 20. Belloord 28 CC v CCMA Johannesburg [2019] JOL 42664 (LC) at para 10.”
the Applicant was paid in accordance with the terms of the arbitration award and he had kept the money so paid without any tender to pay it back
JR2313/16
Maake v Commission for Conciliation, Mediation and Arbitration and Others (JR2313/16) [2024] ZALCJHB 481 (25 November 2024)
“[56] The doctrine of pre-emption is well established in our law and was explained in Hlatshwayo v Mare and Deas[1912 AD 242.] as follows:
‘[A]t bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another, or as it is commonly expressed to blow hot and cold, to approbate and reprobate.’”
[57] The concept of per emption is based on the general notion that a litigant has an election to make: either to accept or to reject the outcome of the judgment or the arbitration award. As a general rule a party that pre-empts the arbitration award would not be entitled subsequently to challenge that arbitration award. The basic requirement, however, to sustain a claim of per emption entails having to show that the acceptance of the outcome of the arbitration award expressly or by conduct was unequivocal.
59] This conduct of the Applicant when he accepted and retained the money paid as compensation, does not support an objective intention to challenge the award and is inconsistent with such intention. The money he kept was compensation payable in terms of the arbitration award and by accepting and retaining it, he accepted it to be the outcome of the arbitration.
private arbitration proceedings agreed to: Section 33(1) provides three grounds for setting aside an arbitration award: misconduct by an arbitrator; gross irregularity in the conduct of the proceedings; and the fact that an award has been improperly obtained….[16] In short: by agreeing to refer their dispute to private arbitration the parties limit interference by court to the grounds of procedural irregularities as set out in section 33(1) of the Arbitration Act.
JR570/2023
Matiko v Friedman N.O and Another (JR570/2023) [2024] ZALCJHB 473 (28 November 2024)
“[7] However, the arbitration award sought to be reviewed in casu was issued in consequence of a private arbitration agreement between the parties and the review of private arbitration awards is governed by section 33 of the Arbitration Act[3]. Thus, the award may only be reviewed in terms of the provisions of section 33 of the Arbitration Act.
[8] The difference between a review application pursued in terms of the LRA and the Arbitration Act has been recognised and emphasized by the courts, as is evident from several authorities.”
“9] In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another[(CCT 97/07) [2009] ZACC 6; 2009 (4) SA 529 (CC) ; 2009 (6) BCLR 527 (CC).] the majority in the Constitutional Court held that:
‘The twin hallmarks of private arbitration are thus that it is based on consent and that it is private, i.e. a non-state process. It must accordingly be distinguished from arbitration proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relations Act 66 of 1995 which are neither consensual, in that respondents do not have a choice as to whether to participate in the proceedings, nor private. Given these differences, the considerations which underlie the analysis of the review of such proceedings are not directly applicable to private arbitrations.’
“
“[10] The Constitutional Court in Mphaphuli further confirmed that the Sidumo test does not assist in the review of private arbitration awards and held that:
‘To return then to the question of the proper interpretation of section 33(1) of the Arbitration Act in the light of the Constitution. Given the approach not only in the United Kingdom (an open and democratic society within the contemplation of section 39(2) of our Constitution), but also the international law approach as evinced in the New York Convention (to which South Africa is a party) and the UNCITRAL Model Law, it seems to me that the values of our Constitution will not necessarily best be served by interpreting section 33(1) in a manner that enhances the power of courts to set aside private arbitration awards. Indeed, the contrary seems to be the case. The international and comparative law considered in this judgment suggests that courts should be careful not to undermine the achievement of the goals of private arbitration by enlarging their powers of scrutiny imprudently. Section 33(1) provides three grounds for setting aside an arbitration award: misconduct by an arbitrator; gross irregularity in the conduct of the proceedings; and the fact that an award has been improperly obtained. In my view, and in the light of the reasoning in the previous paragraphs, the Constitution would require a court to construe these grounds reasonably strictly in relation to private arbitration.’
“
“[13] In SACCAWU and others v Pick ’n Pay Retailers (Pty) Ltd and others[7] (SACCAWU) the Court summarised the position in respect of the review of private arbitration as:
‘In short: in the case of a review of a private arbitration award, there exists little scope for a review going to the merits, as a private arbitrator has the right to be wrong.’”
“[15] In Clear Channel Independent (Pty) Ltd v Savage NO and another[8] the applicant argued that the test to apply in assessing whether a private arbitration award is reviewable or not was that of a reasonable decision-maker as set out in Sidumo as the right to fair labour practices applied to all employees. The applicant further argued that Telcordia did not apply as the case before the SCA concerned a commercial dispute and not a labour dispute. The court held, with reference to the LAC judgments in Stocks that the wider review test under section 145 of the LRA did not apply to private arbitrations under section 33 of the Arbitration Act. It further held that as section 33 of the Arbitration Act did not distinguish between commercial and labour related disputes and therefore it could not be said that Telcordia did not apply. Accordingly, the Court found that the test set out in Telcordia[9] applied to the review of private labour arbitration disputes. The Court concluded that, by referring the dispute to private arbitration, the parties had limited interferences by the court to the grounds of procedural irregularities as set out in section 33 of the Arbitration Act. The test to apply is set out as follows:
‘By agreeing to arbitration parties to a dispute necessarily agree that the fairness of the hearing will be determined by the provisions of the Act and nothing else. Typically, they agree to waive the right of appeal, which in context means that they waive the right to have the merits of their dispute relitigated or reconsidered. They may, obviously, agree otherwise by appointing an arbitral appeal panel, something that did not happen in this case.
Last, by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, ”common law’ or otherwise. If they wish to extend the grounds, they may do so by agreement but then they I have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the court.’”
[31] In his founding affidavit the Applicant stated that the arbitrator arrived at conclusions and made findings that no reasonable commissioner could have arrived at and that his conclusions constituted gross irregularities in the proceedings. This statement is repeated in the Applicant’s heads of argument. It is ill-conceived – the test of reasonableness finds no application and a gross irregularity as provided for in the Arbitration Act is different from the Applicant’s understanding as to what would constitute such irregularity. The Applicant evidently seeks to attack the result of the arbitration when such is not permissible in private arbitration proceedings.
CC- cross review
CCT 13/24
Mothulwe v Labour Court, Johannesburg and Others (CCT 13/24) [2025] ZACC 10 (8 May 2025)
the Arbitrator found that they had committed corruption….ross-review application challenging the Arbitrator’s finding that they committed an act of corruption (finding) that they be issued with a final written warning and that they should not be compensated or receive back-pay (sanction).
[8]…He expanded upon this by pointing out that there were two reviews before the Labour Court, the one dealing with the finding of guilt (his cross-review) and the other with the sanction imposed (the main review), and that the Labour Court could not have only addressed the employer’s challenge to the sanction imposed without first addressing his challenge to the finding of guilt. In addition, he argued that there was no evidence that implicated him in the alleged act of corruption that would have warranted a finding of guilt by the Arbitrator.
5. The applicant’s cross review application in respect of the finding of guilt and the condonation application for the late filing thereof are referred to the Labour Court for determination by another judge.
security bond (State)
JA 44/2024
Director General Department of Forestry Fisheries and Environment and Another v Sheriff Pretoria North-East and Others (JA 44/2024) [2025] ZALAC 29 (12 May 2025)
“[23] The respondents contended that the security bond was not ‘good’ for the purposes of section 145(7) of the LRA on the additional ground that the instrument does not specify an amount. The ‘security bond’ is a statement by the Department’s accounting officer that the Department will make good on the award, should the review fail. It was unnecessary to specify the Rand value of the amount for which Mr Manda will be made good. The security bond concerns the award. The amount in the award for which the Department is liable is ascertainable by simple arithmetic.
“
arbitrator brought an application to archive an application to review his or her award
JR1897/20
Minister of Justice and Constitutional Development v General Public Service Sectoral Bargaining Council and Others (JR1897/20) [2025] ZALCJHB 47; (2025) 46 ILJ 1207 (LC) (11 February 2025)
[40] In my view, the only interest an arbitrator has in the outcome of the review application is academic, or nominal, in that he or she was the arbitrator who made the award. An arbitrator’s nominal interest in a review of his or her award does not meet the requirements for locus standi to bring an application for substantive relief that would bring an end to the matter. The requirements for locus standi in judicio are that the party must have an adequate interest in the subject matter of the litigation; the interest must not be too remote; the interest must be actual; and the interest must not be hypothetical.[1] Ramabulana, having no personal interest in the outcome of the review application, had no locus standi to bring the archiving application.
required to furnish security
2025/013668; 2025/013679
Pexmart CC v Commission for Conciliation, Mediation and Arbitration and Others (2025/013668; 2025/013679) [2025] ZALCJHB 67 (13 February 2025)
[16] The common mistake made by both applicants is that they are of the view that they are required to furnish security amounting to 24 months’ remuneration plus the amount of backpay awarded by the commissioner. This is obviously a misapprehension of the security provisions because employers challenging a reinstatement award need only furnish security equivalent to the employee’s 24 months’ remuneration. Accordingly, in terms of section 145(8), Pexmart is expected to furnish security in the amount of R269 589.00, and Valard the amount of R318 884.80.
[18] In African Building Systems (Pty) Ltd v Mogaladi and others[2], this Court lamented employers who continue to disregard the security provisions with impunity, and only elect to approach this Court when the employees exercised their right to enforce the awards. These are litigants, often represented by legal practitioners, who continue to disregard these security provisions. It is no doubt within their contemplation at the time of launching the review applications that if they do not furnish security or obtain an exemption from the Court, the employees will seek to enforce the award because section 145(7) states expressly that a review application does not suspend the enforcement of the award.
incomplete record
JR2295/23
Parsons Transport Operations (Pty) Ltd v Mkansi and Others (JR2295/23) [2025] ZALCJHB 71 (27 February 2025)
“[29] In South African Social Security Agency v Hartley and others[4] this Court, per Prinsloo J, aptly pointed out that:
“The keeping of a record of the arbitration proceedings is not only practical and required by the CCMA Rules, but is also necessary as it provides objective material about what transpired at the arbitration proceedings, which assists the court in the proper exercise of its review powers. As a general rule, it will always be necessary to have the record of the arbitration proceedings available to this Court when arbitration awards are reviewed under section 145 of the LRA.” “
[30] The omitted record is material to the determination of this review application. Quite apart from the applicant’s duty to place the record or relevant portion thereof before the Court, a consideration of the issues for determination reveals why this obligation is particularly significant in this matter. I shall deal with only two examples in casu.
[35] It is trite that the Court should not consider the merits of a review application where material portions of the record are not placed before the Court. In Fountas v Brolaz Projects (Pty) Limited and Others[7] the LAC pointed out that a Court in such circumstances is first required to consider whether the applicant in the review application has taken all reasonable steps to search for such evidence and or to reconstruct the record.
“[38] Had the applicant taken the requisite steps to compel the third respondent to comply with its obligations to make the record available to this Court, this information would be known. If the record exists, it must obviously be placed before this Court. If the record does not exist, then there are other avenues which the applicant may pursue, including reconstruction.
“
42] As Ms Kleynhans for the applicant ultimately requested in argument, I consider it to be appropriate that the application be postponed in order to allow the applicant further opportunity to make the necessary inquiries referred to above and to take such steps as might not have been taken earlier to place the record or a reconstructed record if necessary, before this Court.
[Reasonableness] is a variable but higher standard [than rationality]
JR1895/21
Association of Mineworkers and Construction Workers Union obo Matebele and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR1895/21) [2025] ZALCJHB 163 (16 May 2025)
“[54] Does the arbitration award evidence a reasonable outcome and consideration of the totality of the evidence? Reasonableness requires more than a mere rational connection between input and output. In Minister of Home Affairs and Others v Scalabrini Centre and others[28] the SCA drew our attention to the distinction between rationality versus reasonableness, reasoning that the latter is a higher hurdle to clear.
‘Rationality entails that the decision is founded upon reason – in contra-distinction to one that is arbitrary – which is different to whether it was reasonably made.’”
“[55] The Constitutional Court in Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae)[29] clarified as follows:
‘[Reasonableness] is a variable but higher standard [than rationality], which in many cases will call for a more intensive scrutiny of administrative decisions.’”
“[56] In Myers v National Commissioner of the SA Police Services & others[30] (Myers) the SCA also considered the standard of reasonableness applicable to the review of awards of this nature. It cautioned against adopting an approach that will require gross unreasonableness to be proven to set aside an award. The SCA held that such a standard is not appropriate and cannot be the test for reasonableness reviews. The test is rather whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach.
‘It must therefore follow that to survive scrutiny the decision to dismiss must be ‘reasonable’ and reasonableness must be tested in the light of the facts and circumstances of a given case. In its judgment the majority in the Labour Appeal Court correctly recognized (in para 103) that the test for dismissal was the one set out in Sidumo. In my view, however, it erred in its application of the test to the facts in the present matter. In para 104 the majority accepted that the sanction imposed on the appellant was ‘a harsh sanction’ but then added that ‘it is not so unreasonable that it stands to be reviewed and set aside’. The majority of the Labour Appeal Court appears to have accepted that the decision was unreasonable, but not sufficiently unreasonable to warrant interference. This seems to be an application of the ‘gross unreasonableness’ test of the pre-1994 era. By adopting such a standard the court inadvertently imported a higher standard than that contemplated in Sidumo. Were this to be the test, it would mean that a dismissed employee seeking to set aside a dismissal would have to show not only that the decision-maker’s decision is unreasonable but that it is ‘so unreasonable’ that it falls to be reviewed and set aside. That cannot be the test.’[31]
“
missing portions of the record
JR1895/21
Association of Mineworkers and Construction Workers Union obo Matebele and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR1895/21) [2025] ZALCJHB 163 (16 May 2025)
“[58] Considering the missing portions of the record (testimony of three of the company’s four witnesses), I am of the respectful view that the approach of the Constitutional Court in Baloyi v Member of the Executive Committee for Health & Social Development, Limpopo & others[33] would be appropriate.
‘What should the Labour Court do when faced with a review application where the record of the arbitration proceedings sought to be reviewed is incomplete? The adverse consequences to the applicant’s right of access to courts and to fair practices are plain. Regrettably, incomplete, patched-up records caused by faulty mechanical equipment or lost tape recordings are not uncommon. But it is rarely appropriate for a court to proceed on patch work where the parties have not tried to reconstruct as full and as accurate a record of the proceedings as the circumstances allow.’[34]
[59] Both counsel were in agreement that the matter should be referred back to the third respondent in the event that this court reviews and sets aside the award.”
LabourLawAI 