Myburgh AJ in Coega Development Corporation (Pty) Ltd v CCMA (PR270/14) [2015] ZALCPE 64; [2016] 2 BLLR 151; (2016) 37 ILJ 923 (LC) (2 December 2015) at fn 26.

“There are a number of factors that serve to warrant this court (and the LAC) scrutinising CCMA awards with a relatively high degree of intensity.

  • Firstly, CCMA arbitration awards implicate the constitutional right to fair labour practices, which is guaranteed to both employees and employers alike. This calls for heightened scrutiny review.
  • Secondly, particularly in relation to the typical unfair dismissal case dealt with by CCMA commissioners, they do not process [sic – possess?] any specialist expertise which this court does not have and the range of relevant factors is not particularly complex, such as would otherwise serve as a basis for a low intensity review (i.e. where interference is limited).
  • Thirdly, in the absence of this court (and the LAC) adopting a relatively high intensity approach to reviews, consistency (and predictability) in decision-making will be severely undermined, which would have serious implications for all concerned”.

BLLR Headnote:

“Arbitration awards – Review – Commissioner wrongly finding senior manager not guilty of placing herself in conflict interest by assisting candidate for employment and not declaring this to interview panel of which she was member – Award set aside”.

Strict scrutiny

“Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws.  To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.  A famous quip asserts that strict scrutiny is “strict in name, but fatal in practice.”

For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law’s enactment or have passed a law that involves a suspect classification.  Suspect classifications have come to include race,national origin, religion, alienage, and poverty”.

Compare to intermediate scrutiny and rational basis.

Thanks are due to Legal Information Institute for this definition.