As mentioned in class reference was made to the post “10 habits of highly successful law students” as well as a model assignment presented by one of the highly successful students.

The assignment was written by the student, but Graham Giles added the first page and altered the way the bibliography was presented to comply with the suggestions contained in the post and the class discussion.

Model assignment answer

The Arbitration awards made by the CCMA are reviewable by the Labour Court in terms of section 145 of the LRA.   Explain and evaluate the interpretation and application of the grounds of review in the latest decision of the Constitutional Court

CONTENTS

The Constitutional Court’s approach to review of CCMA arbitration awards: 

A critical evaluation of Sidumo

Introduction

The recent decision of the Constitutional Court in Sidumo and another v Rustenburg Platinum Mines Ltd and others[1] was awaited with much anticipation by practitioners and commentators, and has since been hailed a “landmark decision”.[2] The case brought to the Constitutional Court’s attention a matter that has long vexed the Labour Court (LC), Labour Appeal Court (LAC) and the Supreme Court of Appeal (SCA): the standard of review applicable to the compulsory statutory arbitration by commissioners acting under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA).[3] A second critical issue raised in the case, although not considered in this paper, concerned the standard to be applied by CCMA commissioners when deciding unfair dismissal disputes.[4]

In determining the standard of review applicable to CCMA arbitration awards, the Constitutional Court was required to consider the finding by the SCA (court a quo)[5] that CCMA arbitration awards constitute “administrative action” reviewable in terms of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’).     In particular, the Court had to consider the implications of this finding for the standards of review specified in s 145 of the Labour Relations Act 66 of 1995 (‘LRA’), which empowers the Labour Court to set aside a CCMA arbitration award if there is a defect in the proceedings in that the commissioner committed misconduct, a gross irregularity or exceeded his or her powers (s 145(2)(a)), or if the award was improperly obtained (s 145(2)(b)).

Objectives

This paper evaluates the Constitutional Court’s interpretation and application of the grounds of review contained in s 145 of the LRA.     In doing so, the paper explains and assesses the majority judgment given by Navsa AJ (with which Moseneke DCJ, Madala J, O’Regan J and van der Westhuizen J concurred) and the three separate concurring decisions by O’Regan J, Sachs J and Ngcobo J (Mokgoro J, Nkabinde J and Skweyiya J concurring).     The paper is divided into two sections: the first part considers the different approaches followed by the Court in determining the nature of CCMA arbitration, and particularly whether CCMA arbitration constitutes “administrative action” under s 33 of the Constitution and PAJA.     The second part of the paper considers the Court’s interpretation and application of the standard and grounds of review under s 145 of the LRA.

Determining whether PAJA applies to CCMA arbitration awards

Navsa AJ opened his analysis of the grounds of review with a critique of the SCA finding that PAJA is applicable to arbitration awards by commissioners.     Navsa AJ suggested that the reasoning of the SCA was flawed in that the court failed to have regard to the constitutional right to just administrative action (s 33 of the Constitution[6]) when determining the nature of the commissioner’s function; and secondly, failed to consider whether PAJA provided an “exclusive statutory basis” for the review of all administrative decisions.[7] Navsa AJ focused on these two considerations in determining whether or not arbitration awards constitute “administrative action” in terms of the constitutional right to just administrative action and PAJA.

Having regard to the “significant differences” between the CCMA and a court of law,[8]  analogous administrative institutions (including the old Industrial Court and the Amnesty Committee) and academic authority, Navsa AJ characterised the CCMA as an administrative tribunal.     While all the judges agreed on this point, the question whether the arbitral function (as opposed to the functionary)[9] constituted “administrative action” was contentious.  Navsa AJ found that CCMA arbitration is indeed an administrative function (albeit a “quasi-judicial function” in pre-Constitutional parlance), as “commissioners exercise public power which impacts on the parties before them”.[10] As a result, Navsa AJ found the review grounds contained in s 145 of the LRA (which he described as “national legislation in respect of ‘administrative action’ within the specialised labour law sphere”) to be subject to s 33 of the Constitution.[11]

Despite finding that the arbitral task of commissioners constituted “administrative action” for the purposes of s 33 of the Constitution, Navsa AJ found that PAJA was not applicable to the labour law sphere.  The learned judge held that s 33(3) of the Constitution (which contemplated the enactment of national legislation to “give effect to” the right to just administrative action) envisaged that the resultant legislation would be of “general application”.  Navsa AJ argued that while PAJA constitutes a “codification of the common law grounds of review”, it is not “the exclusive legislative basis of review”.[12]

Negotiated national legislation to give effect to Constitutional rights

In support of this interpretation, Navsa AJ remarked on the nature of the LRA as “specialised negotiated national legislation giving effect to the right to fair labour practices”.  Navsa AJ emphasised that the restriction of the grounds of review contained in s 145 was part of a framework purposefully designed to ensure that dispute resolution was “accessible, speedy and inexpensive”.[13] Rejecting the contention by the SCA that the only incompatibility between PAJA and the LRA was the time periods for bringing review applications, Navsa AJ cited other significant incongruities between the two legislative schemes: namely, the jurisdiction of the Labour Court vis-à-vis the High Court and the primary remedies favoured under the LRA and the common law remedies codified in PAJA.[14] Lastly, Navsa AJ pointed to s 210 of the LRA (which provides that the provisions of the LRA will prevail in the event of any conflict arising between its provisions and that of any other law save the Constitution or any Act expressly amending the LRA) and to the statutory presumption that general legislation does not derogate from special legislation, unless expressly provided.[15]

Adjudicative and not administrative

Contrary to Navsa AJ’s interpretations of the law, Ngcobo J characterised the arbitral task of commissioners as adjudicative and not administrative.  As a result, Ngcobo J did not have regard to the applicability of s 33 of the Constitution nor PAJA.  Instead, Ngcobo J emphasised the informative role of the constitutional requirement of fairness enshrined in s 23 and s 34 of the Constitution, as well as (following Pharmaceutical Manufacturers case[16]) the requirement of rationality implicit in the doctrine of legality.[17]

Following the Constitutional Court’s dicta in SARFU[18] and Fedsure[19], Ngcobo J insisted that the test for administrative action requires scrutinising the function performed, as opposed to the functionary concerned.  In doing so, Ngcobo J observed that the arbitration process is akin to the “hallmark of a judicial function” as defined by Dickson J in Re: Residential Tenancies Act 1979[20]: “there is a lis between parties in which a tribunal is called upon to apply a recognised body of rules in a manner consistent with fairness and impartiality.  The adjudication deals primarily with the rights of parties to the dispute, rather than considerations of the collective good”.[21]

While rejecting as irrelevant the “formal classifications” of judicial, quasi-judicial and administrative functions relied on by the LAC in the Carephone case,[22] Ngcobo J insisted that s 33 of the Constitution and PAJA requires an absolute distinction to be drawn between judicial and adjudicative functions, as “the Constitution does not contemplate that a function will be both administrative and judicial as the LAC in Carephone implicitly suggested”.[23] Thus drawing a boundary between administrative and judicial functions, Ngcobo J found that, despite the fact that the CCMA constitutes an “administrative body”, the commissioner’s performance of arbitration is judicial in substance.[24]

Private consensual arbitrations

In support of this conclusion, Ngcobo J pointed to the recent characterisation by the SCA of private, consensual arbitrations as judicial in nature.[25] Interpreting s 146 of the LRA narrowly, Ngcobo J held that the express exclusion of the operation of the Arbitration Act 42 of 1965 (which regulates private arbitrations) in respect of the CCMA was intended only to ensure that the Labour Court retained its specialist jurisdiction under the LRA – and did not affect the nature of CCMA arbitrations.[26]

Secondly, Ngcobo J suggested that to treat CCMA arbitrations as administrative would create an absurd inconsistency where the Labour Court is seized of a matter subject to arbitration in terms of s 158(2)(b) and s 191(6) of the LRA.[27]

Thirdly, Ngcobo J called for a critical consideration of the role of judicial review in a constitutional order, where the courts no longer need “to claim space and push boundaries in order to find means of controlling public power”.[28]

Criticism by O’Regan J & Sachs J

Ngcobo J’s reasoning is criticised by both O’Regan J and Sachs J for being overly formalistic, to the detriment of purposive constitutional analysis and “at odds with the substantive vision” of the Constitution.[29] While conceding that independent and impartial tribunals like the CCMA may perform adjudicative tasks, O’Regan J insists that “it does not automatically follow that their functions are not within the contemplation of s 33”.[30]  Reviewing the judgments of Nel v Le Roux NO and Others[31] and De Lange v Smuts NO and Others[32], in which the Constitutional Court drew a distinction between “administrative action” and “judicial” tasks, O’Regan J observed that “powers then were held to be ‘judicial’ not only because they involved adjudication, but because they were powers which, under our constitutional order, are to be exercised only by the judiciary”.[33] In other words, the determination of “administrative action” is not concerned only with the nature of the function, as suggested by Ngcobo J, but with the nature of the functionary and the exercise of its power under the constitutional doctrine of separation of powers.[34]

Incident of separation of powers

O’ Regan J’s observation is consistent with the Court’s treatment of administrative law as “an incident of the separation of powers”.[35] More importantly, it points to the fact that the scope of judicial review must necessarily be defined in light of the constitutional doctrine to which it purports to give effect.  In the context of CCMA arbitration, O’Regan J observes that the doctrine of the separation of powers does not operate to exclude the application of judicial review.  Thus, while there is (as Ngcobo J observed) an important shift in administrative law away from the over-reliance on judicial review as the only means of controlling public power,[36] O’Regan J’s judgment shows that such deference is neither required nor appropriate in the case of CCMA arbitrations.  This is particularly so where the CCMA exercises compulsory arbitration, over which the Labour Court has a statutory obligation to exercise judicial review.

Purposive interpretation

Concurring with Navsa AJ, O’Regan J finds that “there are powerful reasons why adjudicative decisions of tribunals should be subject to the scrutiny of courts on the standards set by section 33”.[37] Adopting a purposive interpretation of s 33, O’Regan J finds it appropriate to hold the CCMA to s 33 requirements of lawfulness, reasonableness and procedural fairness – particularly as the CCMA is an organ of state exercising public power in determining matters of importance to litigants, according to special expedited procedures to which no appeal lies.[38] Insisting that “the need for speedy and cheap resolution of disputes does not mean that the CCMA should not be held accountable for its decisions”, O’Regan J nevertheless suggests that subjecting CCMA decisions to the constitutional standard of scrutiny will not cause further delay in the review procedures provided for in the LRA.[39]

Analysis of the functions of arbitration tribunals

While O’Regan J may be correct in assuming that decisions already subject to review in terms of s 145 will not be further delayed with the application of the constitutional standard, O’Regan J fails to acknowledge that the expansion of the scope of the review standard may, as Paul Benjamin has observed, “make reviews more attractive to employers wishing to delay the implementation of an award”.[40] Nevertheless, O’Regan J’s purposive approach in determining the application of s 33 is certainly more consistent with the normative constitutional project well described by Sachs J in his separate judgment.[41] Moreover, O’Regan J’s judgment draws attention to the fact that efficiency (and the associated value of cost-effectiveness) is a worthy goal, but not an end in itself.  Indeed, Hoexter points out that efficiency is “only one among many values listed as governing the administration in s 195 of the Constitution, others being equity, responsiveness, accountability and transparency”.[42] O’Regan J’s analysis of the functions of arbitration tribunals[43] also adds to the notably thin consideration of the functions of the CCMA in Navsa AJ’s judgment (which in fact amounts to little more than a purely ‘institutional test’ as criticised in SARFU).

Administrative action

Following Navsa AJ and O’ Regan J’s purposive approach, as well as academic opinion,[44] it is suggested that arbitration awards by CCMA commissioners do indeed constitute “administrative action”.  If it is accepted that CCMA arbitration is not solely judicial in nature, a commissioner’s arbitration falls squarely within the meaning of “administrative action” as defined in s 1 of PAJA, read with the definition of a “decision” under s 1(v): it is a decision taken by an organ of state, exercising a public power in terms of legislation, which adversely affects the rights of any person and which has a direct, external legal effect.

While the conclusion reached by Navsa AJ and O’Regan J may be correct, it is suggested that the reasoning followed by both judges in finding that arbitration awards constitute “administrative action” is problematic.  In particular, their failure to consider the definition of administrative action as set out in PAJA is contrary to the Constitutional Court’s interpretation of the relationship between PAJA and s 33.  As the Court made clear in Bato Star[45] and New Clicks[46] (and as recognised by Ngcobo J[47]  and the SCA[48] in Sidumo) there is “no direct access” to s 33 other than through the threshold definition of “administrative action” stipulated in PAJA.[49] While s 33 must inform the court’s interpretation of PAJA, the constitutional provision cannot solely be relied upon, without consideration of PAJA.  As Hoexter explains:

PAJA is unavoidable.  It cannot simply be wished away or avoided or side-stepped.  Because it is there, and because it purports to give effect to the rights in s 33, it has to be used when it is of application; and in order to find out whether it is applicable, the court is forced to engage in the administrative action inquiry and grapple with the statutory definition.[50]

Constitutional provision of s 33

Both Navsa AJ and O’Regan J simply ‘side-stepped’ PAJA, and placed independent reliance on the constitutional provision of s 33.  Navsa AJ’s characterisation of PAJA as a “codification of the common law” is contrary to the indications in the wording of s 33(3) and the objects of PAJA, which suggest that the Act is more than a mere compilation and restatement of the common law.  Instead, as Currie explains, PAJA constitutes “codification-reform”, which entails a complete reconsideration of the law in a particular field with a view to its reform.[51] As administrative lawyers have been at pains to insist, the avoidance of PAJA threatens to create a bifurcated system of administrative law (with a distinct constitutional route and an ‘optional’ statutory route).[52] Instead, determining the grounds and scope of administrative law judicial review must involve interpreting and applying PAJA.[53] Where PAJA and s 33 are incompatible (which, as Hoexter remarks may not be seldom considering the overly-narrow scope of the statutory definition of “administrative action”) PAJA must be construed consistently with s 33 wherever possible, as required by s 39(2) of the Constitution.[54] Where this is not possible, the court must strike down the offending parts of PAJA, or have recourse to other constitutional remedies.[55]

Ngcobo J advances a similar argument in critiquing the approach of the courts and litigants to s 145 of the LRA.[56] Ngcobo J insists, correctly it is suggested, that where legislation has been enacted to give effect to a constitutional right the “starting premise” ought to be the legislative, and not the constitutional, provision.[57] Ngcobo J observes that this approach necessarily respects the “deliberate choice made by the legislature” in giving effect to the constitutional provision.[58]

Critically, however, were the Constitutional Court to adopt PAJA’s definition of “administrative action” as the starting point of its analysis, the Court would not be obliged to apply PAJA.  Indeed, the statutory presumptions and substantive reasons advanced by Navsa AJ and O’Regan J (and elaborated upon in academic commentary)[59] would justify the court’s refusal to apply PAJA to the LRA.  (Arguably the strongest basis for excluding the application of PAJA is the express provision of s 210 of the LRA.) It would then be open to the Court to apply s 33 as the broader expression of the right, while perhaps ‘reading in’ an exclusion of the LRA in the s 1 definition of ‘administrative action’ in PAJA .  While the conclusion reached may thus ultimately be the same, the Court’s approach to PAJA and the LRA would be consistent – and would accordingly affirm the importance of applying (and if necessary, amending) the statutory provision as intended by the legislature.  Such an approach would reflect the fact that there is, as Chaskalson CJ insisted in Pharmaceutical Manufacturers, only one system of law in South Africa under the ultimate control of the Constitution.[60]

Interpreting and applying standard of review under s 145

Only Navsa AJ and Ngcobo J translated the constitutional standards they identified into applicable standards of review.     While the two judges follow different routes, they ultimately propose remarkably similar standards of review (as recognised by Sachs J in his concurring judgment).  Underlying both judgments is a concern to respect the intention of the legislature (and the multi-party drafting compromise giving effect to the LRA) by retaining a narrow standard of review.     Moreover, both judgments are careful to retain a distinction between appeals and reviews.

Having found that CCMA arbitrations are subject to s 33 of the Constitution, Navsa AJ held that the constitutional reasonableness standard should “suffuse” s 145 of the LRA.[61] Accordingly, Navsa AJ found the Carephone “justifiability” test,[62] which the LAC adopted to give effect to the right to just administrative action under the Interim Constitution, was no longer appropriate.[63] Following Bato Star, Navsa AJ held that a decision will be reviewable if it is “one that a reasonable decision-maker could not reach”.[64] While acknowledging that the standard introduced a “substantive ingredient” into review proceedings, Navsa AJ pointed out that the Labour Court inevitably dealt with the merits of a matter in reviewing CCMA arbitration awards, but that this process did not amount to an appeal.  The integrity of reviews, Navsa AJ suggested, was preserved so long as judges avoided substituting their own opinions, and limited themselves to determining whether or not the decision under review “falls within the bounds of reasonableness”.[65] Finally, Navsa AJ remarked that the reasonableness standard gives effect not only to s 33, but also to ss 23 and 34 of the Constitution, which “overlap and are interconnected” with the right to just administrative action.[66]

Reasonableness standard

In applying the reasonableness standard, Navsa AJ considered the reasons given by the Commissioner for his finding that the sanction in question was unfair.  Despite rejecting one of three reasons advanced by the Commissioner for reaching his decision, and finding that the Commissioner was wrong to conclude that a relationship of trust had not been breached by the employee, Navsa AJ nevertheless upheld the decision.  The learned judge emphasised the necessity of weighing up “all the relevant factors together in light of the seriousness of the breach”.  In doing so, and giving particular weight to the principle of progressive discipline, Navsa AJ concluded that “the Commissioner carefully and thoroughly considered the different elements of the Code and properly applied his mind to the question of the appropriateness of the sanction”.[67]

Moreover, Navsa AJ took cognisance of the pressures under which CCMA commissioners work, the relatively informal nature of the arbitration proceedings, and the fact that employees are usually not legally represented.[68] Recognising that “awards will not be impeccable”, Navsa AJ found that the conclusion reached by the Commissioner could not be said to be one that a reasonable decision-maker could not reach.[69] The negative phrasing of the reasonableness test – and the greater discretion this affords commissioners – was emphasised by Navsa AJ, as he remarked that the decision was not unreasonable despite the fact that other decision-makers, acting reasonably, would not necessarily have reached the same conclusion.[70]

Statutory provisions of LRA s 145

Contrary to Navsa AJ’s complete reliance on a constitutional standard of review, Ngcobo J was anxious to rely directly on the statutory provision of s 145.[71] Ngcobo J thus took care to interpret the specific grounds of review listed in s 145 in a manner consistent with the constitutional standard of fairness contained in ss 23 and 34 of the Constitution.  In particular, Ngcobo J found that the ground of “gross irregularity in the conduct of arbitration proceedings” contained in s 145(2)(a)(ii) was satisfied where a commissioner “failed to apply his or her mind to a matter which is material to the determination of the fairness of the sanction”.[72] Similarly, according to Ngcobo J, the constitutional standard of fairness requires that “where a commissioner makes an award which is manifestly unfair either to the employer or to the employee, the commissioner exceeds his or her powers under the LRA”.[73] In other words, an unfair award may be set aside under s 145(2)(a)(iii) as a “breach of the statute that is the source of [the commissioner’s] power”.[74] Moreover, Ngcobo J insists, an unfair award would also constitute a breach of the constitutional doctrine of legality.[75]

While looking to apply the grounds under s 145, Ngcobo J bemoaned the fact that neither the employer in bringing the application, nor the SCA in reviewing the award, made reference to any of the specific grounds of review contained in s 145.[76] Instead, the employer relied on the broad constitutional ground of unjustifiability and, in the alternative, that of rationality.[77] Ngcobo J’s application of the grounds under s 145 (as constitutionally interpreted) was, as he admitted, constrained by the allegations in the application for review – and accordingly was not rigorous.[78] Nevertheless, in addressing the allegations, Ngcobo J (like Navsa AJ) remarked that the standard of review must take cognisance of the fact that “commissioners are not expected to give detailed and impeccable reasoning for their awards”.[79] However, according to Ngcobo J, “at the bare minimum”, commissioners were required to set out the facts found and the reasons for the finding to facilitate the process of review.[80] While the award in question was not (as Ngcobo J put it) “a model of clarity”, the learned judge accepted that it satisfied the fundamental requirements necessary for review.[81]

Reasoning of the Commissioner

Ngcobo J’s assessment of the reasoning of the Commissioner is notably more generous than that of Navsa AJ.   In considering each of the reasons advanced by the Commissioner, Ngcobo J gives the Commissioner the benefit of the doubt, and finds that “[b]alancing the interests, in light of the facts and circumstances of this case, the conclusion by the commissioner that dismissal was not fair, cannot be said to be unfair to the employer”.[82] Ngcobo J concluded that he was “unable to find that the commissioner ignored any material factor in evaluating the fairness or otherwise of the sanction imposed by the employer”.[83] Finding thus that the commissioner’s award was fair, Ngcobo held that it could not be said that the commissioner exceeded his powers under the LRA, nor that the commissioner committed a misconduct.[84]

Evaluating the two approaches

In evaluating the two approaches followed, Ngcobo J’s direct reference to the specific grounds in s 145 is certainly preferable as it purports to respect the legislative intention and design reflected in the LRA.  However, Ngcobo J’s approach cannot be said to genuinely rely on s 145.   In applying the standard of review to the award in question, Ngcobo J relies predominantly on the constitutional standard of fairness, and concludes with a parting reference to the related specific grounds in s 145.   As such, Ngcobo J too is guilty of starting with the constitutional provision.   Indeed, the effect of this approach is to render Ngcobo J’s reasoning tautologous: he begins by interpreting s 145(2)(a)(ii) and (iii) in a manner consistent with the constitutional standard of fairness; finds the award in question to be fair; and concludes therefore that the s145 grounds of review do not apply.  While Ngcobo J’s approach may be explicable having regard to the terms in which the application for review was formulated, it would have been preferable for Ngcobo J to simply interpret s 145 in a manner consistent with the Constitution and apply s 145 as such.

Harsh on the employer

It may well be that the findings of the Constitutional Court were harsh on the employer on the facts of the case – particularly as the Court found that the misconduct of the employee was serious and did in fact constitute a breach of the relationship of trust.[85] Moreover, as Grogan points out, the reliance placed by Ngcobo J on the fact that “there was nothing to suggest that [the employee] could not be entrusted with some other functions other than those relating to searches”[86] was fundamentally inconsistent with the Court’s restoration of the Commissioner’s order of reinstatement.[87] However, while the Court’s application of the standard of review to the facts may be (to concur with Grogan) “far from compelling”,[88] the Court’s endorsement of a relatively low standard of review is crucial.  By applying a narrow standard of review, the Court avoids undermining the negotiated design and purpose of the dispute resolution mechanisms in the LRA (particularly the emphasis on cheap and expedited procedures that seek to achieve reinstatement as the primary remedy).[89]

Constitutional standards require a restricted degree of substantive review

Ultimately, both Navsa AJ and Ngcobo J arrive at the same conclusion: constitutional standards (of reasonableness and/or fairness) require a restricted degree of substantive review, which can be expressed as a determination of whether the commissioner “applied his or her mind” in making the decision.  This standard is akin to the apt formulation by Cheadle AJ of the distinction between appeal and review in Coetzee v Lebea NO and Another:

Once a reviewing court is satisfied that the tribunal has applied its mind, it will not interfere with the result even if it would have come to a different conclusion.  The best demonstration of applying one’s mind is whether the outcome can be sustained by the facts found and the law applied.  The emphasis is on the range of reasonable outcomes not on the correct one.[90]

Conclusion

Unfortunately, the inconsistent and rather convoluted manner in which the judgments arrived at this conclusion is likely to exacerbate the considerable uncertainty that exists in respect of the standard of review under s 145.  A similar recognition may have prompted Sachs J in his attempt to reconcile the two main judgments.  For the sake of certainty and consistency, it is to be hoped, however, that s 145 will not be side-stepped by the courts and litigants.  As Ngcobo J suggested, there is an urgent need for the grounds in s 145 to “gather their meaning from experience”, with due consideration of the provisions of the Constitution.[91] It is a pity that the Constitutional Court has not set a good precedent in this regard.

BIBLIOGRAPHY:

BOOKS:

  • De Ville J R Judicial Review of Administrative Action in South Africa (Durban: LexisNexis Butterworths, 2003)
  • Du Toit et al Labour Relations Law: A Comprehensive Guide 5ed (Durban: LexisNexis Butterworths, 2006)
  • Hoexter C Administrative Law in South Africa (Cape Town: Juta, 2007)

JOURNAL ARTICLES:

  • Benjamin P ‘Friend or Foe? The impact of judicial decisions on the operation of the CCMA’ (2007) 28 (1) ILJ 1
  • Currie I ‘What difference does the Promotion of Administrative Justice Act make to administrative law?’ (2006) Acta Juridica 325
  • Grogan J ‘Two-edged sword: The CC’s ruling in Rustplats’ (2007) Employment Law 3
  • Grogan J ‘Death of the reasonable employer: The seismology of review’ (2000) 16(2) Employment Law 4
  • Hoexter C ‘Administrative Action in the Courts’ (2006) Acta Juridica 303
  • Hoexter, C ‘The future of judicial review in South African Administrative Law’ (2000) 117 SALJ 484
  • Hutchinson W J ‘The Supreme Court of Appeal Restores Administrative Justice’ (2007) 28 (1) ILJ 92
  • Le Roux, P A K & Young K L ‘The role of reasonableness in dismissal: The Constitutional Court looks at who has the final say’ (2007) 17 (3) Contemporary Labour Law 21
  • Mullins A ‘The Labour Court: Powers of Review’ (1997) 7 (2) Contemporary Labour Law 11
  • Myburgh J & Van Niekerk A ‘Dismissal as a Penalty for Misconduct: The Reasonable Employer and Other Approaches’ (2000) 21 ILJ 2145
  • Pillay D ‘PAJA v Labour Law’ in (2005) 20 South African Public Law 413
  • Pretorius D M ‘Making You Whistle: The Labour Appeal Court’s Approach to Reviews of CCMA Arbitration Awards’ (2000) 21 ILJ 1506
  • Sharpe C W ‘Reviewing CCMA Arbitration Awards: Towards Clarity in the Labour Courts’ (2000) 21 ILJ 2160

LEGISLATION & MEMORANDA:

  • Constitution of the Republic of South Africa, 1996
  • Explanatory Memorandum accompanying the Labour Relations Bill in (1995) 16 ILJ 278.
  • Labour Relations Act 66 of 1995
  • Promotion of Administrative Justice Act 3 of 2000

CASES:

Constitutional Court

  •  Sidumo and another v Rustenburg Platinum Mines Ltd and others
    •  [2007] 12 BLLR 1097 (CC)
  •  Minister of Health and Another v New Clicks SA (Pty) Ltd and Others
    • 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC)
  •  Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
    • 2004 (4) SA 490 (CC); 2004 (7) BCLR 241 (CC)
  •  Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others
    • 2000 (2) SA 674; 2000 (3) BCLR 241 (CC)
  • President of the Republic of South Africa and Others v SARFU and Others
    • 2000 (1) SA 1(CC); 1999 (10) BCLR 1059 (CC)
  •  Fedsure Life Assurance v Greater Transitional Metropolitan Council
    • 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC)

Supreme Court of Appeal

  •  Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA
    • 2007 (1) SA 567 (SCA)

Labour Appeal Court

  •  Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others
    • (2001) 9 BLLR 1011 (LAC)
  • Toyota SA Motors (Pty) Ltd v Radebe and Others
    • (2000) 21 ILJ 340 (LAC)
  •  County Fair Foods (Pty) Ltd v CCMA and Others
    • (1999) 20 ILJ 1701 (LAC)
  •  Carephone (Pty) Ltd v Marcus NO and Others
    • (1998) 19 ILJ 1425 (LAC)

Labour Court

  •  Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others
    • (2000) 21 ILJ 1232 (LC)
  • Coetzee v Lebea NO and Another
    • (1999) 20 ILJ 129 (LC)

 


[1]  [2007] 12 BLLR 1097 (CC).

[2] P A K Le Roux & K L Young ‘The role of reasonableness in dismissal: The Constitutional Court looks at who has the final say’ (2007) 17 (3) Contemporary Labour Law 21.

[3] See the conflicting decisions on the scope of review in a succession of cases prior to the Sidumo judgment: Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC); County Fair Foods (Pty) Ltd v CCMA and Others (1999) 20 ILJ 1701 (LAC); Toyota SA Motors (Pty) Ltd v Radebe and Others (2000) 21 ILJ 340 (LAC); Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others (2000) 21 ILJ 1232 (LC); Shoprite (2001) 9 BLLR 1011 (LAC).

[4] TheConstitutional Court overruled the SCA’s endorsement of a deferential standard of reasonableness (the ‘reasonable employer’ standard), and unanimously held that the standard to be applied by CCMA commissioners is that of the ‘reasonable commissioner’, having regard to all the relevant circumstances.

[5] Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (1) SA 567 (SCA) (‘Rustenburg Platinum’) at para 23.

[6] The Constitution of theRepublic ofSouth Africa, 1996.

[7] Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097 (CC) (‘Sidumo’) at para 80.

[8] In particular, Navsa AJ cites the powers of a CCMA commissioner under s 138 of the LRA to conduct arbitration in a manner s/he considers appropriate with the minimum of formalities; the circumscribed right to legal representation before the CCMA; the lack of a system of binding precedent; and the lack of security of tenure for CCMA commissioners (at para 85).

[9] The Constitutional Court drew this oft-cited distinction in the case of President of the Republic of South Africa and Others v SARFU and Others 2000 (1) SA 1(CC); 1999 (10) BCLR 1059 (CC) (‘SARFU’).   See cited in Sidumo by Navsa AJ at para 81, Ngcobo J at para 203 and O’Regan J at para 130.

[10] Sidumo (n 7) at para 88.

[11] Ibid at 89.

[12] Ibid at paras 90 – 93 (own italics).

[13] Ibid at para 94.

[14] Ibid at paras 95 – 98.

[15] Ibid at paras 99-104.

[16] Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (‘Pharmaceutical Manufacturers’).

[17] Sidumo (n 7) at para 163.

[18] SARFU (n 9).

[19] Fedsure Life Assurance v Greater Transitional Metropolitan Council 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC).

[20]  [1981] 1 SCR 714 at 743, cited by Ngcobo J at para 208.

[21] Later in the judgment Ngcobo J’s articulates his interpretation of the arbitral function in his own words (at para 236): “Commissioners have no regulatory, investigatory or policy-making authority.   They are charged only with the fair and impartial adjudication of unfair dismissal disputes.   In the performance of this task they employ the same techniques of establishing and determining facts that a court of law employs.”

[22] Ibid at para 227.

[23] Ibid at para 230.

[24] Ibid at 238.

[25] Total Support Management (Pty) Ltd and Another v Diversified Health Systems (SA) (Pty) Ltd and Another 2002 (4) SA 661 (SCA), cited by Ngcobo J at 211.

[26] Sidumo (n 7) at para 213.

[27] Ibid at para 216.

[28] Ibid at para 222, citing Pharmaceutical Manufacturers (n 16) para 45.

[29] Ibid at para 135.

[30] Ibid at para 126.

[31] 1996 (3) SA 562 (CC); 1996 (4) BCLR 592 (CC).

[32] 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC).

[33] Sidumo (n 7) at para 129.

[34] Ibid.

[35] Pharmaceutical Manufacturers (n 16) at para 45.

[36] C Hoexter ‘The future of judicial review in South African Administrative Law’ (2000) 117 SALJ 484 at 499-502.

[37] Sidumo (n 7) at para 137.

[38] Ibid at para 139.

[39] Ibid at para 140.

[40] P Benjamin ‘Friend or Foe? The impact of judicial decisions on the operation of the CCMA’ (2007) 28 (1) ILJ 1 at 36.

[41] See particularly Sachs J judgment in Sidumo (n 7) at para 147-151.

[42] C Hoexter Administrative Law in South Africa (Cape Town: Juta, 2007) at 217.

[43] Sidumo (n 7) per O’ Regan J at para 125; 139-140.

[44] D Pillay ‘PAJA v Labour Law’ in (2005) 20 South African Public Law 413 at 419; D M Pretorius ‘Making You Whistle: The Labour Appeal Court’s Approach to Reviews of CCMA Arbitration Awards’ (2000) 21 ILJ 1506 at 1516-1517; A Mullins ‘The Labour Court: Powers of Review’ (1997) 7(2) Contemporary Labour Law 11 at 17.

[45] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC); 2004 (7) BCLR 241 (CC) (‘Bato Star’).

[46] Minister of Health and Another v New Clicks SA (Pty) Ltd and Others 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (‘New Clicks’).

[47] Sidumo (n 7) at para 248; 252.

[48] Rustenburg Platinum (n 5) at para 24-25.

[49] Bato Star (n 45) (per O’Regan J) at para 25 and New Clicks (n 46), per Chaskalson CJ at para 96; Ngcobo J at para 436-438 and Sachs J at para 586.   Admittedly, the approach by Chaskalson CJ is misleading in the New Clicks judgment, as he begins his analysis with s 33 so as to avoid the narrow confines of the PAJA definition of administrative action.

[50] C Hoexter (n 42) at 220.

[51]I Currie ‘What difference does the Promotion of Administrative Justice Act make to administrative law?’ (2006) Acta Juridica 325 at 328.

[52] C Hoexter ‘Administrative Action in the Courts’ (2006) Acta Juridica 303 at 307; J De Ville Judicial Review of Administrative Action in South Africa (2003) 5; I Currie ibid at 348; D Pillay (n 44) at 418.

[53] I Currie (n 51) at 347-348.

[54] Chaskalson CJ in New Clicks (n 46) at paras 100 and 128.

[55] Hoexter (n 42) at 221-222.

[56] Sidumo (n 7) at para 279.

[57] Ibid at para 251.

[58] Ibid at para 250.

[59] See in particular Benjamin (n 40) at 33-36 and Pillay (n 44) at 419-421.

[60] Pharmaceutical Manufacturers (n 16) at para 49.

[61] Sidumo (n 7) at para 106.

[62] Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC) at para 35.

[63] Sidumo (n 7) at para 106.

[64] Ibid at para 107.

[65] Ibid at para 109.

[66] Ibid at para 112.

[67] Ibid at para 117 (own italics).

[68] Ibid at para 118.

[69] Ibid at para 119.

[70] Ibid.

[71] Ibid at paras 250-254.

[72] Ibid at para 267.

[73] Ibid at para 272.

[74] Ibid at para 276.

[75] Ibid.

[76] Ibid at para 279.

[77] Ibid.

[78] Ibid.

[79] Ibid at para 282.

[80] Ibid at para 283.

[81] Ibid at para 284.

[82] Ibid at para 288.

[83] Ibid at para 289.

[84] Ibid.

[85] J Grogan ‘Two-edged sword: The CC’s ruling in Rustplats’ (2007) Employment Law 3 at 9-10.

[86] Sidumo (n 7) at para 286.

[87] Grogan (n 85) at 9.

[88] Ibid at 10.

[89] The Explanatory Memorandum accompanying the Labour Relations Bill in (1995) 16 ILJ 278.

[90] (1999) 20 ILJ 129 (LC) at 133C-G.

[91] Sidumo (n 7) at para 253.