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[2013] ZASCA 97
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Herholdt v Nedbank Ltd (701/2012) [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA) (5 September 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 701/2012
REPORTABLE
In the
matter between:
Andre
Herholdt
...................................................................................
Appellant
and
Nedbank
Limited
..............................................................................
Respondent
and
Congress
of South African Trade Unions
.................................
Amicus
Curiae
Neutral citation:
Herholdt v Nedbank Ltd
(701/2012)
[
2013] ZASCA 97
(5 September 2013)
Coram:
Nugent, Cachalia, Shongwe, Wallis JJA and Swain AJA.
Heard
:
23 August 2013
Delivered
:
5 September 2013
Summary: CCMA arbitration – review –
s 145(2)
(a)
of the
Labour Relations Act 66 of 1995
– grounds of review
restated.
ORDER
On
appeal from:
Labour Appeal Court
(Murphy AJA, Mlambo JP and Mocumie AJA,
concurring, sitting as court of appeal from the Labour Court).
The appeal
is dismissed with costs such costs to include those attendant upon
the employment of two counsel.
JUDGMENT
CACHALIA and WALLIS JJA
(NUGENT, SHONGWE JJA AND SWAIN AJA concurring):
[1] Nedbank Limited dismissed Mr
Andre Herholdt, who was employed as a financial planner, for
dishonestly failing to disclose a
conflict of interest arising from
his being appointed a beneficiary in the will of a client
,
Mr
John Smith. He successfully challenged his dismissal in arbitration
proceedings before the CCMA in terms of
s 138
of the
Labour
Relations Act (the
LRA).
1
Gush J, in the Labour Court,
upheld a review of the arbitrator’s award and set it aside.
This is an appeal, with the leave
of this court, against the decision
of the Labour Appeal Court (the LAC) dismissing an appeal against the
judgment of Gush J.
[2] It is only necessary to refer
briefly to the facts. Two wills were relevant to the charge against
Mr Herholdt. The first was
executed on 28
December
2007 and nominated him as a legatee to the proceeds of an investment
valued at £92 000. The second
,
executed
on 27 May 2008
,
appointed
Mr Herholdt and his life partner as the sole heirs to Mr Smith’s
estate. Neither will was disclosed to Mr Herholdt’s
line
manager
,
Mr
Snyman
,
as required by Nedbank’s
policy on conflicts of interest. That is so notwithstanding that
,
on either 22 or 23 May 2008
,
Mr
Herholdt
had asked his regional manager, Ms Esterhuizen, what he should do if
he was made the beneficiary of a client’s will
and was
specifically told that in that event he had to disclose the details
in full to his line manager
.
[3] In those circumstances the
only issue for the CCMA arbitrator to decide was whether the failure
to disclose the existence of
the wills
,
and
the fact that a client had made Mr Herholdt a beneficiary
,
was
dishonest. Mr Herholdt faced two difficulties in this regard. When Mr
Smith had first mooted making him a beneficiary, he was
,
on
his own version
, ‘
uncomfortable’
with the notion and sought advice from Mr Williamson, an employee of
an associated company that prepared wills
for Nedbank customers at
the instance of financial advisers such as Mr Herholdt. Mr
Williamson
advised him that there were possible issues of a conflict of interest
and the potential for a complaint of exercising
undue influence over
the client. He told Mr Herholdt that a letter should be prepared and
signed by Mr Smith confirming that he
made this bequest of his own
free will. He also told Mr Herholdt that the fact of the bequest
should be disclosed to his manager.
The letter was prepared and
signed in accordance with this advice but left, together with the
will, with Mr
Williamson.
A similar letter was prepared and signed and left with Mr
Williamson
after the second will was executed.
[4] It was therefore undisputed
that Mr Herholdt did not bring the two wills and their terms
,
so far as they conferred benefits
upon him
,
to the attention
of his line manager or any other appropriate person in the hierarchy
of the bank. It could not be disputed that
he was aware of the need
to do this in the light of the unchallenged evidence of Mr
Williamson
and Ms Esterhuizen. That left him with the explanation that he
thought Mr Williamson would furnish the letters to his
manager on his
behalf. No factual foundation was laid for him to entertain such a
belief. He did not even say that he had asked
Mr Williamson to do
this nor, when the issue arose as a result of an investigation by the
bank following a query from the Financial
Services Board, did he
respond by saying that he had done what was necessary to make a
disclosure because he had requested Mr Williamson
to make it on his
behalf. Mr Williamson was clear that he undertook no such
responsibility.
[5] The Labour Court and the LAC
held that the only inference that could be drawn from the evidence
was that Mr Herholdt deliberately
chose not to disclose the existence
of the two wills to his employer when he knew that he was obliged to
do so. As he had not said
why he did this, preferring to advance
several spurious excuses, including the proposition that the wills
did not give rise to
a conflict of interest between the bank and its
customer and that he was not aware of the obligation to disclose,
their conclusion
was that his non-disclosure was dishonest.
[6] The arbitrator had reached a
contrary conclusion. This Court would ordinarily have been
disinclined to entertain the appeal
because the appellant principally
attacked the factual findings of the LAC. And this court has made it
clear that it will not interfere
with a decision of the LAC only
because it considers it to be wrong
.
Incorrect
factual findings fall into this category. There must, in addition, be
special circumstances that take it out of the ordinary.
2
[7]
The
appellant
,
however
,
submitted that in setting aside
the commissioner’s award the Labour Court approached its task
on review by embarking on an
in depth analysis of every disputed
factual issue and then substituted its view for that of the
commissioner ie by employing a
methodology appropriate to an appeal.
It is submitted on the appellant’s behalf that even if aspects
of the commissioner’s
reasoning were incorrect there was no
basis to impugn the award; all that was required was to ascertain
whether or not the evidence
reasonably supported the commissioner’s
decision. The LAC, it was submitted, not only erroneously confirmed
the approach
by the Labour Court, but proceeded to question the
utility of maintaining the distinction between appeals and reviews
for CCMA
awards.
[8]
Moreover,
the Congress of South African Trade Unions (Cosatu) intervened and
was admitted as
amicus
curiae
by order
of this court
,
in
view of its concern that the labour courts have unduly relaxed the
grounds for challenging CCMA awards. This relaxation appears
from the
judgment of the Labour Court initially and thereafter the judgment of
the LAC
,
where it was
indicated that the ground of review of gross irregularity in respect
of CCMA arbitrations under
s 145(2)
(a)
(ii)
of the LRA involves the
consideration of what the LAC termed ‘latent irregularities’
and ‘dialectical unreasonableness’
and that these provide
a basis for review more extensive than the level of unreasonableness
identified as a ground of review in
Sidumo
.
3
Cosatu’s view appears to be
supported by a recent article concerning the effect of three recent
judgments of the LAC, including
the one in the present case, which
poses the question whether the test for review of CCMA awards
enunciated in
Sidumo
is
in decline.
4
There are thus clearly special
circumstances that require us to entertain the appeal.
[9] It is unnecessary to traverse
in detail the history of reviews of CCMA arbitration awards under the
LRA. Those responsible for
drafting the LRA deliberately chose
arbitration on a relatively informal basis as the preferred option
for dealing with most issues
arising in the context of labour
relations and under the LRA. In particular this was to be the means
for resolving disputes over
dismissals, which constitute the bulk of
the work of the CCMA.
5
They were also deliberate in
rejecting the possibility of appeals and selecting the narrowest
possible grounds of review as the
basis for challenging arbitration
awards.
6
They did so, not because review
is an inexpensive or speedy way of reconsidering the award of an
arbitrator, but because it sets
an extremely high standard for
setting aside an award and, together with the cost and delays
inherent in reviews, it was thought
that this would act as a
deterrent to parties challenging arbitration awards and thereby
support the overall aim of a speedy and
inexpensive resolution of
such disputes.
[1
0
]
The height of the bar set by the provisions of
s 145(2)
(a)
of the LRA
7
is apparent from considering the
approach to reviews of arbitral awards under the corresponding
provisions
8
of the
Arbitration Act 42 of
1965
.
9
The general principle is that a
‘gross irregularity’ concerns the conduct of the
proceedings rather than the merits
of the decision. A qualification
to that principle is that a ‘gross irregularity’ is
committed where decision-makers
misconceive the whole nature of the
enquiry and as a result misconceive their mandate or their duties in
conducting the enquiry
.
Where
the arbitrator’s mandate is conferred by statute then
,
subject to any limitations
imposed by the statute
,
they
exercise exclusive jurisdiction over questions of fact and law.
[11]
Since
the inception of the CCMA various courts have sought to construe
those provisions to provide a more generous standard of review,
that
is, one more easily satisfied. That culminated in this court
,
in
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
,
10
holding that PAJA
11
applied to CCMA arbitrations and
had
,
by necessary
implication
,
extended the
grounds of review in respect of their awards.
12
This meant that a reviewing court
could, in addition to the requirements under
s 145(2)
(a)
of the LRA
,
review
the award for reasonableness. It would do so by examining the
‘substantive merits’ of the award, not to decide
whether
the decision was correct
,
but
to determine whether the award was rationally related to the reasons
given by the arbitrator
.
Once
it was found that the award was appreciably or significantly infected
with bad reasons it fell to be set aside irrespective
of whether it
could otherwise be sustained on the material in the record.
13
[12] That decision was taken on
appeal to the Constitutional Court in
Sidumo
v Rustenburg Platinum Mines Ltd
14
and overruled in two respects.
First it was held that although a CCMA award involved administrative
action it did not fall within
PAJA.
15
Second the court enunciated an
unreasonableness test that differed from the test adopted by this
court, namely, whether the award
was one that a reasonable
decision-maker could not reach.
16
That test involves the reviewing
court examining the merits of the case ‘in the round’ by
determining whether, in the
light of the issue raised by the dispute
under arbitration, the outcome reached by the arbitrator was not one
that could reasonably
be reached on the evidence and other material
properly before the arbitrator.
17
On this approach the reasoning of
the arbitrator assumes less importance than it does on the SCA test
,
where a flaw in the reasons
results in the award being set aside
.
The
reasons are still considered in order to see how the arbitrator
reached the result. That assists the court to determine whether
that
result can reasonably be reached by that route. If not, however, the
court must still consider whether, apart from those reasons,
the
result is one a reasonable decision-maker could reach in the light of
the issues and the evidence.
[13] The distinction between
review and appeal, which the Constitutional Court stressed is to be
preserved,
18
is therefore clearer in the case
of the
Sidumo
test
.
And while the evidence must
necessarily be scrutinised to determine whether the outcome was
reasonable, the reviewing court must
always be alert to remind itself
that it must avoid 'judicial overzealousness in setting aside
administrative decisions that do
not coincide with the judge's own
opinions'.
19
The LAC subsequently stressed
that the test ‘is a stringent [one] that will ensure that …
awards are not lightly interfered
with’ and that its emphasis
is on the result of the case rather than the reasons for arriving at
that result.
20
The
Sidumo
test will
,
however
,
justify
setting aside an award on review if the decision is ‘entirely
disconnected with the evidence’
21
or is ‘unsupported by any
evidence’ and involves speculation by the commissioner.
22
[14] After
Sidumo
the position in regard to reviews
of CCMA arbitration awards should have been clear. Reviews could be
brought on the unreasonableness
test laid down by the Constitutional
Court and the specific grounds set out in
ss 145(2)
(a)
and
(b)
of the LRA. The latter
had not been extinguished by the Constitutional Court
23
but were to be ‘suffused’
with the constitutional standard of reasonableness. What this meant
simply is that a ‘gross
irregularity in the conduct of the
arbitration proceedings’ as envisaged by
s 145(2)
(a)
(ii)
of the LRA, was not confined to a situation where the arbitrator
misconceives the nature of the enquiry, but extended to those
instances where the result was unreasonable in the sense explained in
that case. Beyond that there was no reason to think that
their
meaning had been significantly altered provided they were viewed in
the light of the constitutional guarantee of fair labour
practices.
[15] Although this should not
have been the case after
Sidumo
,
there has been a development in a
different direction
,
aimed,
as were the pre-
Sidumo
cases already referred to, at
providing a more generous standard for review of CCMA arbitration
awards. It is unnecessary to trace
this development through the
cases.
24
It suffices to deal with its
formulation in the present case
,
which
represents its culmination. Counsel for COSATU made submissions under
the two heads of ‘latent irregularity’ and
‘dialectical
unreasonableness’ and it is convenient to adopt that
nomenclature.
[16] A latent irregularity,
s
ometimes
referred to as process related unreasonableness
,
is one arising from the failure
by the arbitrator to take into account a material fact in determining
the arbitration. It includes
the converse situation of taking into
account a materially irrelevant fact. If that occurs
,
it
is said to be a latent irregularity justifying the setting aside of
the award. The LAC expressed it thus:
‘
Where
a commissioner fails to have regard to material facts, this will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby have prevented the
aggrieved party from having its case fully and fairly determined.’
25
The LAC went on to endorse the
following passage in the judgment of van Niekerk J in
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
:
26
‘
If a commissioner fails to
take material evidence into account, or has regard to evidence that
is irrelevant, or the commissioner
commits some other misconduct or a
gross irregularity during the proceedings under review and a party is
likely to be prejudiced
as a consequence, the commissioner’s
decision is liable to be set aside regardless of the result of the
proceedings or whether
on the basis of the record of the proceedings,
that result is nonetheless capable of justification.’
[17] Two points flow from this approach. The first is that the
threshold for interference with the award is lower than in terms
of
the judgment in
Sidumo
.
27
The second is that it is immaterial whether the result reached by the
arbitrator is one that could reasonably be reached on the
material
before the arbitrator. The mere possibility of prejudice will suffice
to warrant interference.
[18] The origin of this approach is a dictum in the minority judgment
of Ngcobo J in
Sidumo
,
28
where he said in the context of a discussion of
s 145(2)
of the
LRA that:
‘
Fairness in the conduct of the
proceedings requires a commissioner to apply his or her mind to the
issues that are material to the
determination of the dispute. One of
the duties of a commissioner in conducting an arbitration is to
determine the material facts
and then to apply the provisions of the
LRA to those facts in answering the question whether the dismissal
was for a fair reason.
In my judgment, where a commissioner fails to
apply his or her mind to a matter which is material to the
determination of the fairness
of the sanction, it can hardly be said
that there was a fair trial of issues.’
[19] Ngcobo J did not explain how material an oversight in regard to
the facts would have to be to result in the award being set
aside,
nor did he seek to reconcile this approach with a long chain of
authority, which he had cited and relied upon, that held
that an
error of fact or law by the arbitrator would not justify the setting
aside of the award, unless it had the result that
the arbitrator was
diverted from the correct path in the conduct of the arbitration and
as a result failed to address the question
raised for determination
in the arbitration.
29
This did not relate to the outcome of the arbitration but to the
conduct of the arbitration.
[20] It is unnecessary to analyse this dictum further because it
results in an approach to the review of CCMA arbitration awards
that
is contrary to that endorsed by the majority judgment in
Sidumo
.
This is apparent from examining the manner in which the two judgments
dealt with the facts of that case. Ngcobo J analysed the
award of the
arbitrator and held that, although a little terse, it could be
construed in a way that did not involve the arbitrator
in making a
material error in regard to the facts. By contrast the majority held
that the arbitrator had erred in certain respects
in making his
award, in particular in holding that the relationship of trust
between employer and employee had not been breached,
but held that it
was nonetheless an award that a reasonable decision-maker could make
in the light of all the facts. In other words
the approach of the
majority was clearly inconsistent with the approach suggested by
Ngcobo J. As we, and all courts, are bound
by the majority judgment
the development of the notion of latent irregularity, in the sense
that it has assumed in the labour courts,
cannot be accepted.
[21] That does not mean that a latent irregularity, as Schreiner J
originally used that term in the
Goldfield Investments
case,
is not a gross irregularity within the meaning of
s 145(2)
(a)
(ii).
It is, but only in the limited sense mentioned earlier, where the
decision-maker has undertaken the wrong enquiry or undertaken
the
enquiry in the wrong manner. That is well illustrated by the facts of
that case. A magistrate seized with a valuation appeal
was required
under the relevant legislation to conduct a fresh enquiry into the
question of the proper value of the property. Instead
he refused to
consider the evidence of value tendered by the appellant and
approached the matter on the basis that he could only
amend the
valuation if it was clearly erroneous. In the circumstances he did
not enter upon the correct enquiry and his decision
was set aside.
[22] Turning then to ‘dialectical unreasonableness’ this
is said to be unreasonableness flowing from the process of
reasoning
adopted by the arbitrator. The question facing a reviewing court, as
expressed by the LAC in this case, is whether the
decision ‘is
supported by arguments and considerations recognised as valid, even
if not conclusive’.
30
And further that:
‘
Proper consideration of all
the relevant and material facts and issues is indispensable to a
reasonable decision and if a decision-maker
fails to take account of
a relevant factor which he or she is bound to consider, the resulting
decision will not be reasonable
in a dialectical sense.’
31
The LAC went on to say that:
‘
There is no requirement that
the commissioner must have deprived the aggrieved party of a fair
trial by misconceiving the whole
nature of [the] enquiry. The
threshold for interference is lower than that: it being sufficient
that the commissioner has 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.’
32
[23] This approach is also based on a dictum by Ngcobo J, this time
in
New Clicks
,
33
that reads:
‘
There is obviously an overlap
between the ground of review based on failure to take into
consideration a relevant factor and one
based on the unreasonableness
of the decision. A consideration of the factors that a decision-maker
is bound to take into account
is essential to a reasonable decision.
If a decisionmaker fails to take into account a factor that he or she
is bound to take into
consideration, the resulting decision can
hardly be said to be that of a reasonable decisionmaker.’
[24] The first thing to note about this dictum is that it expressly
relates to the provisions of PAJA and the manner in which they
are to
be applied. As PAJA does not apply to reviews under
s 145(2)
of
the LRA it is of no application to CCMA awards. Second, if applied by
considering the reasoning of a CCMA arbitrator and determining
that
the reasons given for making an award are not such as to justify that
award, its effect is to resuscitate this court’s
decision in
Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission
for Conciliation, Mediation and Arbitration, supra,
even though
that decision was expressly overruled in
Sidumo
. Once again
that is not a permissible development of the law.
[25] In summary, the position regarding the review of CCMA awards is
this: A review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in
s 145(2)
(a)
of the LRA. 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 inquiry 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.
[26] We return to this case. As we indicated earlier, the issue in
dispute was whether Mr Herholdt had dishonestly failed to disclose
a
conflict of interest regarding the two wills. The Commissioner
correctly stated in her award that this was the issue. She dealt
exhaustively with the evidence and concluded that he had not been
dishonest. Given the depth of her treatment of the evidence it
could
hardly be said that she misconceived the nature of the enquiry. But
it is clear from the judgments of both the Labour Court
and of the
LAC that her conclusion was not one that a reasonable decision-maker
could have reached in the light of the evidence
and the issues she
was called upon to decide. The result was ‘substantively
unreasonable in the sense that no reasonable
commissioner, acting
reasonably, could have reached the decision on the evidence and the
inferences drawn from it.’
34
So it is clear that notwithstanding its excursus on ‘latent
irregularities’ and ‘dialectical unreasonableness’
the LAC was alive to
Sidumo
and applied it correctly. There is
thus no basis for this court to interfere with its decision. The
appeal is thus dismissed with
costs, including the costs attendant on
the employment of two counsel.
______________
A CACHALIA
______________
M J D WALLIS
JUDGES OF APPEAL
Appearances
For appellant: A Findlay SC (with
him R Ungerer)
Instructed by: Weber Attorneys,
Durban
Azar & Havenga Attorneys Inc,
Bloemfontein
For respondent: A Myburgh SC
(with him T Ngcukaitobi)
Instructed by: Cliffe Dekker Hofmeyr
Inc, Sandton
Phatshoane Henny Attorneys,
Bloemfontein.
For
Amicus Curiae
: W H
Trengove SC (with him J Brickhill);
(Heads of
argument prepared by
H Maenetje SC
and J Brickhill)
Instructed
by:
McIntyre
& Van der Post, Bloemfontein.
1
Act
66 of 1995.
2
National
Union of Mineworkers & another v Samancor Ltd (Tubatse
Ferrochrome) & others
(2011) 32
ILJ
1618
(SCA) para 14.
3
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC).
4
A
Myburgh ‘The LAC’s Latest Trilogy of Review Judgments:
Is the
Sidumo
Test in Decline?’ (2013) 34
ILJ
19.
5
The
current annual workload of the CCMA is around 160 000 arbitrations a
year of which 80 per cent are dismissal disputes.
6
The
grounds were copied from those in
s 33(1)
of the
Arbitration
Act 42 of 1965
.
7
‘
145
Review of arbitration awards
(1) Any party to a
dispute
who alleges a defect
in any arbitration proceedings under the auspices of the Commission
may apply to the Labour Court for an
order setting aside the
arbitration award –
(a)
. . .
(b)
. . .
(1A) . . .
(2) A defect referred to in subsection (1), means –
(a)
that the commissioner –
(i) committed misconduct in relation to the duties of
the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of
the arbitration proceedings; or
(iii)
exceeded the commissioner’s powers . . .’
8
Section
33(1)
of the
Arbitration Act 42 of 1965
provides:
‘
(1) Where—
(a)
any member of an arbitration tribunal has
misconducted himself in relation to his duties as arbitrator or
umpire; or
(b)
an arbitration tribunal has committed any
gross irregularity in the conduct of the arbitration proceedings or
has exceeded its
powers; or
(c)
an award has been improperly obtained,
the
court may, on the application of any party to the reference after
due notice to the other party or parties, make an order
setting the
award aside.’
9
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA);
(2007 (5) BCLR 503
;
[2007] 2 All SA 243
(SCA).
10
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
2007 (1) SA 576 (SCA).
11
The
Promotion of Administrative Justice Act 3 of 2000
.
12
Para
23.
13
Paras
31-34.
14
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) para 110. The decision was followed and affirmed in
this court in
Shoprite Checkers (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration & others
2009 (3) SA 493
(SCA) para 27.
15
Para
104.
16
Para
110.
17
The
test is whether the decision is one that could
not
reasonably
be reached, which is a more stringent test than asking whether the
decision is one that the arbitrator could reasonably
reach. It is
concerned primarily with the result rather than the process of
reasoning of the arbitrator.
Fidelity Cash Management Service v
CCMA & others
(2008) 29
ILJ
964 (LAC) para 103.
18
Sidumo
para 108.
19
Sidumo
para 109 approving a passage from
Professor Hoexter
Administrative Law in
South Africa
(Juta, Cape Town 2007)
318. The passage is repeated in the second edition (Juta, Cape Town,
2012) 352. It is an approach that
has been consistently followed in
this court.
Shoprite Checkers (Pty) Ltd
v Commission for Conciliation, Mediation and Arbitration
2009
(3) SA 494
(SCA);
Edcon Ltd v Pillemer
NO & others
(2009) 30
ILJ
2642 (SCA);
Food &
Allied Workers Union on behalf of
Mbatha
& others v Pioneer Foods (Pty) Ltd t/a Sasko Milling &
Baking & others
(2011) 32
ILJ
2916 (SCA).
It follows
that the proposition by Murphy AJA in the court below at para 55
that ‘few decisions that are wrong are likely
to be upheld as
reasonable’ cannot be supported.
20
Fidelity
Cash Management Service v CCMA & others
(2008) 29
ILJ
964 (LAC) para 100.
21
Transnet
Ltd v CCMA & others
(2008) 29
ILJ
1289 (LC) para 27.
22
Karan
Beef (Pty) Ltd v Mbovane NO & others
(2008)
29
ILJ
2959
(LC) paras 22 and 25.
23
National
Union of Mineworkers & another v Samancor Ltd (Tubatse
Ferrochrome) & others
(2011) 32
ILJ
1618 (SCA) para 5.
24
Anyone
interested can follow it in a series of articles by Anton
Myburgh
in the Industrial Law Journal. See ‘Sidumo v Rustplats: How
have the courts dealt with it? (2009) 30
ILJ
1; ‘Determining and reviewing sanction
after Sidumo’ (2010) 31
ILJ
1;
‘Reviewing the review test: recent judgments and developments’
(2011) 32
ILJ
1497;
and ‘The LAC’s Latest trilogy of review judgments: Is
the
Sidumo
test
in decline?’ (2013) 34
ILJ
19.
25
P
ara
36.
26
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
(2010)]
31
ILJ
452
(LC) para 17.
27
Murphy
AJA said as much in para 39 of his judgment in the LAC.
28
Para
267.
29
Ellis
v Morgan; Ellis v Dessai
1909 TS 576
at 581;
Goldfield
Investments Ltd & another v City Council of Johannesburg &
another
1938 TPD 551
at 560 and
Telcordia Technologies Inc v
Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) paras 52 to 78 and 85 to 88.
30
Para
34.
31
Para
36.
32
Para
39.
33
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another
as Amici Curiae)
2006 (2) SA 311
(CC) para 511.
34
Judgment
of the court
a quo
p
ara 51.