• Law Reports
  • Solisarity obo Upton v Safety and Security Sectoral …

Solisarity obo Upton v Safety and Security Sectoral Bargaining Council and Others (C329/2024) [2026] ZALCCT 6 (16 January 2026)

70 Reportability
Labour Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Labour Law — Unfair Labour Practice — Review application regarding the rejection of an application for promotion due to the use of an incorrect application form. The applicant, Ms Upton, alleged unfair treatment after her application was dismissed for not using the prescribed form, despite similar applications being accepted. The Labour Court reviewed the arbitration award and found that the rejection was fair and in accordance with the National Instruction 3/2015.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an opposed review application brought in the Labour Court in terms of section 145(2) of the Labour Relations Act 66 of 1995. The Applicant was Solidarity acting on behalf of Ms M.R. Upton. The Respondents were the Safety and Security Sectoral Bargaining Council (as the statutory bargaining council under whose auspices the arbitration occurred), the arbitrating commissioner (Ms Lilian Gorodema), and the South African Police Service (SAPS) as employer.


The procedural history was that Ms Upton referred an unfair labour practice dispute relating to promotion to the bargaining council. The dispute was arbitrated, and on 30 June 2024 the Second Respondent issued an arbitration award dismissing the claim and finding SAPS’s decision to exclude Ms Upton’s application from consideration to be fair. Solidarity then instituted review proceedings in the Labour Court seeking to have the award reviewed and set aside, and substituted with a finding that SAPS committed an unfair labour practice, together with compensation and/or an order declaring the recruitment process invalid and requiring it to start afresh, alternatively remittal for a hearing de novo before a different commissioner.


The general subject-matter of the dispute was whether SAPS committed an unfair labour practice in relation to promotion by refusing to consider Ms Upton’s application for an advertised post on the basis that she used an incorrect application form, and whether the commissioner’s award upholding that refusal was reviewable under the applicable review standard.


2. Material Facts


Ms Upton was employed by SAPS as Head of Finance and State Accountant. On 7 February 2020, she applied for a promoted post after responding to an internal advertisement. She submitted an application using a form she had downloaded from SAPS’s intranet.


After the closing date for applications, Ms Upton realised she had not been shortlisted. Upon accessing the record, she discovered that her application had been marked as being “on a wrong form”, and was not considered further.


It was common cause that the advertised post required applicants to use an attached prescribed form (Annexure A), and that the prescribed form differed from the form Ms Upton used. The prescribed form included five columns under the “Qualifications” section, including a column requiring the duration of the qualification (study period). Ms Upton’s form contained four columns, omitting the study-period column. It was also common cause that Ms Upton’s form therefore did not request, and she did not provide, the study-period information in that section.


SAPS’s stance was that Ms Upton failed to comply with mandatory application requirements set by the applicable internal regulatory framework and the advertisement, and that her non-compliance required rejection of her application before any evaluation of merit could occur. The commissioner accepted SAPS’s position and found that the decision not to consider the application was fair.


In review, Solidarity relied on contentions (to the extent relevant to the court’s determination) that other candidates were allegedly treated differently in relation to forms or completion, and that the commissioner failed properly to evaluate these comparisons. The court, however, treated the decisive facts as those concerning the mandatory requirement to use the attached prescribed form for the specific post and the peremptory consequence of non-compliance.


3. Legal Issues


The central questions the Labour Court was required to determine were whether the arbitration award was reviewable under section 145(2) of the Labour Relations Act, and in particular whether the commissioner committed any gross irregularity, misconceived the enquiry, failed to apply her mind to material evidence, or reached an outcome that fell outside the range of reasonableness.


The dispute primarily concerned the application of law to fact within the review framework. It required an assessment of whether, given the content of National Instruction No 3 of 2015 and the wording of the advertisement, the commissioner’s finding (that SAPS acted fairly in rejecting a non-compliant application) was a decision a reasonable commissioner could reach. It also involved an evaluative determination about whether comparisons to other candidates and alleged inconsistencies were legally material in circumstances where Ms Upton’s application was excluded at the compliance stage.


4. Court’s Reasoning


The court located the fairness enquiry in the text and effect of National Instruction No 3 of 2015: Promotion and Grade Progression of Employees of the Service From Post Level 1 to Level 12 and From Constable Up To Colonel, as well as the specific requirements stated in the advertisement. The court set out the relevant provisions, emphasising that the Instruction required that an application for an advertised post must be made on the form determined by the National Commissioner, and that an evaluation panel must reject an application that does not comply with the prescribed-form requirement before the application is considered on its merits.


On the evidence, the court found it was common cause that Ms Upton did not use the prescribed form attached to the advertisement and that her form lacked the fifth “duration of qualification (study period)” column. The court treated the National Instruction provisions and the advertisement’s “must use the attached application form” wording as peremptory, not discretionary. On this approach, the fairness of the decision not to shortlist Ms Upton did not turn on whether she might have been a strong candidate, but on whether SAPS acted in accordance with a mandatory compliance regime governing promotion applications.


The court addressed the submission that Ms Upton’s omission was insignificant by reasoning that, within this framework, an applicant can only be said to provide “sufficient information” (as contended for by the Applicant in argument) if the applicant supplies at least the information the prescribed form requires. The omission of the study-period field was treated as a meaningful shortfall in the information demanded by the prescribed form, and the court stated that employers would reasonably be interested in the duration of a qualification or study period. In the court’s analysis, allowing applicants to use alternative forms would undermine the prescribed-form requirement and permit applicants to choose which information to supply irrespective of the advertisement.


The court further considered the Applicant’s attempt to rely on alleged differential treatment of other applicants. It accepted the commissioner’s approach that comparisons to other candidates were not persuasive where those candidates had applied for different posts, because the significance of their forms in relation to Ms Upton’s post was not established. The court explained that the argument might have had force if another candidate had applied for the same post, used the same wrong form, and nevertheless been shortlisted, but that was not the position before it.


In relation to Ms Ramohlabi, whose application was said not to have been fully completed yet she was shortlisted, the court held this did not assist Ms Upton because Ms Ramohlabi used the correct form and completed all five columns, and, in any event, was not appointed. The court treated this as a relevant distinction because Ms Upton’s disqualification was based on using the wrong form, not on incomplete completion of the correct form.


The court also dealt with the contention concerning Mr Fortuin’s evidence that HRM provided him with an application form that was allegedly “allowed”. The court held that the advertisement was explicit that applicants must use the attached Annexure A, and concluded that both Ms Upton and Mr Fortuin were disqualified for the same reason: failure to use the prescribed attached form.


On the question of arbitrariness and the reliance on Arries v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 2324 (LC), the court reasoned that a decision taken in accordance with clearly stated mandatory prescriptions in the National Instruction and advertisement could not readily be characterised as arbitrary, capricious, or motivated by bad faith or discrimination. The court therefore supported the commissioner’s conclusion that Arries did not assist in the absence of evidence showing that SAPS’s decision was arbitrary or taken in bad faith.


The court rejected the complaint that the commissioner improperly interfered during cross-examination. It characterised the commissioner’s role as that of a referee entitled to control proceedings and found that the instances cited reflected permissible intervention, particularly where SAPS’s witness indicated she could not testify about forms or processes she did not have insight into.


Finally, the court situated the matter within broader labour-law principles concerning promotion disputes. It noted the general principle that an employer has a prerogative to appoint or promote those it considers most suitable, and that adjudicators are slow to interfere absent unfairness. It referred to authority that the appointing authority’s decision should not be interfered with unless there is a failure to apply the mind or conduct that is irrational, capricious, arbitrary, or in bad faith, and that employers should at least be able to provide reasons for their decision. In the court’s assessment, SAPS had a reason grounded in a mandatory compliance requirement, and the commissioner’s acceptance of that reason fell within the bounds of reasonableness.


On the totality of the material considered, the court held that the commissioner’s award was one a reasonable arbitrator could reach on the same facts and legal framework, and that the review grounds did not justify interference.


5. Outcome and Relief


The Labour Court dismissed the review application. The arbitration award was not reviewed or set aside, and no substitution or remittal was ordered.


The court made no order as to costs.


Cases Cited


Arries v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 2324 (LC).


SA Municipal Workers Union on behalf of Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA).


PSA obo Dalton v Department of Public Works [1998] 9 BALR 1177 (CCMA).


Mashegoane v University of the North [1998] 1 BLLR 73 (LC).


Legislation Cited


Labour Relations Act 66 of 1995 (as amended), section 145(2).


National Instruction No 3 of 2015: Promotion and Grade Progression of Employees of the Service From Post Level 1 to Level 12 and From Constable Up To Colonel.


Rules of Court Cited


No specific rules of court were cited in the judgment.


Held


The court held that the commissioner’s conclusion that SAPS acted fairly in refusing to consider Ms Upton’s promotion application was reasonable and not reviewable. It accepted that the applicable National Instruction and the advertisement imposed mandatory requirements that applications for the advertised post be made on the prescribed attached form, and that non-compliance required rejection of the application before any evaluation of merit. Because Ms Upton used a different form that omitted a required information field, SAPS was entitled, within the regulatory framework, to reject her application as non-compliant.


The court further held that comparisons with other candidates did not demonstrate unfairness on the facts as assessed by the court, particularly where the alleged comparators applied for different posts or used the correct form. It also held that the commissioner did not commit a reviewable irregularity in her conduct of the arbitration proceedings.


LEGAL PRINCIPLES


The judgment applied the principle that a review under section 145(2) of the Labour Relations Act 66 of 1995 is concerned with whether the arbitration award is vitiated by a reviewable irregularity and whether the outcome is one a reasonable decision-maker could reach on the material before the arbitrator.


In promotion disputes, the judgment applied the principle that an employer generally retains the prerogative to appoint or promote candidates it considers best suited, and that adjudicators should show deference to that choice unless the employer acts irrationally, capriciously, arbitrarily, or in bad faith, or fails to apply its mind, or otherwise acts unfairly in a manner cognisable under unfair labour practice jurisprudence.


Where an employer’s promotion process is governed by a peremptory framework (here, National Instruction No 3 of 2015 and the terms of the advertisement), the judgment applied the principle that mandatory requirements such as using a prescribed application form may lawfully operate as a compliance gateway. If the framework provides that non-compliant applications must be rejected, an application may be excluded without reaching a comparative evaluation of candidates’ merits, and such exclusion will not ordinarily be arbitrary where it is grounded in the prescribed rules.

T

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No: C329/2024
In the matter between:
SOLIDARITY obo UPTON, M.R. Applicant
and
THE SAFETY AND SECURITY SECTORAL BARGAINING
COUNCIL First Respondent
LILIAN GORODEMA Second Respondent
SOUTH AFRICAN POLICE SERVICES Third Respondent
Heard: 15 October 2025
Delivered: 16 January 2026
Summary: Review application - unfair labour practice - use of incorrect
application form.

JUDGMENT

MKHATSHWA, AJ


(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised

____________ ______________
Signature Date

2


Introduction
[1] This is an opposed review application in terms of section 145(2) of the Labour
Relations Act1. The Applicant seeks the following order:
1.1. Reviewing and setting aside and/or correcting the arbitration award
issued by the Second Respondent under case number PSSS 8-21/22
dated 30 June 2024.
[2] The Applicant also seeks to review and correct the award with an award that
determines the Third Respondent committed an unfair labour practice against
Ms Upton and that:
2.1. Just and equitable compensation be awarded and/or
2.2. The advertisement shortlisting, screening, interview and appointment
process for post number 22: Director Admin Assistant at the rank of Lt.
Colonel be declared invalid and to start afresh.
[3] Alternatively, ordering that the matter should be remitted back to the First
Respondent for an arbitration hearing de novo before a commissioner other
than the Second Respondent.
Background Facts
[4] At the time the dispute arose Ms Upton , who is represent ed in these
proceedings by the Trade Union, Solidarity, wa s employed by the Third
Respondent as Head of Finance and State Accountant. She responded to an
advertisement on 7 February 2020, for a post promotion by using an application
form that she downloaded from the Intranet of the Third Respondent.
[5] After the closing date of submi tting applications, she realised that she had not
been shortlisted and requested access to the record and saw that her
application form had been noted as ‘on a wrong form’.

1 Act 66 of 1995 as amended.

3


[6] She alleged at the arbitration that the Third Respondent treated her unfairly by
not considering her application form, as she had downloaded it from the
Intranet, and she sought compensation.
[7] The Third Respondent disputed the unfairness and stated that Ms Upton had
failed to comply with the application requirements of the post.
[8] The Second Respondent dismissed the application and found that the decision
not to consider Ms Upton’s promotion by the Third Respondent was fair.
Grounds of review
[9] The Applicant seeks to review the award on the following grounds:
9.1. The Second Respondent committed a gross irregularity in that she
misconceived the nature of the issue to decide. That she was not only
required to decide whether the correct application form was used, but
also to decide in light of other applicants who used the same application
form being shortlisted and recommended for their applied posts.
9.2. She committed a gross irregularity in that she failed to co nsider and
properly apply her mind to the undisputed testimony that Ms Ramohlabi
did not fully complete h er application form (in respect of her career
history periods), yet she was shortlisted and interviewed.
9.3. The Second Respondent committed a gross irregularity in that she failed
to consider and properly apply her mind to the fact , alternatively did not
put enough weight on the testimony of Mr Fortuin, when it was his
undisputed testimony that he received his application form from HRM ,
which was allowed as per the advertisement.
9.4. She failed to apply her mind when she stated that if an application does
not comply with the requirements, it must be rejected, however no weight
was placed on the undisputed testimony that a candidate whose
application form was not completed fully was shortlisted.

4


9.5. The Second Respondent committed a gross irregularity when the
undisputed testimony of Ms Upton was not considered when she testified
that, in the subsequent promotion phase, applicants who used the same
application form as her for a different position w ere shortlisted and
promoted.
9.6. The Second Respondent erred in finding that Ms Upton was not able to
prove that the decision was arbitrary, even though the Third
Respondent’s only witness was not able to arti culate whether the
decision was fair.
9.7. That she did not reach a conclusion that a reasonable decision maker
could have based on the totality of the evidence before her , specifically
the undisputed evidence of the Applicant and her witness in comparison
to the testimony of the Third Respondent’s witness.
9.8. Further, the Second Respondent committed a gross irregularity in that
she failed to consider and properly apply her mind to the fact,
alternatively did not put enough weight on the testimony that the column,
which was not present on the application form had no use.
9.9. That the Second Respondent, throughout the cross-examination of the
Third Respondent’s witness, the Second Respondent interfered with the
cross-examiner, indicating that the witness would not be able to answer
the questions as she was not privy to the testimony of those witnesses.
Award
[10] The Second Respondent found that Ms Upton admitted that her application
form had four columns instead of five , and she rejected Ms Upton’s argument
that such was insignificant. According to the Second Respondent, her duty was
not to stand in the shoes of the selection committee and decide w hether their
finding that the application form was wrong was insignificant or not. According
to her, her duty was to decide whether the rejection of the form was fair.

5


[11] She made reference to the evidence of Colonel Berger (it is clear from the
record that the Third Respondent’s only witness was Lieutenant Colonel
Annalese Liebenberg), who testified that in compliance with Instruction 3/2015,
Ms Upton should have submitted an application form which was attached to the
post advertised. She accepted the evidence of Lieutenant Colonel Liebenberg
that she had no idea which post th e other form related to. There must have
been a reason for the prescription of the relevant form. Ms Upton and Lt. Col.
Desmond Fortuin submitted the wrong forms , with the result that both were
disqualified.
[12] The Second Respondent agreed with Lieutenant Colonel Liebenberg’s
evidence that the rejection of the forms was per emptory in terms of paragraph
6(d) of the National Instruction 3/2025 , as it states that if an application does
not comply with the requirements, it must be rejected.
[13] She also found that the comparison of Ms Upton’s application and other
applications by Sergeants Dean Thom as and VC Daniels were meritless , as
their applications related to different posts.
[14] She also rejected Ms Upton’s argument that she was better qualified compared
to the successful incumbent, according to the Second Respondent this
argument was erroneous, as Ms Upton’s application was not evaluated due to
the fact that she submitted an incorrect form.
[15] With reference to the judgment in Arries v C ommission for Conciliation,
Mediation & Arbitration & others2 (Arries), that was relied upon on behalf of Ms
Upton’s representative, the Second Respondent found that it was not applicable
as Ms Upton did not submit evidence that the Third Respondent’s decision was
arbitrary or capricious and motivated by bad fai th or discrimination . The
decision of the Third Respondent was based on the prescriptions in the National
Instruction 3/2015.


2 (2006) 27 ILJ 2324 (LC).

6


Analysis of the facts
[16] The question of the fairness of the decision not to consider Ms Upton’s
appointment/promotion by the Third Respondent because she submitted the
‘wrong form’, turns firstly on the contents of the National Instruction 3/2015 3.
Paragraph 3(1)(a) [Grade Progression] provides as follows:
‘(1) Submission of documents for grade progression
(a) A member who qualifies for grade progression must;
(i) Complete any form prescribed by the National Commissioner.
(iv) submit the prescribed form and PEP evaluation to his or her
Commander within the time frame specified by the National
Commissioner. Failure by the member to submit the prescribed
form and PEP evaluation to his or her Commander within the
specified time frame may result in the member not being
considered for grade progression during the specific process.’
[Own emphasis]
[17] Paragraph 4(4) [Applications for advertised posts], in particular sub-paragraph
4(4)(b) states that:
‘(b) An application for an advertised post must -
(i) be made on the form determined by the National
Commissioner,’ [Own emphasis]
[18] Paragraph 4(6)(d) [Generic functions of evaluation panels for promotion ,
whether interviews are conducted or not] states the following:
‘(d) A panel must be satisfied that an application complies with the
requirements of referred to in paragraph 4(4)(b), before the application
is considered, if an application does not comply with the said
requirements, the application must be rejected.’

3 National Instruction No 3 of 2015: Promotion and Grade Progression Of Employees Of the Service
From Post Level 1 to Level 12 And From Constable Up To Colonel.

7


[19] The next document that is relevant is the actual advertisement. Paragraph 3 of
the advertisement states as follows:
‘Employees who apply for advertised posts must use the attached application
for Annexure A…’ [Own emphasis]
[20] The relevant part of the form can be gleaned from that of Fourth Respondent
on Page 3 of 6 under ‘Qualifications’. The form contains five columns , which
the Fourth Respondent completed, namely:
First Column - Tertiary Qualification(s) Successfully Completed
Second Column Name of Institution
Third Column- Indicate Field of Study Completed Qualification
Fourth Column- Duration Of Qualification (Study Period)
Fifth Column- Year Completed
[21] The next document that is of relevance is the application form submitted by Ms
Upton. Page 3 of 8 under Qualifications , it contains four columns only, which
she completed, namely:
First Column- Tertiary Qualification(s) Successfully Completed
Second Column- Name of Institution
Third Column- Indicate Field of Study Completed Qualification
Fourth Column- Year Completed
[22] Considering the above analysis thus far, what becomes clear is that paragraphs
3(1)(a)(i) and (iv) together with 4(4)(b) and 4(6)(d), of the National Instruction
No 3 of 2015 are peremptory. They are not optional or discretionary. Either the
candidate complies with them , or the application must be rejected (paragraph
4(6)(d). They ‘must’ be complied with. Period.
[23] The Fourth Respondent complied with the above requirements, among other
requirements in terms of the National Instruction 3/2015. On the other hand, it

8


is common cause that Ms Upton did not, as she downloaded a form that was
not prescribed for the particular position that she applied for. It is the Fifth
Column (Duration of Qualification Study Period) of the form that was completed
by the Fourth Respondent that Ms Upton did not have and did not complete on
the form that she downloaded from the Intranet.
[24] The argument that Mr Fortuin used a similar form that was given to him by HRM
is not sustainable. The advertisement is clear, it requires (in paragraph 3) that
the candidate applying for the post ‘must’ use the attached application for m,
Annexure A. Once more, this is a mandatory requirement, which Ms Upton did
not comply with. Both Ms Upton and Mr Fortuin were disqualified for the same
reason.
[25] During the hearing of this application, Ms van Wyk, for the Applicant , argued
that paragraph 4(4)(b)(v) of the National Instruction 3/2015 merely asks that an
applicant for an advertised post must:
‘(v) contain sufficient information showing that the appli cant meets the
requirements of the post(s);’
[26] The problem with that argument is that an applicant can only provide sufficient
information when he or she gives at the very least the information sought to
show that he or she meets the requirements of the post(s), not when the
applicant gives less than the information required as a min imum. In this case,
Ms Upton cannot be said to have provided sufficient information, when the form
that she used excluded the required information [in respect of the duration of
qualification (Study Period).
[27] There is no doubt that a ny employer would be interested in knowing the
duration of the qualification or the study period that a candidate immersed
himself or herself in the chosen qualification. It therefore ill behoves Ms Upton
to argue that the information required was ‘insignificant’. Otherwise, it would
render the prescribed form nugatory, as a candidate can simply submit any form

render the prescribed form nugatory, as a candidate can simply submit any form
and select whichever information he or she prefers to supply without any regard
to the requirements of the advertisement and the post.

9


[28] The conclusion of the Second Respondent in the final paragraph of the Award,
by refer encing the fairness of the decision of the Third Respondent not to
consider Ms Upton’s promotion, is a clear indication that she understood the
nature of the enquiry that she had to grapple with , and she made a specific
determination based on the enquiry.
[29] Regarding the argument that the Second Respondent was, in addition, required
to decide further on the issue of other applicants who used the same form as
Ms Upton in different posts (who were sho rtlisted), the Second Respondent
answers the query in the Award. She clarifies that the applications by Sergeants
Dean Thomas and VC Daniels are meritless as their applica tions related to
different posts. In short, had the two mentioned candidates applied for the same
post as Ms Upton, used the same ‘wrong form’ and had been shortlisted, Ms
Upton’s argument would most likely have been sustained.
[30] The reference to Ms Ramohlabi, that she did not fully complete her application
form, yet she was shortlisted and interviewed , is also not of assistance to Ms
Upton. It is common cause that Ms Ramohlabi was not appointed. It has not
been argued on behalf of Ms Upton, and correctly so, that Ms Ramohlabi used
a ‘wrong form’. She used the correct form, and she completed all five columns.
That should deal with the query on this ground.
[31] In respect of the argument that Ms Upton was better qualified than the Fourth
Respondent, the Second Respondent found that the argument was erroneous
as Ms Upton’s application was not evaluated due to the fact that she submitted
an incorrect form. It follows, therefore, that for Ms Upton’s qualifications to have
been considered, she needed to go through the first gate, namely, compliance
with the requirements for the submission of her application by using the correct
form. She did not do so.
[32] On the argument that the Second Respondent found that Ms Upton did not

[32] On the argument that the Second Respondent found that Ms Upton did not
prove that the decision was arbitrary. The answer lies in the requirements of
the National Instruction No 3 of 2015 , the advertisement for the post and the
prescribed form. All of them specifically mandated the use of the prescribed
form. It can hardly be argued that when a candidate is held to those

10


requirements, such a decision could be classified as being arbitrary, capricious
or motivated by bad faith or discrimination as envisaged in the Arries judgement
(supra).
[33] Finally, regarding the argument that the Second Respondent interfered with the
questioning of a witness (Lieutenant Colonel Leibenberg). There is a reference
to the witness having been evasive and that the Second Respondent decided
against Ms Upton based on that witness’s testimony. The Second Respondent
sits as a referee, and she is entitled to exercise her judicious discretion in the
manner in which the arbitration is conducted. In the first instance, she ruled on
a question put to the witness regarding the testimony of Mr Fortuin. The witness
had made clear that she could not comment on other applicants’ forms. It was
a perfectly fair answer, and the Second Respondent emphasised that point. In
the second instance, the witness was cross-examined about certain applicants
whose forms Ms Upton alleged were incorrect, the witness stated that she could
not testify on other forms that she did not have insight into. Once more, that
was a fair answer by the witnesses. These examples, as cited on behalf of Ms
Upton, do not lend themselves to interference, overreach or the suggestion that
the Second Respondent exceeded the bounds of ensuring a proper hearing.
Legal analysis
[34] The general principle is that an employer has the right to appoint or to promote
employees whom it considers the best or most suitable. Thus , arbitrators are
reluctant to interfere with the employer’s choice in the absence of unfairness.
[35] In SA Municipal Workers Union on behalf of Damon v Cape Metropolitan
Council4, it was held that unless the appointing authority w as shown to have
not applied its mind in the selection of the successful candidate, the CCMA may
not interfere with the prerogative of the employer to appoint whom it considers
the best candidate.

4 (1999) 20 ILJ 714 (CCMA).

11


[36] The Labour Appeal Court has held that an arbitrator must show deference to
the employer’s decision and may interfere only if the employer acted irrationally,
capriciously, arbitrarily, or in bad faith.
[37] It has also been held that while it may not be easy t o justify the preference of
one candidate over another 5, the employer at the very least should be able to
provide reasons for its decision6.
Conclusion
[38] Considering the totality of the above analysis , the Second Respondent made
an award that a reasonable arbitrator presented with the same set of facts and
the same legal framework would have made.
Order
1. The application is dismissed.
2. There is no order as to costs.


_______________________
M. Mkhatshwa
Acting Judge of the Labour Court of South Africa


5 PSA obo Dalton v Department of Public Works [1998] 9 BALR 1177 (CCMA).
6 Mashegoane v University of the North [1998] 1 BLLR 73 (LC).

12


Appearances:
For the Applicant: Ms K. Van Wyk
Instructed by: Solidarity

For the Third Respondent: Adv C. Tsegarie
Instructed by: State Attorney

Back to Law Reports