Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) ; (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) (5 October 2007)

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Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) ; (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) (5 October 2007)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 85/06
[2007] ZACC 22
Z
SIDUMO First Applicant
CONGRESS OF SOUTH AFRICAN TRADE UNIONS Second Applicant
versus
RUSTENBURG
PLATINUM MINES LTD First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION Second
Respondent
COMMISSIONER
MOROPA
Third Respondent
Heard
on : 8 May 2007
Decided
on : 5 October 2007
JUDGMENT
NAVSA AJ:
1
Introduction
In
this case, issues of importance to employees and employers alike
arise because of two key findings by the Supreme Court of
Appeal
(Cameron JA, with Harms, Cloete, Lewis and Maya JJA concurring).
2
The question is whether the findings are correct. In summary the
findings are the following:
3
In deciding dismissal disputes in terms of the compulsory
arbitration provisions of the Labour Relations Act 66 of 1995

(LRA), commissioners acting under the auspices of the Commission
For Conciliation, Mediation and Arbitration (CCMA), should

approach a dismissal with “a measure of deference” because “it
is primarily the function of the employer” to decide on
a proper
sanction. In deciding whether a dismissal is fair a commissioner
need not be persuaded that dismissal is
the only
fair
sanction – it is sufficient that the employer establishes that
it is
a
fair sanction.
Compulsory statutory arbitration in terms of the LRA undertaken by
the second respondent, the CCMA, constitutes “administrative
action” as defined in section 1 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) and is therefore
subject
to the standard of review set under that Act rather than
that provided for in the LRA – the review criterion is whether
the
decision is rationally connected with the information before
the commissioner and the reasons for it.
The
applicants and the CCMA adopt the position that the Supreme Court
of Appeal erred in relation to the first finding in that,
on a
proper interpretation of section 23 of the Constitution and the
relevant provisions of the LRA, commissioners should determine
whether a dismissal was fair without deference to either side in
the dispute. In respect of the second finding, the applicants
and
the CCMA submit that the Supreme Court of Appeal erred in that CCMA
arbitrations are judicial proceedings and not administrative
action
and are consequently not subject to review in terms of section 33
of the Constitution and PAJA. The first respondent
supports the
Supreme Court of Appeal’s findings.
Background
The
first applicant is Mr Z Sidumo. The litigation leading up to the
present proceedings had its origins in his dismissal a long
time
ago. On 2 December 1985 the first respondent, Rustenburg Platinum
Mines Ltd (the Mine), which as its name suggests, is
a company
principally involved in mining platinum, employed Mr Sidumo as part
of its Security Services. He was a constable until
1992.
Thereafter he was promoted to the position of a Grade II patrolman.
On 20 January 2000, Mr Sidumo was transferred to
the Waterval
Redressing Section, where he was responsible for access control.
On 26 June 2000, he was dismissed from his job
at the Redressing
Section. He contested his dismissal. Up until the events leading
up to his dismissal, Mr Sidumo had a clean
disciplinary record –
for a period of almost 15 years.
Little
did Mr Sidumo know that after an internal disciplinary inquiry, an
internal appeal and litigation in three courts over
a long period
of time, his dismissal dispute with his employer would remain
unresolved. He could hardly have imagined that almost
seven years
later it would be contended before this Court that decisions in
relation to his individual dismissal dispute raised
important
constitutional questions.
The
Waterval Redressing Section is a high security facility near
Rustenburg that provides benefaction services, separating high
grade precious metals such as platinum, rhodium and gold from lower
grade concentrate. These metals are extremely valuable and
are the
livelihood and core business of the Mine.
Mr
Sidumo was dismissed for negligently failing to apply established
and detailed individual search procedures, significantly
different
from the random search procedure followed in his earlier posting,
prior to his transfer to the Redressing Section.
The search
procedures were part of the overall effort to minimise losses due,
amongst other things, to theft. The dismissal
followed on an
internal disciplinary inquiry and an internal appeal.
Subsequently, Mr Sidumo referred an unfair dismissal dispute
to the
CCMA in terms of section 191(1)(a)
of the LRA.
4
Conciliation
failed, and thereafter Mr Sidumo, in terms of section 191(5)(a) of
the Act,
5
successfully challenged his dismissal under the compulsory
arbitration provisions of the LRA administered by the CCMA. The

third respondent found Mr Sidumo guilty of misconduct but held that
dismissal was not an appropriate or fair sanction. He reinstated
Mr Sidumo with three months’ compensation subject to a written
warning valid for three months. I refer to the third respondent
as
the Commissioner.
The
Mine applied to the Labour Court, in terms of section 145 of the
LRA, to review and set aside the Commissioner’s award.
The
interpretation and application of section 145 loom large in this
case and will be dealt with in greater detail in due course.
The
Labour Court held that the award did not contain any reviewable
irregularity and dismissed the application with costs. The
Mine
appealed to the Labour Appeal Court,
6
which held, that although some of the Commissioner’s reasons for
reinstating Mr Sidumo were questionable, his finding, that
dismissal was too harsh a sanction, was justified. The Labour
Appeal Court dismissed the Mine’s appeal with costs. A
subsequent
appeal to the Supreme Court of Appeal resulted in
success for the Mine.
7
The Supreme Court of Appeal overturned the decisions of both the
Labour Court and the Labour Appeal Court and substituted the
finding of the Commissioner with a determination that the dismissal
was fair. Mr Sidumo then applied to this Court for leave
to appeal
the judgment of the Supreme Court of Appeal.
Intervention
by COSATU
The
second applicant, the Congress of South African Trade Unions
(COSATU),
8
which was not a party to the preceding litigation, now applies for
leave to appeal in this Court in its own name and in support
of Mr
Sidumo. At the time of his dismissal, Mr Sidumo was a member of a
COSATU affiliate, namely, the National Union of Mineworkers.

COSATU has applied for leave to appeal on the basis that the
findings of the Supreme Court of Appeal have far-reaching, adverse
implications for its members and affiliates. It submitted that it
should be afforded standing in relation to questions that
are
fundamental to the industrial relations community at large. The
Mine opposed the intervention at this late stage. The question
of
COSATU’s standing and its explanation concerning its late entry
will be dealt with later.
Both
Mr Sidumo and COSATU contended that the question of the correctness
of the Supreme Court of Appeal’s judgment raises constitutional
issues. The applications for leave to appeal have been filed
outside of the prescribed time limits and are therefore accompanied
by an application for condonation. These are aspects to which I
will revert.
The
internal disciplinary hearing and appeal
A
senior superintendent at the Mine, Mr Page, conducted the internal
disciplinary hearing where Mr Sidumo was charged as follows:
“
(1) Negligence – Failure
to follow established procedures in terms of the Protection Services
Department search procedure. Which
caused prejudice or possible
prejudice to the Company in terms of production loss.
(2) Failure to follow
established procedures in terms of the Protection Services
Department search procedures.”
The
facts on which Mr Page’s findings were based were largely
uncontested. Mr Sidumo, was however, aggrieved at the lack of
training he had received in relation to his position at the
Waterval Redressing Section. He also alleged that he had not been
properly informed that the search procedures at the Redressing
Section were significantly different from the random searches
his
previous job required.
Mr
Sidumo’s main duty at the Redressing Section was to safeguard the
Mine’s precious metals. The detailed compulsory search
procedures for all persons leaving the Redressing Section entailed
an individual search of each person in a private cubicle,
with
close personal inspection plus a metal detector scan. The
procedures were in written form and were distributed and made
known
to all, including Mr Sidumo. In August 1999 he signed a document
acknowledging that they had been read and explained to
him.
The
Mine’s production continued to decrease and possible causes for
the decline, including inefficient processes, poor ore quality
and
outdated machinery were investigated. Over three days, in April
2000, the Mine resorted to video surveillance of employee
performance at various points, including the point where Mr Sidumo
did duty at the Redressing Section. This revealed that of
24
specifically monitored instances involving Mr Sidumo, he conducted
only one search in accordance with established procedures.
On
eight occasions he conducted no search at all. Fifteen other
searches did not conform to procedures. The video also revealed
that Mr Sidumo allowed persons to sign the search register without
conducting any search at all.
Mr
Page found Mr Sidumo guilty of misconduct in the form of negligence
and failure to follow procedures. He concluded that the
misconduct
had “created potential production losses/theft”. In
mitigation, he accepted that “nothing went out during your
shift,
as far as you know” and took into account Mr Sidumo’s service
record. That notwithstanding, he found that the misconduct
went to
the heart of Mr Sidumo’s capacity as a member of the Mine’s
Protection Services and that the relationship of trust
had broken
down, making a future relationship intolerable. Mr Sidumo was
dismissed.
Mr
Sidumo lodged an internal appeal. Another senior employee, Mr
Denner, conducted the appeal hearing. He held that since Mr
Sidumo
had not been charged with dishonesty, the fact that losses had not
occurred was irrelevant – the charge was negligently
failing to
follow procedures. He considered it important that through Mr
Sidumo’s wrongdoing the Mine could have suffered
losses. He
considered alternatives to dismissal but found none appropriate.
The appeal was dismissed.
The CCMA
An
arbitration under the auspices of the CCMA is a hearing de novo.
9
The relevant additional evidence adduced at the CCMA is set out
hereafter. Mr Botes, one of Mr Sidumo’s supervisors, who
was
responsible for the video surveillance, testified that during the
surveillance period, though not on Mr Sidumo’s watch,
one thief
had been caught with materials worth R44 000 hidden between his
legs. Mr Botes was adamant that Mr Sidumo was aware
of how to
conduct searches. Mr Sidumo had, after all, been posted to that
security checkpoint to conduct searches. He conceded
that the
tasks entrusted to Mr Sidumo would normally have been carried out
by employees graded as senior patrolpersons. Mr Sidumo,
however,
had been posted to the Redressing Section because of his
longstanding experience in Protection Services. Mr Botes accepted
that the Mine’s disciplinary code entailed that disciplinary and
corrective measures be put in place to ensure that employees
are
put “on the right track”.
Mr
Williams, the Mine’s assistant chief chemist testified that in
his view, the major losses that occurred, which led to the
video
surveillance being installed, were due to the poor quality of the
metallics. According to Mr Williams, the daily production
yield
loss was in the region of R500 000. Mr Sidumo testified and
claimed that he had received no training in relation to the
search
procedures and further, that he had objected to his posting to the
Redressing Section.
The
Commissioner rejected both claims. He held that the rule that
searches should be conducted in a particular manner was valid
and
that Mr Sidumo had contravened the rule. The Commissioner had
regard to section 188(2) of the LRA which compels a person,
when
considering whether or not a reason for dismissal is fair, to take
into account the Code of Good Practice (the Code) contained
in
Schedule 8 to the LRA.
10
The Commissioner did so and, in particular, considered article
7(b)(iv), which provides that a person determining whether

dismissal for misconduct was fair should consider whether the
dismissal was an
appropriate sanction.
The
Commissioner took the view that the concept of progressive
discipline, endorsed by the Labour Court, was applicable. In terms
of this concept employee behaviour is to be corrected through a
system of graduated disciplinary measures, such as counselling
and
warning. The Commissioner considered Mr Sidumo’s service record
in his favour. He concluded that dismissal was too harsh
a
sanction and motivated it as follows: There had been no losses
suffered by the Mine; the violation had been unintentional or
had
been a “mistake”; and Mr Sidumo had not been dishonest. Before
making his award the Commissioner stated that he did
not consider
the offence committed by Mr Sidumo to “go into the heart of the
relationship [with the employer], which is trust.”
The Labour Court and the Labour Appeal Court
In
applying to the Labour Court to review the Commissioner’s award,
the Mine took the view that the Commissioner had erred in
concluding that no losses had been suffered by the Mine, that the
violation of the rule had been unintentional or a mistake and
that
Mr Sidumo’s honesty was a factor to be considered in his favour.
It was submitted on behalf of the Mine that there had
been evidence
that, for the period February to May 2000, there had been revenue
loss of approximately R500 000 per day. It had
been shown that
precious metals had been found on persons during the surveillance
period. It was materially relevant, contended
the Mine, that Mr
Sidumo had been specifically employed to prevent theft and that he
had conducted only one proper search over
the surveillance period.
11
It
was submitted on behalf of the Mine that the Commissioner’s
reasons were irrational and that there was no link between the
evidence and his factual conclusions. The Commissioner’s finding
that the misconduct did not go to the heart of the relationship
was
also criticised as being irrational. The Mine contended that the
Commissioner had been so grossly careless that he could
rightly be
described as having committed misconduct. It was submitted that
the Commissioner had failed to apply his mind to
such an extent
that the Mine did not have a fair hearing and furthermore, that the
Commissioner had exceeded his powers.
The
Labour Court considered that employees who perform poorly (which
was how it categorised Mr Sidumo’s misconduct), but who
had not
been dishonest, should not automatically face dismissal. It took
into account Mr Sidumo’s service record. It did
not disapprove
of the Commissioner’s application of the principle of corrective
or progressive discipline. The Labour Court
found that there was
not an “iota of evidence” that theft had occurred during Mr
Sidumo’s shift. It thought it significant
that he had been doing
work usually assigned to a more senior employee.
The
Labour Court considered the test for review of a commissioner’s
award as enunciated by the Labour Appeal Court in
Carephone
(Pty) Ltd v Marcus NO and Others
::
12
“
It seems to me that one will
never be able to formulate a more specific test other than, in one
way or another, asking the question:
is there a rational objective
basis justifying the connection made by the administrative
decision-maker between the material properly
available to him and
the conclusion he or she eventually arrived at? In time only
judicial precedent will be able to give more
specific content to the
broad concept of justifiability in the context of the review
provisions in the LRA.”
13
The
Labour Court concluded, with reference to the grounds of review set
out in section 145 of the LRA and the test in
Carephone
, that
there was no basis upon which it could interfere with the
Commissioner’s award.
The
Mine appealed to the Labour Appeal Court.
14
That court was critical of the Commissioner. It rejected his
finding that no losses had been suffered by the company as a result
of Mr Sidumo’s failure to conduct proper searches. The court
stated that it could not be ruled out that individuals who had
not
been searched might have departed with precious metals on their
person.
In
respect of the Commissioner’s findings that the misconduct was
unintentional or a mistake and that Mr Sidumo’s honesty
was a
factor to be taken into account in his favour, the Labour Appeal
Court had the following to say:
“
It is not clear what the
[Commissioner] meant when he said that the violation of the rule by
[Mr Sidumo] was unintentional or a
‘mistake’. He might have
been referring to the fact that one of the offences that [Mr Sidumo]
was found guilty of was based
on negligent conduct as opposed to
intentional conduct. He did not elaborate on this but, even if that
were the position, that
would have had to be taken into account in
the light of all the circumstances. Quite frankly, how the third
factor, namely, honesty,
came into the picture in this case, is
baffling. No dishonesty by [Mr Sidumo] was alleged.”
15
The
Labour Appeal Court went on to state that, had the reasons referred
to been the sole basis of the Commissioner’s award,
it would have
had no hesitation in holding that the award was unjustifiable. It
noted, however, that the Commissioner took Mr
Sidumo’s service
record into account. The court also observed that the Commissioner
suggested graduated disciplinary measures
such as counselling and a
warning. The court thought it material that in its founding
affidavit in the Labour Court, the Mine
failed to challenge the
Commissioner’s findings on these aspects. The Labour Appeal
Court concluded that Mr Sidumo’s clean
lengthy service record was
“capable of sustaining the finding”
16
that the sanction of dismissal was too harsh. It dismissed the
appeal. The Mine appealed the Labour Appeal Court’s judgment
to
the Supreme Court of Appeal.
The Supreme Court of Appeal
The
first finding – deference
The
Supreme Court of Appeal held that the Commissioner failed properly
to appreciate the ambit of his duties under the LRA and
therefore
incorrectly approached the task entrusted to him in determining
whether the employer’s decision was fair.
17
In formulating what it considered to be the correct approach the
Supreme Court of Appeal held that the discretion to impose
a
sanction for misconduct belongs “in the first instance to the
employer.”
18
The Supreme Court of Appeal referred with approval to the
following dictum of the Labour Appeal Court in
Nampak Corrugated
Wadeville v Khoza
:
19
“
The determination of an
appropriate sanction is a matter which is largely within the
discretion of the employer. However, this
discretion must be
exercised fairly. A court should, therefore, not lightly interfere
with the sanction imposed by the employer
unless the employer acted
unfairly in imposing the sanction. The question is not whether the
court would have imposed the sanction
imposed by the employer, but
whether in the circumstances of the case the sanction was
reasonable.”
20
The
Supreme Court of Appeal summarised the key elements of the approach
in
Nampak
as follows: “
(a)
the discretion to
dismiss lies primarily with the employer;
(b)
the discretion
must be exercised
fairly
; and
(c)
interference should
not lightly be contemplated.”
21
The
Supreme Court of Appeal also referred with approval to the
following dictum of Ngcobo AJP (as he then was) in
County Fair
:
“
[C]ommissioners must
approach their functions with caution. They must bear in mind that
their awards are final – there is no
appeal against their awards.
In particular, commissioners must exercise greater caution when they
consider the fairness of the
sanction imposed by an employer. They
should not interfere with the sanction merely because they do not
like it. There must be
a measure of deference to the sanction
imposed by the employer subject to the requirement that the sanction
imposed by the employer
must be fair. The rationale for this is
that it is primarily the function of the employer to decide upon the
proper sanction.
. . . .
The mere fact that the
commissioner may have imposed a somewhat different sanction or a
somewhat more severe sanction than the employer
would have, is no
justification for interference by the commissioner.
. . . .
In my view, interference with
the sanction imposed by the employer is only justified where the
sanction is unfair or where the employer
acted unfairly in imposing
the sanction. This would be the case, for example, where the
sanction is so excessive as to shock one’s
sense of fairness. In
such a case, the commissioner has a duty to interfere.”
22
The
Supreme Court of Appeal considered that two further points emerged
from the
County Fair
judgment namely, “
(d)
that
commissioners should use their powers to intervene with ‘caution’,
and
(e)
that they must afford the sanction imposed by the
employer ‘a measure of deference’.”
23
In its view, the analysis in the
Nampak
and
County Fair
judgments was:
“
[F]irmly rooted in the
prescripts of the statute and affords an approach to the duties of
commissioners that is not only fair and
practicable, but would also
shield the labour courts from the very flood of litigation the
alternative tests have mistakenly been
designed to avoid.”
24
The
following then appears in the Supreme Court of Appeal’s judgment:
“
It is in my view regrettable
that the LAC has not consistently affirmed and applied the analysis.
Although some panels have affirmed
Ngcobo AJP’s approach, this
case indicates how far the practice of the LAC has on occasion
strayed from it . . . . Instead of
exhorting commissioners to
exercise greater caution when intervening, and to show a measure of
deference to the employer’s sanction
so long as it is fair, it has
insulated commissioners’ decisions from intervention by importing
unduly constrictive criteria
into the review process.”
25
(Footnote omitted.)
According
to the Supreme Court of Appeal there were three main reasons
underlying the analysis of Ngcobo AJP. The first was textual,
the
second conceptual and the third institutional. In relation to the
first, the Supreme Court of Appeal pointed to section
188(2) of the
LRA, which obliged commissioners in considering whether or not the
reasons for a dismissal were fair, to take into
account the Code of
Good Practice. Item 7(b)(iv) of the Code requires a commissioner
to consider whether dismissal was “an”
appropriate sanction.
The use of the indefinite “an” as opposed to the definite “the”
was, in the view of the Supreme
Court of Appeal, important. It
showed that the legislature had in mind that there could be a range
of responses. The Code states
that it is generally inappropriate
to dismiss employees for a first offence unless a continued
relationship would be intolerable.
This, reasoned the Supreme
Court of Appeal, meant that a measure of subjectivity was brought
into play. It followed that the
primary assessment of
intolerability unavoidably belonged to the employer.
Turning
to the conceptual aspect, the Supreme Court of Appeal stated that
the concept of fairness is not absolute. It affords
a range of
possible responses. In this regard the court referred to Todd and
Damant who state the following:
“
The court must necessarily
recognize that there may be a range of possible decisions that the
employer may take, some of which may
be fair and some of which may
be unfair. The court’s duty is to determine whether the decision
that the employer took falls
within the range of decisions that may
properly be described as being fair.”
26
(Footnote omitted.)
The
court concluded as follows on this aspect: “The fact that the
commissioner may think that a different sanction would also
be fair,
or fairer, or even more than fair, does not justify setting aside
the employer’s sanction.”
27
Dealing
with the institutional aspect, the Supreme Court of Appeal stated
that the solution to the problem of a flood of challenges
to awards
lay in pointing commissioners firmly to the limits of the statute.
It reasoned that if commissioners could freely
substitute their
judgment and discretion for the judgment and discretion of the
employer, employees would take every case to
the CCMA.
The second finding – PAJA or the LRA?
It
is necessary to set out in some detail the Supreme Court of
Appeal’s reasoning in this regard. First, the Supreme Court
of
Appeal considered sections 145(1) and (2) and section 158(1)(g) of
the LRA. The relevant parts of section 145, which contain
the
grounds of review, provide:
“
(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) within six weeks of the
date that the award was
served
on the applicant . . .
(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; or
(b) that an award had been
improperly obtained.”
Section
158 (1) (g) reads as follows:
“
The Labour Court may—
(g) subject to
28
section 145, review the performance or purported performance of any
function provided for in
this
Act
on any grounds that
are permissible in law.” (Footnote added.)
The
Supreme Court of Appeal then referred with approval to
Carephone
,
where the application of these two sections was discussed. The
Labour Appeal Court in
Carephone
was not prepared to hold
that section 158(1)(g)
created a separate and more expansive
basis of review of CCMA awards. It held that the administrative
justice provisions of the
Constitution (as it read then) suffused
the grounds of review under section 145 of the LRA, thereby
extending the scope of review
of CCMA awards. The Labour Appeal
Court stated that section 33 of the Constitution
29
read with item 23(2)(b) of Schedule 6 to the Constitution
30
extended the scope of review and introduced a requirement of
rationality in the outcome of decisions:
“
The peg on which the
extended scope of review has been hung is the constitutional
provision that administrative action must be justifiable
in relation
to the reasons given for it (s 33 and item 23
(b)
of Schedule
6 to the Constitution). This provision introduces a requirement of
rationality in the
merit or outcome
of the administrative
decision. This goes beyond mere procedural impropriety as a ground
for review, or irrationality only as evidence
of procedural
impropriety.”
31
The
Labour Appeal Court stated that, when the Constitution requires
administrative action to be justifiable
32
in relation to the reasons given for it, it seeks to give expression
to the fundamental values of accountability, responsiveness
and
openness.
33
The test formulated by the Labour Appeal Court
34
was based directly on the wording contained in the very last part of
item 23(2) of Schedule 6 to the Constitution
35
which was part of the wording of sections 33(1) and (2) of the
Constitution pending the promulgation of the national legislation
which, as it turned out, was PAJA.
The
Labour Appeal Court described this approach as one of “substantive
rationality”,
36
likening it to administrative law concepts such as reasonableness,
rationality and proportionality. In
Carephone
, it
considered statutory arbitrations conducted in terms of the LRA to
be administrative in nature and therefore reviewable on
that basis.
Mindful
of the fact that its approach might have the effect of blurring the
line between appeal and review, the court said:
“
In determining whether
administrative action is justifiable in terms of the reasons given
for it, value judgments will have to be
made which will, almost
inevitably, involve the consideration of the ‘merits’ of the
matter in some way or another. As long
as the Judge determining
this issue is aware that he or she enters the merits not in order to
substitute his or her own opinion
on the correctness thereof, but to
determine whether the outcome is rationally justifiable, the process
will be in order.”
37
After
discussing
Carephone
, the Supreme Court of Appeal went on to
consider the decision in
Shoprite Checkers (Pty) Ltd v Ramdaw NO
and Others
,
38
where the Labour Appeal Court considered the possible effect of the
enactment of PAJA on section 145(2) of the LRA and found
it
unnecessary to decide whether PAJA applied. The Labour Appeal
Court did so on the basis that the dictum in
Carephone
referred to in paragraph [25] above is in line with the following
statements of this Court in
Pharmaceutical Manufacturers
Association of SA and Another: In re Ex parte President of the
Republic of South Africa and Others
:
39
“
It is a requirement of the
rule of law that the exercise of public power by the Executive and
other functionaries should not be
arbitrary. Decisions must be
rationally related to the purpose for which the power was given,
otherwise they are in effect arbitrary
and inconsistent with this
requirement. It follows that in order to pass constitutional
scrutiny the exercise of public power
by the Executive and other
functionaries must, at least, comply with this requirement. If it
does not, it falls short of the standards
demanded by our
Constitution for such action.
The question whether a decision
is rationally related to the purpose for which the power was given
calls for an objective enquiry.
Otherwise a decision that, viewed
objectively, is in fact irrational, might pass muster simply because
the person who took it
mistakenly and in good faith believed it to
be rational. Such a conclusion would place form above substance and
undermine an important
constitutional principle.”
40
(Footnote omitted.)
After
comparing the grounds of review under section 145 of the LRA with
the more extensive provisions of section 6(2) of PAJA,
41
the Supreme Court of Appeal decided that PAJA, by necessary
implication, extended the available remedies to parties to CCMA

arbitrations and that PAJA superseded the specialised enactment of
the LRA. Parliament enacted PAJA because of a constitutional
obligation to give effect to the right to just administrative
action embodied in the Constitution. That obligation, the Supreme
Court of Appeal said, did not exempt from its ambit previous
parliamentary enactments, such as section 145, that conferred

rights of administrative review. This was so, notwithstanding that
the LRA is a specialised statute.
In
this regard the Supreme Court of Appeal relied on the decision of
this Court in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
42
where it was stated that section 6 of PAJA revealed a clear
purpose to codify the grounds of judicial review of administrative

actions.
43
The Constitution required PAJA to “cover the field” and it did
so.
44
The Supreme Court of Appeal reasoned that a slightly different
path would lead to the same conclusion. It explained that path
as
follows:
“
At the time the LRA was
enacted, the interim Constitution required that administrative
action be ‘justifiable in relation to the
reasons given for it’.
For the reasons set out in
Carephone
,
this right suffused the interpretation of s 145(2). When the
administrative-justice provisions of the Constitution, as embodied
in PAJA, superseded those of the interim Constitution, it could not
have been intended
that
parties to CCMA arbitrations
should enjoy a
lesser right of administrative review than that afforded under the
interim Constitution. The repeal of the interim
Constitution and
its replacement by the Constitution did, in other words, not
diminish the re
view
entitlement under s 145(2). Section 6(2) of
PAJA is the legislative embodiment of the grounds of review to which
arbitration parties
became entitled under the Constitution.”
45
The
only tension in relation to reconciling section 145 of the LRA with
the provisions of PAJA, so the Supreme Court of Appeal
reasoned,
was in relation to time limits. Section 145 of the LRA provides
that a party may apply to set aside an arbitration
award within six
weeks of the date that the award was served on him or her. PAJA,
on the other hand, requires that proceedings
for judicial review be
instituted without unreasonable delay and in any event not later
than 180 days after exhaustion of internal
remedies or after the
person concerned became aware of the action involved and the
reasons for it. The Supreme Court of Appeal
relying on its
decision and those of this Court emphasised that labour disputes
require speedy resolution and the legislature,
in prescribing the
time period of six weeks in section 145(1) of the LRA, gave clear
effect to this imperative. Thus, according
to the court, it may be
expected that the legislature would legislate different time
periods in different fields and that did
not militate against its
earlier conclusions.
The
Supreme Court of Appeal held that both
Carephone
and PAJA
required the Labour Appeal Court to consider whether the
Commissioner’s decision to reinstate Mr Sidumo was “rationally
connected to the information before him and to the reasons he gave
for it.” According to it, the Labour Appeal Court had blurred
the line between appeal and review by asking whether considerations
taken into account by the Commissioner were “capable of
sustaining” his finding. The question on review was not whether
the record revealed relevant considerations that were capable
of
justifying the outcome, but rather whether the decision-maker
properly exercised the powers entrusted to him.
The
Supreme Court of Appeal stated that the Mine had always considered
Mr Sidumo’s service record to be relevant. The Mine’s
case was
that despite these factors continued employment was intolerable.
Its complaint before the Labour Appeal Court properly
characterised, was that the Commissioner’s decision was tainted
by reliance on misconceived considerations. The Labour Appeal
Court did not apply the “rational objective test” explained in
Carephone
,
which was in line with PAJA. It
incorrectly asked whether there were factors capable of sustaining
the Commissioner’s findings,
thereby treating the matter as an
appeal rather than a review.
The
Supreme Court of Appeal noted that the Commissioner took four
factors into account. In its view the Labour Appeal Court rightly
rejected three of them, namely, absence of loss, mistake and no
dishonesty. The fourth – that the misconduct did not go to
the
heart of the employment relationship – was, in the view of the
Supreme Court of Appeal, also incorrect. It considered
the failure
to search, not to be “peripheral malperformance”, but a
“profound failure at the very core of the employee’s
functions.”
46
The employer trusted Mr Sidumo to carry out searches. His failure
necessarily violated that trust.
The
Supreme Court of Appeal held that it could not be said that the
decision to reinstate Mr Sidumo was rationally connected to
the
information before the Commissioner. The following appears in the
judgment of the Supreme Court of Appeal:
“
Nor does PAJA oblige us to
pick and choose between the commissioner’s reasons to try to find
sustenance for the decision despite
the bad reasons. Once the bad
reasons played an appreciable or significant role in the outcome, it
is, in my view, impossible
to say that the reasons given provide a
rational connection to it.”
47
Because
of the time lapse, the parties agreed that, in the event of the
award being set aside, it would not be in the interests
of justice
to remit the matter and that the Supreme Court of Appeal should
finally decide it. In the result, the Supreme Court
of Appeal
upheld the dismissal of Mr Sidumo and set aside the decisions of
the Labour Appeal Court, Labour Court and the Commissioner.
Is
a constitutional issue raised?
It
is accepted by the parties that this case raises constitutional
issues. It involves the interpretation and application of
the LRA
and PAJA. These statutes were enacted to give effect to the rights
contained in sections 23 and 33 of the Constitution,
respectively.
Thus, matters relating to the application and interpretation of the
LRA and PAJA are constitutional matters.
48
In
addition, this case concerns the powers and functions of the Labour
Court. The Labour Court and the Labour Appeal Court, both
of which
were established in terms of the LRA, are courts which have the
same status as the High Court and Supreme Court of Appeal,
respectively. The powers and functions of the courts are
constitutional issues.
49
COSATU’s
standing and condonation
It
is true that COSATU was not a party to the preceding litigation.
It is equally true that until the litigation in the Supreme
Court
of Appeal, it could not be predicted that Mr Sidumo’s individual
dismissal would result in the findings that are in issue
before us.
Relevant
factors to be considered in deciding whether to grant COSATU leave
to pursue an appeal at this stage are set out in
Campus Law
Clinic, University of KwaZulu-Natal v Standard Bank of South Africa
Ltd and Another
:
50
“
[W]hether there is another
reasonable and effective manner in which the challenge may be
brought; the nature of the relief sought
and the extent to which it
is of general and prospective application; the range of persons or
groups who may be directly or indirectly
affected by any order made
by the Court and the opportunity that those persons or groups have
had to present evidence and argument
to the Court; the degree of
vulnerability of the people affected; the nature of the rights said
to be infringed; as well as the
consequences of the infringement.
The list of factors is not closed.”
51
(Footnotes omitted.)
COSATU
is acting, at the very least, on behalf of all of its members and
the outcome of this case is generally of importance to
employees,
who are a vulnerable group in society. In addition, I am satisfied
that a proper case has been made for condonation
of the late filing
of COSATU’s papers as well as Mr Sidumo’s late application for
leave to appeal.
The
Constitution and the statutory scheme
The
starting point is the Constitution. Section 23(1) provides that
everyone has the right to fair labour practices.
52
Although the right to fair labour practices extends to employees
and employers alike,
53
for employees it affords security of employment.
One
of the primary purposes of the LRA is to give effect to the
fundamental rights conferred by section 23 of the Constitution.

The relevant parts of section 1 of the LRA read as follows:
“
The purpose of this Act is
to advance economic development, social justice, labour peace and
the democratisation of the workplace
by fulfilling the primary
objects of this Act, which are—
(a) to give effect to and
regulate the fundamental rights conferred by section 23 of the
Constitution;
(b) to give effect to
obligations incurred by the Republic as a member state of the
International Labour Organisation;
. . .
(d) to promote—
. . .
the effective resolution of
labour disputes.”
Section
3 of the LRA provides that any person applying the provisions of
the LRA must interpret its provisions to give effect
to its primary
objects; in compliance with the Constitution; and in compliance
with the public international law obligations
of the Republic.
Commissioners are thus obliged to act accordingly.
Section
185 of the LRA provides that every employee has the right not to be
unfairly dismissed and subjected to unfair labour
practices. Where
an employee claims that he or she has been unfairly dismissed, the
dismissal dispute is submitted to compulsory
arbitration in terms
of section 191(5)(a), either before the CCMA, or a bargaining
council. On the other hand, section 192 of
the LRA, under the
title
Onus in dismissal disputes
, provides that once an
employee establishes the existence of the dismissal, the employer
must prove that the dismissal is fair.
The
statutory scheme requires a commissioner to determine whether a
disputed dismissal was fair. In terms of section 138 of the
LRA, a
commissioner should do so fairly and quickly. First, he or she has
to determine whether or not misconduct was committed
on which the
employer’s decision to dismiss was based.
54
This involves an inquiry into whether there was a workplace rule
in existence and whether the employee breached that rule.
This is
a conventional process of factual adjudication in which the
commissioner makes a determination on the issue of misconduct.

This determination and the assessment of fairness, which will be
discussed later, is not limited to what occurred at the internal
disciplinary inquiry.
The
Supreme Court of Appeal placed undue reliance on item 7(b)(iv) of
the Code which requires the commissioner to consider whether
dismissal was “an” appropriate sanction. The use of the
indefinite article is not decisive. As indicated earlier the Code
derives from NEDLAC and is a guide.
55
In any event it can hardly take precedence over the Constitution
and the clear provisions of the LRA.
There
is nothing in the constitutional and statutory scheme that suggests
that, in determining the fairness of a dismissal, a
commissioner
must approach the matter from the perspective of the employer. All
the indications are to the contrary. A plain
reading of all the
relevant provisions compels the conclusion that the commissioner is
to determine the dismissal dispute as
an impartial adjudicator.
Article 8 of the International Labour Organisation Convention on
Termination of Employment 158 of
1982 (ILO Convention) requires the
same.
56
Any suggestion by the Supreme Court of Appeal that the deferential
approach is rooted in the prescripts of the LRA cannot be
sustained.
Fairness
of the dismissal
The
next part of the process is that the fairness of the dismissal must
be assessed. As part of this process, the reasonableness
or
validity of the rule allegedly breached must be considered. The
Code sets out factors that ought to be considered in relation
to
that aspect.
The
question of an approach to the inquiry into fairness is not novel.
At the time that the LRA came into force, there was already
an
established jurisprudence in this regard. The Appellate Division
57
dealt with this question in relation to the Labour Relations Act 28
of 1956. In
Media Workers Association of South Africa and
Others v Press Corpration of South Africa Ltd (‘Perskor’)
58
it was stated as follows:
“
Clearly, the Court’s view
as to what is fair in the circumstances is the essential determinant
in deciding the ultimate question.
See
Marievale Consolidated
Mines Ltd v President of the Industrial Court and Others
1986
(2) SA 485
(T) at 498J-490I; Brassey and others
The New Labour
Law
at 12-13, 58-9; Van Jaarsveld and Coetzee
Suid
–Afrikaanse Arbeidsreg
vol 1 at 328.
. . .
In my view a decision of the
Court . . . is not a decision on a question of law in the strict
sense of the term. It is the passing
of a moral judgment of a
combination of findings of fact and opinions.”
59
Thus,
the court is called upon as an impartial adjudicator to determine
fairness.
In
National Union of Metalworkers of SA v Vetsak Co-operative Ltd
and Others
,
60
the Appellate Division stated the following:
“
Fairness comprehends that
regard must be had not only to the position and interests of the
worker, but also those of the employer,
in order to make a balanced
and equitable assessment. In judging fairness, a court applies a
moral or value judgment to established
facts and circumstances (
NUM
v Free State Cons
at 446I). And in doing so it must have due
and proper regard to the objectives sought to be achieved by the
Act. In my view,
it would be unwise and undesirable to lay down, or
to attempt to lay down, any universally applicable test for deciding
what is
fair.”
61
In
Chemical Workers Industrial Union & Others v Algorax (Pty)
Ltd
62
the Labour Appeal Court once again stressed that fairness had to be
assessed objectively.
In
NEHAWU
this Court said:
“
[T]he focus of s 23(1) is,
broadly speaking, the relationship between the worker and the
employer and the continuation of that relationship
on terms that are
fair to both. In giving content to that right, it is important to
bear in mind the tension between the interests
of the workers and
the interests of the employers which is inherent in labour
relations. Care must therefore be taken to accommodate,
where
possible, these interests so as to arrive at the balance required by
the concept of fair labour practices. It is in this
context that the
LRA must be construed.”
63
The
dicta in the preceding paragraphs and the ILO Convention clearly
illustrate the importance of holding the scales between the
competing interests of employees and employers evenly in the
balance.
The
Labour Appeal Court in
Nampak
and
County Fair
was
rightly concerned to ensure that, in determining whether a
dismissal was fair, commissioners should not approach the matter
on
the basis of what decision they would have made had they been the
employer. It was addressing the issue identified by Myburgh
and
Van Niekerk in their article
Dismissal as a Penalty for
Misconduct: The Reasonable Employer and Other Approaches
:
64
“
There is a disturbing
inclination on the part of commissioners to substitute their
personal opinions for those of employers. Whether
that inclination
is due to partiality, a different ethical code, inexperience or lack
of training, is neither here nor there.”
65
In
Nampak
, the Labour Appeal Court was careful to state that
the fairness of a dismissal must be considered against the facts
and circumstances
of the case – an objective approach.
66
Regrettably, the decisions in
Nampak
and
County Fair
,
in expounding on how a commissioner should approach his or her
task, resorted to the reasonable employer test used in England.

That test has its origins in section 57(3) of that country’s
Employment Protection (Consolidation) Act of 1978.
67
It is significant that the provisions of that section are very
different to the provisions of the LRA relating to the
determination
of the fairness of a dismissal.
In
applying that section the courts in England have resorted to the
“band of reasonableness” test. In
British Leyland UK Ltd v
Swift
,
68
Lord Denning stated the following:
“
[T]here is a band of
reasonableness, within which one employer may reasonably take one
view: another quite reasonably take a different
view. One would
quite reasonably dismiss the man. The other would quite reasonably
keep him on. Both views may be quite reasonable.
If it was quite
reasonable to dismiss him, then the dismissal must be upheld as
fair: even though some other employers may not
have dismissed him.”
69
This
approach, which was followed by the Supreme Court of Appeal, has
been extensively criticised in England on the basis that it
does not
allow for a proper balancing of the interests of employer and
employee.
70
As
pointed out by the Supreme Court of Appeal, the Labour Appeal Court
has been inconsistent in dealing with the question under
discussion. In
Toyota SA Motors (Pty) Ltd v Radebe &
Others
,
71
decided after
County Fair
and
Nampak
, Nicholson JA
noted that the LRA was differently worded from the English statute,
providing as it does that an arbitrator should
decide whether a
dismissal is fair— he or she is not required to determine if the
sanction is one which a reasonable employer
would have arrived at.
72
With specific reference to
Nampak
, Nicholson JA stated the
following:
“
As I mentioned above the
ordinary rule is that this court is bound by its own decisions and
unless a decision has been arrived at
on some manifest oversight or
misunderstanding, something in the nature of a palpable mistake, a
subsequently constituted court
has no right to prefer its own
reasoning to that of its predecessors. I believe that the
application of the reasonable employer
test was such a palpable
mistake which permits us to overrule it.”
73
In
BMD Knitting Mills (Pty) Ltd v SA Clothing & Textile Workers
Union
,
74
Davis AJA said the following:
“
I have some doubt as to
whether this deferential approach which is sourced in the principles
of administrative review is equally
applicable to a decision by an
employer to dismiss employees particularly in the light of the
wording of the section of the Act,
namely, ‘the reason for
dismissal is a fair reason’. The word ‘fair’ introduces a
comparator, that is a reason which must
be fair to both parties
affected by the decision.”
75
In
deciding how commissioners should approach the task of determining
the fairness of a dismissal, it is important to bear in
mind that
security of employment is a core value of the Constitution which
has been given effect to by the LRA.
76
This is a protection afforded to employees who are vulnerable.
Their vulnerability flows from the inequality that characterises
employment in modern developing economies.
77
The relationship between employer and an isolated employee and the
main object of labour law is set out in the now famous dictum
of
Otto Kahn-Freund:
“
[T]he relation between an
employer and an isolated employee or worker is typically a relation
between a bearer of power and one
who is not a bearer of power. In
its inception it is an act of submission, in its operation it is a
condition of subordination,
however much the submission and the
subordination may be concealed by that indispensable figment of the
legal mind known as the
‘contract of employment.’ The main
object of labour law has always been, and we venture to say will
always be, to be a countervailing
force to counteract the inequality
of bargaining power which is inherent and must be inherent in the
employment relationship.”
78
In
Engen Petroleum
Ltd v CCMA &
Others
79
Zondo JP, although considering himself bound by the Supreme Court
of Appeal’s judgment in this matter, was critical of its
stance
in relation to the approach to be adopted by commissioners in
adjudicating dismissal disputes. He stated the following
in
relation to the reasonable employer test:
“
Such a test is based on the
perceptions and values of the employer side to these disputes. It
emphasises the interests of employers
more than those of workers.
Such a test is, probably, as objectionable to workers as a
‘reasonable employee test’ would be
to employers.”
80
The
Constitution and the LRA seek to redress the power imbalance
between employees and employers. The rights presently enjoyed
by
employees were hard-won and followed years of intense and often
grim struggle by workers and their organisations. Neither
the
Constitution nor the LRA affords any preferential status to the
employer’s view on the fairness of a dismissal. It is
against
constitutional norms and against the right to fair labour practices
to give pre-eminence to the views of either party
to a dispute.
Dismissal disputes are often emotionally charged. It is therefore
all the more important that a scrupulous even-handedness
be
maintained. The approach of the Supreme Court of Appeal tilts the
balance against employees.
It
is a practical reality that in the first place it is the employer
who hires and fires. The act of dismissal forms the jurisdictional
basis for a commissioner, in the event of an unresolved dismissal
dispute, to conduct an arbitration in terms of the LRA. The
commissioner determines whether the dismissal is fair. There are
therefore no competing “discretions”. Employer and
commissioner
each play a different part. The CCMA correctly
submitted that the decision to dismiss belongs to the employer but
the determination
of its fairness does not. Ultimately, the
commissioner’s sense of fairness is what must prevail and not the
employer’s view.
An impartial third party determination on
whether or not a dismissal was fair is likely to promote labour
peace.
The
view that if there was no deference afforded to the employer’s
sanction there would be a flood of cases to the CCMA is no
more
than supposition. As the Labour Appeal Court correctly stated in
Engen Petroleum
:
“
[It] reveals a failure to
appreciate the full rationale behind the creation of the CCMA. It
is right and proper that as many disputes
as possible that are not
resolved amicably in the workplace, should be referred to the CCMA
or bargaining councils and other mutually
agreed fora for
conciliation and, later, arbitration, irrespective of what any one
may think of the merits or demerits of such
disputes. The existence
of the CCMA . . . helps to channel, among others, workers’
grievances to where they can be ventilated
without any interruption
and disruption of production – at least up to a point. It is also
right and proper that unions should
be encouraged and not
discouraged to refer dismissal disputes with employers to the CCMA
for arbitration if they feel aggrieved
by such dismissals. In that
way, they can ventilate all issues about their grievances in regard
to such dismissals in that forum
before a third party, who can
listen to all sides of the dispute and, using his own sense of what
is fair or unfair, decide whether
the dismissal is fair or unfair.
In that way, the workers would have less urge to resort to
industrial action over dismissal disputes.”
81
Employees
are entitled to assert their rights. If by so doing a greater
volume of work is generated for the CCMA, then the State
is obliged
to provide the means to ensure that constitutional and labour law
rights are protected and vindicated.
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require
consideration. For example, the harm caused by the employee’s
conduct, whether additional training and instruction may result in
the employee not repeating the misconduct, the effect of dismissal
on the employee and his or her long-service record. This is not an
exhaustive list.
To
sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or not. A commissioner is not given
the power to consider afresh what he or she would do, but simply to
decide whether what the employer did was fair. In arriving
at a
decision a commissioner is not required to defer to the decision of
the employer. What is required is that he or she must
consider all
relevant circumstances.
PAJA
or the LRA?
The
Supreme Court of Appeal found that PAJA applies. It took the view
that because PAJA was the national legislation passed to
give
effect to the constitutional right to just administrative action,
was required to “cover the field” and purported to
do so, it
applied to awards by commissioners. In this regard it relied on
decisions of this Court in
New Clicks
82
and
Bato Star
.
83
It did not examine the nature of a commissioner’s function by
reference to section 33 of the Constitution, nor did it explore
whether PAJA provided an exclusive statutory basis for the review
of all administrative decisions.
84
In
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
85
the following appears:
“
In s 33 the adjective
‘administrative’ not ‘executive’ is used to qualify
‘action’. This suggests that the test for
determining whether
conduct constitutes ‘administrative action’ is not the question
whether the action concerned is performed
by a member of the
executive arm of government. What matters is not so much the
functionary as the function. The question is
whether the task
itself is administrative or not.”
86
In
form, characteristics and functions, administrative tribunals
straddle a wide spectrum. At one end they implement or give
effect
to policy or to legislation. At the other, some tribunals resemble
courts of law.
87
The old Industrial Court established in terms of the Labour
Relations Act 28 of 1956, although performing functions similar
to
that of a court of law, was regarded as administrative in nature.
In this regard, the Appellate Division said the following:
88
“
An administrative body,
although operating as such, may nevertheless in the discharge of its
duties function as if it were a court
of law performing what may be
described as judicial functions, without negating its identity as an
administrative body and becoming
a court of law.”
89
The
Amnesty Committee, established in terms of the
Promotion of
National Unity and Reconciliation Act 34 of 1995
, was empowered to
conduct hearings in relation to applications for amnesty. Its
proceedings were similar to those of a court
of law. Nevertheless,
it was an administrative body.
90
There
are similarities between CCMA arbitrations and proceedings before a
court of law.
Section 138(2)
of the LRA provides for the manner of
adducing evidence, the questioning of witnesses and concluding
arguments.
Section 142
gives the Commissioner powers of subpoena.
Section 142(8)
provides for contempt proceedings in the Labour
Court in the event that a party fails to comply with an award that
orders the
performance of an act other than the payment of money.
Section 143(1)
of the LRA provides that an award is final and
binding and may be enforced as though it were an order of the
Labour Court. A
commissioner may make an order for payment of
costs in terms of
section 138(10)
of the LRA.
However,
there are significant differences. The CCMA is not a court of law.
A commissioner is empowered in terms of
section 138(1)
to conduct
the arbitration in a manner he or she considerers appropriate in
order to determine the dispute fairly and quickly,
but with the
minimum of legal formalities. There is no blanket right to legal
representation. The CCMA does not follow a system
of binding
precedents. Commissioners do not have the same security of tenure
as judicial officers.
Commenting
on the status of the CCMA, Brassey states as follows:
“
Unlike the Labour Court, it
enjoys none of the status of a court of law and so has no judicial
authority within the contemplation
of the Constitution. It is an
administrative tribunal in the same way as the industrial court was
and, being an organ of state
under s 239 of the Constitution, is
directly bound by the Bill of Rights. It is also subject to the
basic values and principles
governing public administration.”
91
(Footnotes omitted.)
Currie
and De Waal state:
“
The CCMA is not a branch of
the judiciary and does not exercise judicial power. Rather, the
exercise of the compulsory arbitration
power is an exercise of
public power of an administrative (‘governmental’) nature. The
arbitration power is designed to fulfil
the primary goal of the Act
which is to promote labour peace by the effective settlement of
disputes. It does so with an element
of compulsion, corresponding
to the traditional government/governed relationship.”
92
Compulsory
arbitrations in terms of the LRA are different from private
arbitrations.
93
CCMA commissioners exercise public power which impacts on the
parties before them. In the language of the pre-constitutional
administrative law order, it would have been described as an
administrative body exercising a quasi-judicial function.
94
I conclude that a commissioner conducting a CCMA arbitration is
performing an administrative function.
Section
33(3) of the Constitution
95
provides that national legislation must be enacted to give effect
to the right to administrative action that is lawful, reasonable
and procedurally fair. Section 145 of the LRA constitutes national
legislation in respect of “administrative action” within
the
specialised labour law sphere. Of course, section 145 has to meet
the requirements of section 33(1) of the Constitution
ie it has to
provide for administrative action that is lawful, reasonable and
procedurally fair. This is a question to which
I shall return in
due course.
The
LRA, including section 145, was in place at the time that the
Constitution came into force. Section 33(3) read with item
23(2)
of Schedule 6 to the Constitution
96
contemplates that the national legislation referred to in section
33 of the Constitution is to be enacted in the future. It
is clear
that what was envisaged was legislation of general application.
PAJA was the resultant legislation. The definition
of
administrative action in PAJA is extensive and intended to “cover
the field”.
97
Nothing
in section 33 of the Constitution precludes specialised legislative
regulation of administrative action such as section
145 of the LRA
alongside general legislation such as PAJA. Of course, any
legislation giving effect to section 33 must comply
with its
prescripts.
In
Bato Star
the following appears:
“
The provisions of s 6
divulge a clear purpose to codify the grounds of judicial review of
administrative action as defined in PAJA.
The cause of action for
the judicial review of administrative action now ordinarily arises
from PAJA, not from the common law
as in the past. And the
authority of PAJA to ground such causes of action rests squarely on
the Constitution.
It is not necessary to consider here causes of
action for judicial review of administrative action that do not fall
within the scope
of PAJA
. As PAJA gives effect to s 33 of the
Constitution, matters relating to the interpretation and application
of PAJA will of course
be constitutional matters.”
98
(Emphasis added.) (Footnote omitted.)
PAJA
is a codification of the common law grounds of review. It is
apparent, though, that it is not regarded as the exclusive
legislative
basis of review.
It
is against this background that the following dictum in
New
Clicks
(relying on
Bato Star
) is to be understood:
“
PAJA is the national
legislation that was passed to give effect to the rights contained
in s 33. It was clearly intended to be,
and in substance is, a
codification of these rights. It was required to cover the field
and purports to do so.”
99
(Footnote omitted.)
This
does not in any way detract from the reservation contained in the
quoted dictum from
Bato Star
.
I
have found that arbitration by a commissioner is administrative
action. Does this mean that review provisions of PAJA are

automatically applicable in the present context? To answer this
question it is necessary first to deal with the LRA and its

applicable provisions in relation to PAJA. The LRA is specialised
negotiated national legislation
100
giving effect to the right to fair labour practices. The
Ministerial task team responsible for the drafting of the Bill that
led to the LRA was tasked, amongst other things, to “provide
simple procedures for the resolution of disputes through statutory
conciliation, mediation and arbitration and the licensing of
independent alternative dispute resolution services”.
101
The task team was tasked to “provide a system of labour courts
to determine disputes of right in a way that would be accessible,
speedy and inexpensive, with only one tier of appeal”.
102
NEDLAC referred the Draft Bill to Cabinet recommending its
adoption subject to agreed amendments.
103
Section 145 was purposefully designed as was the entire dispute
resolution framework of the LRA.
The
Supreme Court of Appeal was of the view that the only tension in
relation to the importation of PAJA was the difference in
time-scales in relation to reviews under section 145 of the LRA and
PAJA. This difference is but one symptom of a lack of cohesion
between provisions of the LRA and PAJA.
Section
157(1) of the LRA provides that, subject to the Constitution and
except where the LRA provides otherwise, the Labour Court
has
exclusive jurisdiction. Section 157(2) provides that the Labour
Court has concurrent jurisdiction with the High Court in
respect of
any alleged or threatened infringement of any right in the
Constitution and arising, inter alia, from employment and
labour
relations. High Courts will of course always have jurisdiction
where a fundamental right is pertinently implicated in
the labour
relations field, as for example, when a union might seek to
interdict an employment practice that is obviously racist.
This of
course, does not mean that in the ordinary course of reviewing
decisions of CCMA commissioners concerning unfair labour
practices,
the Labour Court does not enjoy exclusive jurisdiction.
If
PAJA were to apply, section 6 thereof would not allow for such
exclusivity and would enable the High Court to review CCMA

arbitrations. This would mean that the High Court would have
concurrent jurisdiction with the Labour Court. This negates the
intended exclusive jurisdiction of the Labour Court and provides a
platform for forum shopping.
The
powers of the Labour Court set out in section 158 of the LRA differ
significantly from the powers of a court set out in section
8 of
PAJA. The powers of the Labour Court are directed at remedying a
wrong and, in the spirit of the LRA, at providing finality
speedily. If an application in the normal course for the review of
administrative action succeeds, an applicant is usually entitled
to
no more than the setting aside of the impugned decision and its
remittal to the decision-maker to apply his or her mind afresh.

Section 8(1)(c)(ii) of PAJA provides that only in exceptional cases
may a court substitute the administrative decision or correct
a
defect resulting from the administrative action. This is a
significant difference between the LRA and PAJA.
All
of this explains why section 210 of the LRA was enacted, and why it
was not amended or repealed by PAJA. Section 210 of the
LRA
provides as follows:
“
If any conflict, relating to
the matters dealt with in
this Act
, arises between
this
Act
and the provisions of any other law save the Constitution or
any Act expressly amending
this Act
, the provisions of
this
Act
will prevail.”
The
State in both its executive and legislative arms was involved in
finalising the LRA together with persons representing business,
labour and community interests. Section 210 is unsurprising. The
main protagonists in industrial relations, having negotiated
the
terms of the legislation, were not likely to countenance any
non-agreed intrusions. This is particularly so in relation
to the
method and manner of determining disputes.
For
more than a century courts have applied the principle that general
legislation, unless specifically indicated does not derogate
from
special legislation. Lord Hobhouse delivering the judgment of the
Privy Council in
Barker v Edger and Others
104
stated the following:
“
When the Legislature has
given its attention to a separate subject, and made provision for
it, the presumption is that a subsequent
general enactment is not
intended to interfere with the special provision unless it manifests
that intention very clearly. Each
enactment must be construed in
that respect according to its own subject-matter and its own terms .
. . . It would require a very
clear expression of the mind of the
Legislature before we should impute to it the intention of
destroying the foundation of the
work which it had initiated some
four years before, and to which the Court has ever since been
assiduously addressing itself.”
105
In
R v Gwantshu
,
106
after citing
Barker
with approval, the court quoted the
following passage from
Maxwell on the
Interpretation of
Statutes
:
107
“
Where general words in a
later Act are capable of reasonable and sensible application without
extending to subjects
specially
dealt with, by earlier
legislation, that earlier and
special legislation
is not to
be held indirectly . . . altered . . . merely by force of such
general words, without any indication or particular intention
to do
so.” (Emphasis added.)
The
legislature had knowledge of section 210 of the LRA and
deliberately decided not to repeal that section or section 145 of
the LRA. Moreover, it resulted from intense negotiations that led
to the enactment of the LRA. This is an appropriate case
for the
application of the principle that specialised provisions trump
general provisions.
For
the reasons set out above, the Supreme Court of Appeal erred in
holding that PAJA applied to arbitration awards in terms of
the
LRA. That however, is not the end of the inquiry. What must now
be addressed is whether the standard of review set by section
145
of the LRA is constitutionally compliant.
The
standard of review
As
stated earlier,
108
section 3 of the LRA provides, inter alia that its provisions must
be interpreted in compliance with the Constitution. Section
145
therefore must be read to ensure that administrative action by the
CCMA is lawful, reasonable and procedurally fair.
The
Carephone
test, which was substantive and involved greater
scrutiny than the rationality test set out in
Pharmaceutical
Manufacturers
, was formulated on the basis of the wording of
the administrative justice provisions of the Constitution at the
time, more particularly,
that an award must be justifiable in
relation to the reasons given for it. Section 33(1) of the
Constitution presently states
that everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair. The reasonableness standard
should now suffuse section 145
of the LRA.
The
reasonableness standard was dealt with in
Bato Star
. In the
context of section 6(2)(h)
of PAJA, O’Regan J said the
following: “[A]n administrative decision will be reviewable if,
in Lord Cooke’s words, it is
one that a reasonable decision-maker
could not reach.”
109
This
Court recognised that scrutiny of a decision based on
reasonableness introduced a substantive ingredient into review
proceedings.
In judging a decision for reasonableness, it is often
impossible to separate the merits from scrutiny. However, the
distinction
between appeals and reviews continues to be
significant.
110
Review
for reasonableness, as explained by Professor Hoexter, does
threaten the distinction between review and appeal. The Labour
Court in reviewing the awards of commissioners inevitably deals
with the merits of the matter. This does tend to blur the

distinction between appeal and review. She points out that it does
so in the limited sense that it necessarily entails scrutiny
of the
merits of administrative decisions. She states that the danger
lies, not in careful scrutiny, but in “judicial overzealousness
in setting aside administrative decisions that do not coincide with
the judge’s own opinions.”
111
This Court in
Bato Star
recognised that danger.
112
A judge’s task is to ensure that the decisions taken by
administrative agencies fall within the bounds of reasonableness as
required by the Constitution.
113
To
summarise,
Carephone
held that section 145 of the LRA was
suffused by the then constitutional standard that the outcome of an
administrative decision
should be justifiable in relation to the
reasons given for it. The better approach is that section 145 is
now suffused by the
constitutional standard of reasonableness.
That standard is the one explained in
Bato Star
: Is the
decision reached by the commissioner one that a reasonable
decision-maker could not reach? Applying it will give effect
not
only to the constitutional right to fair labour practices, but also
to the right to administrative action which is lawful,
reasonable
and procedurally fair.
A
further aspect must be addressed. In contending that commissioners
do not perform an administrative function and that their
awards
should not be subject to administrative review under PAJA, counsel
for the applicant and the CCMA submitted that the rights
sought to
be vindicated in arbitrations conducted under the LRA are linked to
the fundamental rights provided for in sections
23 and 34 and not
to the right to just administrative action contained in section 33
of the Constitution. Section 34 of the
Constitution provides:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
This
submission is based on the misconception that the rights in
sections 23, 33 and 34 are necessarily exclusive and have to
be
dealt with in sealed compartments. The right to fair labour
practices, in the present context, is consonant with the right
to
administrative action that is lawful, reasonable and procedurally
fair. Everyone has the right to have these rights enforced
before
the CCMA acting as an impartial tribunal.
114
In the present context, these rights in part overlap and are
interconnected.
115
Applying
the standard
The
Commissioner gave three reasons for regarding the sanction as
excessive and unfair. The first was that no losses were sustained.
The second was that the misconduct was unintentional or a
“mistake” and the third was the absence of dishonesty. He also
took the view that the offence committed by Mr Sidumo did not go to
the heart of the relationship of trust between Mr Sidumo
and the
Mine.
It
is clear that there was no evidence presented that the Mine
suffered any loss as a consequence of Mr Sidumo’s neglect. It
is
true that losses could have been occasioned by his misconduct, but
it is equally true, as submitted on behalf of Mr Sidumo,
that no
loss was proven to have flowed from it.
In
respect of the Commissioner’s finding that the misconduct was
unintentional or a mistake, it was correctly pointed out on
behalf
of Mr Sidumo that it was Mr Botes, in his evidence before the
Commissioner, who characterised his misconduct as “mistakes”.

It is true that Mr Sidumo did not conduct individual searches which
were his main task. Therefore to describe his conduct as
a
“mistake” or “unintentional” is confusing and in this
regard the Commissioner erred.
In
respect of the absence of dishonesty, the Labour Appeal Court found
the Commissioner’s statement in this regard “baffling”.
In
my view, the Commissioner cannot be faulted for considering the
absence of dishonesty a relevant factor in relation to the
misconduct. However, the Commissioner was wrong to conclude that
the relationship of trust may have not been breached. Mr Sidumo
was employed to protect the Mine’s valuable property which he did
not do. However this is not the end of the inquiry. It
is still
necessary to weigh all the relevant factors together in light of
the seriousness of the breach.
The
absence of dishonesty is a significant factor in favour of the
application of progressive discipline rather than dismissal.
So
too, is the fact that no losses were suffered. That Mr Sidumo did
not own up to his misconduct and his denial that he received
training are factors that count against him. His years of clean
and lengthy service were certainly a significant factor. There
is
no indication that the principle of progressive discipline will not
assist to adjust Mr Sidumo’s attitude and efficiency.
In my
view, 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.
CCMA
figures reveal that each year between 70 000 - 80 000 cases are
referred to the CCMA for conciliation in respect of dismissals.

Given the pressures under which commissioners operate and the
relatively informal manner in which proceedings are conducted,
and
the further fact that employees are usually not legally
represented, it is to be expected that awards will not be
impeccable.
To
my mind, having regard to the reasoning of the Commissioner, based
on the material before him, it cannot be said that his conclusion
was one that a reasonable decision-maker could not reach. This is
one of those cases where the decision-makers acting reasonably
may
reach different conclusions. The LRA has given that
decision-making power to a commissioner.
Costs
The
litigation in this matter has been long and protracted. It has been
an arduous road for Mr Sidumo. COSATU entered the fray
at a late
stage in order to advance the interests of employees. The Mine was
rightly concerned about security issues. In the
light of the
totality of circumstances, it appears to me to be appropriate that
no party should bear costs either in the preceding
litigation or in
the present appeal.
Order
The
following order is made:
The
application for the condonation of the late filing of the
applications for leave to appeal is granted.
The
application to intervene is granted.
The
application for leave to appeal is granted.
The
appeals against the decision of the Supreme Court of Appeal are
upheld and the Commissioner’s award is restored.
The
costs orders in the Labour Court and the Labour Appeal Court are
set aside and substituted with the following: “No order
is made
as to costs.”
In
respect of this appeal no order is made as to costs.
Moseneke
DCJ, Madala J, O’Regan J and Van der Westhuizen J concur in the
judgment of Navsa AJ.
O’REGAN J:
I
have had the opportunity of reading the judgments prepared in this
matter by Navsa AJ, Ngcobo J and Sachs J. I concur in the
judgment
of Navsa AJ. Ngcobo J raises some important issues concerning the
scope of “administrative action” in section 33
1
of the Constitution to which I wish briefly to respond.
Ngcobo
J holds that, to answer the question whether action is
“administrative” or not for the purposes of section 33 of the
Constitution, it is necessary to focus on the function rather than
the functionary.
2
He classifies the function performed by the Commission for
Conciliation, Mediation and Arbitration (the CCMA) as judicial,

identifies it as an “independent and impartial tribunal” within
the scope of section 34 of the Constitution and concludes
therefore
that its decisions do not constitute administrative action as
contemplated by section 33. The question whether the
CCMA’s
decisions constitute administrative action is a difficult one. In
answering it, we need to consider the role of the
CCMA in our
constitutional state and assess that role in the light of the
constitutional purpose of section 33.
I
should start however by making plain that it is beyond doubt that
the functions performed by the CCMA clearly fall within the
terms
of section 34 of the Constitution which provides that:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
The
CCMA is an independent tribunal established by the Labour Relations
Act.
3
It determines disputes on a range of matters that arise between
workers and trade unions, on the one hand, and employers, on the
other. Its hearings must accordingly be “fair, public hearing[s]”
within the contemplation of section 34. It is not clear
to me,
however, as it appears to be to Sachs J,
4
that this requirement tracks identically the provisions of section
33, which require administrative action to be “lawful, reasonable
and procedurally fair” and also require that those whose rights
have been adversely affected receive written reasons for the
action.
5
This is not a matter to which a final answer need be given in this
judgment, as in my view, the CCMA’s proceedings are bound
both by
the constitutional provisions of section 34 and those of section 33.
Tribunals
play an important role in the modern administrative state. As Wade
and Forsyth point out:
“
The social legislation of
the twentieth century demanded tribunals for purely administrative
reasons: they could offer speedier,
cheaper and more accessible
justice, essential for the administration of welfare schemes
involving large numbers of small claims.
The process of the courts
of law is elaborate, slow and costly. Its defects are those of its
merits, for the object is to provide
the highest standard of
justice; generally speaking, the public wants the best article, and
is prepared to pay for it. But in
administering social services the
aim is different. The object is not the best possible article at
any price but the best article
that is consistent with efficient
administration. Disputes must be disposed of quickly and cheaply,
for the benefit of the public
purse as well as for that of the
claimant. . . . The whole system is based on compromise, and it is
from the dilemma of weighing
quality against convenience that many
of its problems arise.”
6
This
passage captures precisely the raison d’être of the CCMA.
Its aim is to provide affordable, accessible and quick resolution
of
workplace disputes. Its task, as Ngcobo J states, is to
determine facts and to apply principles of law and fairness to
those
facts. In so doing, it determines the rights of both workers and
employers. Such a task is adjudicative in character.
The question
is whether it is a task that falls within the scope of
“administrative action” as contemplated by section 33.
Ngcobo
J’s reasoning is that the task is not administrative because
there is a distinction to be drawn between “administrative”
and
“judicial” tasks. He reasons that where judicial tasks are
performed by independent and impartial tribunals, the performance
of those tasks does not fall within the scope of administrative
action in section 33 of the Constitution. My approach is
different.
While independent and impartial tribunals may perform
adjudicative tasks, it does not automatically follow that their
functions
are not within the contemplation of section 33. Nor does
it necessarily follow that because independent and impartial
tribunals
are governed by section 34, they are not governed by
section 33.
This
Court has dealt with the relationship between “administrative
action” as constitutionally contemplated,
7
and “judicial” tasks in only two cases. In
Nel v Le Roux NO
and Others
,
8
this Court was concerned with the procedure for compelling
witnesses provided for in section 205 of the Criminal Procedure
Act.
9
That provision empowers a judge or a magistrate, upon the request
of a prosecutor, to require a person to appear before him
or her to
be examined by the prosecutor. Section 205(4) empowered the judge
or magistrate to sentence a person who fails to
attend or who
attends but refuses to answer questions without just excuse to a
sentence of imprisonment. This Court held that
this procedure is
not administrative, but judicial in character (though this Court
did hold that if it were to be administrative
action, the procedure
would not offend the Constitution). One of the important reasons
given for the conclusion that the procedure
did not constitute
administrative action was that it was subject to appeal in the same
manner as a sentence imposed in a criminal
case.
10
The
second case was
De Lange v Smuts NO and Others.
11
In that case, this Court was concerned with a challenge to
section 66(3) of the Insolvency Act
12
which empowered an officer presiding at a meeting of creditors to
issue a warrant to commit to prison a person who refuses to
be
sworn or to answer a question. The question that arose for
decision was whether the power to issue a warrant of committal
was
a power that could only be exercised by “a judicial officer in
the court structure established by the 1996 Constitution
and in
which s 165(1) has vested the judicial authority of the Republic”.
13
A majority of this Court held that a power of committal could only
be exercised by a judicial officer on the ground that the
power to
imprison a person could only be exercised by a court of law. This
Court concluded that:
“
[I]t suffices to say that,
whatever the outer boundaries of separation of powers are eventually
determined to be, the power in question
here – ie the power to
commit an unco-operative witness to prison – is within the very
heartland of the judicial power and
therefore cannot be exercised by
non-judicial officers.”
14
The
corollary of this conclusion by the majority of this Court was that
the power to commit a person to prison for failing to co-operate
was
“clearly judicial and nothing else”.
15
I should add for completeness that section 66(5) of the Insolvency
Act provides that a person committed to prison under section
66(3)
may apply to a court for discharge from custody on the basis that he
or she was wrongfully committed to prison.
Both
cases concern the power to commit a recalcitrant witness to prison.
Both powers were held not to involve “administrative
action”
but were held to be “judicial” in character. What is clear
from the judgment of Ackermann J in
De Lange v Smuts NO
, in
particular, is that when defining the power to commit a person to
prison as an exercise of judicial power, the Court was
not only
speaking of the function but also of the functionary, that is the
judiciary as constitutionally established. The reasoning
recognises that there are certain powers in our constitutional
order (and in both cases this was the power to commit a person
to
prison) that may only be exercised by judicial officers and not by
members of the executive because of our constitutional
doctrine of
separation of powers. The 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.
The
dictum from
President of the Republic of South Africa and Others
v South African Rugby Football Union and Others
16
(SARFU)
upon which Ngcobo J relies,
17
that “[w]hat matters is not so much the functionary as the
function”,
18
has thus not been employed by this Court in relation to the
distinction to be drawn between judicial tasks and administrative
action. That dictum was used in
SARFU
to assist in drawing
the line between “executive” acts and “administrative”
acts. This Court reasoned:
“
In section 33, the adjective
‘administrative’ not ‘executive’ is used to qualify
‘action’. This suggests that the test
for determining whether
conduct constitutes ‘administrative action’ is not the question
whether the action concerned is performed
by a member of the
executive arm of government. What matters is not so much the
functionary as the function. The question is
whether the task
itself is administrative or not.”
19
This
Court continued as follows:
“
It may well be, as
contemplated in
Fedsure
, that some acts of a legislature may
constitute ‘administrative action’. Similarly, judicial
officers may, from time to time,
carry out administrative tasks.
The focus of the enquiry as to whether conduct is ‘administrative
action’ is not on the arm
of government to which the relevant
actor belongs, but on the nature of the power he or she is
exercising.”
20
(Footnotes omitted.)
All
that this paragraph makes plain is that at times arms of government
other than the executive may perform administrative action.
Again
it does not assist us in answering the question whether the
performance of adjudicative tasks by the CCMA is to be classified
as administrative action or not. In my view, that question needs
to be answered by understanding the proper constitutional purpose
of section 33 and then considering that purpose against the context
of the adjudicative functions of the CCMA.
A
similar mode of reasoning was followed in
Fedsure Life Assurance
Ltd and Others v Greater Johannesburg Transitional Metropolitan
Council and Others
.
21
In that case, this Court held that the decisions of
deliberative legislative assemblies did not constitute
administrative action
within the conception of section 24 of the
interim Constitution.
22
Section 24 was the precursor to section 33 of the 1996
Constitution. This Court reasoned:
“
The procedures according to
which legislative decisions are to be taken are prescribed by the
Constitution, the empowering legislation
and the rules of the
council. Whilst this legislative framework is subject to review for
consistency with the Constitution, the
making of by-laws and the
imposition of taxes by a council in accordance with the prescribed
legal framework cannot appropriately
be made subject to challenge by
‘every person’ affected by them on the grounds contemplated by s
24(b). Nor are the provisions
of s 24(c) or (d) applicable to
decisions taken by a deliberative legislative assembly. The
deliberation ordinarily takes place
in the assembly in public where
the members articulate their own views on the subject of the
proposed resolutions. Each member
is entitled to his or her own
reasons for voting for or against any resolution and is entitled to
do so on political grounds.
It is for the members and not the
Courts to judge what is relevant in such circumstances. Paragraphs
24(c) and (d) cannot sensibly
be applied to such decisions.”
23
(Footnote omitted.)
This
reasoning starts by understanding what section 24 of the interim
Constitution required and then considers whether in the
overall
context of the interim Constitution, it is appropriate to
understand the decisions of deliberative legislative assemblies
as
falling within the scope of section 24.
Similarly,
the question of whether the CCMA falls within the scope of section
33 should be answered by determining the constitutional
purpose of
section 33 and then considering whether it is constitutionally
suitable to impose the requirements of section 33 on
the conduct of
the CCMA. It should not be answered by asserting that the
adjudicative functions of administrative tribunals
are governed by
section 34 of the Constitution and do not constitute
“administrative action” as contemplated by section 33.
In our
pre-constitutional order, the classification of functions in
administrative law proved to be an unsatisfactory basis
for
determining the scope of judicial review and it was finally and
firmly rejected by the courts.
24
I am concerned that if we understand section 33 and section 34 to
be mutually exclusive constitutional provisions, we may end
up with
a formalist jurisprudence based on a distinction between
“administrative” in section 33 and “judicial” or
“adjudicative”
decisions by tribunals governed only by section
34 which is at odds with the substantive vision of our
Constitution. Similar
concerns animate the judgment of Sachs J.
25
In
my view, seeking to preserve a sphere of action for democratically
elected legislative bodies (as we did in
Fedsure),
that does
not constitute administrative action for the purposes of section 33
of the Constitution, flows from the doctrine of
separation of
powers. It recognises that courts are not appropriately placed to
review the conduct of democratic legislatures
under section 33.
Similarly, this Court’s reasoning in
SARFU
recognises that
the executive has a special sphere of operation in our
constitutional order which it is not appropriate to subject
to
judicial scrutiny by way of section 33.
26
Similarly too the distinction drawn in
De Lange
also rests
on the doctrine of separation of powers under our constitutional
order and the need to recognise the special terrain
of the judicial
authority of the Republic.
The
doctrine of the separation of powers, however, has no application
in the present case. There is no reason why, from a separation
of
powers perspective, the conduct of the CCMA should be immune from
scrutiny under section 33. Indeed, there are powerful reasons
why
adjudicative decisions of tribunals should be subject to the
scrutiny of courts on the standards set by section 33, as I
shall
mention below. Seeking to draw a line, therefore, between
administrative action and the adjudicative decisions of
administrative
tribunals will, I fear, lead us directly to the arid
classifications of our old administrative law. I prefer an
approach to
the question based on a substantive understanding of
section 33.
The
content of section 33 is straightforward. It requires
administrative action to be “lawful, reasonable and procedurally
fair.” It also requires that written reasons be given for
administrative action that adversely affects the rights of
individuals.
Section 33 should be understood as one of the key
constitutional provisions giving life to the constitutional values
of accountability,
responsiveness and openness to be found in
section 1 of our Constitution.
27
.
It recognises that requiring administrative action to be lawful,
procedurally fair and reasonable is one of the ways of ensuring
the
exercise of public power that is accountable. The question of
purposive constitutional interpretation that thus arises is
whether
it is constitutionally appropriate to hold the CCMA to these
standards.
In
my view, it is. The CCMA is an organ of state exercising public
power. Its statutory task is to resolve disputes that arise
in the
workplace by implementing the provisions of the Labour Relations
Act read in the light of the provisions, in particular,
of section
23 of the Constitution. Section 23(1) of the Constitution provides
that workers and employers are entitled to fair
labour practices.
The adjudicative task performed by the CCMA involves the
determination of disputes often involving the question
of fair
labour practices that are of importance to the litigants before the
CCMA. It is not an institution for private, agreed
arbitration but
a state institution established for the resolution of disputes.
The procedures provided for in the Labour Relations
Act make plain
that the disputes are to be speedily and cheaply resolved by the
CCMA. No appeal lies from the CCMA, but the
Labour Relations Act
expressly requires that the Labour Courts are to scrutinise the
decisions of the CCMA.
28
It
is clear that the CCMA has been established to expedite the
resolution of labour disputes in an efficient and cost-effective
manner. Special procedures have been created to avoid the delays
and costs associated with dispute resolution in the ordinary
courts. In this sense, the CCMA is properly understood as an
administrative tribunal. Our Constitution recognises the need
for
the conduct of administrative agencies to be scrutinised, to ensure
that they act lawfully, reasonably and procedurally fairly.
29
As the Labour Relations Act already provides for the scrutiny on
review of decisions of the CCMA by the Labour Court, no further
delay will be caused by that scrutiny being on the basis of the
constitutional standards established in section 33. So the need
for speedy and cheap resolution of disputes does not mean that the
CCMA should not be held accountable for its decisions, nor
that it
should not be monitored by the Labour Court to ensure that it acts
lawfully, reasonably and
procedurally
fairly. Indeed, as Sachs J has reasoned, it is entirely consistent
with our constitutional order that the procedures
and decisions of
the CCMA should be lawful, reasonable and procedurally fair and that
this should be ensured by appropriate scrutiny
by the Labour Courts.
For
these reasons then, and for the additional reasons given by Navsa
AJ at paragraphs [81]-[88] of his judgment, I agree with
him that
arbitrations by commissioners in the CCMA constitute administrative
action within the contemplation of section 33 of
the Constitution.
I also concur with the rest of his judgment.
SACHS J:
This
case illustrates the need for our constitutional jurisprudence to
find the space in appropriate cases to move away from unduly
rigid
compartmentalisation so as to allow judicial reasoning to embrace
fluid concepts of hybridity and permeability in those
matters.
Is
it a “judicial function” or is it “administrative action”?
This was the stark classificatory choice that was presented
to the
Court by counsel in this matter. The premise was that if
arbitration in an unfair dismissal matter by a commissioner
30
amounted to judicial conduct, the powers of review would be limited
to the relatively narrow confines established by the Labour
Relations Act
31
(the LRA). If, however, it should be regarded as administrative
action, a reviewing court could exercise the relatively wide
powers
granted by section 33 of the Constitution
32
and the
Promotion of Administrative Justice Act
33
(PAJA
). In my view, posing the question in these terms displays
undue subordination to formal classification of rights, and
insufficient
regard for the manner in which rights overlap and
basic values animate and bind discrete rights together.
I
accordingly associate myself with the challenge that Navsa AJ
addresses to the existence of an assumed divide between the rights
said to be in competition in this matter. He observes that it is
misleading to define the central issue as being whether arbitration
under the LRA should be identified as constituting administrative
action or judicial conduct.
34
He then states that it is a misconception to assume that the
rights in
section 23
(the right to fair labour practices),
35
section 33
(the right to just administrative action) and
section 34
(the right to settle disputes in a fair hearing)
36
of the Constitution are necessarily exclusive, and have to be dealt
with in sealed compartments. Thus, even though he finds
that PAJA
does not in fact apply to what he would characterise as
administrative action, nevertheless he holds that the broad
principles of administrative justice as contained in section 33 of
the Constitution should permeate the manner in which the

commissioner functions. In the result, he reads the provisions of
section 145 of the LRA in a broad manner, deciding that the
reviewing court should apply the test of whether the commissioner’s
decision was one to which a reasonable commissioner, sensitive
to
the values of section 33, could come.
37
Ngcobo
J, on the other hand, decides that the commissioner is not engaged
in administrative action but in judicial conduct, which
under
section 34 of the Constitution necessitates a fair hearing by an
impartial tribunal, provided in this case by the commissioner.
38
The starting point of the enquiry, he states, must be the wording
of section 145 of the LRA. He too would construe these words
in a
broad fashion. This is because the very notion of a fair labour
practice requires that fairness be the touchstone throughout.
In
his view, the basis of the review must be whether the commissioner
applied the provisions of section 145 of the LRA in a
fair manner,
39
not only procedurally but substantively and in keeping with the
powers and duties flowing from the section.
I
find myself in the pleasant but awkward position of agreeing with
colleagues who disagree with each other. In my view the rationale
of each of their judgments is essentially the same, even though
they are framed in different conceptual matrices. Employing
almost
identical processes when weighing the facts they unsurprisingly
arrive at the same outcome. This concurrence of result
comes about
not through happenstance, but because in substance, though not in
form, they concur on the context, interests and
values involved.
Both judgments are animated by the same goal, which is to determine
in a constitutionally proper way the standard
of conduct that can
be expected of a public official arbitrating a labour dispute in an
open and democratic society based on
human dignity, equality and
freedom. I would add that, formal trappings aside, it is difficult
to see how a reasonable commissioner
can act unfairly, or a fair
commissioner can function unreasonably.
Thus,
whether one labels the commissioner’s work as performing a
judicial function in an administrative context, or as fulfilling
an
administrative function in a judicial context, the activity is
intrinsically the same. The commissioner must be impartial
and
basically fair and reasonable in the conduct of his or her work.
This is so, whatever the technical description. To my
mind, any
attempt at pure classifications is doomed from the start. The
reality is that the function of the commissioner is
a hybrid one,
composed of an amalgam of three separate but intermingling
constitutional rights.
Acceptance
of hybridity is based on the fact that protected rights in a
constitutional democracy overlap, intersect and mutually
reinforce
each other. Though in particular factual situations the interests
secured by the rights might collide, there can be
no intrinsic or
categorical incompatibility between the rights themselves. Courts
should not feel obliged to obliterate one
right through
establishing the categorical or classificatory pre-eminence of
another. On the contrary, the task of the courts
is to seek
wherever possible to balance and reconcile the constitutional
interests involved. In this endeavour the courts will
be strongly
guided by the constitutional values at stake.
The
values of the Constitution are strong, explicit and clearly
intended to be considered part of the very texture of the
constitutional
project.
40
They are implicit in the very structure and design of the new
democratic order. The letter and the spirit of the Constitution
cannot be separated; just as the values are not free-floating,
ready to alight as mere adornments on this or that provision,
so is
the text not self-supporting, awaiting occasional evocative
enhancement. The role of constitutional values is certainly
not
simply to provide a patina of virtue to otherwise bald, neutral and
discrete legal propositions. Text and values work together
in
integral fashion to provide the protections promised by the
Constitution. And by their nature, values resist
compartmentalisation.
The
Bill of Rights does specifically identify a number of rights for
special constitutional protection. Each is independently
delineated, reflecting historical experience pointing to the need
to be on guard in areas of special potential vulnerability
and
abuse. Each has produced an outgrowth of specialist legal
learning. Yet enumerating themes for dedicated attention does
not
presuppose or permit detaching the listed rights from the
foundational values that nurture them. Nor does it justify
severing
the rights from the underlying values that give substance
and texture to the Constitution as a whole. On the contrary, in a

value-based constitutional democracy with a normative structure
that is seamless, organic and ever-evolving, the manner in which
claims to constitutional justice are typified and dealt with,
should always be integrated within the context of the setting,
interests and values involved.
I
conclude, therefore, that the Bill of Rights should not always be
seen as establishing independent normative regimes operating
in
isolation from each other, each with exclusive sway over a defined
realm of public and private activity. The disparate textual
protections are unified by the values immanent in all of them.
41
The relationship between the separately protected rights should
thus be regarded as osmotic rather than hermetic. Seepage should
be understood not as a form of analytical blurring to be avoided,
but rather as a desirable mechanism for ensuring that
constitutional
interests in appropriate cases are properly
protected, and constitutional justice fully achieved. And
hybridity should be recognised
for what it is, the co-existence and
interpenetration of more than one guaranteed right in a particular
factual and legal situation.
Instead of seeking to put asunder
what human affairs naturally and inevitably join together, we
should, in these circumstances,
develop an appropriate analytical
methodology that eschews formal pigeonholing and relies more on
integrated reasoning.
Concepts
of hybridity and permeability of rights have not been the subject
of direct theorisation in this Court. And the facts
of this case
do not necessitate the determination of all the possible
consequences lying in the wake of their receiving due

acknowledgment in appropriate cases. Yet some guidance can be
sought from the manner in which this Court has emphasised the

intersection and interrelatedness of different protected rights in
particular matters, and highlighted the influence of overarching
values.
Thus,
when dealing with capital punishment in
Makwanyane
, the
Court stressed the overlap and interaction between the rights to
life and dignity on the one hand, and the right not to
be subjected
to cruel, inhuman or degrading punishment on the other;
42
far from being mutually exclusive, each of these protected rights
was seen as reinforcing and adding substance to the others.

Similarly in the
Sodomy
case,
43
emphasis was put on the interconnection between the rights to
equality, dignity and privacy respectively.
44
A choice between them was not required.
Grootboom
expressly
referred to the indivisibility and interrelated character of
protected rights, emphasising that the determination of
what was
reasonable in relation to the right of access to adequate housing
had to take account of the right to dignity,
45
and the gender and racial dimensions involved.
46
In
Khosa
the question was whether withdrawal of certain welfare
entitlements for permanent residents who were not South African
citizens,
47
raised a question of equality (non-discrimination), or of the right
of access to social welfare,
48
and whether the rights of the child also featured.
49
Mokgoro J stated:
“
[i]n this case we are
concerned with these intersecting rights [socio-economic rights and
the founding values of human dignity,
equality and freedom] which
reinforce one another at the point of intersection.”
50
Ngcobo
J, characterising the question as “interesting and difficult”,
stated:
“
The exclusion of
non-citizens from the scheme manifestly implicates the right not to
be discriminated against. This question was
not addressed in
argument. It need not be considered on this occasion. The outcome
would be the same under either constitutional
provision. My
Colleague, Mokgoro J, has approached the matter on the footing that
the right of access to social security governs
the question
presented in this case. There is much to be said for this view. . .
. The Bill of Rights is the cornerstone of our
constitutional
democracy and it ‘affirms the democratic values of human dignity,
equality and freedom’. The founding values
will inform most, if
not all, of the rights in the Bill of Rights. . . . A denial of
access to a social welfare scheme may, as
demonstrated by this case,
therefore have an impact on more than one constitutional right. We
are therefore concerned with a statute
implicating multiple
constitutional rights that reinforce one another at their point of
intersection.”
51
(Footnote omitted.)
In
New Clicks
I
raised the question of what I called a
hybrid regulatory system. In relation to a debate as to whether
the adoption of subordinate
legislation amounted to an
administrative or a legislative act, I said:
“
One may thus envisage a
continuum ranging from pure law-making acts at one end, to pure
administrative (adjudicative) acts at the
other. All will be
subject to constitutional control that is of both a procedural and a
substantive kind. There will be a difference
of emphasis rather
than of kind, to take account of the different constitutional and
public law values implicated at each end of
the spectrum. Hybrid
regulatory systems involving both generality (regulatory scheme) and
specificity (adjudicative act) could
then be comfortably
accommodated at appropriate places along the spectrum. The precise
form of the hearing required in each case,
and the manner in which
substantive reasonableness will be determined, will accordingly
depend more on the nature of the interests
at stake in each
particular instance than on the label or labels to be attached. In
this way administrative law emerges from its
constitutional
chrysalis as an integrated body of law. Shed of the remnants of its
one-time fragmented and particularistic form,
it has been
metamorphosed into a comprehensive, principled, operational and
elegant new legal figure.”
52
To
my mind, far from promoting unprincipled eclecticism,
acknowledgment where appropriate of hybridity encourages paying
appropriate
attention in a focused way to the context and the
interests and values involved. The basic analysis remains the
same, but more
weight is given to context, interests and values,
and less to categorical reasoning.
Most
constitutional issues will ordinarily fall within the parameters of
one or other specifically protected right. The point
that I
underline, however, is that there are many cases where rights will
not just touch at the margins but overlap in substance.
I believe
that in these matters undue preoccupation with a quest to establish
the primacy of one or other right could defeat
the constitutional
objectives to be realised. The present case, I believe, is one of
those. I accordingly emphasise the importance
of acknowledging
hybridity in particular cases such as this one, and accept the
significance of constitutional values in all
matters. This does
not in any way diminish the importance of classification being at
the heart of all legal reasoning. As this
Court held in
Prinsloo
:
“
It must be accepted that, in
order to govern a modern country efficiently and to harmonise the
interests of all its people for the
common good, it is essential to
regulate the affairs of its inhabitants extensively. It is
impossible to do so without differentiation
and without
classifications which treat people differently and which impact on
people differently. It is unnecessary to give examples
which abound
in everyday life in all democracies based on equality and freedom.”
53
The
objective I would seek is not therefore to supplant precise text and
rigorous classification with amorphous and arbitrarily-chosen
values. It is to acknowledge the way values are anchored in text,
and text is animated by values.
In
my view, then, the key to the present case is to interpret and
apply section 145 in a manner that is compatible with the
values of reasonableness and fair dealing that an open and
democratic society demands. What is largely implicit in the
judgments
of my colleagues should, I believe, be the centrepiece of
the analysis. I agree with what appear to be the underlying
premises
of the two judgments: in an open and democratic society
based on human dignity, equality and freedom, it would be
inappropriate
to restrict review of the commissioner’s decision
to the very narrow grounds of procedural misconduct that a first
reading
of section 145(2) would suggest; at the same time, the
labour-law setting, requiring a speedy resolution of the dispute
with
the outcome basically limited to dismissal or re-instatement,
makes it inappropriate to apply the full PAJA-type administrative
review on substantive as well as procedural grounds; and to the
extent that the right to just administrative action is involved,
the values of fair dealing that underlie section 33 of the
Constitution must be respected.
54
I accept that inasmuch as the right to a fair labour practice is
at the centre of the analysis, the outcome of the arbitration
process must not fall outside the bounds of reason; to accept it
doing so would hardly represent a fair outcome. Finally,

acknowledging the adjudicatory element that implicates the right to
a fair hearing under section 34, I would hold that a fair hearing
demands that at the very least there be some reasonably sustainable
fit between the evidence and the outcome.
To
my mind, acknowledging hybridity and permeability leads to direct
and unstrained engagement with the particular constitutional
interests and values at stake. I weigh the facts in the same way
according to the same basic criteria, and arrive at the same
conclusion as they do. It follows that I concur in the order made
by Navsa AJ and supported by Ngcobo J.
NGCOBO J:
Introduction
This
case raises important questions concerning the determination of
fair labour practices. These questions arise out of the
dismissal
from employment of a worker for failure to follow correct
procedures in the performance of his duties as a security
officer
at a platinum mining company. The first question concerns the
proper approach that commissioners, who are charged with
the duty
to arbitrate disputes concerning alleged unfair dismissals under
the Labour Relations Act 66 of 1995 (the LRA), should
adopt. The
second question concerns the ambit of the grounds of review in
section 145(2)(a) of the LRA.
55
The final question is whether, on the facts of this case, the
decision of the commissioner that the dismissal of the worker
was
unfair should be interfered with on any of the grounds of review
contained in section 145(2)(a) of the LRA.
I
have had the benefit of reading the judgment prepared by Navsa AJ
on these issues. I agree with the approach he formulates
in
relation to the first question. However, in view of the importance
of the question I consider it desirable to add a few observations
on the proper approach that commissioners should adopt in
arbitration proceedings concerning unfair dismissal disputes.
On
the ambit of the grounds of review, Navsa AJ holds that the conduct
of Commission for Conciliation, Mediation and Arbitration
(CCMA)
arbitration proceedings constitutes administrative action within
the meaning of section 33 of the Constitution. However,
he finds
that the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
does not apply to reviews under section 145(2) of
the LRA. He
holds therefore that the ambit of the grounds of review under
section 145(2) of the LRA must be informed by section
33 of the
Constitution. He concludes that section 145(2) is now suffused by
the constitutional standard of reasonableness which
is implicit in
the requirement of reasonable administrative action in section 33.
Applying this standard, he concludes that
the arbitral award of the
commissioner should not be disturbed.
I
am unable to agree with the finding that the conduct of CCMA
arbitration proceedings constitutes administrative action within
the meaning of section 33 of the Constitution. In my view, on a
proper understanding of the jurisprudence of this Court in
Fedsure
,
56
SARFU
57
and
Pharmaceutical
,
58
the conduct of arbitration proceedings does not constitute
administrative action. However, in the performance of their
functions,
commissioners, who exercise public power, are
constrained by other constitutional requirements. These include
those found in
sections 23 and 34 of the Constitution and in the
doctrine of legality, an incident of the rule of law which is one
of the foundational
values of our constitutional democracy. It is
these constraints which must inform the interpretation and indeed
the ambit of
the grounds of review set forth in section 145(2)(a)
of the LRA.
The
ultimate question in determining whether to interfere with a
commissioner’s award in an arbitral proceeding is whether the
conduct of the commissioner falls into any of the grounds of review
set forth in section 145(2) of the LRA, namely, misconduct
in
relation to his or her duties, gross irregularity in the conduct of
the arbitration proceedings, or acting in excess of his
or her
powers. These grounds of review must be interpreted in the light
of the constitutional constraints referred to above
and the primary
objective of the LRA. This is the interpretive injunction
contained both in section 39(2) of the Constitution
59
and in the LRA.
60
Thus
construed, the commissioners are required to act fairly in the
determination of unfair dismissal disputes. If a commissioner
fails to do so he or she commits a gross irregularity in the
conduct of the arbitration proceedings and the ensuing arbitral
award falls to be reviewed and set aside. Similarly, if a
commissioner makes an award which is inconsistent with his or her
obligations under the LRA, he or she acts in excess of the powers
conferred by the LRA and the award falls to be reviewed and
set
aside. On the facts of this case I am unable to say that the
conduct of the commissioner falls into any of the grounds of
review
contained in section 145(2)(a) of the LRA. I therefore agree with
the conclusion reached by Navsa AJ.
The
background facts to this case are set out in the judgment of Navsa
AJ. I do not propose to repeat them. Only those that matter
for
the purposes of this judgment will be set out.
But
first, I wish to add observations of my own on the proper approach
that commissioners are required to adopt when conducting
arbitrations under the LRA.
The test to be applied by the commissioner
There
can be no question that the ultimate test that a commissioner must
apply is one of fairness. This test is foreshadowed
both in
section 23 of the Constitution
61
and section 188 of the LRA.
62
All the parties accepted this. And this is the effect of the
judgment of the Supreme Court of Appeal and the decisions of the
Labour Appeal Court which have had the occasion to consider the
test to be applied by commissioners.
However
both the Congress of South African Trade Unions (COSATU) and the
CCMA criticised the use of phrases or words such as “deference”,
“discretion” or “caution” or the reference to “reasonable
employer” in attempting to describe the test for fairness.
They
submitted that the use of these words or phrases in the context of
determining fairness has a potential to obscure the
real test.
These words and phrases tend to elevate the sanction imposed by the
employer to the ultimate test of fairness and
introduce the
so-called reasonable employer test. Yet the applicable test, and
indeed the ultimate test is one of fairness.
These
criticisms are not without merit. Words such as “discretion”
or “deference” or “caution” and “reasonable
employer”
are likely to obscure the real test and sow seeds of confusion.
Indeed, a review of the vast amount of case law
and the somewhat
conflicting decisions of the Labour Appeal Court on this issue
indicate that the use of these phrases and words
have obscured the
real test. However, these expressions must be understood in the
context of the test which commissioners must
adopt; the test of
fairness.
The
starting point in formulating the appropriate test is
NEHAWU
63
where this Court said:
“
[T]he focus of s 23(1) is,
broadly speaking, the relationship between the worker and employer
and the continuation of that relationship
on terms that are fair to
both. In giving content to that right, it is important to bear in
mind the tension between the interests
of the workers and the
interests of the employers which is inherent in labour relations.
Care must therefore be taken to accommodate,
where possible, these
interests so as to arrive at the balance required by the concept of
fair labour practices. It is in this
context that the LRA must be
construed.”
64
It
is manifest from the very conception of fairness that the
commissioner must hold the balance evenly between the worker and
the employer. And fairness to both workers and their employers
means the absence of bias in favour of either. The LRA makes
it
quite clear that the ultimate test that the commissioner must apply
is one of fairness. This is apparent from section 188
of the LRA.
The question however is whether there are any constraints on the
exercise of the power to determine fairness.
The
LRA distinguishes between dismissals that are automatically unfair
65
and those that are unfair.
66
In this case we are concerned with the latter. For this class of
dismissals to be fair, the employer must establish that the
dismissal was for a “fair reason” and “that the dismissal was
effected in accordance with a fair procedure.”
67
The LRA requires commissioners, when considering whether or not
the reason for dismissal is a fair reason to take into account
the
Code of Good Practice issued under the LRA.
68
The Code of Good Practice: Dismissal (the Code) is contained in
Schedule 8 to the LRA. It is framed in general terms and its
“key
principle” is that:
“
. . . employers and
employees should treat one another with mutual respect. A premium is
placed on both employment justice and the
efficient operation of
business. While employees should be protected from arbitrary action,
employers are entitled to satisfactory
conduct and work performance
from their employees.”
69
Item
2(1) of the Code provides that the question whether or not a
dismissal is for a fair reason must be determined by the facts
of
the case and the appropriateness of dismissal as a penalty. Item 7
sets out guidelines in cases of dismissal for misconduct
and
provides:
“
Any person who is
determining whether a dismissal for misconduct is unfair should
consider—
(a) whether or not the employee
contravened a rule or standard regulating conduct in, or of
relevance to, the workplace; and
(b) if a rule or standard was
contravened, whether or not—
(i) the rule was a valid or
reasonable rule or standard;
(ii) the employee was aware, or
could reasonably be expected to have been aware, of the rule or
standard;
(iii) the rule or standard has
been consistently applied by the employer; and
(iv) dismissal was an
appropriate sanction for the contravention of the rule or standard.”
It
is clear therefore that the LRA and the Code impose certain
constraints on the powers of commissioners in determining disputes
concerning unfair dismissals.
COSATU
submitted that the constraints upon commissioners’ functions
arise from the employer’s entitlement to set the rules.
It is no
doubt the prerogative of the employer to determine in the first
instance that it will dismiss employees who are guilty
of
particular infractions of its disciplinary code and then in a
particular case decide whether to impose that sanction. Both
the
rule and the sanction must be reasonable, otherwise dismissal
cannot be fair. All this is implicit, if not explicit from
item 7
of the Code which requires a commissioner, in considering whether a
dismissal is fair, to consider the reasonableness
of the employer’s
rule or standard and the appropriateness of dismissal as a sanction
for the contravention of the rule or
standard.
70
Equally
true is that when an employer determines what is an appropriate
sanction in a particular case, the employer may have to
choose
among possible sanctions ranging from a warning to dismissal. It
does not follow that all transgressions of a particular
rule must
attract the same sanction. The employer must apply his or her mind
to the facts and determine the appropriate response.
It is in this
sense that the employer may be said to have discretion.
But
recognising that the employer has such discretion does not mean
that in determining whether the sanction imposed by the employer
is
fair, the commissioner must defer to the employer. Nor does it
mean that the commissioner must start with bias in favour
of the
employer. What this means is that the commissioner, as the CCMA
submitted, does not start with a blank page and determine
afresh
what the appropriate sanction is. The commissioner’s starting
point is the employer’s decision to dismiss. The commissioner’s
task is not to ask what the appropriate sanction is but whether the
employer’s decision to dismiss is fair.
In
answering this question, which will not always be easy, the
commissioner must pass a value judgment. However objective the
determination of the fairness of a dismissal might be, it is a
determination based upon a value judgment. Indeed the exercise
of
a value judgment is something about which reasonable people may
readily differ.
But
it could not have been the intention of the law-maker to leave the
determination of fairness to the unconstrained value judgment
of
the commissioner. Were that to have been the case the outcome of a
dispute could be determined by the background and perspective
of
the commissioner. The result may well be that a commissioner with
an employer background could give a decision that is biased
in
favour of the employer, while a commissioner with a worker
background would give a decision that is biased in favour of a
worker. Yet fairness requires that regard must be had to the
interests both of the workers and those of the employer. And this
is crucial in achieving a balanced and equitable assessment of the
fairness of the sanction.
These
considerations imply certain constraints on commissioners.
However, what must be stressed is that having regard to these
considerations does not amount to deference to the employer’s
decision in imposing a particular sanction. As COSATU put it,
what
is required of a commissioner is to take seriously the reasons for
the employer establishing the rule and prescribing the
penalty of
dismissal for breach of it. Where an employer has developed and
implemented a disciplinary system, it is not for
the commissioner
to set aside the system merely because the commissioner prefers
different standards. The commissioner should
respect the fact that
the employer is likely to have greater knowledge of the demands of
the business than the commissioner.
However,
such respect for the employer’s knowledge is not a reason for the
commissioner to defer to the employer. The commissioner
must seek
to understand the reasons for a particular rule being adopted and
its importance in the running of the employer’s
business and then
weigh these factors in the overall determination of fairness.
There
are other factors which are relevant to the determination of
fairness such as the generally applicable industrial norms
of which
the commissioner will have knowledge through the institutional
knowledge of the CCMA. This may involve a consideration
of how
other employers would respond to the misconduct in question. But
these are subsidiary questions, as the CCMA pointed
out in oral
argument, which are only intended to assist the commissioner in
determining the ultimate fairness of a sanction imposed
by the
employer. They go to the question whether dismissal was an
appropriate sanction for the contravention of the rule or
standard,
a factor which a commissioner is obliged to consider under item
7(b)(iv) of the Code. And in addition, commissioners
when
considering the fairness of a dismissal are obliged to consider
whether or not the employer’s rule was a valid or reasonable
rule
or standard.
71
To consider these matters is not to import the so-called
reasonable employer test. It is to give effect to the LRA and the
Code.
These
then are my observations on the proper approach that commissioners
should adopt when performing their function to determine
whether
the sanction imposed by the employer is fair. I now turn to the
proper approach that the Labour Court should adopt when
reviewing a
decision of a commissioner under the provisions of section
145(2)(a) of the LRA.
The
challenge to the decision of the commissioner
In
its review application, the employer challenged certain findings by
the commissioner. These include the findings that: there
were no
losses suffered by the employer; the violation of the rule by Mr
Sidumo was unintentional or a mistake and that the type
of
misconduct of which Mr Sidumo was found guilty did not go to the
heart of the trust relationship. The employer submitted
that these
findings had no basis on the evidence presented to the commissioner
and they flew in the face of direct and to a large
extent
unchallenged evidence to the contrary. The employer submitted that
these findings, which were fundamental to the commissioner’s
award, demonstrate that the commissioner failed to apply his mind
to the matter to such an extent that it cannot be said that
the
employer was afforded a fair hearing. It was submitted that in
these circumstances the commissioner committed a gross irregularity
or committed a misconduct or acted in excess of his or her powers.
Authority
of a Labour Court to review arbitral awards
There
is no appeal against a decision of a commissioner. The only remedy
available to a person aggrieved by the decision of a
commissioner
is to institute review proceedings in the Labour Court. Section
158(1)(g) confers on the Labour Court the power
to “review the
performance or purported performance of any function provided for
[in the LRA] on any grounds that are permissible
in law”.
72
While these powers are wide enough to include the power to review
arbitral awards made by commissioners, they are subject to
section
145 which makes provision for the review of arbitration awards.
Reviews under this section 145 are confined to those
instances
where “[a]ny party to a dispute . . . alleges a defect in any
arbitration proceedings under the auspices of the [CCMA]”.
I
pause here to refer to the history of section 158(1)(g). This
provision originally used the words “despite s 145” instead
of
“subject to section 145”. Prior to the decision of the Labour
Appeal Court in
Carephone
,
73
there were conflicting decisions of the Labour Court on the
question whether the Labour Court has the power to review arbitral
awards under section 158(1)(g). The one line of decisions held
that there was no such power.
74
However a majority of the decisions of the Labour Court held that
there was such power.
75
As the Labour Appeal Court pointed out in
Carephone
, apart
from the language of the provision, the reasoning in favour of the
application of section 158(1)(g) found justification
in the view
that the grounds of review under section 145 were limited in scope
and did not give expression to the right to just
administrative
action in section 33 of the Constitution.
76
In
Carephone
the Labour Appeal Court construed the word
“despite” in section 158(1)(g) to mean “subject to”, this
being “a lesser
evil than ignoring the whole of s 145” and held
that the review of CCMA arbitration awards must proceed under
section 145 of
the LRA.
77
The Legislature subsequently intervened and introduced an
amendment in line with the decision in
Carephone
.
Section
145 of the LRA, in the relevant part provides:
“
(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) within six weeks of the
date that the award was served
on the applicant . . .
(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; or
(b) that an award has been
improperly obtained.”
The
general powers of review of the Labour Court under section
158(1)(g) are therefore subject to the provisions of section 145(2)
which prescribe grounds upon which arbitral awards of CCMA
commissioners may be reviewed. These grounds are misconduct by the
commissioner in relation to his or her duties; gross irregularity
in the conduct of the proceedings; where the commissioner exceeds
his or her powers; or where the award was improperly obtained.
These are the only grounds upon which arbitral awards of CCMA
commissioners may be reviewed by the Labour Court under section
145(2) of the LRA. It follows therefore that a litigant who
wishes
to challenge an arbitral award under section 145(2) must found his
or her cause of action on one or more of these grounds
of review.
The
central question to be answered in this aspect of the appeal is the
proper approach to reviews under section 145(2)(a).
The
approach of the Supreme Court of Appeal
In
determining the ambit of the grounds of review in section
145(2)(a), the Supreme Court of Appeal focused the enquiry on
whether
arbitral awards are products of administrative action.
78
Having found that they are, it held that the provisions of PAJA
apply to their review. It reasoned that the grounds of review
in
section 145(2)(a) have been subsumed under the grounds of review
contained in PAJA.
79
It held that, by necessary implication, PAJA extended the grounds
of review available to parties to CCMA arbitration.
80
It then proceeded to consider the standard of review applicable to
the review of arbitral awards and concluded that the test
for
review is whether the commissioner’s decision is rationally
connected to the information before the commissioner and to
the
reasons given for it.
81
As I understand the reasoning of the Supreme Court of Appeal, this
standard of review is applicable to all reviews under section
145(2)(a).
The
contentions of the parties on appeal
In
this Court, both COSATU and the CCMA contended that the Supreme
Court of Appeal erred in holding that (a) the conduct
of
arbitration proceedings constitutes administrative action within
the meaning of section 33 of the Constitution; and (b) therefore
PAJA applies to the review of arbitral awards. As a consequence,
the test for the review of arbitral decisions formulated by
the
Supreme Court of Appeal was wrong in law, they contended.
They
submitted that the conduct of arbitration proceedings under the
auspices of the CCMA does not constitute administrative action
under section 33 of the Constitution and therefore PAJA does not
apply to their review. They submitted that commissioners perform
adjudicative functions of the nature contemplated in section 34 of
the Constitution. In the performance of their functions,
commissioners, who exercise public power, are therefore subject to
the same constitutional constraints that apply to the exercise
of
public power, so it was argued. Commissioners are obliged to act
in a manner that is consistent with the constitutional requirement
for the lawful exercise of public power. If they do not do so,
COSATU submitted, then they either commit a gross irregularity
or
otherwise exceed their powers.
COSATU
amplified its argument and submitted that the exercise of public
power imposed an obligation on commissioners to act rationally.

The standard of rationality is satisfied if the result reached by
the commissioner is open to the arbitrator acting rationally
on the
material before him or her, COSATU argued. Simply put, the
evidence must provide rational support for the conclusion
reached
by the arbitrator. COSATU further submitted that to act
rationally, the commissioner must apply his or her mind to the
facts. A failure to apply his or her mind to the facts or
substantial failure to have regard to relevant facts or paying
attention
to irrelevant facts may show irrationality, argued
COSATU.
For
its part, the employer supported both the reasoning and the
conclusion of the Supreme Court of Appeal.
The
central issue in this case is the proper interpretation of section
145(2) of the LRA, in particular, the ambit of the grounds
of
review specified in the provision. These grounds of review must,
as the LRA requires, be construed and understood in the
light of
the right to fair labour practices in section 23 of the
Constitution and the primary objectives of the LRA in creating
the
CCMA and giving it power to decide disputes concerning unfair
dismissals.
82
This, in my judgement, is the proper approach to the construction
of the provisions of section 145(2) of the LRA. Strictly
speaking,
this case does not require us to decide whether or not the function
of the CCMA commissioners in adjudicating on disputes
concerning
unfair dismissals falls under section 33 or section 34 of the
Constitution.
However,
in light of the finding of the Supreme Court of Appeal and the
contentions of the parties, it is necessary to consider
first the
question whether the decisions of the CCMA commissioners constitute
administrative action under section 33 of the Constitution
and the
validity of the proposition that their decisions are governed by
section 34 of the Constitution.
Accordingly,
in this judgment I will consider the following issues: first, the
finding of the Supreme Court of Appeal that CCMA
arbitration
proceedings constitute administrative action and that therefore
PAJA applies to their review; second, the contention
by COSATU that
arbitral awards must be reviewed under the constitutional standard
of rationality announced in
Pharmaceutical
;
83
third, the proper approach to reviews under section 145(2); fourth,
the ambit of the grounds of review in section 145(2)(a) of
the LRA;
and, finally, whether on the facts of this case the employer has
demonstrated that the conduct of the commissioner falls
into one or
more of the grounds of review in section 145(2)(a).
With
that prelude, I now turn to consider the question whether the
decisions of the CCMA constitute administrative action.
CCMA
commissioners exercise public power
CCMA
commissioners arbitrate over those disputes which, under the LRA,
require arbitration. The CCMA is an entity created by
the LRA and
designed to fulfil the objectives of the LRA. It performs a public
function by, among other things, providing an
infrastructure for
resolving labour disputes. It is therefore an organ of state
within the meaning of section 239(b)(ii) of
the Constitution which
exercises public power in terms of the LRA.
84
There
can be no question therefore that when CCMA commissioners conduct
arbitration proceedings, they perform a public function
which is to
resolve labour disputes. They therefore exercise public power
under the auspices of the CCMA.
85
COSATU and the employer therefore correctly accepted that the
conduct of an arbitration by a CCMA commissioner is an exercise
of
public power. But does the conduct of an arbitration constitute
administrative action? This question must be answered in
the light
of the test for administrative action.
The
test for administrative action
Section
33 of the Constitution confines its operation to “administrative
action”. PAJA does so too. It follows therefore
that to
determine whether conduct is subject to review under section 33 and
thus under PAJA, the threshold question is whether
the conduct
under consideration constitutes administrative action. The
appropriate starting point is to determine whether the
conduct in
question constitutes administrative action within the meaning of
section 33 of the Constitution.
86
If it does, it must then be determined whether PAJA nevertheless
excludes it from its operation.
87
The
test for determining whether conduct constitutes “administrative
action” under section 33 is whether the
function
performed
by the public official constitutes administrative action. The
enquiry thus focuses on the nature of the function that
the public
official performs. The identity of the functionary performing the
function is not relevant for the purposes of determining
whether a
particular conduct constitutes administrative action. In
SARFU
this Court formulated the test as follows:
“
In s 33 the adjective
‘administrative’ not ‘executive’ is used to qualify
‘action’. This suggests that the test for
determining whether
conduct constitutes ‘administrative action’ is not the question
whether the action concerned is performed
by a member of the
executive arm of government. What matters is not so much the
functionary as the function. The question is
whether the task
itself is administrative or not. It may well be, as contemplated in
Fedsure
, that some acts of a legislature may constitute
‘administrative action’. Similarly, judicial officers may, from
time to time,
carry out administrative tasks. The focus of the
enquiry as to whether conduct is ‘administrative action’ is not
on the arm
of government to which the relevant actor belongs, but on
the nature of the power he or she is exercising.”
88
(Footnotes omitted.)
It
is apparent from this formulation that some acts of a public
official will constitute administrative action as contemplated
in
section 33 while others will not.
89
This must be so because public officials and public bodies may be
entrusted with a number of responsibilities. Cabinet ministers
are
a good example of such public officials. One of their
responsibilities is the implementation of legislation, a task which
is plainly administrative. Cabinet ministers also have the
constitutional responsibility to develop policy and to initiate

legislation. The carrying out of these tasks does not amount to
administrative action.
90
Indeed if one has regard to the functions that are entrusted to
the CCMA, they include administrative functions, when the CCMA
conducts and supervises elections under the LRA and when the CCMA
makes rules regulating the practice and procedure that is to
be
followed during conciliation and arbitration proceedings;
91
and, as I will show, adjudicative when CCMA commissioners resolve
labour disputes through arbitration.
However
it will not always be easy to say whether particular conduct
constitutes administrative action. This is so, as the Supreme
Court of Appeal has observed, because “the exercise of public
power generally occurs as a continuum with no bright line
marking the transition from one form to another”.
92
As this Court observed in
SARFU
, difficult boundaries may
well have to be drawn in deciding what should or should not be
characterised as administrative action.
93
These boundaries must of course be drawn carefully in the light of
the Constitution. And naturally this can only be done on
a case by
case basis.
94
Determining whether action should be characterised as
administrative or not will “depend primarily upon the nature of
the
power.”
95
A number of considerations may be relevant to this enquiry,
including the source of power and its subject matter.
96
With
these principles in mind, I now turn to consider the question
whether the conduct of an arbitration concerning an alleged
unfair
dismissal by an arbitrator appointed in terms of the LRA by the
CCMA constitutes administrative action within the meaning
of
section 33 of the Constitution.
Do
CCMA arbitration proceedings constitute administrative action?
The
function performed by a CCMA commissioner involves a determination
of facts and the application of legal principles in order
to decide
whether or not a dismissal was fair. CCMA arbitrations are
therefore in the nature of litigation, involving as they
do
disputes between employers and workers. These are disputes which
may be adjudicated upon by the Labour Court but which, in
a quest
for a speedy and less costly dispute resolution mechanism, the LRA
requires that they should be submitted to arbitration
under the
auspices of the CCMA. Indeed arbitration has been described as
follows:
“
Arbitration is the process
by which a dispute or difference between two or more parties as to
their mutual legal rights and liabilities
is referred to and
determined judicially and with binding effect by the application of
law by one or more persons (the arbitral
tribunal) instead of by a
court of law. The decision of the arbitral tribunal is usually
called an award. The reference to arbitration
may arise from the
agreement of the parties (private arbitration) or from statute.”
97
CCMA arbitrations bear all the hallmarks of a judicial function in
that there is a
lis
between the employer and a worker 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 rights of workers and employers.
98
CCMA commissioners are clothed with virtually all the powers that
presiding officers in a court of law have, including the power
to
make findings of contempt of the commission.
99
The sole task of a commissioner in an arbitration hearing is to
find facts and then apply the provisions of the LRA. In my
view
the process of factual and legal evaluation involved in deciding
whether the dismissal was for a fair reason and to issue
an award
is clearly judicial in nature.
100
CCMA
commissioners resolve disputes between employers and workers by
applying the provisions of the LRA. They must determine
disputes
fairly.
101
It is apparent from the provisions of the LRA that arbitration
hearings must be conducted in public and that CCMA commissioners
must be independent and impartial.
102
CCMA arbitration proceedings are therefore the kind of proceedings
contemplated in section 34 of the Constitution.
103
In terms of section 34 of the Constitution, everyone who has a
dispute that can be resolved by the application of the law has
a
right to have the dispute decided in a fair public hearing before a
court of law or an independent and impartial tribunal.
The LRA has
created the CCMA and Labour Courts to resolve labour disputes.
CCMA arbitrations provide independent and impartial
tribunals
contemplated in section 34 of the Constitution.
104
In
Patcor Quarries CC v Issroff and Others
,
105
the High Court had to consider whether a private arbitration
constitutes administrative action. It held:
“
The question is whether an
arbitrator, in the performance of his duties as such, performs an
administrative act when he adjudicates
in arbitration proceedings
and whether his decision (award) can be said to be an administrative
decision. I think not. An arbitration
is in the nature of
litigation. There is a dispute between two or more parties, which,
more often than not, may be adjudicated
upon by the Courts, but in a
quest for speedy and less costly resolution, the parties agree to
submit such dispute to arbitration.
One of the characteristics
thereof ‘is the finality of the arbitrator’s award’ (
Kollberg
v Cape Town Municipality
1967 (3) SA 472
(A) at 481F), hence the
provisions of s 28 of the Arbitration Act. (See also the definition
of the word ‘arbitration’ in Butler
and Finsen
Arbitration in
South Africa, Law and Practice
and in Jacobs
The Law of
Arbitration in South Africa
.) I am accordingly of the view that
an arbitrator does not perform an administrative function when
adjudicating over a dispute
in arbitration proceedings but rather a
judicial function. It follows that s 24 of the interim Constitution
cannot be invoked
to challenge his award.”
106
This
decision was upheld by the Supreme Court of Appeal in
Total
Support Management (Pty) Ltd and Another v Diversified Health
Systems (SA) (Pty) Ltd and Another
,
107
where the court held:
“
The hallmark of arbitration
is that it is an adjudication, flowing from the consent of the
parties to the arbitration agreement,
who define the powers of
adjudication, and are equally free to modify or withdraw that power
at any time by way of further agreement.
This is reflected in s
3(1) of the Act. As arbitration is a form of private adjudication
the function of an arbitrator is not
administrative but judicial in
nature. This accords with the conclusion reached by Mpati J in
Patcor Quarries CC v Issroff and Others
1998 (4) SA 1069
(SE)
at 1082G. Decisions made in the exercise of judicial functions do
not amount to administrative action (cf
Nel v Le Roux NO and
Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC) at 576C (para [24]), and compare
also the exclusionary provision to be found in (b)(ee) of the
definition of ‘administrative
action’ in
s 1
of the
Promotion of
Administrative Justice Act). It
follows, in my view, that a
consensual arbitration is not a species of administrative action and
s 33(1) of the Constitution has
no application to a matter such as
the present.”
108
While
these decisions were concerned with private arbitration, their core
findings on the nature of the functions of an arbitrator
are
apposite here. They held that arbitration is a form of
adjudication and that the function of an arbitrator is not
administrative
but judicial in nature. I agree with these
findings. The fact that arbitration is conducted in terms of a
statute as opposed
to under a private agreement does not change its
essential character although, as I will demonstrate later in this
judgment,
it has some implications for the powers of the
arbitrator. The functions of the arbitrator are the same. Indeed,
the provisions
of the Arbitration Act 42 of 1965 (the
Arbitration
Act) apply
to arbitrations which are “conducted under that Act in
respect of any dispute that may be referred to arbitration in terms

of [the LRA]”.
109
Thus where the parties agree to refer a dispute to private
arbitration, awards in such cases are reviewed by the Labour Court
under
section 33(1)
of the
Arbitration Act in
terms of
section
157(3)
of the LRA.
It
is true
section 146
of the LRA specifically excludes the operation
of the
Arbitration Act in
respect of arbitration under the CCMA.
The purpose of this exclusion however is to ensure that the review
of CCMA arbitrations
would be undertaken by the specialist Labour
Court and not by the ordinary courts. And this is consistent with
the scheme of
the LRA to establish a system of specialist courts
outside of the ambit of ordinary courts. This exclusion however
did not alter
the fundamental nature of arbitration proceedings and
render them administrative action.
COSATU
drew attention to the fact that under the LRA it is open to parties
to agree to refer a dispute to private arbitration
whether for
reasons of convenience or to circumvent the CCMA. Awards in such
cases are reviewed before the Labour Court under
section 33(1)
of
the
Arbitration Act in
terms of
section 157(3)
of the LRA. It
would indeed be anomalous, as COSATU submitted, if the powers of
the Labour Court on review were to differ depending
on whether the
arbitration was private or before the CCMA when the nature of the
proceedings is the same; the issue in dispute
is the same; the
arbitrator may well be a CCMA arbitrator and the language of the
statutory provisions describing the powers
of the Labour Court on
review are the same.
110
There is force in this submission.
There
are further considerations which militate against the finding that
the CCMA commissioner performs administrative action.
First, as I
have pointed out above, the CCMA is an independent and impartial
tribunal contemplated in section 34 of the Constitution.
111
It resolves disputes concerning unfair dismissal which are
disputes capable of being decided by the application of the LRA.

Although the CCMA, like the Labour Courts, is created by statute
which also determines the nature and extent of its powers,
its
power to decide disputes concerning unfair dismissals derives from
section 34 of the Constitution. The determination of
disputes
capable of being decided by the application of law is not confined
to courts of law, it may be done by another independent
and
impartial tribunal. As the Labour Appeal Court pointed out in
Carephone
, the arbitration of labour disputes by an
independent body, the CCMA, is permissible in terms of section 34
of the Constitution.
112
The action of CCMA commissioners in deciding unfair dismissal
disputes cannot, in my view, be characterised as the implementation
of legislation. Nor does this action amount to administration.
The action performed by commissioners in resolving unfair dismissal
disputes is clearly a judicial function. This function cannot
therefore be said to constitute administrative action within the
meaning of section 33.
Second,
the functions performed by CCMA commissioners in an unfair
dismissal arbitration are indeed no different from those performed
by the Labour Court when it is seized with the same kind of dispute
in terms of section 158(2)(b)
113
or 191(6)
114
of the LRA. Section 158(2)(b) contemplates that the Labour Court
will sit as an arbitration tribunal where, in the course of
its
proceedings, it becomes apparent that the dispute ought to have
been referred to arbitration. Similarly, section 191(6)

contemplates that the director of the CCMA may refer to the Labour
Court a dispute that under the provisions of the LRA should
be
referred to arbitration.
It
is apparent from the provisions of sections 158(2)(b) and 191(6)
that the same functions that are performed by CCMA commissioners
may be performed by the Labour Court. They adjudicate on the same
kind of labour disputes. The proceedings are substantially
identical. It is only the nature of the tribunal that differs. To
characterise the proceedings before the Labour Court as judicial
but those of the CCMA commissioners as administrative in these
circumstances is to make a distinction based on the functionary
performing the function. Yet this Court has said that what matters
is not so much the functionary but the function.
115
The focus of the enquiry is not on the identity of the tribunal
that performs the function but on the nature of the power that
is
being exercised.
116
The
performance of judicial functions is not confined to courts of law.
Administrative tribunals are increasingly performing
the same
functions as courts of law do and they do so by similar process.
Thus an administrative body may in the discharge of
its duties
under a statute function as if it were a court of law and perform
judicial functions.
117
And at times it is “not easy to draw a clear line of demarcation
between tribunals which are and those which are not Courts
of
Law.”
118
What characterises a judicial function are proceedings in which
rights are legally determined and liability imposed by a competent
authority upon a consideration of the facts and the circumstances
placed before it.
119
Professor
Wade considers the distinction between judicial and administrative
functions and concludes that many administrative
tribunals perform
judicial rather than administrative functions. In this regard he
says:
“
The one distinction which
would seem to be workable is that between judicial and
administrative functions. A judicial decision
is made according to
rules. An administrative decision is made according to
administrative policy. A judge attempts to find what
is the correct
solution according to legal rules and principles. An administrator
attempts to find what is the most expedient
and desirable solution
in the public interest. It is true, of course, that many decisions
of the courts can be said to be made
on grounds of legal policy and
that the courts sometimes have to choose between alternative
solutions with little else than the
public interest to guide them.
There will always be grey areas. Nevertheless the mental exercises
of judge and administrator
are fundamentally different. The judge’s
approach is objective, guided by his idea of the law. The
administrator’s approach
is empirical, guided by expediency.
Under this analysis, based on the nature of the functions, many
so-called administrative tribunals,
such as social security and
employment tribunals, have judicial rather than administrative
functions, since their sole task is
to find facts and apply law
objectively.”
120
But
the performance of judicial functions does not transform an
administrative tribunal into a court of law. The converse is
also
true. This much was recognised by the Appellate Division prior to
the advent of our constitutional democracy.
121
The fact that the CCMA is not a court of law and does not have
judicial authority under the Constitution, is irrelevant. The
question is whether the conduct of an arbitration is administrative
action.
It
is true, in the past administrative tribunals that performed
judicial functions were subject to judicial review under
administrative
law. This must of course be understood in the
context of the legal system that prevailed prior to the advent of
the new constitutional
order. It must be recalled that under the
previous legal order, the exercise of public power was regulated by
courts through
judicial review of legislative and executive action.
Courts applied the constitutional principles of common law,
including the
supremacy of parliament and the rule of law. The
rule of law had a substantive as well as a procedural content. In
this sense,
judicial review enabled courts to place constraints on
the exercise of public power. But judicial review was subject to
the
doctrine of parliamentary supremacy.
122
This
was done in order to control the exercise of public power in the
context of the doctrine of parliamentary supremacy. Judicial
review was developed and applied by courts against the background
of a legal order premised on the supremacy of parliament.
Laws
duly passed by parliament in accordance with the Constitution in
force were not subject to judicial review. The court’s
role was
confined to interpreting and applying those laws to particular
cases.
123
The major source of constraint upon the exercise of public power
lay in judge-made administrative law. Courts developed this
branch
of the law to “embrace the exercise of public power in fields
which, strictly speaking, might not have constituted

administration.”
124
For example “the action of a municipal council in setting rates
was considered to be an action that was subject to judicial
review
on the principles of administrative law”.
125
As this Court observed in
Pharmaceutical
,
126
courts had to claim space and push boundaries in order to find the
means of controlling public power. The focus was not so much
on
the nature of the functions performed but was on the identity of
the body performing the function. As a consequence, functions
which strictly speaking did not amount to administration were
nevertheless subject to judicial review under administrative law.
All
this has changed. Our new constitutional order firmly rejects the
doctrine of parliamentary supremacy. It introduced the
doctrine of
the supremacy of the Constitution and the rule of law. Indeed the
rule of law is specifically declared to be one
of the foundational
values of our new constitutional order.
127
Thus both the Constitution and the rule of law impose constraints
on the exercise of public power. “The common-law principles
that
previously provided the grounds for judicial review of public power
have been subsumed under the Constitution” and they
now derive
their force from the Constitution.
128
Constraints on the exercise of public power are to be found
throughout the Constitution, including the right to just
administrative
action.
129
What
is administrative action must now be determined not by looking at
the identity of the body that performs the function but
by
considering the nature of the function that is being performed.
This fundamental shift in focus inevitably means that tribunals
that in the past were subject to judicial review under
administrative law even though the function they performed did not
strictly
speaking amount to administration, may no longer be
subject to administrative review in light of the nature of the
functions
that they perform. It follows therefore that the fact
that in the past administrative tribunals that performed judicial
functions
were subject to judicial review under administrative law,
cannot today determine whether the function they perform is
administrative
action.
The
Supreme Court of Appeal did not elaborate on its finding that CCMA
arbitration proceedings constitute administrative action.
This
must be understood in the context of the jurisprudence of the
Labour Courts, in particular, the decision of the Labour
Appeal
Court in
Carephone
which held that the conduct of CCMA
arbitration constitutes administrative action under section 33 of
the Constitution.
130
Carephone
131
was delivered prior to the decision of this Court in
SARFU
,
132
which formulated the test for determining whether or not a
particular conduct constitutes administrative action. With a few
exceptions,
133
the
Carephone
decision has been followed both by the Labour
Appeal Court and the Labour Court. Its continued validity must be
assessed in
the light of the test for administrative action
formulated by this Court in
SARFU
.
134
Is
Carephone still good law?
In
Carephone,
the Labour Appeal Court had to consider the
nature and extent of the right to review arbitration awards made by
commissioners.
There, as here, the CCMA contended that the
commissioners’ function of compulsory arbitration under the LRA
was of a judicial
nature and did not therefore amount to
administrative action for the purposes of section 33 of the
Constitution.
135
The Court rejected this contention. The Court in substance gave
three answers to the contention by the CCMA.
First,
the classification of state conduct into conduct which constitutes
administrative action and conduct which does not, reintroduces
the
distinction between judicial, quasi-judicial and purely
administrative functions. These formal classifications are no

longer relevant in the light of the development of our law on
judicial review. They cannot therefore be reintroduced to limit
the scope of judicial review of administrative action.
136
Second, in determining whether the action of a state organ
exercising public power constitutes administrative action under the
Constitution what matters is the identity of the functionary.
Thus, although the commissioner may perform functions of a judicial
nature, it is not a court of law and thus has no judicial authority
under the Constitution. Its performance of judicial functions
does
not transform it into a part of the judicial arm of government.
137
Administrative actions may take many forms even if judicial in
nature, the function remains administrative.
138
Third, the purpose of section 33 of the Constitution is to extend
values of accountability, responsiveness and openness to

institutions of public power which might not have been subject to
those constraints. Courts of law do not need those constraints
because they were “always subject to the kind of requirements set
out in the section.”
139
It would therefore “be incongruous to free other public
institutions exercising judicial functions from those
constraints.”
140
It is not necessary to seek those constraints in other provisions
in the Bill of Rights such as the right of access to courts
contained in section 34.
The
Court then proceeded to consider the standard of review under
section 145 of the LRA on the footing that CCMA arbitrations
constitute administrative action. It had regard to the provisions
of section 33 of the Constitution
141
read with item 23(2)(b) of Schedule 6 to the Constitution.
142
The Court held that what is required is that administrative action
must be justifiable in relation to the reasons given for
it. It
held that section 33 read with item 23(b) “introduces a
requirement of rationality in the
merit
or
outcome
of the administrative decision [which] . . . goes beyond mere
procedural impropriety as a ground for review, or irrationality
only as evidence of procedural impropriety.”
143
Relying on item 23(2) of Schedule 6 of the Constitution, the Court
then formulated the test thus:
“
It seems to me that one will
never be able to formulate a more specific test other than, in one
way or another, asking the question:
is there a rational objective
basis justifying the connection made by the administrative
decision-maker between the material properly
available to him and
the conclusion he or she eventually arrived at? In time only
judicial precedent will be able to give more
specific content to the
broad concept of justifiability in the context of the review
provisions in the LRA.”
144
Central
to the reasoning of the Labour Appeal Court are two propositions:
first, although CCMA commissioners perform functions
of a judicial
nature, they are not courts of law and are not vested with judicial
authority under the Constitution. Second,
administrative action
may take many forms, including judicial in nature. Implicit in the
reasoning of the Labour Appeal Court
is the proposition that what
is administrative action under the new legal order depends not on
the function performed, but on
the identity of the body performing
the function.
But
this reasoning is at odds with the test formulated by this Court in
SARFU
.
145
The enquiry does not focus on the functionary who performs the
function but focuses on the function that is being performed.
Some
functions of the CCMA will constitute administrative action as
contemplated in section 33.
146
Others will not.
147
As this Court observed in
SARFU
, judicial officers may from
time to time carry out administrative tasks.
148
Their action will constitute administrative action. The fact that
it is performed by a judicial officer does not change the
nature of
the function.
149
The same is true of the CCMA.
The Constitution does not
contemplate that a function will be both administrative and
judicial as the Labour Appeal Court in
Carephone
150
implicitly suggested.
The
new constitutional order does not re-introduce the classification
of public power into judicial, quasi-judicial and purely
administrative functions. What it requires is the classification
of state conduct into conduct which constitutes administrative
action and conduct which does not. Section 33 and PAJA makes this
necessary in order to determine the constitutional constraints
applicable. As this Court pointed out in
Fedsure
:
“
Whilst it might not have
served any useful purpose under the previous legal order to ask
whether or not the action of a public authority
was
‘administrative’, it is a question which must now be asked in
order to give effect to s 24 of the Interim Constitution
and s 33 of
the 1996 Constitution.”
151
To
hold that the conduct of CCMA arbitration proceedings does not
constitute administrative action is not to free commissioners
from
the values of accountability, responsiveness and openness. These
are one of the founding values of our constitutional democracy.

Every official who exercises public power is bound by these values.
Commissioners are no exception. Nor does such a holding
mean that
the conduct of CCMA arbitrations is not subject to any
constitutional constraints. The Constitution, as the supreme
law,
regulates the exercise of public power in different ways including
through the application of the Bill of Rights and other
specific
provisions of the Constitution. The right to administrative action
and the rule of law are some of those constraints.
The rule of law
requires that all those who exercise public power must do so in
accordance with the law and the Constitution.
In the case of
commissioners, apart from the requirement of accountability,
responsiveness and openness, they must comply with
the provisions
of the LRA and the Constitution, in particular, sections 23 and 34
of the Constitution.
The
CCMA as a body has a multiplicity of functions. It may conduct
research into issues relating to its work, it conducts elections
that are required to take place under the LRA; it has the authority
to make rules of practice and procedure that govern arbitration
and
conciliation proceedings;
152
it provides the infrastructure for the conduct of arbitration and
conciliation; and appoints commissioners who preside over

arbitration proceedings. While most of these functions are clearly
administrative in nature, the actual conduct of arbitration
proceedings cannot in my judgment be classified as administrative.
It is necessary to draw a distinction between those functions
of
the CCMA which are administrative in nature, and therefore
constitute administrative action, and those that are adjudicative
in nature which do not constitute administrative action.
The
effect of the decisions of this Court in
Fedsure
,
153
SARFU
154
and
Pharmaceutical
155
is this: first, not every action by an organ of state which
performs public power constitutes administrative action as
contemplated
in section 33 of the constitution; and second, it is
therefore necessary in every case where it is alleged that the
action in
question constitutes administrative action, to consider
whether the action in question constitutes administrative action.
It
is wrong to say that because the organ of state in question is
not vested with judicial authority under the Constitution therefore
all its actions, regardless of their nature will remain
administrative action, as the Labour Appeal Court did in
Carephone
.
156
To do so is to focus the enquiry on the arm of government
performing the function and not on the nature of the function that
is being performed. This is contrary to the test announced in
SARFU
.
157
What
must be stressed is what was said in
Fedsure
. In
Fedsure
this Court recognised that functionaries may perform functions that
are normally performed by other bodies such as legislative
and
adjudicative functions. In determining whether a function is
administrative action or not,
Fedsure
teaches us that in
such a case we must pay attention to the process by which the
function is performed and not on the functionary
performing the
function. This is recognition that legislative, judicial and
administrative functions are performed in a particular
manner.
Thus if the process by which a commissioner performs his or her
function is in substance judicial, the result of the
action cannot
be administrative. In this regard, this Court said in
Fedsure
:
“
In addressing this question
it is important to distinguish between the different processes by
which laws are made. Laws are frequently
made by functionaries in
whom the power to do so has been vested by a competent legislature.
Although the result of the action
taken in such circumstances may be
‘legislation’ the process by which the legislation is made is in
substance ‘administrative’.
The process by which such
legislation is made is different in character to the process by
which laws are made by deliberative
legislative bodies such as
elected municipal councils. Laws made by functionaries may well be
classified as administrative; laws
made by deliberative legislative
bodies can seldom be so described.”
158
Here
we are concerned with a very unique tribunal. This tribunal is a
permanent feature in the field of labour law; it was created
to
resolve unfair dismissal disputes through the application of the
LRA; its functions are in substance and in form judicial
in nature.
It performs functions that are substantially similar in form and
substance to those that are performed by a court
of law, a function
contemplated in section 34 of the Constitution; and therefore, in
this sense, exercises original powers.
The powers exercised by
commissioners do not involve the implementation of legislation but
they involve the application of the
law in resolving unfair
dismissal disputes. Commissioners must apply the Constitution, in
particular, section 23 of the Constitution
and section 188 of the
LRA read with the Code.
Their
sole business is the adjudication of labour disputes between
workers and employers. In this process they deal with the
determination of facts and the interpretation of the LRA, the Code
and indeed where necessary, the Constitution itself.
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. These are the very
functions that courts of law perform.
This
is the tribunal we are concerned with. It is very different from
other administrative tribunals. Its powers and functions
are
closer to, if not identical to judicial function. In
SARFU
159
we said that difficult boundaries may have to be drawn in
determining whether a particular action constitutes administrative
action under section 33 of the Constitution and that such
determination must be made on a case by case basis. This case
calls
for such a difficult boundary to be drawn and our decision
must be confined to the special functions of CCMA commissioners.

In drawing this boundary, we must acknowledge the fact that the
CCMA as a body fits the description of an administrative body but
at the same time we must recognise that it has a multiplicity of
functions some of which may be administrative while others are
not.
We should draw a line between its administrative functions on the
one hand and the adjudicative functions performed by
the
commissioners on the other hand who sit as independent and
impartial tribunals as contemplated in section 34.
It
follows therefore that the Labour Appeal Court in
Carephone
160
erred in holding that the conduct of arbitrations under the LRA
constitutes administrative action. So did the Supreme Court
of
Appeal in this case.
161
For
all these reasons, I am unable to agree with the primary contention
of the employer and the finding by Navsa AJ that the conduct
of an
arbitration concerning an alleged unfair dismissal by an arbitrator
appointed in terms of the LRA by the CCMA constitutes
administrative action within the meaning of section 33 of the
Constitution. This conclusion renders it unnecessary to consider
whether PAJA applies to the review of CCMA arbitrations.
What then is the proper approach to the reviews under section
145(2)?
The
proper approach to reviews under section 145(2)(a)
What
appears to have bedevilled the proper approach to the determination
of the ambit of review under section 145 is the view
that CCMA
arbitrations constitute administrative action under section 33 of
the Constitution and that the scope of review under
section 145 is
narrower than that under section 33 of the Constitution.
162
The effect of the right to just administrative action was seen as
broadening the scope of judicial review of “administrative
action”.
163
As
Carephone
pointed out, the constitutional provision on
which this extended scope of review was hung was that which
required that administrative
action must be justifiable in relation
to the reasons given for it, which was to be found in section 33
read with item 23(b)
of Schedule 6.
164
This provision has been construed as introducing “a requirement
of rationality in the
merit or outcome
of the administrative
decision [which] goes beyond mere procedural impropriety as a
ground for review, or irrationality only
as evidence of procedural
impropriety.”
165
This
approach has been criticised on the basis that it tends to blur the
line between an appeal and a review, a line which the
drafters of
the LRA sought to draw and maintain. The Labour Appeal Court in
Carephone
was mindful of the fact that the standard of
review would “almost inevitably, involve the consideration of the
‘merits’”.
166
It cautioned that when determining justifiability, a court should
bear in mind that it is considering the merits, “not in
order to
substitute [its] own opinion on the correctness [of the merits],
but to determine whether the outcome is rationally
justifiable”.
167
The Labour Appeal Court was indeed at pains to emphasise that “it
would be wrong to read into [section 33 of the Constitution]
an
attempt to abolish the distinction between review and appeal.”
168
What
must be emphasised is that there may well be a fine line between a
review and an appeal, in particular, where, as I will
show later in
this judgment, the reviewing court considers the reasons given by a
tribunal, not to determine whether the result
is correct, but to
determine whether a gross irregularity occurred in the proceedings.
At times it may be difficult to draw
the line. There is however a
clear line. And this line must be maintained. The drafters of the
LRA were mindful of the distinction
between review and appeal and
they wanted this distinction to be maintained. What they sought to
introduce was “a simple,
quick, cheap and non-legalistic approach
to the adjudication of unfair dismissals.”
169
They specifically addressed the question of appeals and said:
“
In order for this
alternative process to be credible and legitimate and to achieve the
purposes of the legislation, it must be cheap,
accessible, quick and
informal. These are the characteristics of arbitration, whose
benefits over court adjudication have been
shown in a number of
international studies. The absence of an appeal from the
arbitrator’s award speeds up the process and frees
it from the
legalism that accompanies appeal proceedings. It is tempting to
provide for appeals because dismissal is a very serious
matter,
particularly given the lack of prospects of alternative employment
in the present economic climate. However, this temptation
must be
resisted as appeals lead to records, lengthy proceedings, lawyers,
legalism, inordinate delays and high costs. Appeals
have a negative
impact on reinstatement as a remedy, they undermine the basic
purpose of the legislation and they make the system
too expensive
for individuals and small business. Without reinstatement as a
primary remedy, the draft Bill’s prohibition of
strikes in support
of dismissal disputes loses its legitimacy.
Prior to the establishment of
the present LAC, it was argued that an appeal structure would
provide the consistency required to
develop coherent guidelines on
what constitutes acceptable industrial relations practice. This has
not been the case. The LAC’s
judgments lack consistency and have
had little impact in ensuring consistency in judgments of the
Industrial Court. The draft
Bill now regulates unfair dismissal in
express and detailed terms and provides a Code of Good Practice to
be taken into account
by adjudicators. This will go a long way
towards generating a consistent jurisprudence concerning unfair
dismissal despite the
absence of appeals.”
170
With
this in mind, the drafters appear to have opted for the narrowest
species of review.
171
By adopting “a simple, quick, cheap and non-legalistic”
approach to the adjudication of unfair dismissals, the drafters
of
the LRA intended that, as far as is possible arbitration awards
would be final and would only be interfered with in very limited
circumstances. In order to give effect to this, they deliberately
chose the narrow grounds of review similar to those contained
in
section 33(1)
of the
Arbitration Act and
reproduced them in
identical terms. They did this well aware of the jurisprudence
under
section 33(1)
of the
Arbitration Act. And
they were aware of
the well established rule of statutory construction that when the
legislature deliberately includes language
in a statute which in
the same or similar context has been subject to judicial
interpretation, it intends the provision to bear
the same meaning
already given by the courts.
But the drafters of the LRA were equally aware that, in construing
the provisions of
section 145(2)(a)
, in particular, the ambit of
the ground of review in that section, the labour courts will have
regard to the primary objectives
of the LRA and the right to fair
labour practices guaranteed to everyone by section 23 of the
Constitution. This is the interpretive
injunction contained in
section 39(2) of the Constitution and the interpretive injunction
which the drafters themselves expressly
included in section 3 of
the LRA. Indeed consistently with section 39(2), it is now a
settled principle of constitutional construction
that where a
statute is capable of more than one reasonable construction, with
one construction leading to constitutional validity
while the other
not, the former construction being in conformity with the
Constitution must be preferred to the latter provided
always that
such construction is reasonable and not strained.
172
However
in the context of the ambit of the review under section 145(2)(a)
of the LRA, this interpretative injunction and principle
of
constitutional construction do not require courts to sideline the
grounds of review which are expressly provided for in section
145(2)(a) of the LRA and introduce a constitutional basis for
review. This has indeed been one of the unintended consequences
of
Carephone
.
173
This has led to a concern that the Constitution based standard of
review announced in
Carephone
introduces an additional
ground of review which is not found in section 145 of the LRA.
Thus in
Toyota SA Motors (Pty) Ltd
, the Labour Appeal Court
expressed misgivings about whether
Carephone
introduced “an
independent ground upon which an award can be attacked” and “the
notion that the grounds set out in [section
145] are not the only
avenues open to a party to challenge an award.”
174
We
have recently adopted the constitutional principle that where
legislation has been enacted to give effect to the provisions
of
the Constitution, it is impermissible for a litigant to bypass that
legislation and rely directly on the provisions of the
Constitution
in the absence of a constitutional challenge to the legislation so
enacted. We formulated this principle as follows
in
SANDU
,
175
in the context of section 23(5) of the Constitution:
“
. . . where legislation is
enacted to give effect to a constitutional right, a litigant may not
bypass that legislation and rely
directly on the Constitution
without challenging that legislation as falling short of the
constitutional standard.”
176
Explaining the
rationale for this principle, we said:
“
Accordingly, a litigant who
seeks to assert his or her right to engage in collective bargaining
under section 23(5) should in the
first place base his or her case
on any legislation enacted to regulate the right, not on section
23(5). If the legislation is
wanting in its protection of the
section 23(5) right in the litigant’s view, then that legislation
should be challenged constitutionally.
To permit the litigant to
ignore the legislation and rely directly on the constitutional
provision would be to fail to recognise
the important task conferred
upon the legislature by the Constitution to respect, protect,
promote and fulfil the rights in the
Bill of Rights. The proper
approach to be followed should legislation not have been enacted as
contemplated by section 23(5) need
not be considered now.”
177
(Footnote omitted.)
And we
formulated the approach which courts should adopt as follows:
“
Once it is accepted that
disputes that arise from collective bargaining in the SANDF should
be considered first in the light of
the provisions of chapter XX of
the regulations rather than section 23(5) of the Constitution, the
focus of a court’s attention
will be different to the focus of
both the High Court and the Supreme Court of Appeal in these three
matters. A court will start
with a consideration of the regulations
rather than the constitutional provision. The regulations, of
course, must be construed
in the context of the Constitution as a
whole.”
178
(Footnote omitted.)
Consistently
with this principle, it seems to me that where the legislation
which is enacted to give effect to a constitutional
right specifies
the grounds upon which decisions of tribunals giving effect to that
legislation may be reviewed, a court reviewing
the decision of that
tribunal should start with the interpretation of the statutory
provision in question. And of course the
provision under
consideration must be construed in conformity with the
Constitution. This approach is consistent with what we
have said
in
NEHAWU
in the context of section 23 of the Constitution,
namely, that where “the legislature enacts legislation in an
effort to meet
its constitutional obligations, and does so within
constitutional limits, courts must give full effect to the
legislative purpose.”
179
The
LRA was enacted to give effect to the right to fair labour
practices. It creates labour courts and the CCMA to deal with
disputes concerning unfair dismissals. These disputes are to be
dealt with, in the first instance, by commissioners and in the
second instance by the Labour Court. The LRA limits the grounds
upon which decisions of commissioners may be reviewed to those
expressly specified in section 145. The deliberate choice made by
the legislature, whose duty it is to do so, to permit a review
of
commissioners on the ground of review in section 145(2)(a) must be
respected and given effect to. If the grounds of review
in section
145(2)(a) are wanting in the protection that they provide, then the
legislation should be challenged constitutionally.
Once it is
accepted that decisions of commissioners should be reviewed on the
grounds specified in section 145, the reviewing
court must start
with the consideration of these grounds of review rather than the
Constitution. The grounds of review must
of course be construed in
the light of the objectives of the LRA and the Constitution. The
position is different when the question
is whether the conduct
alleged constitutes administrative action under PAJA. In such a
case the question whether the particular
conduct constitutes
administrative action must be determined by reference to section 33
of the Constitution.
In
these proceedings, COSATU sought to disavow any attempt to suggest
that the standard of rationality that it contended for constitutes
an additional ground of review. It contended that the rationality
test is not an independent ground of review but one flowing
from
the provisions of section 145(2). But the effect of the test
contended for by COSATU seems to me to be the same. It imports
a
constitutional standard for review that is based on the test that
we announced in
Pharmaceutical
180
in connection with constitutional constraints on the exercise of
public power in general. The fundamental problem with this
approach is its starting premise; it starts with the Constitution
and not with the provisions of section 145(2)(a).
In
the case of PAJA which sets out the grounds of review of
administrative action, for instance, it would be both inappropriate
and undesirable to ignore the provisions of PAJA and introduce a
standard of review based on section 33 of the Constitution without
challenging the provisions of PAJA. Once it is established that
the conduct in question constitutes administrative action and
that
PAJA does not exclude from its ambit the conduct in question, the
enquiry in each case should be whether the facts alleged
establish
a ground of review in PAJA. And this is a matter of interpretation
of the ground of review relied upon and determining
whether the
facts establish that ground of review. There is no reason both in
principle and in logic why a different approach
should be adopted
in the case of section 145(2)(a) of the LRA, which was enacted,
among other things, to give effect to the right
to fair labour
practices.
The
grounds of review in section 145(2)(a) are cast in very broad
terms. This is deliberate. These grounds were intended to
gather
their meaning from experience. Their ambit must be determined
carefully in the light of the primary objectives of the
LRA and on
a case by case basis. It is the primary responsibility of the
Labour Court and the Labour Appeal Court to give meaning
and
content to each of these grounds. These are specialist tribunals
whose responsibility it is to interpret and apply the LRA.
In each
case, these courts will have to determine whether the facts alleged
constitute gross irregularity or misconduct or that
the
commissioner has acted in excess of his or her powers. And in so
doing, they must have due regard to the objects sought
to be
achieved by the LRA and the provisions of the Constitution.
181
In time only judicial precedent will be able to give more specific
meaning to the broad grounds of review in section 145(2)(a).
The
grounds of review in section 145(2)(a) provide a cause of action
for the review of commissioners’ awards by the Labour Court.

Whether an arbitral award should be interfered with under the
provisions of section 145(2)(a) will depend therefore on whether
the conduct of the commissioner complained of falls under one or
more of the grounds of review set forth in section 145(2)(a).
It
is therefore for a party alleging a defect in the arbitration
proceedings to show that the facts alleged constitute gross
irregularity or misconduct or show that the power conferred has
been exceeded, as the case may be. This will require litigants
to
specify the grounds of review relied upon and the facts alleged as
constituting the ground of review relied upon.
With
this approach in mind, I now turn to consider the scope and meaning
of the grounds of review in section 145(2)(a).
The
scope and meaning of section 145(2)(a)
In
its review application the employer relied upon all three grounds
of review in section 145(2)(a), namely, misconduct, gross
irregularity and acting in excess of powers conferred. This is
plain from its affidavit in support of the review application.
The
employer submitted that the findings complained of had no
reasonable basis on the evidence presented to the commissioner
and
they flew in the face of direct and to a large extent unchallenged
evidence to the contrary. The employer submitted that
these
findings which were fundamental to the commissioner’s award
demonstrate that the commissioner failed to apply his mind
to the
matter to such an extent that it cannot be said that the employer
was afforded a fair hearing. It was submitted that
in these
circumstances the commissioner committed a gross irregularity or
misconduct or otherwise, exceeded his powers.
In
the view I take of the ground of review alleging misconduct on the
part of the commissioner, it is only necessary to consider
the
meaning and scope of gross irregularity and acting in excess of
powers conferred.
The
meaning of gross irregularity
The
phrase “gross irregularity in the conduct of the arbitration
proceedings” is not a novel phrase in our law. It is one
of the
grounds of review of arbitration under
section 33(1)
of the
Arbitration Act.
182
The
grounds of review in
section 33(1)
of the
Arbitration Act are
identical to those contained in
section 145(2)
of the LRA. The
Arbitration Act, which
governs private arbitrations, was preceded
by three colonial statutes.
183
Apart from the
Arbitration Act, “gross
irregularity” is also
one of the grounds upon which the proceedings of lower courts may
be reviewed by the High Court under
the Supreme Court Act 59 of
1959.
184
It is also a ground of review under the common law. Gross
irregularity as a ground of review has therefore been the subject
of judicial decisions over a period of time.
It
is true that section 146 of the LRA provides that the “
Arbitration
Act
. . . does not apply to any arbitration under the auspices of
the Commission.” This provision was included in order to give
the Labour Court exclusive jurisdiction over arbitrations under the
auspices of the CCMA. In addition, the LRA contemplates
that the
Labour Court will review arbitration conducted by arbitrators
outside of the CCMA.
185
This provision was intended to ensure that all arbitrations
concerning alleged unfair labour practice would be considered on
review by the Labour Court. I do not understand the provision as
intended to prevent the Labour Court from seeking guidance
from
court decisions interpreting identical provisions in other
statutes.
That
said, however, while case law interpreting this phrase in other
statutes provides a useful starting point in determining
the
meaning of the phrase, the differences in context in which the
phrase occurs in the different statutes should not be overlooked.

The most important is that a commissioner performs a public
function and exercises public power and is therefore subject to
the
constitutional constraints applicable to the exercise of public
power. The grounds of the review in
section 145(2)(a)
must
therefore be interpreted in the light of those constitutional
constraints. In particular, the LRA was enacted to give effect
to
the constitutional right to fair labour practices. The grounds of
review in
section 145(2)(a)
must therefore be interpreted in the
context of the right to fair labour practices in section 23 of the
Constitution and the
objective of the LRA in creating the CCMA and
the obligations imposed upon the CCMA commissioners by section 188
of the LRA read
with items 1, 2 and 7 of the Code.
With
these considerations in mind, I now return to the meaning of gross
irregularity.
The
basic principle was laid down in the oft-quoted passage from
Ellis
v Morgan
186
where the court said:
“
But an irregularity in
proceedings does not mean an incorrect judgment; it refers not to
the result, but to the methods of a trial,
such as, for example,
some high-handed or mistaken action which has
prevented the
aggrieved party from having his case fully and fairly determined
.”
187
(Emphasis added.)
In
Goldfields
,
188
the court qualified this general principle. This case concerned a
situation where the decision-maker misconceived his or her
mandate.
The court held that where a decision-maker misconceives the nature
of the inquiry, the ensuing hearing cannot in principle
be said to
be fair because the decision-maker has failed to perform his or her
mandate. Schreiner J expressed the principle
as follows:
“
The law, as stated in
Ellis
v. Morgan (supra)
has been accepted in subsequent cases, and the
passage which has been quoted from that case shows that it is not
merely high-handed
or arbitrary conduct which is described as gross
irregularity; behaviour which is perfectly well-intentioned and
bona
fide
, though mistaken, may come under that description. The
crucial question is whether it prevented a fair trial of the issues.
If
it did prevent a fair trial of the issues then it will amount to
a gross irregularity.”
189
In
Goldfields
,
Schreiner J
distinguished between “patent
irregularities”, that is, those irregularities that take place
openly as part of the conduct
of the proceedings, on the one hand,
and “latent irregularities”, that is, irregularities “that
take place inside the mind
of the judicial officer, which are only
ascertainable from the reasons given” by the decision-maker.
190
In the case of latent irregularities one looks at the reasons not
to determine whether the result is correct but to determine
whether
a gross irregularity occurred in the proceedings. In both cases,
it is not necessary to show “intentional arbitrariness
of conduct
or any conscious denial of justice.”
191
But as the Supreme Court recently has warned, the reasoning of the
decision-maker must not be confused with the conduct of the
proceedings. Although there may be a fine line between reasoning
and the conduct of the proceedings, and sometimes it may be
difficult to draw the line, there is a clear difference.
The
decisions of
Ellis
192
and
Goldfields
193
were recently endorsed by the Supreme Court of Appeal in the
context of the
Arbitration Act in
Telcordia Technologies
.
194
Both
Ellis
and
Goldfields
make it plain that the
crucial enquiry is whether the conduct of the decision-maker
complained of prevented a fair trial of issues.
195
The complaint must be directed at the method or conduct and not
the result of the proceedings. And the reasoning of the
decision-maker
must not be confused with the conduct of the
proceedings. There is a fine line between reasoning and the
conduct of the proceedings,
and at times it may be difficult to
draw the line; there is nevertheless an important difference.
196
Determining whether the commissioner has committed a gross
irregularity will inevitably require the reviewing court to examine
the reasons given for the award. In doing so the reviewing court
must be mindful of the fact that it is examining the reasons
not to
determine whether the conclusion reached by the commissioner is
correct but whether the commissioner has committed a gross
irregularity in the conduct of the proceedings.
The
requirement of fairness in the conduct of arbitration proceedings
is consistent with the LRA and the Constitution. First,
a CCMA
commissioner is required by section 138(1) of the LRA “to
determine the dispute fairly and quickly”.
197
Second, in terms of section 34 of the Constitution, everyone has
the right to have any dispute that can be resolved by the

application of the law decided in a fair public hearing before a
court of law or an independent and impartial tribunal. The CCMA
and Labour Courts were established to resolve labour disputes.
CCMA arbitrations provide independent and impartial tribunals
contemplated in section 34 of the Constitution.
198
The right to a fair hearing before a tribunal lies at the heart of
the rule of law. And a fair hearing before a tribunal is
a
prerequisite for an order against an individual and this is
fundamental to a just and credible legal order.
199
A tribunal like the CCMA is obliged to ensure that the proceedings
before it are always fair. And finally, section 23 of the
Constitution guarantees to everyone the right to fair labour
practices.
It
is plain from these constitutional and statutory provisions that
CCMA arbitration proceedings should be conducted in a fair
manner.
The parties to a CCMA arbitration must be afforded a fair trial.
Parties to the CCMA arbitrations have a right to have
their cases
fully and fairly determined. 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.
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or
her mandate. In so doing, in the words of
Ellis
, the
commissioner’s action prevents the aggrieved party from having
its case fully and fairly determined.
200
This constitutes a gross irregularity in the conduct of the
arbitration proceedings as contemplated in section 145(2)(a)(ii)
of
the LRA. And the ensuing award falls to be set aside not because
the result is wrong but because the commissioner has committed
a
gross irregularity in the conduct of the arbitration proceedings.
Acting
in excess of powers conferred
The
question whether a commissioner has exceeded his or her powers
within the meaning of section 145(2)(a)(iii) must be determined
in
the light of the powers conferred on the commissioners under the
LRA. In terms of section 188(1)(a) a commissioner is required
to
determine whether the reason for dismissal is a fair reason. In
terms of section 188(2), a commissioner is required to take
into
account the Code in considering whether or not the reason for
dismissal is a fair reason. Schedule 8 to the LRA contains
the
Code in relation to dismissal. Item 1(3) declares that:
“
[t]he key principle in this
Code is that employers and employees should treat one another with
mutual respect. A premium is placed
on both employment justice and
the efficient operation of business. While employees should be
protected from arbitrary action,
employers are entitled to
satisfactory conduct and work performance from their employees.”
Item
2(1), in turn, provides that “[w]hether or not a dismissal is for
a fair reason is determined by the facts of the case,
and the
appropriateness of dismissal as a penalty.” Item 7 in turn
provides that any person who is determining whether a dismissal
for
misconduct is unfair should consider the factors set out in item
7(a) and (b).
201
All
these provisions must be understood in the context of the right to
fair labour practices in section 23 of the Constitution
and the
obligation imposed on a commissioner “to determine the dispute
fairly and quickly”.
202
In
NEHAWU
we emphasised that fairness is not confined to
workers only. It “comprehends that regard must be had not only
to the position
and interest of workers, but also those of the
employer”.
203
Therefore “fairness required in the determination of an unfair
labour practice must be fairness towards both employer and
employee.”
204
This is necessary in order to make a balanced and equitable
assessment. We accordingly concluded:
“
[T]he focus of section 23(1)
is, broadly speaking, the relationship between the worker and the
employer and the continuation of
that relationship on terms that are
fair to both. In giving content to [the right to fair labour
practices], it is important to
bear in mind the tension between the
interests of the workers and the interests of the employers which is
inherent in labour relations.
Care must therefore be taken to
accommodate, where possible, these interests so as to arrive at the
balance required by the concept
of fair labour practices. It is in
this context that the LRA must be construed.”
205
It
is plain from all these provisions that the award which a
commissioner ultimately makes, must be fair to both the employer
and the employee.
206
The LRA regulates unfair dismissals in express and detailed terms
and provides a Code that should be taken into account by

commissioners.
207
And this defines the powers of the commissioner in relation to
awards that they may make under the LRA. It follows from this
that
where a commissioner makes an award which is manifestly unfair
either to the employer or the employee, the commissioner
exceeds
his or her powers under the LRA. Such an award falls to be
reviewed and set aside under section 145(2)(a)(iii) of the
LRA.
In
Telcordia Technologies
208
in the context of the expression “exceeding its powers” as a
ground of review under
section 33(1)(b)
of the
Arbitration Act, the
Supreme Court of Appeal held that “[t]he term ‘exceeding its
powers’ requires little by way of elucidation” and quoted
with
approval the following passage from a decision of the House of
Lords:
“
But the issue was whether
the tribunal ‘exceeded its powers’ within the meaning of
s 68(2)(b)
[of the English Act]. This required the courts
below to address the question whether the tribunal purported to
exercise a power
which it did not have or whether it erroneously
exercised a power that it did have. If it is merely a case of
erroneous exercise
of power vesting in the tribunal no excess of
power under s 68(2)(b) is involved. Once the matter is approached
correctly, it
is clear that at the highest in the present case, on
the currency point, there was no more than an erroneous exercise of
the power
available under s 48(4). The jurisdictional challenge
must therefore fail.”
209
The
Supreme Court of Appeal also referred to a US Court of Appeals
decision of
Bull HN Information Systems Inc v Hutson
210
where the court said that “[t]o determine whether an arbitrator
has exceeded his authority . . . courts ‘do not sit to hear
claims of factual or legal error . . .’ and ‘[e]ven where such
error is painfully clear, courts are not authorized to reconsider
the merits of arbitration awards,’ . . . ”.
211
These
decisions were of course concerned with private arbitration.
Commissioners have to exercise public power and therefore
in the
exercise of their powers they are constrained by the doctrine of
legality which is an aspect of the rule of law. The
rule of law is
one of the foundational values of our Constitution. And it is
central to the conception of our constitutional
order that those
who exercise public power including the commissioners, are
constrained by the principle that they may exercise
only those
powers and perform only those functions which are conferred upon
them by the law.
212
The commissioners’ sole claim to the exercise of lawful
authority therefore rests in the powers allocated to them in the

LRA and the Constitution. It follows therefore that commissioners
must exercise their powers consistently with the powers conferred
on them by the LRA and the Constitution. To the extent that the
decision in
Telecordia Technologies
213
and the authorities referred to in that decision hold that an
arbitrator who makes an award which is inconsistent with the powers
conferred on him or her, exceeds his or her powers they, are
consistent with the requirement of the doctrine of legality.
As
public officials who exercise public powers, commissioners may only
make those awards which are consistent with their obligations
under
the LRA and the Constitution. Where a commissioner renders an
award that is inconsistent with his or her powers conferred
on a
commissioner by the LRA, in my view, the commissioner exceeds his
or her powers and the award falls to be reviewed and set
aside
under section 145(2)(a)(iii) of the LRA. Given the constitutional
right to fair labour practices, the provisions of section
188 read
with items 1, 2 and 7 of the Code, an award which is manifestly
unfair to either the employer or employee can hardly
be said to be
consistent with the powers conferred upon a commissioner to make an
award that is fair. In effect, if a commissioner
fails to
determine the dispute fairly, he or she is in breach of the statute
that is the source of his or her power to conduct
the arbitration
and is also in breach of the doctrine of legality, which is a
constitutional constraint upon the exercise of
his or her powers.
This conduct on the part of the commissioner is ultra vires, that
is, beyond powers conferred on the commissioners
as contemplated in
section 145(2)(a)(iii).
This
construction of the expression “exceeding the powers” is
consistent with the rule of constitutional construction which
requires that, where possible, a provision in a statute must be
given a construction which will bring it within constitutional
bounds. If section 145(2)(a)(iii) of the LRA were to be construed
as permitting a manifestly unfair award to go unchallenged,
then
its provision would fall foul of section 23 of the Constitution. A
construction which requires a commissioner to render
an award which
is fair is consistent with section 23 and must be preferred to a
construction which would render section 145(2)(a)(iii)
unconstitutional.
Against
this background, I now turn to consider whether the conduct of the
commissioner complained of establishes that the commissioner
committed a gross irregularity in the conduct of the arbitration
proceedings or otherwise acted in excess of his powers.
Did
the employer establish any of the grounds of review in section
145(2)(a)?
Regrettably
and no doubt under the influence of
Carephone
,
214
in argument in this Court, the employer did not rely on any of the
specific grounds of review set out in section 145(2)(a).
Nor did
the Supreme Court of Appeal in reviewing and setting aside the
award rely on any specific ground of review contained
in section
145(2)(a). Instead the employer relied on the broad ground of
unjustifiability as the basis for the attack on the
award. In the
alternative, the employer relied on rationality as being the basis
for its attack. This demonstrates the point
made earlier, namely,
that the ground of review expressly provided for in section
145(2)(a) has somehow faded into the background
as a result of the
standard of review under section 145(2)(a) which is based directly
on the Constitution. In these circumstances
I consider that the
proper approach is to consider the grounds of review alleged in the
application for review.
Now
the findings of the commissioner which were attacked appear from
the following passages from the award of the commissioner:
“
While I agree that this
conduct was misconduct, I am not convinced that the dismissal was an
appropriate sanction. In my view dismissal
under the circumstances
would be too harsh when taking into account the following: There
were no losses suffered by the employer.
The violation of the rule
was done unintentional or “a mistake” as argued by the employee.
Lastly the level of honesty of
the employee is something to
consider.
Based on the evidence before me
the employee has had a clean record of service with the employer for
the past fourteen (14) years.
This, in terms of the code of good
practice cannot be ignored. The labour court has endorsed the
concept of corrective or progressive
dispute. Employees’
behaviour is to be corrected through a system of graduated
disciplinary measures such as counselling (sic)
and warning.
It is therefore my view that
the type of offence committed by the employee does not go into the
heart of the relationship, which
is trust. I therefore believe that
the continued employment relationship is still intact. To deprive
the employee of his employment
in this circumstance would be wholly
unfair.
Turning finally to the question
of the procedural unfairness, which at this stage is somewhat
academic, I am satisfied that the
dismissal of the employee was
effected in accordance with a fair procedure and that none of the
argument put by the employee in
this regard can be supported.”
The
commissioner accepted that the worker had violated a reasonable
rule relating to searches. However he took the view that
the
dismissal was not appropriate. He advanced three reasons in
support of this view, and these were the subject of the attack
in
all three courts below. These findings were: that a) the employer
did not suffer any loss; b) the violation of the rule was
unintentional or a mistake; and c) the level of the honesty of the
worker had to be considered. Having considered other factors
including the fact that the worker had an unblemished period of
fourteen years with the employer, the commissioner concluded
as
follows:
“
It is therefore my view that
the type of offence committed by the employee does not go into the
heart of the relationship, which
is trust. I therefore believe that
the continued employment relationship is still intact. To deprive
the employee of his employment
in this circumstance would be wholly
unfair.”
In
evaluating the reasoning of the commissioner what must be borne in
mind is that commissioners are not expected to give detailed
and
impeccable reasoning for their awards. They are required to “deal
with the substantial merits of the dispute with the
minimum of
legal formalities.”
215
This has regrettably resulted in unsubstantiated statements being
made in awards. And without substantiation, it is often difficult
to determine whether the statements made have any basis in the
evidence or whether they demonstrate that material factors were
ignored. This is often compounded by the fact that some statements
are capable of more than one meaning. In these circumstances,
the
reviewing court must first ascertain what the statement intended to
convey before embarking upon the task of determining
whether these
statements demonstrate that a gross irregularity occurred in the
proceedings or that the commissioner exceeded
his or her powers.
While
cognisance should properly be taken of the circumstances under
which commissioners’ work, this is no excuse for making
unsubstantiated statements or reasons for a conclusion. At the
bare minimum, an award should set out facts found and the reasons
for the finding, the conclusion based on those facts and the
reasons for the conclusion. It should not be necessary for the
reviewing court to ask, “what did the commissioner mean by this
statement?” A reviewing court should not be left to speculate
on
what the commissioner had in mind. Statements made may be fully
justified, but if left unexplained a statement may be easily
misunderstood. Such statement may easily fall prey to an attack
based on gross irregularity in the conduct of the proceedings.
The
present award is not a model of clarity. The findings under attack
on their face may appear to be wholly unfounded. They
have to be
interpreted in order to be understood. This is the task that the
Labour Appeal Court embarked upon. Although it
found some of the
reasons baffling, it found a possible explanation for some.
The
finding that the employer suffered no loss as a result of the
worker’s failure to search according to the procedure means
no
more than that there was no direct link between a failure to search
and any theft that occurred. This does not mean that
a potential
loss as opposed to actual loss was ignored in the reasoning
process. Similarly the finding that the misconduct was
unintentional or a mistake may well have been intended to convey
that the employee was found guilty of negligent conduct as opposed
to intentional conduct. This does not mean that the commissioner
did not take into account all the circumstances surrounding
the
misconduct which he should have taken into consideration. He
simply did not elaborate on this finding. And I think it is
in
this context that a statement that the level of the honesty of the
worker should not be ignored, can also be understood.
The worker
was not found guilty of an offence involving dishonesty.
It
is against this background that the ultimate conclusion by the
commissioner that the type of offence did not go into the heart
of
the relationship which is trust, must be understood. What the
commissioner may well be saying here is that if one has regard
to
the unblemished record of fourteen years of service, it cannot be
said that the worker could not be trusted with any other
functions
by the employer. For fourteen years the worker had not rendered
himself guilty of any misconduct. He had been loyal
to the
employer. One incident which did not involve dishonesty could not,
in the view of the commissioner, whose duty it was
to assess these
matters, wipe out the trust that was built over a period of
fourteen years. In effect what the commissioner
is saying is that
if one has regard to all the circumstances of the case it could not
be said that the relationship between the
worker and the employer
had become intolerable. There was nothing to suggest that he could
not be entrusted with some other
functions other than those
relating to searches. That seems to me to be the context in which
the commissioner made a statement.
Seen in this sense, the
statement cannot be faulted.
Mr
Sidumo was employed by the employer since 2 December 1985. He rose
through the ranks. At the time of his dismissal he was
a Patrolman
Grade 2. He was stationed at Precious Metal Refineries and was
transferred to Waterval Redressing Section of Rustenburg
Platinum
Mines. On the evidence only Patrolmen Grade 3, who are senior
patrolmen, work in that section. He was posted at that
section
because of his working experience. He had mostly worked in a
section where searches were conducted at random. It is
true, on
the evidence he had signed documents acknowledging that he knew
search procedures. His evidence was that Mr Sibakela
did not
explain to him the procedures. The surveillance shows that he
conducted random searches. Admittedly he failed to perform
satisfactorily the duties he was hired to perform. But he had
devoted fourteen years of loyal service to the employer.
Ultimately,
the commissioner had to balance, on the one hand, employment
justice and the need to protect the worker from harsh
and arbitrary
action, and on the other hand, the need for efficient operation of
the employer’s business and the employer’s
entitlement to
satisfactory conduct and work performance from Mr Sidumo.
Balancing these interests, in the 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.
In
all the circumstances, I am unable to find that the commissioner
ignored any material factor in evaluating the fairness or
otherwise
of the sanction imposed by the employer. In the result I cannot
say that the employer did not have a fair trial before
the
commissioner with the result that a gross irregularity in the
proceedings occurred. Nor can I, in all the circumstances
of this
case, conclude that the award made by the commissioner was
manifestly unfair to the employer. It follows from these
conclusions that the commissioner did not exceed his powers under
the LRA. Nor can I say that the commissioner committed a

misconduct.
In the
event none of the grounds of review have been established. For
these reasons I concur in the order proposed in the judgment
of
Navsa AJ.
Mokgoro
J, Nkabinde J and Skweyiya J concur in the judgment of Ngcobo J.
Counsel for the Applicants: Advocate MJD Wallis SC and Advocate JG
van der Riet SC instructed by Cheadle Thompson & Haysom.
Counsel for the First Respondent: Advocate JJ Gauntlett SC, Advocate
AT Myburgh and Advocate K Pillay instructed by Leppan Beech
Incorporated.
Counsel for the Second Respondent: Advocate W Trengove SC, Advocate H
Maenetje and Advocate N Jele instructed by Bowman Gilfillan
Inc.
1
Navsa AJ is a judge with the Supreme Court of Appeal
who, at the time of this judgment, was appointed as an Acting
Justice of this
Court for the period 15 February to 30 June 2007.
2
Rustenburg Platinum Mines Ltd (Rustenburg Section)
v Commission for Conciliation, Mediation and Arbitration
2007
(1) SA 576
(SCA);
[2006] 11 BLLR 1021
(SCA); (2006) 27 ILJ 2076
(SCA).
3
See the key and associated findings by the Supreme Court of Appeal
id at para 48.
4
Section 191(1)(a)
of the LRA provides:
“
If there is a
dispute
about the fairness of a
dismissal
, or a
dispute
about an unfair labour
practice, the dismissed
employee
or the
employee
alleging the unfair labour practice may refer the
dispute
in
writing to—
(i) a
council
, if the parties to the
dispute
fall within the registered
scope
of that
council
; or
(ii) the
Commission, if no
council
has jurisdiction.”
5
Section 191(5)(a)
of the LRA provides:
“
If a council or a commissioner has certified that
the dispute remains unresolved, or if 30 days have expired since the
council or
the Commission received the referral and the dispute
remains unresolved—
(a) the
council
or the Commission must arbitrate
the
dispute
at the request of the
employee
if—
(i) the
employee
has alleged that the reason for
dismissal
is related to the
employee’s
conduct or
capacity, unless paragraph
(b)
(iii) applies;
(ii) the
employee
has alleged that the reason
for
dismissal
is that the employer made continued employment
intolerable or the employer provided the employee with substantially
less favourable
conditions or circumstances at work after a transfer
in terms of section 197 or 197A, unless the
employee
alleges
that the contract of employment was terminated for a reason
contemplated in section 187;
(iii) the
employee
does not know the
reason
for dismissal; or
(iv) the
dispute
concerns an unfair labour
practice . . . ”
6
Section 173(1) of the LRA provides:
“
Subject to the Constitution and despite any other
law, the Labour Appeal Court has exclusive jurisdiction—
(a) to hear and determine all appeals against the final
judgments and the final orders of the Labour Court; and
(b) to decide any question of law reserved in terms of
section 158(4).”
7
In terms of section 168(3) of the Constitution, the Supreme Court
of Appeal is the highest court of appeal in matters other than
constitutional matters. See also
National Union of Mineworkers v
Fry’s Metals (Pty) Ltd
2005 (5) SA 433
(SCA);
[2005] 5 BLLR
430
(SCA); (2005) 26 ILJ 689 (SCA) at paras 32-33.
8
COSATU is the largest federation of trade unions in
the country with 21 affiliated unions representing over 1,8 million
employees.
9
Sections 138(1) and (2) of the LRA accord the
commissioner a discretion to determine the manner and form of
proceedings. In terms
of section 138(2), subject to the discretion
of the commissioner, a party may give evidence, call witnesses and
address concluding
arguments to the commissioner. In
County Fair
Foods
(
Pty) Ltd v CCMA & Others
[1999] 11 BLLR 1117
(LAC); (1999) 20 ILJ 1701 (LAC) at para 11, the following appears:
“
However, the decision of the arbitrator as to the
fairness or unfairness of the employer’s decisions is not reached
with reference
to the evidential material that was before the
employer at the time of its decision but on the basis of all the
evidential material
before the arbitrator. To that extent the
proceedings are a hearing de novo.”
10
Section 203 of the LRA provides that the National
Economic Development and Labour Council (NEDLAC) may publish a Code
of Good Practice.
Section 203(4) states that the Code may provide
that it must be taken into account in applying or interpreting any
employment
law.
Section 3
of the
National Economic, Development and
Labour Council Act 35 of 1994
in terms of which NEDLAC was
established, provides that it shall consist of members representing
organised business; organised
labour; organisations of community and
development interests; and the State. It is therefore safe to
conclude that, at the very
least, it can be said that the Code
contains the norms and values set by the industrial relations
community.
11
In fact only one proper search was conducted during a
specifically monitored period and not for the entire period of the
surveillance.
12
1999 (3) SA 304
(LAC);
1998 (11)
BLLR 1093
(LAC); (1998) 19 ILJ 1425 (LAC).
Carephone
was decided before the advent of PAJA.
13
Id at para 37.
14
The Labour Appeal Court’s judgment is reported as
Rustenburg Platinum Mines Ltd v CCMA & Others
[2004] 1
BLLR 34
(LAC).
15
Id at para 12.
16
Id at para 13.
17
Above n 2 at para 36.
18
Id at para 40.
19
[1999] 2 BLLR 108
(LAC); (1999) 20 ILJ 578 (LAC).
20
Id at para 33.
21
Above n 2 at para 41.
22
Above n 9 at paras 28-30.
23
Above n 2 at para 42.
24
Id at para 43.
25
Id.
26
Todd and Damant “Unfair Dismissal – Operational
Requirements” (2004) 25
ILJ
896 at 907 quoted above in n 2
at para 46.
27
Above n 2 at para 46.
28
The
Labour Relations Amendment Act 12 of 2002
replaced the word
“despite”, as the first word in subsection (g), with the words
“subject to”.
29
Section 33 of the Constitution provides:
“
(1) Everyone has the right to administrative action
that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect
to these rights, and must—
(a) provide for the review of administrative action by
a court or, where appropriate, an independent and impartial
tribunal;
(b)
impose a duty on the state to give effect to
the rights in subsections (1) and (2); and
(c)
promote
an efficient administration.”
30
The relevant part of item 23(2) of Schedule 6 reads as follows:
“
Until the legislation envisaged in sections 32(2)
and 33(3) of the new Constitution is enacted—
. . .
(b) section 33(1) and (2) must be regarded to read as
follows:
‘Every person has the right to—
(a) lawful administrative action where any of their
rights or interests is affected or threatened;
(b)
procedurally fair administrative action
where any of their rights or legitimate expectations is affected or
threatened;
(c)
be
furnished with reasons in writing for administrative action which
affects any of their rights or interests unless the reasons
for that
action have been made public; and
(d) administrative action which is justifiable in
relation to the reasons given for it where any of their rights is
affected or
threatened.’”
31
Above n 12 at para 31.
32
This is a reference to item 23(2)(b) to Schedule 6.
33
Above n 12 at para 35.
34
See para [25] above.
35
Above n 30.
36
See para [25] above.
37
Above n 12 at para 36.
38
2001 (4) SA 1038
(LAC);
[2001] 9 BLLR 1011
(LAC); 2001
(22) ILJ 1603 (LAC) at para 33.
39
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC).
40
Id at paras 85-86.
41
Section 6(2) of PAJA provides:
“
A court or tribunal has the power to judicially
review an administrative action if—
(a) the administrator who took it—
(i) was not authorised to do so by the empowering
provision;
(ii) acted under a delegation of power which was not
authorised by the empowering provision; or
(iii) was biased or reasonably suspected of bias;
(b)
a mandatory and material procedure or
condition prescribed by an empowering provision was not complied
with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by an
error of law;
(e)
the action was taken—
(i) for a reason not authorised by the
empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into
account or relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted
dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or capriciously;
(f) the action itself—
(i) contravenes a rule of law or is not authorised by
the empowering provision; or
(ii) is not rationally connected to—
(aa) the purpose for which it was taken;
(bb) the purpose of the empowering
provision;
(cc)
the information before the
administrator; or
(dd) the reasons given for it by the
administrator;
(g) the action concerned consists of a failure to take
a decision;
(h) the exercise of the power or the performance of the
function authorised by the empowering provision, in pursuance of
which
the administrative action was purportedly taken, is so
unreasonable that no reasonable person could have so exercised the
power
or performed the function; or
(i) the action is otherwise unconstitutional or
unlawful.”
42
2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
43
Id at para 25.
44
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as
Amici Curiae
)
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at para 95.
45
Above n 2 at para 26.
46
Above n 2 at para 33.
47
Id at para 34.
48
Bato Star
above n 42 at para 25;
National
Union of Metalworkers of South Africa and Others v Bader Bop (Pty)
Ltd & Another
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC)
at para 15;
National Education Health and Allied Workers Union v
University of Cape Town and Others
2003 (3) SA 1
(CC);
2003 (2)
BCLR 154
(CC) (
NEHAWU
) at paras 14-15.
49
Sections 151(2) and 167(3) of the LRA read with
sections 166(e) and 170 of the Constitution. See also
Phillips
and Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1)
SA 505
(CC);
2006 (2) BCLR 274
(CC);
2006 (1) SACR 78
(CC) at para
31;
Bannatyne v Bannatyne
(Commission for Gender Equality
,
as
Amicus Curiae
)
[2002] ZACC 31
;
2003 (2) SA 363
(CC);
2003 (2) BCLR
111
(CC) at para 17.
50
[2006] ZACC 5
;
2006 (6) SA 103
(CC);
2006 (6) BCLR 669
(CC).
51
Id at para 21.
52
In
NEHAWU
above n 48
this Court recorded
that our Constitution is unique in constitutionalising the right to
fair labour practices. Since the advent
of our Constitution, Malawi
has followed suit. See Cheadle et al
South African
Constitutional Law: The Bill of Rights
2 ed (LexisNexis
Butterworths, Durban 2005) at 18-8 at fn 32.
53
NEHAWU
above n 48 at paras 37-38.
54
See Article 7 of the Code.
55
Above n 10.
56
Article 8 of the ILO Convention requires that an
employee whose employment has been unjustifiably terminated be
afforded recourse
to “an impartial body, such as a court, labour
tribunal, arbitration committee or arbitrator.”
57
As the Supreme Court of Appeal was then known.
58
1992 (4) SA 791 (A).
59
Id at 798F-H.
60
[1996] ZASCA 69
;
1996
(4) SA 577
(A); (1996) 17 ILJ 455 (A).
61
Id at 589B-D; 476D-E.
62
(2003) 24 ILJ 197 (LC) at para 69.
63
Above n 48 at para 40.
64
Myburgh and Van Niekerk “Dismissal as a Penalty for
Misconduct: The Reasonable Employer and Other Approaches” (2000)
21
ILJ
2144.
65
Id at 2158.
66
Above n 19 at para 32.
67
Section 57(3) provides:
“
[T]he
determination of the question whether the dismissal was fair or
unfair, having regard to the reasons shown by the employer,
shall
depend on whether the employer can satisfy the tribunal that in the
circumstances (having regard to equity and the substantial
merits of
the case)
he acted reasonably in treating it as a sufficient
reason for dismissing the employee
.” (Emphasis added.)
The
highlighted part does not appear in the provisions of the LRA
dealing with the powers of commissioners to determine dismissal
disputes. Section 57(3) of the Employer Protection (Consolidation)
Act (UK) now re-appears in section 98(4) of the Employment
Rights
Act 1996 (UK).
68
[1981] IRLR 91.
69
Id at para 11, quoted with approval in
Nampak
at
para 33.
70
Haddon v Van den Bergh Foods Ltd
[1999] ICR
1150
(EAT), overruled by the Court of Appeals in
Foley v Post
Office; HSBC Bank Plc (formerly Midland Bank Plc) v Madden
[2000] ICR 1283
(CA). See also Collins et al
Labour Law: Text
and Materials
2 ed (Hart Publishing, Oxford 2005) at 522 and
526; Deakin and Morris
Labour Law
4 ed (Hart Publishing,
Oxford 2005) at 492; Anderman in Barnard et al
The Future of
Labour Law
(Hart Publishing, Oxford 2004) at 126-127; Collins
Employment Law
(Oxford University Press, New York 2003) at
176.
71
[2000] 3 BLLR 243
(LAC); (2000) 21 ILJ 340 (LAC).
72
Id at paras 48 and 50.
73
Id at para 50.
74
[2001] 7 BLLR 705
(LAC); (2001) 22 ILJ 2264 (LAC).
75
Id at para 19.
76
In this regard see
NEHAWU
above n 48 at para
42.
77
Cheadle et al above n 52 at 18-5.
78
Davies and Freedland
Kahn-Freund’s
Labour
and the Law
3 ed (Stevens & Sons, London 1983) at 18 quoted
in Cheadle et al above n 52 at 18-5.
79
[2007]
8 BLLR 707
(LAC). The judgment contains a useful discussion of the
English approach to determining dismissal disputes and compares the
English
statutory provision referred to earlier in this judgment to
provisions of the LRA. There is an extensive discussion of the
historical
position up to the judgments in
Nampak
and
County
Fair
.
There is a very comprehensive reference to case law and academic
writings in relation to the test to be adopted by commissioners
in
relation to dismissal disputes.
80
Engen Petroleum
id at para 111.
81
Id at para 117.
82
Above n 44 at paras 95 and 433-437.
83
Above n 42 at para 25.
84
PAJA, of course, defines administrative action in
section 1 as follows:
“‘
administrative action’ means any decision
taken, or any failure to take a decision, by—
(a) an organ of state, when—
(i) exercising a power in terms of the Constitution or
a provincial constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation; or
(b) a natural or juristic person, other than an organ
of sate, when exercising a public power or performing a public
function in
terms of an empowering provision,
which
adversely affects the rights of any person and which has a direct,
external legal effect . . .”
A list of
exclusions are set out in subsections (aa)-(ii)
which does
not include CCMA arbitrations.
85
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC).
86
Id at para 141. See also
New Clicks
above n 44
at para 448;
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 25.
87
See Baxter
Administrative Law
(Juta & Co
Ltd, Kenwyn 1984) at 244-246; Hoexter
Administrative Law in South
Africa
(Juta & Co Ltd, Cape Town 2007) at 52-53 and
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA);
2005 (10) BCLR 931
(SCA) at paras
20-25.
88
South African Technical Officials’ Association v President of
the Industrial Court and Others
1985 (1) SA 597
(A).
89
Id at 610G-H.
90
See in this regard the decision of the Full Court in
Derby-Lewis and Another v Chairman, Amnesty Committee of the
Truth and Reconciliation Commission, and Others
2001 (3) SA 1033
(C);
2001 (3) BCLR 215
(C) at 1056D-F and 235C-D.
91
Brassey
Employment and Labour Law: Commentary on
the
Labour Relations Act
>, vol 3 (Juta & Co Ltd, Kenwyn 2006)
at A7-1 - A7-2.
92
Currie and De Waal
The Bill of Rights Handbook
5 ed (Juta & Co Ltd, Wetton 2005) at 651, fn 34.
93
Telcordia Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA);
2007 (5) BCLR 503
(SCA) at para 45.
94
Baxter above n 87 at 344-346.
95
Above n 29.
96
Above n 30.
97
New Clicks
above n 44 at para 95.
98
Above n 42 at para 25.
99
Above n 44 at para 95.
100
Du
Toit et al
Labour
Relations Law
4 ed (LexisNexis Butterworths, Durban 2003) at 23-28 and
“Explanatory Memorandum to the Draft Labour Relations Bill, 1995”
(1995) 16
ILJ
278.
101
Explanatory Memorandum
id at 279.
102
Id.
103
Du Toit above n 100 at 28.
104
[1898] AC 748.
105
Id at 754.
106
1931 EDL 29
at 31.
107
Bridgman (ed)
Maxwell on the Interpretation of Statutes
7 ed
(Sweet & Maxwell Limited, London 1929) at 153. See also
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) at para 49 and
1420H-1421B;
Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert
and Others
2002 (2) SA 21
(SCA) at para 17;
Consolidated
Employers Medical Aid Society and Others v Leveton
1999 (2) SA
32
(SCA) at 40I-41B;
Khumalo v Director-General of Co-operation
and Development and Others
[1990] ZASCA 118
;
1991 (1) SA 158
(A) at 164C-165D.
108
See para [57] above.
109
Above n 42 at para 44.
110
Id at para 45.
111
Hoexter above n 87 at 318.
112
Above n 42 at para 45.
113
Hoexter above n 87 at 106 and 316-318;
Bato Star
above n 42
at para 45.
114
The right in terms of section 34 of the
Constitution to have a dispute resolved before an impartial tribunal
underscores the point
made in relation to the first issue, namely,
that the commissioner must act impartially.
115
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
1999 (1) SA 6
(CC);
1998 (12)
BCLR 1517
(CC) at paras 112 and 114.
1
Section 33 provides that:
“
(1) Everyone has the right to administrative action
that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect
to these rights, and must—
(a) provide for the review of administrative action by
a court or, where appropriate,an independent and impartial tribunal;
(b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
(c) promote an efficient administration.”
2
Ngcobo J’s judgment at para [203] below.
3
Section 113
of the
Labour Relations Act 66 of 1995
.
4
Sachs J’s judgment at paras [146]-[147] below.
5
Sections 33(1) and (2) of the Constitution.
6
Wade and Forsyth
Administrative Law
8 ed
(Oxford University Press, Oxford 2000) at 886. See also the helpful
discussion in Baxter
Administrative Law
(Juta & Co Ltd,
Kenwyn 1984) at 244-245 in which he identifies four factors which
may lead to the creation of tribunals to determine
disputes rather
than courts: the need to avoid over-burdening the courts; the
desirability of establishing tribunals with special
expertise to
resolve disputes in particular areas; the need to avoid
“over-judicialising” issues; and the need for speedy,
efficient
and cheap resolution of disputes. See also Hoexter
Administrative
Law in South Africa
(Juta & Co Ltd, Cape Town 2007) at
52-53.
7
Both cases deal with section 24 of the Constitution of
the Republic of South Africa Act 200 of 1993 (“the interim
Constitution”).
8
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC).
9
Act 51
of 1977. Section 205 of the Criminal Procedure Act as under
consideration in
Nel v Le Roux
NO
provided that:
“
(1) A Judge of the Supreme Court, a regional court
magistrate or a magistrate may, subject to the provisions of ss (4),
upon the
request of an Attorney-General or a public prosecutor
authorised thereto in writing by the Attorney-General, require the
attendance
before him or any other Judge, regional court magistrate
or magistrate, for examination by the Attorney-General or the public
prosecutor
authorised thereto in writing by the Attorney-General, of
any person who is likely to give material or relevant information as

to any alleged offence, whether or not it is known by whom the
offence was committed: Provided that if such person furnishes that
information to the satisfaction of the Attorney-General or public
prosecutor concerned prior to the date on which he is required
to
appear before a Judge, regional court magistrate or magistrate, he
shall be under no further obligation to appear before a Judge,
regional court magistrate or magistrate.
(2) The provisions of ss 162-165 inclusive, 179-181
inclusive, 187-189 inclusive, 191 and 204 shall
mutatis mutandis
apply with reference to the proceedings under ss (1).
(3) The examination of any person under ss (1) may be
conducted in private at any place designated by the Judge, regional
court
magistrate or magistrate.
(4) A person required in terms of ss (1) to appear
before a Judge, a regional court magistrate or a magistrate for
examination,
and who refuses or fails to give the information
contemplated in ss (1), shall not be sentenced to imprisonment as
contemplated
in s 189 unless the Judge, regional court magistrate or
magistrate concerned, as the case may be, is also of the opinion
that the
furnishing of such information is necessary for the
administration of justice or the maintenance of law and order.”
The Act has since been amended by section 59 of the
Regulation of Interception of Communications and Provision of
Communication-Related
Information Act 70 of 2002.
10
Above n at para 24.
11
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC).
12
Act 24
of 1936. Section 66(3) of the Insolvency Act provides:
“
If
a person summoned as aforesaid, appears in answer to the summons but
fails to produce any book or document which he was summoned
to
produce, or if any person who may be interrogated at a meeting of
creditors in terms of subsection (1) of section sixty-five
refuses to be sworn by the officer presiding at a meeting of
creditors at which he is called upon to give evidence or refuses to
answer any question lawfully put to him under the said section or
does not answer the question fully and satisfactorily, the officer
may issue a warrant committing the said person to prison, where he
shall be detained until he has undertaken to do what is required
of
him, but subject to the provisions of subsection (5).”
13
De Lange v Smuts NO
above n at para 57.
14
Id at para 61.
15
Id at para 80.
16
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC).
17
Ngcobo J’s judgment at para [203] below.
18
SARFU
above n at para 141.
19
Id.
20
Id.
21
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para
41.
22
Section 24 of the interim Constitution provided:
“
Every person shall have the right to—
(a) lawful administrative action where any of his or
her rights or interests is affected or threatened;
(b) procedurally fair administrative action where any
of his or her rights or legitimate expectations is affected or
threatened;
(c) be furnished with reasons in writing for
administrative action which affects any of his or her rights or
interests unless the
reasons for such action have been made public;
and
(d) administrative
action which is justifiable in relation to the reasons given for it
where any of his or her rights is affected
or threatened.”
23
Above n 21.
24
South African Roads Board v Johannesburg City
Council
1991 (4) SA 1
(A) at 10I-11A and
Administrator,
Transvaal, and Others v Traub
and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 759A-C, 762F-J and 763H-I. See also the famous English
decision rejecting the classificatory approach
Ridge v Baldwin
[1964] AC 40
(CA). See also the discussion in Hoexter above n 6 at
352-355.
25
Sachs J’s judgment at paras [142] and [151] below.
26
SARFU
above n 16. See also the reasoning in
Permanent Secretary, Department of Education and Welfare, Eastern
Cape, and Another v Ed-U-College (PE) (Section 21) Inc
[2000] ZACC 23
;
2001 (2)
SA 1
(CC);
2001 (2) BCLR 118
(CC) at para 21.
27
Section 1 of the Constitution provides:
“
The Republic of South Africa is one, sovereign,
democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters
roll, regular elections and a multi-party system of democratic
government,
to ensure accountability, responsiveness and openness.”
28
Section 145
of the
Labour Relations Act.
29
As
Hoexter points out, above n 6 at 53, it is because
administrative tribunals dispense with some of the procedural
protections of
the ordinary judicial process that they are subject
to review, or even appeal, by the ordinary courts.
30
The Commission for Conciliation, Mediation and
Arbitration was established under section 112 of the Labour
Relations Act 66 of 1995
(the LRA). In terms of section 117 of the
LRA once conciliation has failed the governing body of the CCMA must
appoint commissioners
to resolve labour disputes through arbitration
under section 115.
31
Act 66 of 1995. Section 145 of the LRA provides in pertinent part:
“
(1) Any party to a 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—
. . .
(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; or
(b) that
an award has been improperly obtained.”
32
Section 33 provides:
“
(1) Everyone has the right to administrative action
that is lawful, reasonable and procedurally fair.
. . .
(3) National legislation must be enacted to give
effect to these rights, and must—
(a) provide for the review of administrative action by
a court or, where appropriate, an independent and impartial
tribunal;
. . .
(c) promote an efficient administration.”
33
Act 3 of 2000. PAJA is the relevant national legislation mandated
by section 33(3) of the Constitution.
34
Above at para 112.
35
Section 23(1) provides: “Everyone has the right to fair labour
practices.”
36
Section 34 provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
37
Above at para 110.
38
Below at para 209.
39
Below at para 267.
40
See the preamble, foundational values in section 1,
the Bill of Rights as a whole, and sections 36(1) and 39(1)(a)
in particular.
41
See for instance
Mohamed and Another v President of
the Republic of South Africa and Others (Society for the Abolition
of the Death Penalty in South
Africa and Another Intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC); 2001 (2) SACR 66
(CC) where this Court unanimously held at para 54 that extradition
to the United States of America
for purposes of prosecution which
exposed the accused to the risk of execution did not only implicate
sections 10 (the right to
human dignity) and 11 (the right to life),
but also section 12(1)(d) and (e) of the Constitution (the right to
freedom and security
of the person, which includes the right not to
be tortured in any way and not to be treated or punished in a cruel,
inhuman or
degrading way).
42
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC);
1995 (2) SACR 1
(CC) at para 80 where
Chaskalson P stated:
“
The
unqualified right to life vested in every person by s 9 of our
Constitution is another factor crucially relevant to the question
whether the death sentence is cruel, inhuman or degrading punishment
within the meaning of s 11 of our Constitution.”
See also paras 58-67, 84, 86, 90 and
94-5.
43
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
1999 (1) SA 6 (CC)
[1998] ZACC 15
; ;
1998
(12) BCLR 1517
(CC);
1998 (2) SACR 556
(CC).
44
Id at paras 15-32 per Ackermann J. At paras 112-3 I wrote:
“
I
will deal first with the question of inappropriate separation of
rights and sequential ordering, that is with the assumption that,
in
a case like the present, rights have to be compartmentalised and
then ranked in descending order of value. The fact is that
both
from the point of view of the persons affected, as well as from that
of society as a whole, equality and privacy cannot be
separated,
because they are both violated simultaneously by anti-sodomy laws.
In the present matter, such laws deny equal respect
for difference,
which lies at the heart of equality, and become the basis for the
invasion of privacy. At the same time, the negation
by the State of
different forms of intimate personal behaviour becomes the
foundation for the repudiation of equality. Human rights
are better
approached and defended in an integrated rather than a disparate
fashion. The rights must fit the people, not the people
the rights.
This requires looking at rights and their violations from a
persons-centred rather than a formula-based position, and
analysing
them contextually rather than abstractly.
One consequence of an approach based on context and
impact would be the acknowledgment that grounds of unfair
discrimination can
intersect, so that the evaluation of
discriminatory impact is done not according to one ground of
discrimination or another, but
on a combination of both, that is
globally and contextually, not separately and abstractly. The
objective is to determine in a
qualitative rather than a
quantitative way if the group concerned is subjected to scarring of
a sufficiently serious nature as
to merit constitutional
intervention. Thus, black foreigners in South Africa might be
subject to discrimination in a way that foreigners
generally, and
blacks as a rule, are not; it could in certain circumstances be a
fatal combination. The same might possibly apply
to unmarried
mothers, or homosexual parents, where nuanced rather than
categorical approaches would be appropriate. Alternatively,
a
context rather than category-based approach might suggest that
overlapping vulnerability is capable of producing overlapping
discrimination. A notorious example would be African widows, who
historically have suffered discrimination as blacks, as Africans,
as
women, as African women, as widows and usually, as older people,
intensified by the fact that they are frequently amongst the
lowest
paid workers.”
See also paras 111, 114 and 125.
45
Government of the Republic of South Africa and
Others v Grootboom and Others
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 83 where Yacoob J
stated:
“
The
proposition that rights are interrelated and are all equally
important is not merely a theoretical postulate. The concept has
immense human and practical significance in a society founded on
human dignity, equality and freedom. . . . The Constitution will
be
worth infinitely less than its paper if the reasonableness of State
action concerned with housing is determined without regard
to the
fundamental constitutional value of human dignity. . . . In short,
I emphasise that human beings are required to be treated
as human
beings.”
46
Id at para 23:
“
All
the rights in our Bill of Rights are inter-related and mutually
supporting. There can be no doubt that human dignity, freedom
and
equality, the foundational values of our society, are denied those
who have no food, clothing or shelter. Affording socio-economic
rights to all people therefore enables them to enjoy the other
rights enshrined in chap 2. The realisation of these rights is
also
key to the advancement of race and gender equality and the evolution
of a society in which men and women are equally able
to achieve
their full potential.”
47
Khosa and Others v Minister of Social Development
and Others; Mahlaule and Others v Minister of Social Development and
Others
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC).
48
Id at para 102.
49
Id at para 136.
50
Id at para 41.
51
Id at paras 102-4.
52
Minister of Health and Another NO v New Clicks
South Africa (Pty) Ltd and Others (Treatment Action Campaign and
Another as
Amici Curiae
)
2006 (2) SA 311
(CC);
2006 (1)
BCLR 1
(CC) at para 640.
See also
Minister of Finance and
Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC);
2004 (11)
BCLR 1125
(CC) at para 135 where I observed that the judgments of
Mokgoro J, Moseneke J and Ngcobo J eloquently mirrored each other,
and
that in relation to philosophy, approach and evaluation of
relevant material and ultimate outcome, they were virtually
identical.
Only in relation to starting point and formal road
travelled, were they apart. See also the rest of that para and para
140, where
I said the following:
“
In my view it is no accident that even though they
started at different points and invoked different provisions they
arrived at
the same result. Though the formal articulation was
different the basic constitutional rationale was the same. I agree
with this
basic rationale. I would go further and say that the core
constitutional vision that underlies their separate judgments
suggests
that the technical frontier that divides them should be
removed, allowing their overlap and commonalities to be revealed
rather
than to be obscured. If this is done, as I believe the
Constitution requires us to do, then the apparent paradox of
endorsing
seemingly contradictory judgments is dissolved. Thus, I
endorse the essential rationale of all the judgments, and explain
why
I believe that the Constitution obliges us to join together what
the judgments put asunder.
. . .
To
my mind, where different constitutionally protected interests are
involved, it is prudent to avoid categorical and definitional
reasoning and instead opt for context-based proportional
interrelationships, balanced and weighed according to the
fundamental
constitutional values called into play by the
situation.”
53
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997
(3) SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 24.
54
As Wade and Forsyth state in the preface to their book
on administrative law in England, at the heart of all new
developments in
administrative law is the need to bring more
fairness, along with justice, into the law. All the particular
rules must be related
to that primary purpose, directly or
indirectly, and “amid much discussion of proportionality and
legitimate expectation, it
is the ordinary person’s sense of
fairness which is the touchstone.” See Wade and Forsyth
Administrative Law
8 ed
(Oxford University Press, Oxford 2000) at viii.
55
Section 145(2) of the LRA provides:
“
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; or
(b) that an award has been improperly obtained.”
56
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC);
1998 (12) BCLR 1458
(CC).
57
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC).
58
Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex Parte President of the Republic of South Africa
and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC).
59
Section 39(2) of the Constitution provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
60
Section 3 of the LRA provides:
“
Any person applying this Act must interpret its
provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law
obligations of the Republic.”
61
Section 23(1) of the Constitution provides:
“
Everyone
has the right to fair labour practices.”
62
Section 188 of the LRA provides:
“
(1) A dismissal that is not automatically unfair, is
unfair if the employer fails to prove—
(a) that the reason for dismissal is a fair reason—
(i) related to the employee’ s conduct or
capacity; or
(ii) based on the employer’ s operational
requirements; and
(b) that the dismissal was effected in accordance with
a fair procedure.
(2) Any person considering whether or not the reason
for dismissal is a fair reason or whether or not the dismissal was
effected
in accordance with a fair procedure must take into account
any relevant code of good practice issued in terms of this Act.”
63
National Education Health and Allied Workers Union
v University of Cape Town and Others
2003 (3) SA 1
(CC);
2003
(2) BCLR 154
(CC).
64
Id at para 40.
65
Section 187(1) of the LRA provides:
“
A dismissal is automatically unfair if the employer,
in dismissing the employee, acts contrary
to section 5 or, if the reason for the dismissal is—
(a) that the employee participated in or supported, or
indicated an intention to participate in or support, a strike or
protest
action that complies with the provisions of Chapter IV;
(b) that the employee refused, or indicated an
intention to refuse, to do any work normally done by an employee who
at the time
was taking part in a strike that complies with the
provisions of Chapter IV or was locked out, unless that work is
necessary to
prevent an actual danger to life, personal safety or
health;
(c) to compel the employee to accept a demand in
respect of any matter of mutual interest between the employer and
employee;
(d) that the employee took action, or indicated an
intention to take action, against the employer by—
(i) exercising any right conferred by this Act; or
(ii) participating in any proceedings in terms of this
Act;
(e) the employee's pregnancy, intended pregnancy, or
any reason related to her pregnancy;
(f) that the employer unfairly discriminated against an
employee, directly or indirectly, on any arbitrary ground,
including, but
not limited to race, gender, sex, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief,
political opinion, culture, language, marital
status or family responsibility;
(g) a transfer, or a reason related to a transfer,
contemplated in section 197 or 197A; or
(h) a contravention of the
Protected Disclosures Act,
2000
, by the employer, on account of an employee having made a
protected disclosure defined in that Act.”
66
Section 188
of the LRA.
67
Section 188(1)
of the LRA.
68
Section 188(2)
of the LRA.
69
Item 1(3) of the Code.
70
Item 7(b)(i) and 7(b)(iv) of the Code.
71
Item 7(b)(i).
72
Section 158(1)(g)
provides:
“
The Labour Court may . . . subject to
section 145
,
review the performance or purported performance of any function
provided for in [the LRA] on any grounds that are permissible
in
law.”
73
Carephone (Pty) Ltd v Marcus NO and Others
1999
(3) SA 304
(LAC).
74
Ntshangane v Speciality Metals CC
(1998) 19 ILJ 584 (LC);
[1998] 3 BLLR 305
(LC);
Pep Stores (Pty) Ltd v Laka NO and Others
(1998) 19 ILJ 1534 (LC);
[1998] 9 BLLR 952
(LC); and
Edgars
Stores (Pty) Ltd v Director, Commission for Conciliation, Mediation
and Arbitration and Others
(1998) 19 ILJ 350 (LC);
[1998] 1 BLLR
34
(LC) at paras 42C-42I.
75
See
Deutsch v Pinto and Another
(1997) 18 ILJ 1008 (LC) at
1013C-1014H;
Kynoch Feeds (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others
(1998) 19 ILJ
836 (LC);
[1998] 4 BLLR 384
(LC) at paras 32-48;
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration and Others
(1998) 19 ILJ
327 (LC);
[1997] 11 BLLR 1475
(LC);
Shoprite Checkers (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
(1998) 19 ILJ 892 (LC);
[1998] 5 BLLR 510
(LC) at paras 25-28; and
Standard Bank of South Africa Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(1998) 19 ILJ 903 (LC);
[1998] 6 BLLR 622
(LC) at paras 25-28.
76
Above n at para 27. See also
Shoprite Checkers (Pty) Ltd
above
n at paras 27-28;
Kynoch Feeds (Pty) Ltd
above n at paras
30, 31 and 46;
Deutsch
above n at 1013C-E.
77
Above n at paras 28-29.
78
Rustenburg Platinum Mines Ltd (Rustenburg Section)
v Commission for Conciliation, Mediation and Arbitration
2007
(1) SA 576
(SCA).
79
Id at para 25.
80
Id at para 23.
81
Id at para 29.
82
Above n .
83
Above n .
84
Section 239 of the Constitution provides:
“
In the Constitution, unless the context indicates
otherwise—
‘
organ of state’ means—
. . .
(b) any other functionary or institution—
. . .
(ii) exercising a public power or performing a public
function in terms of any legislation,
but does not include a court or a judicial officer”.
85
Carephone
above n at para 11.
86
Minister of Health and Another NO v New Clicks
South Africa (Pty) Ltd and Others (Treatment Action Campaign and
Another as
Amici Curiae
)
2006 (2) SA 311
(CC);
2006 (1)
BCLR 1
(CC) at para 100.
87
Id at paras 446 and 451.
88
Above n at para 141.
89
Id
at para 142.
90
Id.
91
See
Fedsure
above n at para 27. See also below n .
92
Grey’s Marine Hout Bay (Pty) Ltd and Others v
Minister of Public Works and Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) at
para 25.
93
Above n at para 143.
94
Id.
95
Id.
96
Id.
97
Halsbury
4
th
ed re-issue vol 2 at
para 601 as cited in
Shoprite Checkers (Pty) Ltd
above n
at para 89.
98
In
Re: Residential Tenancies Act, 1979
[1981] 1
SCR 714
at 743, Dickson J in different context, described judicial
power in the following terms: “. . . the hallmark of a judicial
power
is a
lis
between parties in which a tribunal is called
upon to apply a recognized body of rules in a manner consistent with
fairness and
impartiality. The adjudication deals primarily with
the rights of the parties to the dispute, rather than considerations
of the
collective good of the community as a whole.” This
decision was approved and applied in
Attorney-General of Quebec v
Udeco Inc. et al.
(1985) 13 DLR (4
th
) 641 (SCC) at
648;
Chrysler
Canada Ltd v Canada (Competition Tribunal)
(1992) 92 DLR (4
th
) 609 (SCC) at 624D; and
MacMillan
Bloedel Ltd v Simpson
[1995] 4 SCR 725
(SCC).
99
Section 142(8) of the LRA provides:
“
A person commits contempt of the Commission—
(a) if, after having been subpoenaed to appear before
the commissioner, the person without good cause does not attend at
the time
and place stated in the subpoena;
(b) if, after having appeared in response to a
subpoena, that person fails to remain in attendance until excused by
the commissioner;
(c) by refusing to take the oath or to make an
affirmation as a witness when a commissioner so requires;
(d) by refusing to answer any question fully and to the
best of that person’s knowledge and belief subject to subsection
(6);
(e) if the person, without good cause, fails to produce
any book, document or object specified in a subpoena to a
commissioner;
(f) if the person willfully hinders a commissioner in
performing any function conferred by or in terms of this Act;
(g) if the person insults, disparages or belittles a
commissioner, or prejudices or improperly influences the proceedings
or improperly
anticipates the commissioner's award;
(h) by willfully interrupting the conciliation or
arbitration proceedings or misbehaving in any other manner during
those proceedings;
(i) by doing anything else in relation to the
Commission which, if done in relation to a court of law, would have
been contempt
of court.”
100
Compare
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 80 and
Carephone
above n at
para 18.
101
Section 138 of the LRA.
102
Section 113 of the LRA provides:
“
The
Commission is independent of the State, any political party, trade
union, employer, employers’ organisation, federation of
trade
unions or federation of employers' organisations.”
103
Section 34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
104
Carephone above n at paras 10, 21 and 33.
105
1998 (4) SA 1069
(SE).
106
Id at 1082D-G.
107
[2002] ZASCA 14
;
2002 (4) SA 661
(SCA).
108
Id at para 25.
109
Section 157(3) provides:
“
Any reference to the court in the Arbitration Act,
1965 (Act No. 42 of 1965), must be interpreted as referring to the
Labour Court
when an arbitration is conducted under that Act in
respect of any dispute that may be referred to arbitration in terms
of this
Act.”
110
See
Shoprite Checkers (Pty) Ltd v Ramdaw NO &
Others
2001 (3) SA 68
(LC) at para 74.
111
Carephone
above n at para 33.
112
Id.
113
Section 158(2)(b) of the LRA provides:
“
If at any stage after a dispute has been referred to
the Labour Court, it becomes apparent that the dispute ought to have
been referred
to arbitration, the Court may with the consent of the
parties and if it is expedient to do so, continue with the
proceedings with
the Court sitting as an arbitrator, in which case
the Court may only make any order that a commissioner or arbitrator
would have
been entitled to make.”
114
Section 191(6) of the LRA provides:
“
Despite subsection (5)(a) or (5A), the director must
refer the dispute to the Labour Court, if the director decides, on
application
by any party to the dispute, that to be appropriate
after considering—
(a) the reason for dismissal;
(b) whether there are questions of law raised by the
dispute;
(c) the complexity of the dispute;
(d) whether there are conflicting arbitration awards
that need to be resolved;
(e) the
public interest.”
115
SARFU
above n at para 141.
116
Id.
117
South African Technical Officials’ Association v
President of the Industrial Court and Others
1985 (1) SA 597
(A)
at 610G-I.
118
Minister of Interior and Another v Harris and Others
1952
(4) SA 769
(A) at 787G.
119
R v Beukman
1950 (4) SA 261
(O) at 263H;
Cassem en ’n
Ander v Oos-Kaapse Komitee van die Groepsgebiederaad en Andere
1959 (3) SA 651
(A) at 660C.
120
Wade and Forsyth
Administrative Law
9 ed
(Oxford University Press, Oxford 2004) at 41.
121
Above n .
122
Pharmaceutical
above n at paras 37-39.
123
Fedsure
above n at para 28.
124
SARFU
above n at para 148.
125
Fedsure above n
at para 45. See also
Sehume v
Atteridgeville Town Council
1989 (1) SA 721
(T);
Sehume v
Atteridgeville City Council and Another
1992 (1) SA 41
(A).
126
Above n at para 45.
127
Section 1(c) of the Constitution.
128
Pharmaceutical
above n at para 33.
129
SARFU
above n at para 148.
130
Above n at para 15. See also above n .
131
Above n .
132
Above n .
133
Toyota SA Motors (Pty) Ltd v Radebe & Others
(2000) 21
ILJ 340 (LAC);
[2000] 3 BLLR 243
(LAC);
Shoprite Checkers (Pty)
Ltd v Ramdaw NO and Others
2001 (3) SA 68
(LC); and
Volkswagen
SA (Pty) Ltd v Brand NO & Others
[2001] 5 BLLR 558
(LC) at
paras 51-63. However, on appeal, the Labour Appeal Court promptly
restored the precedential value of Carephone, see
Shoprite
Checkers (Pty) Ltd v Ramdaw NO & Others
2001 (4) SA 1038
(LAC) at paras 32-33.
134
Above n .
135
Above n at para 15.
136
Id at para 17.
137
Id at para 18.
138
Id at para 19.
139
Id.
140
Id.
141
Section 33 of the Constitution provides:
“
(1) Everyone has the right to administrative action
that is lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely affected
by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect
to these rights, and must—
(a) provide for the review of administrative action by
a court or, where appropriate, an independent and impartial
tribunal;
(b) impose a duty on the state to give effect to the
rights in subsections (1) and (2); and
(c) promote an efficient administration.”
142
Item 23(2) of Schedule 6 to the Constitution provides:
“
Until the legislation envisaged in sections 32(2)
and 33(3) of the new Constitution is enacted—
(a) section 32 (1) must be regarded to read as follows:
‘
(1) Every person has the right of access to all
information held by the state or any of its organs in any sphere of
government in
so far as that information is required for the
exercise or protection of any of their rights.’; and
(b) section 33(1) and (2) must be regarded to read as
follows:
‘
Every person has the right to—
(a) lawful administrative action where any of their
rights or interests is affected or threatened;
(b) procedurally fair administrative action where any
of their rights or legitimate expectations is affected or
threatened;
(c) be furnished with reasons in writing for
administrative action which affects any of their rights or interests
unless the reasons
for that action have been made public; and
(d) administrative action which is justifiable in
relation to the reasons given for it where any of their rights is
affected or
threatened.’.”
143
Carephone
above
n at para 31.
144
Id at para 37.
145
Above n .
146
The functions of the CCMA are listed in section 115 of the LRA.
Those that are plainly administrative include assisting in the
establishment of workplace forums (section 115(1)(c)); conduct
overseeing and scrutinising elections or ballots of registered trade
unions (section 115(2)(f)). The rule-making authority of the CCMA
under section 115(2A) would also fall under this category.
In
Fedsure
above n at para 27, this Court held that although
the result of the action of law-making by functionaries in whom the
power to
do so has been vested by statute may amount to
“legislation”, the process by which the legislation is made is
in substance
“administrative”.
147
As when the CCMA resolves disputes concerning unfair dismissal
through arbitration (section 115(1)(b)).
148
Above n at para 141.
149
Id.
150
Above n .
151
Above n at para
26.
152
Above n .
153
Above n .
154
Above n
.
155
Above n .
156
Above n at para 18-19.
157
Above n at para 141.
158
Above n at para 27.
159
Above n at para 143.
160
Above n .
161
Above n .
162
Carephone
above n at paras 30-32.
163
Id
at para 30.
164
Id at para 31.
165
Id.
166
Id at para 36.
167
Id.
168
Id at para 32.
169
Explanatory Memorandum (1995) 16
ILJ
278 at
318.
170
Id at 318-319.
171
See
Johannesburg Consolidated Investment Company v
Johannesburg Town Council
1903 TS 111
;
Hira and Another v
Booysen and Another
1992 (4) SA 69
(A) at 87.
172
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others: In re: Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras 22-24.
173
Above n .
174
Above n at paras 33 and 40.
175
South African National Defence Union v Minister of
Defence and Others
CCT 65/06, 30 May 2007, as yet unreported.
176
Id at para 51.
177
Id at para 52.
178
Id at para 54.
179
Above n at para 14.
180
Above n at paras 85 and 90.
181
Above n .
182
Section 33(1)
of the
Arbitration Act provides
:
“
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.”
183
Telcordia Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) at para 54.
184
Section 24(1) of the Supreme Court Act provides:
“
(1) The grounds upon which the proceedings of any
inferior court may be brought under review before a provincial
division, or before
a local division having review jurisdiction,
are—
(a) absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice or the
commission of an offence referred to in Part 1 to 4, or section 17,
20 or 21 (in
so far as it relates to the aforementioned offences) of
Chapter 2 of the
Prevention and Combating of Corrupt Activities Act,
2004
, on the part of the presiding judicial officer;
(c) gross irregularity in the proceedings; and
(d) the admission of inadmissible or incompetent
evidence or the rejection of admissible or competent evidence.”
185
Section 157(3)
provides:
“
Any reference to the court in the Arbitration Act,
1965 (Act 42 of 1965), must be interpreted as referring to the
Labour Court when
an arbitration is conducted under that Act in
respect of any dispute that may be referred to arbitration in terms
of this Act.”
186
Ellis v Morgan; Ellis v Dessai
1909 TS 576.
187
Id at 581.
188
Goldfields Investment Ltd and Another v City
Council of Johannesburg and Another
1938 TPD 551.
189
Id at 560.
190
Id.
191
Id.
192
Above n .
193
Above n .
194
Above n at paras 71-73 and 78.
195
Above n at 581 and above n at 560.
196
Telcordia Technologies
above n at para 76.
197
Section 138(1) of the LRA provides:
“
The commissioner may conduct the arbitration in a
manner that the commissioner considers appropriate in order to
determine the dispute
fairly and quickly, but must deal with the
substantial merits of the dispute with the minimum of legal
formalities.”
198
Above n .
199
De Beer NO v North-Central Local Council and South-Central Local
Council and Others
[2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 1109
(CC) at para 11.
200
Above n at 581.
201
See above para .
202
Section 138(1) of the LRA.
203
Above n at para 38, citing with approval the judgment of the AD in
National Union of Metalworkers of SA v Vetsak Co-operative Ltd
and Others
[1996] ZASCA 69
;
1996 (4) SA 577
(A) at 589C-D and 593G-H.
204
Id.
205
Id at para 40.
206
Id at paras 38-40.
207
See above para .
208
Above n at para 52.
209
Lesotho Highlands Development Authority v Impregilo
SpA and Others
[2005] UKHL 43
;
[2006] 1 AC 221
at para 24.
210
[2000] USCA1 232
;
229 F 3d 321
(1
st
Cir 2000), para 19.
211
Above n at para 52 fn 30.
212
Fedsure
above n at para 58.
213
Above
n .
214
Above n .
215
Section 138(1) of the LRA.