Determining reasonableness in the light of Sidumo
- Authors: Govender, Mogisvaree Murugan
- Date: 2016
- Subjects: Labor laws and legislation -- South Africa Employees -- Law and legislation -- South Africa Law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/11648 , vital:26947
- Description: The primary purpose of this treatise is to consider the development, analysis and application of the review test in relation to arbitration awards which is set out in the Constitutional Court (CC) judgment of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (Sidumo).1 This judgment has already had significant implications for employers and employees alike and will continue to do so in the future. Many lawyers, trade unions and employees launch or oppose review applications in the Labour Court on behalf of employers or employees. In observing this litigation process, it became clear that practitioners make two fundamental mistakes. Firstly they do not appreciate the distinction between reviews and appeals and / or, secondly, they misconstrue the Sidumo test in seeking to review or defend an arbitration award. This causes serious prejudice to their clients and results in delays in labour dispute resolution which is contrary to the spirit and purpose of the Labour Relations Act,2 as amended (LRA). The application of the Constitution of the Republic of South Africa,3 legislation and case law is fundamental to the review of arbitration awards and the role of arbitrators in that process. The common thread is the notion of “reasonableness” and “fairness” which has been and continues to be of significant importance in the assessment of arbitration awards. During the course of this research paper, reference is been made to the Constitution, legislation, case law, academic papers and journal articles. The references are mostly precedent setting and authoritative in relation to reviewable irregularities in arbitration awards. The purpose of this paper is guide and assist labour court practitioners to analyse arbitration awards and identify reviewable irregularities in order to determine whether it meets the bandwidth of reasonableness within the context of the Constitution and LRA. In doing so, practitioners will be able to successfully review awards without unduly delaying the dispute resolution process. During the research process, one of the important findings was that there has been inconsistent jurisprudence relating to the application of the grounds of review and the review test itself as per Sidumo which blurred the distinction between reviews and appeals. Many review applications failed to attack the reasonableness of the decision of the commissioner, but rather focused on the cogency of the evidence presented at the arbitration and thereby incorrectly invoking an appeal instead of a review. A further challenge was that the jurisprudence created a perception amongst practitioners that there was a decline in the Sidumo test. This approach was inherently incorrect and recent judgments have clarified and upheld the Sidumo test in review applications.4 The recent landmark judgments by the Supreme Court of Appeal (SCA) clarified that reasonableness was not a separate ground of review but was to be suffused with the grounds of review set out in section 145(2)(a) of the LRA.5 Lastly, Sidumo did not postulate the bandwidth of reasonableness and it was left to the courts to determine the extent of judicial interference. There are various factors to be considered and CC judgments have provided much needed guidance on how to determine reasonableness. In essence, a wrong decision per se is not reviewable. At best, erroneous reasons or lack of proper reasons may serve as evidence for a reviewable ground that will together with other considerations require compelling proof to justify a court’s interpretation that the decision reached is not one that a reasonable decision could have reached.7 In order to obtain an award on the basis of the Sidumo test, the 4 Andre Herholdt v Nedbank [2013] 11 BLLR 1075 (SCA); Goldfields Mining South Africa (Pty) Ltd v CCMA [2014] BLLR 20 (LAC). applicant must thus assail not only the commissioner’s reasons, but also the result of the award.
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- Date Issued: 2016
Legal representation at internal disciplinary enquiries: the CCMA and bargaining councils
- Authors: Webb, Brandon
- Date: 2015
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa -- Commission for Conciliation, Mediation, and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10299 , http://hdl.handle.net/10948/d1021066
- Description: The right to legal representation at internal disciplinary hearings and arbitration proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA), and bargaining councils, where the reason for dismissal relates to misconduct or incapacity is a topic that is raised continuously and often debated. Despite no amendments to labour legislation pertaining to the issue at hand there was however a recent Supreme Court of Appeal judgment. This judgment alters one’s view and clarifies the uncertainties that were created around Rule 25 of the CCMA rules, it also brings a different perspective to the matter, but it will however continue to ignite significant interest. There is no automatic right to legal representation at disciplinary hearings, at the CCMA, and at bargaining councils where disputes involve conduct or capacity and this is the very reason why it is a contentious matter for all parties to grapple with. The dismissal of an employee for misconduct may not be significant to the employer, but the employee’s job is his major asset, and losing his employment is a serious matter to contend with. Lawyers are said to make the process legalistic and expensive, and are blamed for causing delays in the proceedings due to their unavailability and the approach that they adopt. Allowing legal representation places individual employees and small businesses on the back foot because of the costs. Section 23(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides everyone with the right to fair labour practices, and section 185 of the Labour Relations Act 66 of 1995 gives effect to this right and specifies, amongst others, that an employee has the right not to be unfairly dismissed. At internal disciplinary hearings, the Labour Relations Act 66 of 1995 is silent as to what the employee’s rights are with regards to legal representation and the general rule is that legal representation is not permitted, unless the employer’s disciplinary code and procedure or the employee’s contract allows for it, but usually an employee may only be represented by a fellow employee or trade union representative, but not by a legal representative. In MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani, the Supreme Court of Appeal held that there exists no right in terms of the common law to legal representation in tribunals other than in courts of law. However, both the common law and PAJA concede that in certain situations it may be unfair to deny a party legal representation. Currently the position in South Africa is that an employee facing disciplinary proceedings can put forward a request for legal representation and the chairperson of the disciplinary hearing will have the discretion to allow or refuse the request. In Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee, the Supreme Court of Appeal found that the South African law does not recognise an absolute right to legal representation in fora other than courts of law, and a constitutional right to legal representation only arises in respect of criminal matters.
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- Date Issued: 2015
Factors affecting the effectiveness of parental involvement in children's education: the case of the junior secondary schools in Ngqeleni District of Eastern Cape
- Authors: Maqoqa, Thabisa
- Date: 2011
- Subjects: Education -- Parental involvement , Parents -- Education (Junior) -- Schools
- Language: English
- Type: Thesis , Masters , M Ed
- Identifier: vital:18413 , http://hdl.handle.net/11260/d1006506 , Education -- Parental involvement
- Description: This study is about factors affecting the effectiveness of parental involvement in their children’s education. This chapter focuses on the background to the study, statement of the problem, research questions, delimitation and limitations of the study and definitions of terms used in the context of the study. The education system during the apartheid era did not encourage effective involvement of stakeholders in schools. The achievement of democracy in South Africa has consigned to history the past system of Education which was based on racial inequality and segregation whereas this country requires a new national system for schools which will redress past injustices in educational provision, provide an education of progressively high quality for all learners (South African Schools Act (SASA) 84 of 1996). One of the factors which influence the success of a school system is the involvement of its stakeholders (SASA 84 of 1996). The school stakeholders are parents, educators, the learners, the community and the department of education officials. This means that these stakeholders should work together. According to SASA, a parent is the person legally entitled to the custody of a learner or a person who undertakes to fulfill the obligations of a person towards the learner’s education at school. Parental involvement is described as the willingness and active participation of parents in a wide range of school and home-based activities related to their children’s education. Literally, parental involvement is a dynamic process whereby teachers and parents work together for the ultimate benefit of the child. The SASA emphasizes that the role of parents in the education of their children is a vital support source of learning.
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- Date Issued: 2011
Teacher adaptation of a curriculum during implementation
- Authors: Childs, Margaret Mary
- Date: 2005
- Subjects: Curriculum change -- South Africa , Educational change -- South Africa
- Language: English
- Type: Thesis , Masters , MPhil
- Identifier: vital:9486 , http://hdl.handle.net/10948/377 , Curriculum change -- South Africa , Educational change -- South Africa
- Description: The purpose of this study is to investigate to what extent foundation phase teachers adapt Curriculum 2005. The study was guided by two research questions: (1) What are the critical components of Curriculum 2005 (foundation phase)? (2) What are the adaptations that teachers have made in teaching this curriculum? The specific focus of this study is foundation phase teachers’ initial implementation of the revised version of Curriculum 2005, the Revised National Curriculum Statement (RNCS). An Innovation Configuration Checklist was developed identifying the critical components of the RNCS and the variations of each. Using the checklist, foundation phase teachers were surveyed to establish the adaptations being made during implementation. The findings of this study indicate that there is less active learning and more teacher directed activity than is required by the RNCS. Assessment appears to be a problem area. Most teachers understand what is expected of them in terms of assessment and attempt to put it into practice. Assessment has however, proved to be burdensome and time consuming. Teachers’ planning demonstrates a sound understanding of the procedures to be followed. Teachers do however, need support in terms of deeper pedagogical content knowledge. Although teachers comply with the technical aspects of curriculum development they neglect the emancipatory aspects of the RNCS. The situation in foundation phase classrooms might be described as one where much change is taking place, but little transformation is happening at present. Teachers are nevertheless, reflecting on how to improve their teaching and continue to explore ways to adapt and improve the RNCS.
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- Date Issued: 2005