Sidumo revisited
- Authors: Boyens, Marthinus Johannes
- Date: 2015
- Subjects: Judicial review -- South Africa , Judgments -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10249 , http://hdl.handle.net/10948/d1020117
- Description: The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
- Full Text:
- Date Issued: 2015
- Authors: Boyens, Marthinus Johannes
- Date: 2015
- Subjects: Judicial review -- South Africa , Judgments -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10249 , http://hdl.handle.net/10948/d1020117
- Description: The primary purpose of this treatise is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo & another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) and consequently ascertain the correct approach to be adopted by our Labour Courts in the application of such test. The secondary purpose, entail the determination of the extent to which Labour Court judges interfere with the merits of awards and the resulting impact on the distinction between appeal and review. In order to establish whether the test for review was correctly developed and to determine whether our review proceedings deter recurrent interference by our judges, an edifying consideration of judicial review in South Africa, an extensive analysis of various judgements pertaining to such development, followed by a comprehensive comparison with the United Kingdom`s application of review proceedings and judicial composition are made. The research methodology is based on a contour of Sidumo, commencing with the Sidumo judgment, followed by three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgement, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The primary research findings are identified in the judgment of Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA). The judgment, concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiate between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that our Labour Court judges ardently interfere with the merits of awards. In the conclusion it is submitted that our labour law jurisprudence will constantly evolve, dictated by our courts interpretation of lawfulness, reasonableness and fairness.
- Full Text:
- Date Issued: 2015
The role of reasonableness in the review of CCMA arbitration awards in South Africa : an English law comparison
- Authors: Botma-Kleu, Carli Helena
- Date: 2013
- Subjects: Arbitration and award -- South Africa , Labor courts -- South Africa , Law -- South Africa -- English influences
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10291 , http://hdl.handle.net/10948/d1020196
- Description: In South Africa, the Labour Courts have experienced an important and continuing controversy regarding the permissible scope of judicial review of arbitration awards of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”). Section 145(1) of the LRA specifically provides that arbitration awards, generally considered final and binding, can be reviewed and set aside by the Labour Court on the basis of a defect as defined in section 145(2)(a) and (b). These defects are not prescribed in an open-ended manner but limited to decisions involving allegations of misconduct by the commissioner in relation to his or her duties, a gross irregularity in the conduct of the proceedings and/or allegations that the commissioner exceeded his or her powers or that the award was improperly obtained. Unreasonableness and/or irrationality are not included within the scope of a defect as per section 145(2)(a) and (b). Initially, Carephone (Pty) Ltd v Marcus NO & others 1998 11 BLLR 1093 (LAC) found that the interpretation of section 145 was influenced by rational justifiability in accordance with the right to just administrative action as provided for in section 33, read with item 23(2) of Schedule 6, of the Constitution of the Republic of South Africa, 1996 (‘the 1996 Constitution’). Today, leading precedent in the form of Sidumo & another v Rustenburg Platinum Mines Ltd & others 2007 12 BLLR 1097 (CC) dictates that section 145 of the LRA is suffused by reasonableness in accordance with the right to just administrative action as provided for in section 33 of the 1996 Constitution. The ultimate enquiry is whether the arbitration award is one that a reasonable decision-maker could reach as articulated in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 4 SA 490 (CC). However, the enquiry into the reasonableness of a decision is indistinct. As a result, the Labour Courts have struggled to apply the concept of reasonableness in a consistent manner. This thesis seeks to identify the proper role of reasonableness in the judicial review process, including identifying factors that would assist in recognising an unreasonable decision. Relevant principles of judicial review in South Africa in the general administrative law context are considered and distinguished from the process of appeal. An assessment of English case law and commentary in the field of both administrative and employment law is conducted. Finally an extensive examination of South African case law and commentary on the subject, both pre- and post Sidumo, is undertaken. The English law approach is found to provide greater clarity to the interpretation of reasonableness in South African labour law in several respects.
- Full Text:
- Date Issued: 2013
- Authors: Botma-Kleu, Carli Helena
- Date: 2013
- Subjects: Arbitration and award -- South Africa , Labor courts -- South Africa , Law -- South Africa -- English influences
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10291 , http://hdl.handle.net/10948/d1020196
- Description: In South Africa, the Labour Courts have experienced an important and continuing controversy regarding the permissible scope of judicial review of arbitration awards of the Commission for Conciliation Mediation and Arbitration (“CCMA”) in terms of section 145 of the Labour Relations Act 66 of 1995 (“LRA”). Section 145(1) of the LRA specifically provides that arbitration awards, generally considered final and binding, can be reviewed and set aside by the Labour Court on the basis of a defect as defined in section 145(2)(a) and (b). These defects are not prescribed in an open-ended manner but limited to decisions involving allegations of misconduct by the commissioner in relation to his or her duties, a gross irregularity in the conduct of the proceedings and/or allegations that the commissioner exceeded his or her powers or that the award was improperly obtained. Unreasonableness and/or irrationality are not included within the scope of a defect as per section 145(2)(a) and (b). Initially, Carephone (Pty) Ltd v Marcus NO & others 1998 11 BLLR 1093 (LAC) found that the interpretation of section 145 was influenced by rational justifiability in accordance with the right to just administrative action as provided for in section 33, read with item 23(2) of Schedule 6, of the Constitution of the Republic of South Africa, 1996 (‘the 1996 Constitution’). Today, leading precedent in the form of Sidumo & another v Rustenburg Platinum Mines Ltd & others 2007 12 BLLR 1097 (CC) dictates that section 145 of the LRA is suffused by reasonableness in accordance with the right to just administrative action as provided for in section 33 of the 1996 Constitution. The ultimate enquiry is whether the arbitration award is one that a reasonable decision-maker could reach as articulated in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 4 SA 490 (CC). However, the enquiry into the reasonableness of a decision is indistinct. As a result, the Labour Courts have struggled to apply the concept of reasonableness in a consistent manner. This thesis seeks to identify the proper role of reasonableness in the judicial review process, including identifying factors that would assist in recognising an unreasonable decision. Relevant principles of judicial review in South Africa in the general administrative law context are considered and distinguished from the process of appeal. An assessment of English case law and commentary in the field of both administrative and employment law is conducted. Finally an extensive examination of South African case law and commentary on the subject, both pre- and post Sidumo, is undertaken. The English law approach is found to provide greater clarity to the interpretation of reasonableness in South African labour law in several respects.
- Full Text:
- Date Issued: 2013
The review function of the labour court
- Authors: Sauls, Paul Anthony
- Date: 2007
- Subjects: South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10232 , http://hdl.handle.net/10948/821 , South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Description: Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
- Full Text:
- Date Issued: 2007
- Authors: Sauls, Paul Anthony
- Date: 2007
- Subjects: South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10232 , http://hdl.handle.net/10948/821 , South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Description: Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
- Full Text:
- Date Issued: 2007
The contribution of the Labour Court to the development of strike law
- Nengovhela, Livhuwani Adolphus
- Authors: Nengovhela, Livhuwani Adolphus
- Date: 2005
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10191 , http://hdl.handle.net/10948/430 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Description: The Labour Relations Act 66 of 1995 brought a number of changes in the labour relations environment from its inception on 11 November 1996. The Act codified Industrial Court decisions that were already established under the strike-law jurisprudence from the Labour Relations Act 28 of 1956. These general changes to the law also impact on the strike-law regime. The purpose of this paper is to give an overview of the contributions made by the Labour Courts1 in developing strike law from the inception of the Act. The Labour Courts have made a number of decisions that have helped in clarifying the provisions of the Act. One should hasten to say that this has never been a smooth process by the courts. It will further be shown in this paper that some of the court decisions were not well accepted in the light of other considerations, such as the Constitution and the previous Industrial Court decisions. On some occasions the Constitutional Court had to intervene in order to clarify the intention of the legislature. For the purpose of effectively dealing with this topic, I shall briefly give the historical context of strike law in the form of common-law position, and the strike-law position before the Bill of Rights and the Constitution. I shall then endeavour to identify the legislative provision of the Act when it comes to strike-law provisions, at the same time identifying the important court decisions that were made.
- Full Text:
- Date Issued: 2005
- Authors: Nengovhela, Livhuwani Adolphus
- Date: 2005
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10191 , http://hdl.handle.net/10948/430 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Labor courts -- South Africa
- Description: The Labour Relations Act 66 of 1995 brought a number of changes in the labour relations environment from its inception on 11 November 1996. The Act codified Industrial Court decisions that were already established under the strike-law jurisprudence from the Labour Relations Act 28 of 1956. These general changes to the law also impact on the strike-law regime. The purpose of this paper is to give an overview of the contributions made by the Labour Courts1 in developing strike law from the inception of the Act. The Labour Courts have made a number of decisions that have helped in clarifying the provisions of the Act. One should hasten to say that this has never been a smooth process by the courts. It will further be shown in this paper that some of the court decisions were not well accepted in the light of other considerations, such as the Constitution and the previous Industrial Court decisions. On some occasions the Constitutional Court had to intervene in order to clarify the intention of the legislature. For the purpose of effectively dealing with this topic, I shall briefly give the historical context of strike law in the form of common-law position, and the strike-law position before the Bill of Rights and the Constitution. I shall then endeavour to identify the legislative provision of the Act when it comes to strike-law provisions, at the same time identifying the important court decisions that were made.
- Full Text:
- Date Issued: 2005
The application of the hearsay rule in labour law proceedings
- Authors: Hanekom, Jurgens Philip
- Date: 2003
- Subjects: Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11053 , http://hdl.handle.net/10948/300 , Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
- Full Text:
- Date Issued: 2003
- Authors: Hanekom, Jurgens Philip
- Date: 2003
- Subjects: Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11053 , http://hdl.handle.net/10948/300 , Labor courts -- South Africa , Evidence, Hearsay -- South Africa , Evidence (Law) -- South Africa , Labor laws and legislation -- South Africa
- Description: To know your law and not to understand it is like a legal barbarian lost in the battlefield of legal theory. A proper and thorough understanding of the law of evidence and hearsay evidence in particular, is of paramount importance not only for lawyers but also for persons who regard themselves as labour law experts. It takes a great deal of experience before a lawyer truly becomes confident with the law of evidence and its application. The only way one becomes good at it is firstly to know the law. (Where does it come from and why is it there?) Then one must get to understand it by looking at examples and apply it in practice. Only then will a person gain practical experience. The aim of this treatise is not to try and educate experienced lawyers. This article is aimed at those that need some motivation to pursue their journey in the labour law process. Remember we all assume that lawyers know and understand their subject until they proof the contrary. In this work I shall try to highlight the importance of the law of evidence in labour law proceedings. Firstly the meaning of the law of evidence and hearsay evidence is considered. Further emphasis will be on the approach and application of the law of evidence, and in particular the hearsay rule, in labour law proceedings.
- Full Text:
- Date Issued: 2003
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