AUTHOR: MICHELLE POSEMANN
PUBLICATION DATE: AUG 12, 2025
1. Introduction
There is no appeal process from the CCMA – an arbitration award is final and binding[1], subject only to review by the Labour Court on the limited grounds set out in sections 145[2], 158(1)(g)[3] and 158(1)(h)[4] of the Labour Relations Act, 66 of 1995 (LRA).
2. Selected jurisprudence developing the law on reviews
The Labour Appeal Court (LAC) clarified the applicability of the three sections in Carephone (Pty) Ltd Marcus NO & others 1999 (3) SA 304 (LAC); (1998) 19 ILJ 1425 (LAC), confirming that section 145 applies to the review of arbitration awards of Commissioners of the CCMA; section 158(1)(g) to administrative action generally; and section 158(1)(h) to administrative action taken specifically by the State as employer.
Recognising that administrative action must be justifiable in relation to the reasons given for it[5], Carephone also formulated the test for review as being: “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?”[6]
The Constitutional Court then explored the issue of Labour Court review further in Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC), grappling with whether arbitration under the auspices of the CCMA was “administrative action” as defined by PAJA[7] and therefore whether the standard of review under that Act applied, rather than that prescribed by the LRA.
The majority found that, whilst Commissioners do perform an administrative function, PAJA did not apply and, building on Carephone, that the test on review should be: “Is the decision reached by the Commissioner one that a reasonable decision maker could not reach?”
The test accordingly evolved from one of “rationality” to one of “reasonableness” with section 145 being interpreted to ensure that action by the CCMA is “lawful, reasonable and procedurally fair”[8].
The next case to develop the jurisprudence, and to consider the interplay between the Constitution, LRA and PAJA was Gcaba v Minister for Safety & Security & others 2010 (1) SA 238 (CC); (2010) 31 ILJ 296 (CC) where the court found that generally employment and labour relations issues do not amount to administrative action, distinguishing between section 23 of the Constitution[9] regulating the relationship between employer and employee and section 33 regulating the relationship between the State and citizens[10].
In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)(2013) 34 ILJ 2795 (SCA) the court endorsed the approach in Sidumo noting that the grounds listed in section 145 were to be ‘suffused’ with the constitutional standard of reasonableness. Focussing on ‘gross irregularity in the conduct of the arbitration proceedings’ as envisaged by section 145(2)(a)(ii) the court found that “[f]or a defect in the conduct of the proceedings to amount to a gross irregularity…the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result”[11].
This development shifted the scope of reviews from substantive reviews to process-related reviews.
The court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) clarified that Herholdt did not mean that there was now a separate and distinct test for review, but rather that once a gross irregularity had been established, the Sidumo test of reasonableness still needed to be applied. Ultimately, the Commissioner’s process needs to be evaluated according to whether, on a totality of the evidence, the conclusion reached was reasonable.
In Hendricks v Overstrand Municipality & another (2015) 36 ILJ 163 (LAC) the court was called upon to consider whether the review jurisdiction under section 158(1)(h) extended to internal review by an employer of a disciplinary sanction it believed to be too lenient. With reference to Gcaba having left the door open to assess what amounts to “administrative action” on a case-by-case basis, the court noted that “the decision of the presiding officer qua employer was a decision of an administrative nature by an organ of State performing a public function in terms of the legislation governing local government.” The court found further that since the disciplinary action had taken place in terms of a collective agreement which provided that the decision on sanction was subject ‘to any other remedies permitted by law’ this pointed to an intention to reserve to the employer a right of review in relation to the disciplinary sanction. Noting further that local government had an additional duty monitor and eradicate corruption, the court classified the decision of the presiding officer as administrative action as envisaged by PAJA.[12]
In the circumstances, the court found that “the judicial review of contractual disciplinary proceedings is permitted in the law and consequently the municipality’s application for review was permitted on these grounds[13], which were ‘permissible in law’ as contemplated in secton 158(1)(h) of the LRA.”
The court in Hendricks accordingly gave recognition to review under section 158(1)(h) of a “decision taken by a presiding officer of a disciplinary hearing on (i) the grounds listed in PAJA, provided the decision constitutes administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) in accordance with the requirements of the constitutional principle of legality, such being grounds ‘permissible in law’.”[14]
3. Conclusion
Because of the lack of an appeal process, litigants over the years have pushed the boundaries of the ambit of reviews as the only avenue available to challenge the outcomes of arbitration awards. It is arguable that those boundaries have been pushed as far as they can go and that the test and scope is now settled.
The more recent developments are found in the amendments to the Labour Court rules which have attempted to streamline the process of review and curtail the inordinate delays being experienced at the hands both of the litigants and of the courts. This, by simplifying the pleadings and limiting extent of the record as well as imposing stricter time limits on the parties.
Further, and in an attempt to clear the backlogs in the Cape Town Labour Court, SASLAW has implemented a pilot project to mediate long-outstanding review applications in order to assist the court in fulfilling its mandate of expeditious dispute resolution. Perhaps the sheer volumes of review applications require more innovative solutions to achieve the LRA objective of efficient, effective and expeditious dispute resolution.
Should you need advice on the review of an arbitration award, contact the labour department at Garlicke & Bousfield.
[1] Section 143(1) LRA 1995
[2] 145 (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-
(2) A defect referred to in subsection (1), means-
(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.
[3] The Labour Court may, subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law.
[4] …review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law.
[5] Section 33 and item 23(b) of schedule 6 to the Constitution.
[6] At para 37.
[7] Promotion of Administrative Justice Act 3 of 2000.
[8] Section 33(1) of the Constitution.
[9] Right to fair labour practices.
[10] Right to lawful, reasonable and procedurally fair administrative action.
[11] at 2796H – 2797A.
[12] being the exercise of a statutory public power or the performance of a public function which had a direct, external legal effect in its consequences for ratepayers and citizens in general.
[13] The grounds listed in PAJA.
[14] At 165.
Tel: +27 21 023 4262 Email: michelle.posemann@gbcape.co.za