Reviewing CCMA awards: Undecided and controversial issues
Authors Anton Myburgh
Affiliations: Advocate of the High Court of South Africa; Adjunct Professor of Law at Nelson Mandela Metropolitan University
Source: Industrial Law Journal, Volume 37 Issue 4, 2016, p. 2193 – 2210
This article examines undecided and controversial issues relating to the review of CCMA arbitration awards. Firstly, with what intensity should a review for reasonableness be undertaken by the Labour Court? This involves trying to determine the point at which the elastic of reasonableness should snap so as to give rise to a review. Secondly, assuming that all material errors of law are reviewable, what constitutes an error of law? Discussed here is the interconnection between findings of fact and law, and the finding by the Supreme Court of Appeal in the Oscar Pistorius case that a failure to consider material facts constitutes an error of law. Thirdly, what is the reach of the (latent) gross irregularity ground of review? Explored under this head is the Tao Ying debate; Zondo J’s judgment in Toyota dealing with the failure by commissioners to resolve and determine issues; and the meaning of the phrase ‘misconceived the nature of the inquiry’. The law on each of these issues is unsettled. The article concludes with the suggestion that it is time that the Constitutional Court pronounces on the review test again.