Abstract

In this case, the Constitutional Court found that an integral component of the s 34 fair hearing right is ‘the duty of proper consideration’ and that the malperformance of the duty will result in a court’s judgment being overturned on appeal without any consideration of the merits. Given that arbitration before the Commission for Conciliation, Mediation and Arbitration (CCMA) is regulated by s 34 of the Constitution, the duty of proper consideration also applies to commissioners. This note considers the implications for the review of CCMA awards. It concludes that where commissioners breach their duty of proper consideration by, for example, failing to consider materially relevant facts, this constitutes a gross irregularity as per Ngcobo J’s gross irregularity dictum in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), which was founded on s 34. While it appears likely that the Labour Court will be confronted (perhaps inundated) with ‘reviews for want of proper consideration’, it remains to be seen how they will be dealt with.