SIDUMO REVISITED – AN ARTICLE ON THE DEVELOPMENT OF THE REVIEW TEST IN SOUTH AFRICA
Keywords:test for review, correct approach, Labour Courts, appeal and review, notion of reasonableness, lawfulness, fairness
The primary purpose of the second article in a series of two, is to revisit and reconsider the development of the review test set out in the Constitutional Court judgment of Sidumo v Rustenburg Platinum Mines Ltd ((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 entails 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, a consideration of judicial review in South Africa, an extensive analysis of various judgments pertaining to such development, and a comprehensive comparison with the United Kingdom`s application of review proceedings are made. The Sidumo contour is unpacked firstly. This discussion is followed by an evaluation of three contentious Labour Appeal Court judgments and concluding with a Supreme Court of Appeal judgment, which clarifies the operation of the review test. The contour is interlinked with the notion of reasonableness. The judgment in Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA), concluding the Sidumo contour, underlines the current position in our law and consequent narrower approach. A comparison made with the United Kingdom, differentiates between such approach implemented by our courts and the strict gross unreasonableness approach applied by Employment Appeal Tribunals, recognising the finding, that South African 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 the interpretation of lawfulness, reasonableness and fairness in South African jurisprudence.
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