Association of Mine Workers and Construction Union (AMCU) obo Matsimbe v Commission for Conciliation Mediation and Arbitration and Others (JR1708/20) [2022] ZALCJHB 281 (11 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1708/20

In the matter between:

ASSOCIATION OF MINE WORKERS AND

CONSTRUCTION UNION (AMCU) OBO MATSIMBE, A Applicant

And

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

TALANE, S N.O. Second Respondent

ANGLO AMERICAN MORTIMER SMELTER

Third Respondent

Decided: In chambers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 11 October 2022.

LEAVE TO APPEAL - JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This is unopposed leave to appeal wherein the applicant seeks leave to appeal the whole judgment and order of this Court handed down on 15 July 2022. Leave is sought to appeal to the Labour Appeal Court (LAC) on various grounds that are enunciated in its notice of the application for leave to appeal.

[2] I propose not to restate grounds of appeal in this judgment as they are addressed in detail in the applicant’s written submissions. To the extent that the issues canvased in this application are addressed in detail in the impugned judgment, I defer to the reasons therein. Even so, I deem it expedient to briefly address the issue of the review test.

[3] The applicant impugned the reasonableness of the arbitration award. The reasonableness test demands little from the reviewing court, a notion succinctly underscored by the apex court in Duncanmec (Pty) Limited v Gaylard NO and Others[1]. In an unanimous judgment penned by Jafta J, the Constitutional Court stated that:

“[40] As is apparent from Sidumo, the genesis of the reasonableness standard of review is section 33(1) of the Constitution which confers on everyone the right to administrative action that is lawful, reasonable and procedurally fair. Since an award like the one we are concerned with here

constitutes administrative action, the Constitution requires it to be procedurally fair, lawful and reasonable. This means that an award that fails to meet these requirements is liable to be set aside on review. These requirements are in addition to the grounds of review listed in section 145 of the LRA. However, to some extent the latter grounds may overlap with the constitutional requirements. But the reasonableness standard is sourced from section 33 of the Constitution alone. It does not form part of the overlap.

[41] Sidumo cautions against the blurring of the distinction between appeal and review and yet acknowledges that the enquiry into the reasonableness

of a decision invariably involves consideration of the merits. So as to maintain the distinction between review and appeal this Court formulated the test along the lines that unreasonableness would warrant interference if the impugned decision is of the kind that could not be made by a reasonable decision-maker.

[42] This test means that the reviewing court should not evaluate the reasons provided by the arbitrator with a view to determine whether it agrees with them. That is not the role played by a court in review proceedings. Whether the court disagrees with the reasons is not material.

[43] The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.” (Own emphasis)

[4] The applicant’s matter is emblematic of a plethora of review applications inundating this court where the impugned awards are well reasoned and accordingly reasonable. Put otherwise, the applicant sought to appeal the award, a patently untenable pursuit.

[5] Having holistically assessed all the grounds of appeal, I am convinced that the applicant failed to show that the appeal bears reasonable prospects of success. Put differently, there are no prospects that another court might reasonably arrive at a decision different to the one reached by this Court. It follows that this application stands to be dismissed.

[6] In the circumstances, the application for leave to appeal is dismissed.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] (2018) 39 ILJ 2633 (CC).