Research Explores the Right to Just Administrative Action within Labour Law
Determining the correct standard that is applicable to the review of arbitration awards issued by the Commission for Conciliation, Mediation and Arbitration (CCMA) is the focus of Master of Laws cum laude graduate Mr Andile Khumalo’s research.
The research titled: “The grounds for Reviewing CCMA Arbitration Awards: A Critical Assessment of whether the Courts’ Interpretation thereof gives Adequate Effect to the Fundamental Right to Just Administrative Action” was influenced by the ground-breaking judgment of the Constitutional Court (CC) in Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) (Sidumo), where the CC held that the just administrative action provisions in section 33 of the 1996 Constitution form the basis for reviewing CCMA arbitration awards. It also takes into consideration the judgements handed down by the Labour Appeal Court (LAC) and the Supreme Court of Appeal (SCA) which offer conflicting approaches to the right to just administrative action within the labour law sphere.
Khumalo’s research primarily investigates which of these conflicting approaches to the standard of review – and therefore to the right to just administrative action – is supported by the weight of LAC and SCA judgments.
‘The findings on that issue provide significant insight into which of the approaches to the standard of review represents an accurate statement of the law. To achieve that objective, the study analyses 124 judgments of the LAC and the SCA handed down since Sidumo,’ said Khumalo.
‘The analysis of those judgments has revealed that the SCA’s approach to the standard of review in Herholdt is supported by the weight of LAC and SCA judgments. The question then arises as to whether the delineation of the standard of review by the SCA gives adequate protection to the fundamental right to just administrative action in section 33 of the 1996 Constitution. No research has been conducted on that issue as yet,’ he added.
Khumalo who is currently serving his articles of clerkship with law firm Cliffe Dekker Hofmeyr Inc is looking forward to using this qualification to contribute meaningfully to the legal sector.
‘Beyond the obvious benefit of better employment prospects though, my hope in reading towards a Master’s degree in Law has always been to acquire expert knowledge of the South African legal system and to utilise that knowledge to contribute meaningfully to the development of our legal system in particular and our country in general,’ he said.