Davis JA (with Tlaletsi JA & Van Zyl AJA) at para [18] of Bestel v Astral Operations Ltd [2011] 2 BLLR 129 (LAC) (LAC) on 19 September 2010.
“ … the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected”.
This latest judgment of the Labour Appeal Court needs to be read with two recent earlier Labour Court judgments. See – LC: Sidumo review test in process of being refined.
Reference is made therein to the remarks of Justice Steenkamp in Seardel Group Trading (Pty) Ltd t/a Romatex Home Textiles v Peterson & SACTWU unreported case C502/09 dated 2 September 2010 and the reference to Cowley v Anglo Platinum (unreported, JR 2219/2007, dated 18/11/2008, per Musi AJ), quoted with approval by Van Niekerk J in George v National Bargaining Council for the Chemical Industry (unreported, Petersen 97/2010, 25 August 2010) and stated as follows in para [13]:
“The commissioner’s exercise of discretion will be upset on review if the applicant shows, inter alia, that the commissioner committed a misdirection or irregularity, or that he/she acted capriciously, or on wrong principle, or in bad faith, or unfairly, or that in exercising the discretion the commissioner reached a decision that a reasonable decision-maker could not reach.”
Justice Davis, In allowing an appeal from the judgment of Justice Pillay in the Labour Court and restoring the reinstatement award of commissioner Advocate RG Seggie, refers in paras [13] – [17] to the Sidumo review test and a journal article by Anton Myburgh “Sidumo v Rusplats: How the Courts deal with it’ (2009) 30 Industrial Law Journal 1.
“Myburgh contends that a commissioner’s finding, on the facts, will be considered to be unreasonable if the finding is:
I unsupported by any evidence;
ii based on speculation by the commissioner;
iii entirely disconnected from the evidence;
iv supported by evidence that is insufficiently reasonable to justify the decision; or
v made in ignorance of evidence that was not contradicted.
In coming to this conclusion, Myburgh cites a dictum of Van Niekerk AJ in Sil Farming CC t/a Wigwam v CCMA (unreported LC Judgment cited by Myburgh at 13):
‘A commissioner arrives at a decision which no reasonable decision maker could reach if the decision is unsupported by any evidence, or by evidence that is insufficient to reasonably justify the decision arrived at or where the decision maker ignores uncontradicted evidence’.
Schwartz ‘Lions over the Throne’ (1987) at 133 explains that, in the context of a review, a court deals with a test of ‘reasonableness, not the rightness of agency findings of fact. The question under it is whether the evidence is such that the reasonable person acting reasonably could have reached the decision from the evidence and the inferences’.
Although the judgment in Sidumo supra superceded the test for review as contained in the decision of this Court in Carephone (Pty) Ltd v Marcus 1999 (3) SA 384 (LAC) at para 37, the following dictum in the latter judgment is helpful in order to illustrate the nature of the test:
‘Is there a rational objective basis justifying the conclusion made by the administrative decision-maker between the material properly available to him and the conclusion he or she eventually arrived at’”.