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Article 12/2025

The aim of this article is to provide the reader with a ready-to-use set of principles to determine, firstly, the grounds upon which an arbitration award may be set aside on review, secondly, the effect of flaws in reasoning, reliance on irrelevant factors and ignoring material factors when an arbitration award is considered on review and, thirdly, the effect of an error or irregularity in the arbitration award when taken on review.
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  • The failure of an arbitrator to apply his/her mind to material issues usually amounts to an irregularity.
  • Whether or not such irregularity will result in the setting aside of an arbitration award entails a further enquiry, namely, a determination whether such irregularity reveals a misconception of the true enquiry or resulted in an unreasonable action.
  • Flaws in reasoning, the failure to apply one’s mind, reliance on irrelevant factors and ignoring material factors are not enough to vitiate an award on review – same must be assessed with reference to, inter alia, the following questions:
    • whether or not this resulted in the wrong enquiry being undertaken, or
    • whether or not the enquiry was undertaken in the wrong manner, or
    • whether or not, as a result of the above, the arbitrator arrived at an unreasonable result
    • thus, what is required, is a determination as to whether or not singularly, or cumulatively, the above factors resulted in a decision that no reasonable decision-maker could reach
  • In short, what has to be determined is whether or not the aforesaid error or irregularity was material in respect of the result.
  • In determining whether or not such materiality in respect of the result exists, the following questions are relevant:
    • did it have a distorting effect on the arbitrator’s conception of the enquiry to be undertaken?
    • did it have a distorting effect on the delineation of the issues?
    • did it have a distorting effect on the ultimate outcome?
  • Provided the right question was asked and answered, a wrong answer will not necessarily be unreasonable.
  • What is required for an arbitration award to be set aside on review is a determination that the arbitrator has diverted from the correct path in conducting the arbitration and, as a result, failed to address the issues raised for determination.

See:

  • Head of Department of Education v Mofokeng and Others (2014) 25 SALLR 82 (LAC)
  • Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA)
  • Securitas Specialised Services (Pty) Ltd v CCMA and Others (2021) 42 ILJ 1071 (LAC)
  • National Union of Metalworkers of SA and Another v CCMA and Others (2023) 34 SALLR 363 (LC)
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?