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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)
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?