Assessment 3
Student Name & Surname: Mufudzi Ngaaseke
Student Number: 11845872
Module Code: IRM1501
Course Name: Introduction to Research and Methodology
Unique assignment number: 150258
Due Date: Monday, 27 May 2024
University of South Africa
The Department of Jurisprudence
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Question 1
Facts
In the matter of Sidumo v Rustenburg Mines Limited & Others, we observe the new
approach adopted by the Constitutional Court when dealing with labour matters, such
as ‘dismissal disputes’ between employers and employees.1 The Constitutional Court
specifically applied a new test in determining the ‘fairness’ of dismissals as they related
to the labour law. 2
Mr Z Sidumo, a former employee of the Mine, (‘and the First Applicant’) lost his job on
26 June, 2000 for not following the strict search procedures at the Water Redressing
Section. Two internal processes then followed which were conducted prior to litigation,
namely a ‘disciplinary inquiry’ and then an ‘internal appeal.’ 3 After both internal
processes took place the mine still maintained its decision for his dismissal. Mr Sidumo
then approached the Commission for Conciliation, Mediation and Arbitration in line
with section 191 (1) (a) of the Labour Relation Act, on the basis that his dismissal was
unjust.4
The Commissioner, (‘who is the Third Respondent in this case’), then intervened on
behalf of the CCMA, he found Mr Sidumo ‘guilty of misconduct’ but maintained that his
dismissal ‘was not an appropriate or fair sanction.’5 The Commissioner resolved to
reinstate Mr Sidumo as an employee of the mine, together with compensation for three
months and the issuing of a warning.
Litigation then began in the Labour Court when the mine approached the Court in
order to contend against the Commissioners ‘award,’ specifically his decision to
reinstate Mr Sidumo.6 This application was subsequently dismissed ‘with costs’ by the
Court, in favour of Mr Sidumo. The court found that the decision granted by the
Commissioner contained no ‘reviewable irregularity.’ Following that decision the mine
then opted to approach the Labour Appeal Court which resolved to also dismiss the
mine’s application, including costs.7
The matter was then further escalated by the mine to the Supreme Court of Appeal. It
is in this Court that the mine is finally granted relief. The Supreme Court of Appeal
resolved to overturn both decisions in the Labour Court and the Labour Appeal Court,
as the superior Court its decisions are binding on all lower Courts. The Supreme Court
of Appeal substituted the Commissioners ‘award’ with the decision that the ‘dismissal
was fair’ which favoured the Mine.
1 Sidumo v Rustenburg Platinum Mines Ltd & Others 2007 12 BLLR 1097 (CC).
2 Sidumo v Rustenburg Mines Limited & Others.
3 Sidumo v Rustenburg Mines Limited & Others
4 Labour Relations Act 66 of 1995.
5 Sidumo v Rustenburg Mines Limited & Others.
6 Sidumo v Rustenburg Mines Limited & Others
7 Sidumo v Rustenburg Mines Limited & Others
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Mr Sidumo is a member of the National Union of Mine workers which is affiliated with
the Congress of South African Trade Unions, (‘the Second Applicant’) who then opted
to intervene, by joining Mr Sidumo in litigation against the mine. Both Applicants in this
matter questioned the decision made by the Supreme Court of Appeal on the basis
that it raised certain Constitutional inconsistencies.8
Legal Question
The first legal question pertains to the decision made by the Supreme Court of Appeal
which involved a clarification on the application of the Promotion of Administrative
justice Act, including that of the Labour Relations Act.9 The second legal question was
whether ‘to grant COSATU leave to pursue an appeal at this stage’ having only joined
litigation at the Constitutional Court level, including the late filing of Mr Sidumo’s
Appeal.
The third question entails the scope for the ‘grounds of review’ as set out in section
145(2) (a) of the LRA which also included whether the Mine had demonstrated that the
Commissioners conduct fell within the ‘grounds of review’ as outlined in the
section.10The final legal question pertains to the new test for the fairness of dismissals,
as devised by the Constitutional Court.11
Ratio Decidendi
The Constitutional Court found that the Supreme Court of Appeal had ‘erred’ in its
decision to hold that PAJA must be applied in the determination of ‘arbitration awards’
by third parties, like the CCMA. The court further explains that if section 6 of the PAJA
were to be applied it would ‘enable the High Court to Review CCMA arbitrations’ which
would negate the intention for the ‘exclusive jurisdiction’ of the Labour Court.
When it came to the second legal question pertaining to COSATU’s involvement, the
Court came to the determination that it was ‘satisfied’ with the grounds for the late filing
for condonation by COSATU on the basis that the Courts judgment concerned the
livelihood of its entire membership.
The third question involved the correct interpretation of section 145(2) of the LRA, and
the scope for the grounds for review. The Court states that the review must be
conducted in line with section 23 of the Constitution that states that ‘everyone has the
fair labour practices’.12
8 Sidumo v Rustenburg Mines Limited & Others.
9 Promotion of Administrative Justice Act 3 of 2000.
10 Labour Relations Act.
11 Sidumo v Rustenburg Mines Limited & Others.
12 The Constitution of the Republic of South Africa, 1996 9.
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The final question centers around the Courts formulation of a ‘new test’ when deciding
the ‘fairness’ of a dismissal.13 The Court explicitly states that Commissioners must be
very evenly handed when deciding fairness in matters regarding dismissals, this
precaution lends itself over to both the employee and the employer respectively. In the
latter stages of the judgment the Court determined that ‘both the rule and the sanction
must be reasonable’ the Court then follows this by stating that without these grounds
the ‘dismissal cannot be fair.’ 14
Findings
The Constitutional Court ordered the restoration of the ‘Commissioner’s award’ as well
as granting both parties ‘leave to appeal’ which favoured both Applicants. The appeals
by the applicants contesting the judgment in the Supreme Court of Appeal were
upheld. COSATU’s application for ‘condonation of the late filing of the applications’
were also granted by the Constitutional Court, with “no order as to cost.”
Question 2
The basic process of conducting research entails the study of information, its analysis
and then the reporting of one’s findings.15 Research can either be ‘scientific’ or ‘non-
scientific, with the former being closely associated with ‘fact based’ research and the
latter being based on more ‘casual observations.’16
The benefits associated with conducting Research include; that it assists in the general
comprehension of a specific subject matter by simplifying our understating, it also
brings to light certain problems and solutions associated with a subject, furthermore it
expands our apprehension of concepts related to our findings, it permits researchers
to work ‘collaboratively’ in order to improve the quality of their research, and lastly it
enhances our ability to dissect academic writing such as journals and case law.17
Question 3
Facts
In the matter between Global & Local Investments Advisors (PTY) Limited v Fouche,
we observe a matter relating to Private Law that centers on fraud.18
13 Sidumo v Rustenburg Mines Limited & Others, 176.
14 Sidumo v Rustenburg Mines Limited & Others, 172.
15 Prof M Swanepoel & Ms N Mabecca, Intoroduction to Research Methodology, (UNISA 2018)2.
16 Swanepoel & Mabecca, Intoroduction to Research Methodology, 4.
17 Swanepoel & Mabecca, Intoroduction to Research Methodology, 3
18 Global & Local Investments Advisors (Pty) Ltd v Fouche, 2021 (1) SA 371 (SCA) 1.
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The Respondent Mr Fouche was defrauded of an amount totaling R804 000 which
resulted in an application being placed in the Gauteng Division of the High Court in
Johannesburg.19
The High Court found that ‘a breach of mandate’ had taken place on the part of the
Investment firm that made it ‘liable’ for the loss incurred by Mr Fouche. 20The High
Court judgment ordered for the reimbursal of the amount lost plus the costs of litigation.
Global & Local Investments Advisors on the other hand based their argument on the
fact that the emails that resulted in their impugned decision contained the name ‘Nick’
which featured on several emails that ‘instructed’ them to transfer the funds. Vorsta AJ
in the High Court makes the clear distinction that a simple signing of the request, in
written form may have sufficed to allow for the valid transfer of funds.21
Legal Question
This then brings us to the Supreme Court of Appeal where the Appellant, Global &
Local Investment Advisors decides to lodge an application in order to appeal the High
Court’s decision.22 The main legal question in this matter was whether the ‘names of
parties’ either at the head or at the end of an email constituted the ‘required consensual
cancellation of the agreement.’ 23
Ratio Decidendi
The irrefutable fact that no signature had been tendered meant that no valid instruction
came from Mr Fouche to allow for the transfer.24 The Court further emphasizes this
position when it cites the judgment in Van Vuuren v Van Vuuren which held that ‘to
sign a document means to authenticate that which stands’, this expressly highlights
that the only requirement was a written ‘signature.’25
Findings
The Court found that the fraudulent emails that resulted in the subsequent losses
incurred by the firm, were not due to any fault on Mr Fouche’s part, resulting in its
decision to dismiss the appeal, with costs.26
19 Global & Local Investments Advisors (Pty) Ltd v Fouche 4.
20 Global & Local Investments Advisors (Pty) Ltd v Fouche 7.
21 Global & Local Investments Advisors (Pty) Ltd v Fouche, 8.
22 Global & Local Investments Advisors (Pty) Ltd v Fouche 8.
23 Global & Local Investments Advisors (Pty) Ltd v Fouche 15.
24 Global & Local Investments Advisors (Pty) Ltd v Fouche 11
25 Van Vuuren v Van Vuuren, 1993 (1) SA 163 (T).
26 Global & Local Investments Advisors (Pty) Ltd v Fouche 16.
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Question 4
In the matter of the African National Congress v Electoral Commission of South Africa
& Others we observe the African National Congress, (‘the applicant’), approach the
Electoral Court in the form of an ‘urgent application’ in order to set aside the decision
made by the Deputy Chief Electoral Officer on 7 September, 2023 which registered
the uMkhonto Wesizwe Political Party, (‘Third Respondent’), in line with the provisions
of the Electoral Commission Act.27
The ANC in opposition to this decision, sought to ‘invoke’ the courts ability to review
such matters in line with section 20(1) of the Electoral Commission Act, despite not
effecting their application timeously. 28 The ANC’s position in the matter is that the
DCEO ‘acted unlawfully’ and ‘outside the bounds of the law’ because it registered the
MK Party despite there being ‘no application before the Commission for such
registration.’29 The Applicant also alleges that the two gazette notices published by MK
contain flaws, rendering them ‘defective.’ 30
The Respondents comprised of the MK, the Chief Electoral Officer of The Electoral
Commission of South Africa (‘as the Second Respondent’), and lastly the Electoral
Commission of South Africa, (‘First Respondent’). 31 The respondents opposed the
application on the basis that they had made a ‘proper application for the registration
of MK’ in accordance with section 15(1) of the Electoral Commission Act.32
Legal Questions
The first legal question entails whether the delay in the filing of the ANC’s application
may be ‘condoned.’ The second is whether the Electoral Court has the power to effect
the relief sought by the ANC.
The third is whether ANC ‘pre-empted the impugn decision.’ The final legal question
was if the DCEO performed beyond his scope by registering MK while knowing that
its application was made improperly.
Decision of the Court
The ANC through its legal representation presented the argument that the reason they
delayed in filing their application timeously was because of the Christmas Holiday. 33
They essentially argued that the time only came into effect during the peak of the
Christmas break on 24 November 2024.
27 African National Congress v Electoral Commission of South Africa and Others, 2024 ZAEC 3.
28 Electoral Commission Act 51 of 1996.
29 African National Congress v Electoral Commission of South Africa and Others, 7.
30 African National Congress v Electoral Commission of South Africa and Others 16.
31 African National Congress v Electoral Commission of South Africa and Others, 1.
32 Electoral Commission Act.
African National Congress v Electoral Commission of South Africa and Others, 9.
33 African National Congress v Electoral Commission of South Africa and Others
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The Court found this to be ‘irrational’ because of their lack of justification for the delay
in filing, the ANC took over a month post-decision of the DCEO.34The Court stated that
the delay by the ANC in its filing was not justified, as demonstrated by their ability to
instruct their attorneys during the height of the festive season. 35 The Electoral
Commission Act as of August 2021 prescribes that an applicant has a ‘14-day
objection period’ which began from the date of the Government Gazette.36
The ANC had two opportunities to contest the MK’s application according to the Court.
The first ’14 day’ timeline began as of 1 June, 2023 in line with the section 15(4A)
notice, and the second ’14 days’ began 30 June, 2023. Therefore the ANC failed to do
so in both instances which informed the Courts determination that the ANC failed to
object to the MK’s registration timeously.
The Court found that the ANC did in fact pre-empt the ‘impugn’ decision. Furthermore
it states that the ANC pleadings failed to justify an order declaring registration unlawful.
The Court also disagreed with the ANC’s argument that a ‘fresh’ publication ought to
be Gazetted, it held that section 15 of the Electoral Commission Act was adhered to
correctly therefore the DCEO was well within his capacity to register MK in line with
section 16(1). The Electoral Court also demonstrated that other parties besides the
MK had applications that were rejected but eventually received the approval of the
DCEO after certain adjustments.
Lastly the Court further emphasized section 19 of the Constitution which serves as a
shield for our ‘First-generation’ rights that secure political freedom such as our
‘freedom of association’ which includes our right to register a political entity such as
the MK.37
34 African National Congress v Electoral Commission of South Africa and Others
35 African National Congress v Electoral Commission of South Africa and Others
36 Electoral Commission Act.
37 Duard Kleyn & Frans Viljoen, Beginners Guide for Law Students, JUTA 2010 231.
The Constitution of RSA.
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Bibliography
Books
1. Duard Kleyn & Frans Viljoen, Beginners Guide for Law Students, (JUTA
2010).
2. Prof M Swanepoel & Ms N Mabecca, Intoroduction to Research
Methodology, (UNISA 2018).
Cases
1. Sidumo v Rustenburg Mines Limited & Others.
Sidumo v Rustenburg Platinum Mines Ltd & Others 2007 12 BLLR 1097 (CC).
2. Global & Local Investments Advisors (Pty) Ltd v Fouche.
Global & Local Investments Advisors (Pty) Ltd v Fouche, 2021 (1) SA 371 (SCA).
3. ANC v Electoral Commission of South Africa and Others.
African National Congress v Electoral Commission of South Africa and Others, 2024
ZAEC 3.
4. Van Vuuren v Van Vuuren
Van Vuuren v Van Vuuren, 1993 (1) SA 163 (T)
Legislation
1. Labour Relations Act 66 of 1995
2. Electoral Commission Act 51 of 1996
Other Sources of Law
The Constitution of the Republic of South Africa, 1996.
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ACADEMIC HONESTY DECLARATION
Declaration: I Mufudzi Ngaaseke declare that
• I understand what academic dishonesty entails and am aware of Unisa’s
policies in this regard.
• I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to this style.
• I have not allowed, and will not allow, anyone to copy my work with the intention
of passing it off as his or her own work.
• I did not make use of another student’s work and submit it as my own.
NAME: Mufudzi Ngaaseke
SIGNATURE:
STUDENT NUMBER: 11845872
MODULE CODE: IRM1501
DATE: 27/05/2024
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