In the second case, it was concluded that the requirement in section 62 LRA that a member adjourn the proceedings and refer the matter to the Director of the CCMA if the question of delimitation is raised, indicates that even CCMA commissioners do not automatically have the authority to decide demarcation issues. The Commissioner may not resolve a boundary dispute unless he or she has been appointed by the Director. Appointment by the Director is a judicial matter for the exercise of the power to decide a question of demarcation and is left to the discretion of the Director. Similarly, if a question of delimitation is raised in proceedings before the Labour Court, Article 62(3) of the LRA requires the Labour Court to adjourn the proceedings and refer the question of delimitation to the CCMA. This clarifies that the Labour Court does not have jurisdiction to decide a delimitation dispute. It is apparent from the wording of Article 62 that that power was conferred exclusively on the Commissioners of the CCMA. It is trivial that if the wording of the enabling legislation suggests that Parliament deliberately chose a particular public servant to exercise its power, a court cannot replace that public servant`s decision with its own. This would mean that the common law would prevail over the law, contrary to the established principle that if a statute is inconsistent with the common law, the law takes precedence. In the second judgment, it was concluded that the defined circumstances justifying deviation from the rejection were not met. The end result was not a foregone conclusion, and the Commissioner was not biased or incompetent. Consequently, the second judgment would have allowed the appeal and sent the case back to the CCMA for a new decision. 11 11 [22] In light of the above circumstances and consistent with what was stated in Goldfields 6, there is no basis for concluding that the procedure followed by the Commissioner did not give the parties a full opportunity to comment on the dispute.

The argument advanced on behalf of Clotha that the Commissioner did not give the parties a fair trial because he was denied the opportunity to cross-examine Mr. Vincent Smith of Woolworths because he did not appear at the disciplinary hearing does not support his argument. It is trivial that the proceedings before the CCMA were de novo, and if Mlotha wanted Smith to be cross-examined, there was nothing to prevent her from summoning him. Moreover, it is unclear what value Smith`s testimony would have added to his case. [23] Mutha`s additional argument that the Commissioner did not give her a fair trial because she did not respond to her allegations of procedural unfairness is also without merit. If the CCMA discharge forms claim that the dismissal was procedurally unjustified, evidence must be provided to the Commissioner. In the absence of such evidence, I do not see how it can be said that the Commissioner committed an irregularity by ignoring the matter. [24] Based on the analysis and findings of the award, I am also satisfied that the Commissioner correctly identified and understood the nature of the dispute she had to resolve and dealt with the merits of the dispute. The Commissioner has provided reasons for her decision and there is no evidence to suggest that her 6 At paragraph 20, which states that: Failure to consider a serious irregularity in this context would mean that an arbitral award may be set aside if an arbitrator (i) fails to mention a material fact in his or her award; or (ii) does not address in any way in its award an issue material to the issue in dispute; and/or (iii) makes an error in evaluating or considering the facts presented in the arbitration.

An arbitral award would satisfy the requirement of reasonableness if there are reasons to do so.2 It is also trivial that arbitral awards are not easily affected unless the Commissioner`s decision is completely independent of the evidence or is not supported by evidence and/or involves speculation on the part of the Commissioner. [12] Excerpt from Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v. CCMA et al. 4 it is not sufficient to rely solely on the allegation of a gross irregularity in the conduct of the arbitration. More is needed because the requester requesting a review must demonstrate that the final result was unreasonable in the sense that the member`s decision is beyond the scope of decisions that a reasonable decision-maker might reach based on available documents. [13] The question therefore remains whether, despite the Commissioner`s arguments, it can be said that the result is in any event justified in the light of the documents submitted to the Commissioner. Allegations that the Commissioner made material errors of fact or gave little or too much weight and relevance to certain facts or failed to consider certain facts are not sufficient in themselves to maintain a review, except in 1 Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) at Duncanmec (Pty) Limited v Gaylard NO and Others [2018] ZACC 29; 2018 (11) BCLR 1335 (CC); [2018] 12 BLLR 1137 (CC); 2018 (6) SA 335 (CC); (2018) 39 ILJ 2633 (CC) at paragraph 43 3 Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at 2802 margin No. 13; DRS Dietrich, Voigt & MIA v Bennet CM N.O and others (CA14/2016) [2019] ZALAC 2 (27. February 2019) 4 [2014] 1 BLLR 20 (IBC), The argument that the employer could have asked the Commissioner to issue a subpoena to compel the employee to testify was characterized as a “diversionary tactic.” .