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review, which was based on section 6(2) (a)(i) of the PAJA. This section provides for judicial review of an administrative action that was not authorised by the empowering section. In the event that the decision falls outside the scope of the empowering section, the decision is ultra vires and stands to be reviewed and set aside. AMCU argued that the minister acted ultra vires for two reasons:

“1. The minister published guidelines in terms of section 95(9) in circumstances where this section does not empower the minister to issue guidelines. The empowering provision is contained in section 95(8), which provides that the minister may issue guidelines…

2. The guidelines, particularly in paragraph 9, use peremptory language which does not accord with the term ‘guidelines’ and means that trade unions must comply with these guidelines. This is not in line with section 95 of the LRA.”

“THIS JUDGMENT AND THE SETTING ASIDE OF THE GUIDELINES HAVE SIGNIFICANT IMPLICATIONS FOR EMPLOYERS.”

The High Court upheld this ground of review, as argued by AMCU and ordered that the guidelines be set aside.

It remains to be seen whether this decision will be appealed by the minister. Alternatively, the minister may publish new guidelines under section 95(8), which will need to be drafted in language that is not peremptory or mandatory in nature. If this happens, it will be challenging for employers to enforce and ensure proper compliance with any new guidelines.

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