There is no reference to the documents that decision-makers did not take into account the considerations set out in the directive. The Nel case appears to be based on the fact that his interests were more binding and that those of his employer prevailed (response to the affidavit, paragraph 3.5). I have already pointed out that the Commissioner`s price does not indicate that the decision refusing the transfer was malafide or that the decision-maker was biased. Nor is there any indication that the SAPS decision was irrational; irrelevant considerations have been taken into account or relevant considerations have been ignored by the decision-maker. The Commissioner simply felt that Nel had more compelling reasons to surrender and that his interests outweighed those of the SAPS. With this decision, the Commissioner effectively followed in the footsteps of decision-makers and usurped the role of employer. After the Commissioner`s acceptance, I think it was not possible for the Commissioner, for lack of other considerations (such as partiality or Mala Fides), to take over the administrative power of the SAPS and replace the decision with a decision that he (the Commissioner) considered the best decision. Some authority for this conclusion can be found in sidumo &Others v Rustenburg Platinum Mines Ltd & Others (2007) 20 ILJ 2405 (CC). Although that decision concerned the labour court`s powers of review in the context of an unjustified dismissal decision, I believe that Ncgobo J.A.`s statements are valid in the present case.
In this case, the Constitutional Court confirmed that, while negotiating a dispute de novo, the Commissioner does not start with an empty page and redefines what constitutes the appropriate sanction for dismissal. The Commissioner`s starting point is the employer`s decision to dismiss and the Commissioner`s role is not to ask what he or she thinks is the appropriate sanction, but whether the employer`s decision to dismiss is fair.4 In this case, the Commissioner was faced with a rational decision, the fact that the Commissioner considered that: that for two contradictory (but equally valid) interests, one has, according to him, more weight than the other, amounts to a gross irregularity in the procedure and a total misunderstanding of his functions as arbitrator. . . .