NEDLAC
POSITION
ON THE SUPERIOR COURTS BILL (OCTOBER 2005 VERSION) WITH PARTICULAR REFERENCE TO
THE LABOUR COURTS
1
INTRODUCTION
The question of how best to
adjudicate labour law matters that currently have to be adjudicated either by
the Labour Court or by the Labour Appeal Court is of paramount importance to
all the stakeholders involved in the labour market, specifically in the area of
industrial relations. It is absolutely critical for both Business and Labour
that disputes between employers and employees are adjudicated quickly and
efficiently by credible institutions and adjudicators in order to limit or
eradicate industrial unrest and dissent as far as possible and as quickly as
possible.
NEDLAC is of the view that the
Labour Court as a separate, specialist court remains the best vehicle for the
speedy and credible resolution of labour disputes provided that the problems
that are currently besieging the Court are addressed. Accordingly, NEDLAC does not support the folding in of the
Labour Court into the High Court as provided for in the Superior Courts Bill.
It does, however, support the folding in of the Labour Appeal Court into the
Supreme Court of Appeal provided that a special chamber is set aside for the
hearing of labour matters on appeal in the Supreme Court of Appeal. Further we call for specific amendments to
the Superior Courts Bill to ensure compliance with the NEDLAC agreement.
The background to and reasons for
NEDLAC’s position on the future of the Labour Courts are set out below.
II THE BACKGROUND
(i) The
problems experienced with the Labour Courts and the reasons for these problems
Nine years after their
establishment, the Labour Courts have failed to live up to expectations. There
is often no consistency in the judgments by the Labour Courts with the result
that it has become extremely difficult for disputing parties to try and
anticipate the probable outcome of their dispute. Disputing parties frequently
have to wait for months before their cases are heard or for decisions to be
handed down.
There are a number of reasons for
these problems. Firstly, the Labour Court has been unable to retain its judges.
The Labour Court judges who were subsequently appointed as High Court judges
opted to leave the Labour Court and act as judges in the High Court. In
addition, the Labour Court has been unable to draw persons with the required
knowledge and expertise in labour law to replace those judges who have been
appointed in the High Court. At this stage, only two of the ten permanent posts
are filled. The court therefore relies heavily upon acting judges.
One of the major reasons for these
problems has been the issue of tenure of the Labour Court’s judges. Unlike High
Court judges who are appointed for life, Labour Court judges who are not High
Court judges are appointed for a period of 10 years. At the time, it was
thought that a lifetime appointment would lead to complacency on the part of
the judges. A fixed term, on the other hand, would ensure that the judges would
regard themselves to be accountable and that this in turn would lead to more
considered and reasoned judgments. However, the limited tenure has had an
unintended consequence. It has led to persons with the required knowledge and
experience in labour matters not being prepared to become judges of the Labour
Court.
Another reason for persons’
reluctance to become judges of the Labour Court is that judges are not entitled
to a pension or a gratuity upon the expiry of their tenure. Also, should a
judge of the Labour Court die during tenure, his or her widow or widower would
not be entitled to a pension. This is the case notwithstanding the fact that
the LRA explicitly provides that a judge of the Labour Court’s terms and
conditions of appointment “must be similar” to those of a judge of the High
Court.
A further reason for the court’s
inability to attract persons has been that no provision has been made for a
career path for Labour Court judges. They only adjudicate labour matters and,
unless a judge is also a High Court judge, he or she has no automatic right of
entry into the High Court upon the expiry of his or her tenure.
As was mentioned earlier, the
court had no alternative but to appoint acting judges. However, many acting
judges are inexperienced in court procedures and in labour law and this
frequently results in long delays in the hearing of cases and the handing down
of judgments.
Notwithstanding the various
concerns we have raised regarding the functioning of the labour court system, we
do not support abolishing the specialized labour court system as a mechanism to
address this. Rather any reforms should
continue to recognize a specialized labour courts structure.
All the role players felt
that the situation had become intolerable and that a re-evaluation of the
adjudication of labour matters had become necessary. At the beginning of 2002,
the issue was tabled at NEDLAC for discussion by the social partners, i.e.
Business, Labour and the Department of Labour (DOL).
Government also
instructed the Judicial Service Commission (JSC) to investigate the matter and
to develop possible solutions. The Steering Committee of the JSC under the
chairmanship of the Chief Justice Chaskelson (as he was at the time)
subsequently investigated the matter: The sub-committee of the Steering
Committee tasked with the issue included the following persons:
·
the Judge President of Supreme Court, Hever, JP (as he was at the time);
·
the incumbent Judge President of the Supreme Court at the time, Howie,
Deputy JP (as he was at the time);
·
Judge Nugent, J (judge of the Supreme Court of Appeal)
·
various Judge Presidents of the High Court (such as Ngoepe, JP);
·
the Judge President of the Labour Courts, Zondo, JP;
·
various senior officials of the Department of Justice and Constitutional
Development (DOJ) such as Adv Rudman, Adv De Lange and Adv Du Rand; and
·
Adv Johnny de Lange, chair of the Parliamentary Portfolio Committee:
Justice and Constitutional Development (as he was at the time)
The NEDLAC partners were
also invited to become part of this task team. The social partners were
represented by the following persons:
·
Mr Kettledas (DOL));
·
Ms Kahn (DOL, as she was at the time);
·
Mr Patel (Labour);
·
Mr Van Vuuren (Business);
·
Dr Strydom (Business); and
·
Mr Dexter (Executive Director: NEDLAC as he was at the time)
It took the task team
approximately 15 months to investigate and develop its proposals.
In the draft Superior Courts Bill,
2003 that was tabled at NEDLAC by the DOJ early in 2003 and subsequently formed
the basis of negotiations between the JSC, DOL and NEDLAC no provision was made
for so-called General Divisions and Special Divisions of the High Court. In
other words, the version of 14 August 2003 made no provision for so-called
specialist courts.
Labour in particular was strongly
arguing in favour of retaining the Labour Court as a separate, specialist
court. However, Government indicated at the time that it had decided to do away
with specialist courts as the country could not afford such courts.
Faced with the reality that Government was moving away from specialist
courts and was accordingly not prepared to entertain the proposal that the
Labour Court should be retained, NEDLAC agreed to a folding in of the Labour
Court into the High Court and the Labour Appeal Court into the Supreme Court of
Appeal.
NEDLAC’s focus thereafter shifted
to retaining its role in the compilation of the list of High Court and Supreme
Court of Appeal judges that would be seized with labour matters.
(iii) The
relevant provisions of the Superior Courts Bill, 2003 tabled in Parliament in
2003
The most important provisions of
the Superior Courts Bill, 2003 that was tabled in Parliament in 2003 were the following:
As regards the Labour
Appeal Court:
·
the court would be absorbed by the Supreme Court of Appeal;
·
a panel of appellate judges would be designated to adjudicate labour
matters in addition to other appeals;
·
NEDLAC would form part of the committee that would designate judges to
the panel of judges tasked with adjudicating labour matters;
·
a second Deputy President would be appointed and would have the primary
responsibility for managing appeals in regard to labour matters;
·
NEDLAC's advice would be sought by the JSC as to which one of the two
Deputy Presidents of the Supreme Court of Appeal should be responsible for
labour matters;
·
NEDLAC would form an integral part of the process to constitute the
various panels of judges; and
·
the Bill proposed that the Supreme Court of Appeal might follow the
litigants;
As regards the Labour
Court:
·
the court would be absorbed by the High Court;
·
every Division of the High Court would have a panel or list of judges
designated to hear labour matters in addition to their other cases;
·
NEDLAC would form an integral part of the process to constitute the
various panels of judges; and
·
appeals against High Court decisions in respect of labour matters would
go directly to the Supreme Court of Appeal and not first to a full bench of the
High Court.
As regards NEDLAC’s role:
A Committee comprising of the
following persons would from time to time designate judges of the Divisions of
the High Court and of the Supreme Court of Appeal to a panel of judges to hear
labour matters:
·
the President of the Supreme Court of Appeal;
·
the Deputy Presidents of the Supreme Court of Appeal;
·
three representatives of NEDLAC respectively representing
Labour, Business and the State; and
·
when considering the designation of judges for a specific
Division of the High Court, the Judge President of that Division.
·
Retention of separate court rules for labour matters and a
substantial role for NEDLAC in determining these.
(iv)
The
provisions of the amended Superior Courts Bill [B-52 2003] dated October 2005
Subsequent to the conclusion of
negotiations between the JSC, DOJ and NEDLAC and the tabling of the Superior
Courts Bill, 2003 in Parliament, further substantial amendments were introduced
to the Bill without these first being
brought to NEDLAC for consideration and debate, notwithstanding that these
amendments sought to reverse provisions agreed to at NEDLAC.
One of the most critical
amendments to the Bill is the provision for so-called Special Divisions of the
High Court (i.e. the Competition Appeals Special Division, the Electoral
Matters Special Division, the Income Tax Special Division and the Land Claims
Special Division). In other words, the amendments entailed the introduction of
specialist courts into the High Court system.
This
signals a very different approach by the drafters of the Bill. During the
discussions between the JSC, the DOJ and NEDLAC, Government repeatedly made the
point that its intention was to move away
from specialist courts, such as the courts mentioned above and the Labour
Courts, as the country “could not afford” such courts. As was stated above, it
was only because Government consistently argued that it wanted to abolish
specialist courts that NEDLAC was prepared to agree to the folding in of the
Labour Court and the Labour Appeal Court into the High Court and the Supreme
Court of Appeal respectively.
The fact that the Labour Court and
the Labour Appeal Court are not included in the list of specialist courts that
the amended Bill now provides for is disturbing. They are now the only
specialist courts that have disappeared completely. This is ironic if one takes
into account that the Labour Courts have been in operation for nearly ten years
and have been very active in adjudicating large numbers of labour matters that
impact significantly on the labour market in general and specifically on
industrial relations.
Another issue that is particular
disturbing is the limited role that the amended Bill affords NEDLAC in the
appointment of judges that will be seized with labour matters. The amended Bill
does not meaningfully for the involvement of NEDLAC in the appointment of the
second Deputy President of the Supreme Court of Appeal in the form of
consultation. Furthermore, the amended
Bill no longer provides for three NEDLAC representatives to assist in the
selection of judges that would constitute the panel of judges seized with
labour matters.
III NEDLAC’s
PROPOSALS
(i) Labour
Appeal Court
As regards the Labour Appeal Court,
most of the provisions in the amended Bill should remain viz:
·
the Labour Appeal Court to be folded into the Supreme Court
of Appeal, with a separate chamber set aside for labour matters;
·
the Supreme Court of Appeal would have two Deputy Judge
Presidents and the one would be seized with labour matters;
·
the Supreme Court of Appeal would “follow” the disputing
parties in certain instances.
NEDLAC would, however, argue that
the amended Bill should re-introduce the following provisions that formed part
of the Bill that was tabled in Parliament in 2003:
·
NEDLAC would be consulted meaningfully in the selection of
one of the two Deputy Presidents that would be seized with labour matters[P1] ;
·
Provision for a committee that would include NEDLACrepresentation
that would be responsible for the designation
of the list of Supreme Court of Appeal judges that would hear appeals in
respect of labour matters ; and
·
[P2]
(ii) The Labour Court
It is
NEDLAC’s view that the Labour Court should be retained as a specialist court.
There are various reasons for this
proposition:
·
One of the key reasons is the absence of national
jurisdiction in the case of the to-be-established General Divisions of the High
Court. The General Divisions of the High Court will have regional jurisdiction.
Often, in the case of labour matters, an employer will have various branches or
subsidiaries spread all over the country. Should a trade union want to obtain
an interdict against such an employer that has, in the union’s view, unlawfully
locked its employees out at all its branches, the trade union will have to
bring separate applications for interdicts in all the General Divisions within
whose jurisdiction the employer has branches. This would be incredibly
expensive and time-consuming.
·
In the case of having to bring an application for an
interdict to various General Divisions in respect of a lock-out or a strike or
a retrenchment, the possibility exists that different General Divisions might
make different orders. This might mean that in one area a nationwide lock-out
might be declared unprotected for that area whereas in another it might be
declared to be protected. Such a scenario would undoubtedly lead to confusion
and a further deterioration of all ready strained industrial relations with
that employer.
·
It will also not necessarily assist the applicant party to
first bring a so-called test case to one of the General Divisions of the High
Court because other General Divisions are not bound by the finding of the first
General Division.
NEDLAC would accordingly like to
propose that:
(a) the Labour Court retains its specialist
court status and be dealt with in the Bill as another Special Division of the
High Court;
(b) as in the case of the other Special
Divisions, the Labour Court should be afforded jurisdiction throughout the
territory of the Republic (see section 8(2)(a) of the amended Bill);
(c) as in the case of the other Special
Divisions, the Labour Court should have various seats spread over the country
(see section 8(1) of the amended Bill). (This would not necessarily entail more
costs as seats already exist in Johannesburg, Durban, Cape Town, Port Elizabeth
and, in the case of the new Mpumalanga General Division and the Limpopo General
Division, the Labour Court could have seats within the court buildings housing
these new Divisions).
(d) as in the case of the other Special
Divisions, judges of the General Divisions can be designated to sit as Labour
Court judges. The proposal contained in the amended Bill that a list of High
Court judges should be compiled to hear labour matters could be retained
subject to separate lists being compiled for the various seats of the Labour
Court.
(e) the role of NEDLAC in the compiling of
the list should remain as originally negotiated by the JSC, DOJ and NEDLAC
namely that it would form part of a Committee seized with the compiling of the
lists or panels; and
(f) in accordance with what was negotiated
between the JSC, DOJ and NEDLAC, an appeal against a decision of a judge in the
labour matter should be referred directly to the Supreme Court of Appeal.
(f) The
proposals regarding the existing Labour Court judges that are not currently
High Court judges contained in section 68 of the amended Bill is supported.
(iii) The future role of NEDLAC
As agreed by the JSC, DOJ and
NEDLAC and contained in the Bill tabled in Parliament in 2003, a Committee
should be established comprised as follows:
·
the President of the Supreme Court of Appeal;
·
the Deputy Presidents of the Supreme Court of Appeal;
·
three representatives of NEDLAC respectively representing
Labour, Business and the State; and
·
when considering the designation of judges for a specific
Division of the High Court, the Judge President of that Division.
The main function of the Committee
would be to designate judges of the various seats of the Labour Court and of
the Supreme Court of Appeal to a panel of judges to hear labour matters.
The provisions contained in the
amended Bill should be retained viz:
Explicit amendments should be inserted into the Superior
Courts replicating the current LRA section 161, which provides for the rights
of representatives of trade unions or employers organizations represent workers
or employers respectively in labour matters before a court..
IV Concluding
remarks
If the Labour Court is retained as
a specialist court, very few amendments would be necessary in respect of the
LRA (eg the scrapping of those provisions dealing with the appointment of
Labour Court judges), the BCEA as well as the EEA. The bulk of the amendments
relate to the Labour Appeal Court that would be folded into the Supreme Court
of Appeal.
In addition, the judges of the
Labour Court that would be seized with labour matters would be High Court
judges with the result that all the problems currently being experienced in
respect of Labour Court judges and the consequent ineffective operation of the
Labour Court would disappear.
Business
Unity South Africa
22 March
2006