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.

 

(ii)        Interactions between the social partners to find solutions to the problems experienced by the Labour Courts

 

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 the existing judges of the Labour Court:

·                     those judges that are not also High Court judges would cease to hold office when the Bill becomes law;

·                     these judges would be free to apply to become High Court judges; and

·                     if they are not appointed as such, or if they elect not to apply to become High Court judges, they would be entitled to benefits not less favourable than those accruing to judges of the Land Claims Court at the expiry of their terms of office.

 

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.

 

(iv)   The existing judges of the Labour Court

 

The provisions contained in the amended Bill should be retained viz:

·                     those judges that are not also High Court judges would cease to hold office when the Bill becomes law;

·                     these judges would be free to apply to become High Court judges;

·                     if they are not appointed as such, or if they elect not to apply to become High Court judges, they would be entitled to benefits not less favourable than those accruing to judges of the Land Claims Court at the expiry of their terms of office.

 

(v) Rights of Appearance

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

 

 

 


 [P1]Section 3(b) does provide for a role for NEDLAC.  Therefore our comments should focus on the substance of NEDLAC involvement.

 [P2]See section 26 of the Bill, which has been clarified as addressing this issue. In fact even appeals in non-labour matters will now go directly to the SCA.