In a key provision, the 1995 Labour Relations Act (LRA) created a two-tier hierarchy of specialist, high-status labour courts. Unfortunately, the system envisaged by the Act has been emasculated.
The LRA positioned the Labour Court in the judicial hierarchy as a court of law and equity with a status equivalent to a division of the High Court. This was intended to give status and tenure security to the judges, and an almost exclusive jurisdiction in all labour matters.
The Labour Appeal Court would be the court of highest authority, except on constitutional matters.
The aim was to promote the swift resolution of labour disputes by judges drawn from the ranks of labour specialists familiar with the concept of equity as a basis for judicial decisions.
However, the LRA was drafted when the interim Constitution was in force — the final Constitution, enacted in 1996, contained significant differences. In particular, it established the Supreme Court of Appeal as the highest appeal court, except in constitutional matters.
This conflict between the Constitution and the LRA has simmered since 1996, surfacing recently in judgements of the Constitutional Court and the Supreme Court of Appeal.
The Constitutional Court ruled last year that the Supreme Court of Appeal is the highest court of appeal in non-constitutional matters, and that in constitutional matters, there is a right of appeal from the Labour Appeal Court to the Supreme Court of Appeal or to the Constitutional Court. Earlier this year, the Supreme Court of Appeal ruled that there was a right of appeal, without leave, to that court from the Labour Appeal Court.
Far from being the intended two-tier specialist hierarchy, the Labour Court system has effectively been grafted on to the existing judicial structure to create a four-tier system, presided over by both specialist and non-specialist judges.
But it was not only the 1996 Constitution that impaired the structures created by the LRA. The original idea was broadly to confer jurisdiction in labour matters on the labour courts — but what was meant by a ”labour matter” was unclear.
The termination of a public sector worker’s employment contract, for example, might simultaneously constitute an unfair dismissal, an administrative act and a breach of contract.
Constitutional issues aside, the labour courts have exclusive jurisdiction only in respect of the first cause of action; the remaining two may be brought before a civil court. This led the Judge President of the labour courts, Raymond Zondo, to propose that all labour-related matters, whatever their origin, be heard by the labour courts.
But his call came at a time when the labour courts were under strain. An inability to define the benefits of Labour Court judges after their 10-year appointments expire, the absence of meaningful career paths for them beyond labour disputes, their limited tenure, and perceptions of the Labour Court as separate but unequal — all made the court unattractive to specialist practitioners.
The result is an understaffed court, with limited resources, increasingly held together by overburdened acting judges.
Some of the acting appointments to both the Labour Court and the Labour Appeal Court, were criticised for having little labour expertise.
Meanwhile, many judges familiar with labour jurisprudence, including a younger generation of lawyers familiar with concepts of equity, fairness and a balancing of interests, moved into the High Court system. At this point, there are probably as many — if not more — labour specialists sitting as judges outside the Labour Court system than inside it.
Given all this, is the continued ring-fencing of the Labour Court system justifiable?
The solution proposed by the recently published Superior Courts Bill is to integrate the Labour Court into the High Court, and the Labour Appeal Court into the Supreme Court of Appeal.
The imperative of specialist knowledge is catered for by a proposed list or panel of judges, blessed by a committee comprising representatives of the judiciary, the National Economic Development and Labour Council and the legal profession, from whom a majority of the court must be drawn to hear labour matters.
The Bill defines ”labour matters” as justiciable matters arising out of Acts administered by the Department of Labour. There are some anomalies here. For example, the Defence Special Tribunal Act confers powers on the Labour Court, but is administered by the Department of Defence.
Whether integrating the labour courts into the judicial mainstream will promote the quick, cheap and efficient resolution of labour disputes probably has less to do with the text of the Bill than with the implementation of new laws that might emerge. Many issues need to be dealt with, including the rules to be applied in labour matters, rights of appearance and administrative issues.
Spare a thought, too, for the Labour Court judges who, for nearly eight years, have upheld the security of employment of others. They now find themselves having to apply for jobs in the High Court.
If they fail, the Bill provides for a severance package — admittedly more generous than the statutory one week’s pay a year of service.
André van Niekerk is visiting professor at Wits University’s school of law. Labour Pains is an occasional column coordinated by the Centre for Applied Legal Studies.