It is interesting to review the number of cases in the Labour Courts and get some idea of the difficulty practitioners have in keeping up with recent developments. Gone are the days when only one publisher was responsible for publishing the law reports. It was then fairly easy for everyone to know what the case law was by simply referring to the ‘official’ law report. Today in the electronic age judgments are made available almost immediately and they appear on different websites.
Overview of 2013
In this overview of what happened in 2013 all arbitral awards had to be excluded because it is just not feasible to keep track of all of them and there were probably many more that 300 last year. Whilst the awards are interesting and do show how the law is being applied in practice they cannot be relied on as precedents. For that reason alone it was decided to exclude them from this analysis. It is also necessary to stress that some of the judgments may still be reported and the figures only represent the situation as it stands at the time of writing.
Total number of judgments
In 2013 a total of 456 judgments were delivered by the Labour Courts with 31 (7%) in the Labour Appeal Court and 425 (93%) in the Labour Court.
Labour Appeal Court (LAC)
Of the 31 judgments only 18 (58%) have been reported. This seems to be a small number given that it is an appeal court intended to guide practitioners in interpreting and applying the law.
Although it is dangerous to draw any conclusions it is noteworthy that of the 31 appeals 13 were allowed (42%) and 18 were disallowed (58%).
It appears that employers were appellants in 14 of the appeals and although there is no suggestion that the LAC tries to be even-handed it is interesting that 7 appeals were allowed and 7 were disallowed.
Trade unions or individuals were appellants in 17 appeals but here the LAC seems to have been less generous and this should instil some confidence in the hearts and minds of employers. Six appeals were allowed (35%) and 11 were disallowed (65%).
The 4 permanent justices of appeal delivered 20 judgments (65%) between them of which only 12 (60%) have been reported. Without in any way casting any aspersions and simply as a matter of interest the number of judgments delivered by the permanent justices of appeal are:
- Davis JA (4) – 4 reported
- Jappie JA (1) – not reported
- Ndlovu JA (6) – 3 reported
- Tlaletsi DJP (5) – 2 reported
- Waglay JP (4) – 3 reported
There were 7 acting justices of appeal in 2013 and they delivered 11 judgments (35%) of which 6 (55%) have been reported.
The names of the seven acting justices and the number of judgments delivered are:
- Coppin AJA (4) -3 reported
- Landman AJA (1) – not reported
- Mocumie AJA (1) -not reported
- Molemela AJA (1) – not reported
- Musi AJA (2) – 1 reported
- Sandi AJA (1) – 1 reported
- Zondi AJA (1) – 1 reported
To the best of my knowledge 425 judgments were delivered in the Labour Court throughout the country. Relief was granted in 180 (42%) and refused in 205 (48%) cases. In 40 (9%) of the cases the result was indecisive.
Employers as applicants
Employers were applicants in the Labour Court in 164 (39%) of the 425 matters. Relief was granted in 82 (50%) cases and refused in 66 (40%) cases with no clear result either wayin 16 cases (10%).
Trade unions and individual applicants
Trade unions or individuals were applicants in 261 (61%) of the matters. Relief was granted in 98 (38%) cases and refused in 139 (53%) cases no clear result either wayin 24 (9%) cases.
Is is disturbing that only 77 (18%) of the 425 judgments have been reported.
10 permanent judges
There were 10 permanent judges of the Labour Court in 2013 and they delivered 233 judgments (55%) between them of which 47 (20%) are reported.
Again without casting any aspersions, and bearing in mind that some judges may have been on leave for some of the time, here are the details of the judgments delivered by the 10 permanent justices of appeal:
- Basson J (19) – nil reported
- Bhoola J (2) – nil reported
- Cele J (17) – 1 reported
- Gush J (12) – 1 reported
- Lagrange J (38) – 5 reported
- Lallie J (22) – 4 reported
- Molahlehi J (41) – 7 reported
- Rabkin-Naicker J (10) – 2 reported
- Steenkamp J (50) – 21 reported
- Van Niekerk J (23) – 7 reported
58 acting judges
What may be regarded as startling is that 58 practitioners acted as judges in the Labour Court during 2013 and delivered 185 judgments (44%) of which only 30 (16%) have been reported. There is no point in listing all the persons who acted as justices during 2013 but the number of judgments of the 58 acting justices range from one to 22 with the most judgments being delivered by:
- Moshoana AJ (9) – 3 reported
- Prinsloo AJ (10) – 2 reported
- Snyman AJ (22) – 3 reported
- Visagie AJ (13) – 1 reported
It is accepted that there is always a need to ‘blood’ prospective judges and create opportunities for practitioners to act for short periods of time. The problem with the Labour Court is that most of the persons who act are attorneys and have regular clients who fall into one of two main categories; employers or trade unions. Of course there are also practitioners who act for individuals. From personal experience as a practitioner there are not many who act for persons from both sides of what may be described as the ‘divide’.
Perception of bias
There is always the danger of parties to any litigation in the Labour Court having a perception of bias on the part of an acting justice, whatever steps are taken to nullify that perception. The practitioner who has acted has to go back to the office after having acted for a few months and may have to answer to clients for some of the approaches adopted and decisions made whilst on the bench. It is even possible that clients may be lost and this could influence the decisions of the acting justices as well. It is well known that some the practitioners, who have acted as judges, waste little time in making it known to their clients and others that they have acted as judges. Many ill-informed persons are influenced by the notion that their attorney has acted as a judge.
Comparisons with 2012
Having done a quick analysis of 2012 it seems that there were only 35 acting justices in the Labour Court who delivered a total of 79 judgments out of a total of 289 judgments with 15 of them only delivering one judgment. This means that the total number of judgments in the Labour Court increased by 47% from 289 in 2012 to 425 in 2013. This may explain why there was a need to engage the services of more acting judges with an increase of 66% from 35 in 2012 to 58 in 2013 and that seems to be a bit excessive.
Increased workload of Labour Court
What must also be of concern is the rapid increase in the workload of the Labour Court. One would have hoped that as time went by many of the disputes could be resolved at the conciliation stage. The Labour Relations Act of 1995, which came into effect in November 1996, codified the law in most respects. There must have been a sincere belief that by forcing the parties to engage in the conciliation process it would be possible to prevent many disputes from proceeding to the Labour Court. One ray of light may be the decrease in the number of appeals to the LAC. They decreased by 38% from 50 in 2012 to 31 in 2013.