The economic consequences of the JSC’s failure to do its job

COVID-19 in the courts – the Judicial Service Commission’s failure to do its job has economic consequences

For over a year now our country has been gripped by the COVID-19 pandemic. In its wake it has left deaths and economic destruction on an unprecedented scale. The courts have so far had a limited role to play in easing the harsh economic effects of the pandemic, but as we enter the pandemic’s second year the Labour Court and Competition Appeal Court will likely be called upon.

Which is why it is extremely concerning that for its upcoming April 2021 sitting, the Judicial Service Commission (JSC) has decided not to fill critical leadership vacancies in those courts.

“…the Judicial Service Commission (JSC) has decided not to fill critical leadership vacancies in [the Labour Court and Competition Appeal Court]”

The Labour Court of South Africa

The Labour Court is a specialist court with equal status to the High Court of South Africa. It was established by the Labour Relations Act in 1995 to replace the old Industrial Courts, in order to advance the democratic constitution’s promise of an egalitarian or equal society for both workers and employers.

The Labour Court deals with all employment disputes referred to by the Commission for Conciliation, Mediation and Arbitration (CCMA) but also interprets all labour legislation.

COVID-19 and its impact on the Labour Court

Mass retrenchments and the reduction of working hours (and other related benefits) have been the most prevalent impact of the COVID-19 pandemic on South Africa’s labour force, and the cause of most of the disputes that have reached the Labour Court to date. But the largest dispute of the past year has been over the measures that needed to be put in place in order to protect employees from the highly-infectious virus, and to ultimately open workplaces again – with the requisite safety precautions in place. In AMCU v Minister of Minerals and Energy the Labour Court was called upon to decide the safety measures needed to protect over 400 000 workers in the mining industry.

The Labour Court is led by Judge President Bashir Waglay, who is currently based in Cape Town. However, the busiest branch of the Labour Court is in Johannesburg, where the deputy judge president (DJP) would usually be based. For the last four years however the DJP position has been vacant, with Kimberley-based Judge Violet Phatshoane acting in the interim. In 2019 the JSC advertised to interview for this position, but then inexplicably cancelled interviews for the two candidates running for the post. The JSC has not re-advertised the vacancy and it seems that there is no intention to fill it.

The onset of the COVID-19 pandemic in SA in March 2020 led to a scramble for personal protective equipment (PPE). Seeing the increased demand, some PPE retailers dramatically increased the prices of their stock – what we would call price-gouging, but what competition lawyers call ‘excessive pricing’. Centrum Pharmacy in Boksburg increased the prices of certain basic PPE items by up to 261%, while Babelegi Workwear increased the price of a box of dust masks from R41 to over R500 –  a whopping 500%. Both these cases were taken up by the Competition Commission.

The Centrum case was settled, but the Babelegi case was taken to the Competition Tribunal, which found the company guilty of excessive pricing and levied a fine of R76 040. Babelegi appealed the finding in the Competition Appeal Court. In his last judgment before retiring, Judge President Dennis Davis, the head of the Competition Appeal Court, confirmed the guilty finding, but set the fine aside. Judge President Dennis Davis’s retirement creates an additional open position available on the Competition Appeal Court, and yet the JSC has not shortlisted any candidate to replace him. This means that the Competition Appeal Court is going to be left without a permanent leader and a shortfall of sitting judges, at a time when it is likely to hear an increasing numbers of cases specifically related to the pandemic.

“The JSC’s failure to shortlist and interview candidates for the leadership posts at the Labour Court and Competition Appeal Court is a startling dereliction of duty…”

A dereliction of duty by the JSC

The JSC’s failure to shortlist and interview candidates for the leadership posts at the Labour Court and Competition Appeal Court is a startling dereliction of duty, especially as the Labour Court’s DJP position has been vacant for four years.

Several legal practitioners report a state of mild chaos at the Johannesburg court, which has only been made worse by the onset of the pandemic. The court needs a good leader and administrator who will deal with the backlogs caused by the lockdown and navigate the court through a turbulent time. Considering that the JSC’s April 2021 sitting will not deal with these vacancies, we think it is necessary for the JSC to immediately advertise the currently vacant posts and deal with them at a special sitting in July 2021. Waiting until the October 2021 sitting will be too late – the economic consequences on workers and consumers will be far too great.