The role and importance of the Labour Court

With the economic downturn and job losses, coupled with fraught labour relations seen through frequent strikes, the place and role of the Labour Court has become even more important. This week, the Judicial Service Commission (JSC) will interview candidates for judicial vacancies at the Labour Court, the Supreme Court of Appeal, the Electoral Court, and the Gauteng Limpopo, and KwaZulu-Natal high court divisions. It is vital that the best people are appointed as judges. (You can view all the candidates here.)

Established by the Labour Relations Act of 1995, the Labour Court sits at the nerve centre of South Africa’s labour dispute resolution system. As a specialist court, the Labour Court’s core mandate is to ensure fair labour practices and labour peace. Unique among other courts, the Labour Court sits in four nodes at major cities across the country (Cape Town, Durban, Gqeberha and the inundated Johannesburg). It is not just a court of law but also a court of equity. This means in all its dealings the court must ensure fairness among employers and employees.

Despite its importance, the Labour Court has faced several challenges in recent years. The Court is chronically underfunded while it faces the highest caseloads in its history. For the 2019/20 financial year the Labour Court was allocated a shoestring budget of R63 million. In 2020/21, that budget was cut to R57 million, before it was marginally raised again to R60 million in 2021/22. For 2022/23, the budget sits at only R70 million, which is still below inflation and must be shared with two other specialist courts, the Competition Appeal Court and the Land Claims Court. According to the Judiciary Annual Report the Labour Court finalised 4 307 cases in 2021/22 compared to 427 cases finalised in 2017/2018. In 2021/22 the Court only finalised 58% of its cases, missing its target of 60% – which is still the lowest of all superior courts.

Furthermore, there are only 13 Labour Court judges to serve the entire country and the deluge of cases that come to the court. This has a direct impact on case lead-times. As of October 2022, there were no trial dates available until 2024. This means, for example, in unfair dismissal cases, employees and their employers sit in limbo, waiting for their disputes to be adjudicated. For employers, they cannot fill the vacancy until the dispute is resolved, while employees sit without an income for the duration of the dispute.

Fortunately, this week’s appointment of new judges will go some way in resolving the Labour Court’s challenges, but not entirely. The Durban node of the court, which currently has one permanent judge, will get a second. The same for Gqeberha. Johannesburg will also get one more.

Five candidates have been shortlisted for the vacancies – including a senior advocate with two masters’ degrees in labour law; an attorney with 30 years’ experience in labour litigation with both blue chip and trade union clients; and an attorney who was formerly a partner of a Sandton law firm and is now the group employee relations director for a large multinational company.

The Labour Appeal Court will also get four new appellate judges. Thanks to a 2019 amendment to the Labour Relations Act, current labour court judges – undoubtedly specialists in the field – are now eligible for appointment to the LAC. Three of the four shortlisted candidates are drawn from the Labour Court. The fourth – Western Cape High Court Judge Kate Savage – was a labour attorney for 15 years before becoming a high court judge in 2015. She has been an acting judge in the LAC for the last 8 years, with over a dozen reported judgments to her name.

Most significantly, the Labour Court will finally get a deputy judge president (DJP) after a vacancy was unfilled for 7-years due to problems with the LRA and at the JSC. Only one candidate is shortlisted, Gauteng High Court Judge Edwin Molahlehi. He was previously a labour court judge for a decade and has been acting in the  DJP role since March 2023. The deputy judge president assists in the running of Labour Court, ensuring that it serves all workplace disputes across the country. The JP and DJP also hold dual positions as judges of the Labour Appeal Court.

In addition, Molahlehi will assist current Judge President Basheer Waglay lead the Labour Court as it transitions to a new era in the changing world of work. Unconventional labour relations in the ‘gig economy’ and non-union labour formations have pressed new demands for the court’s services. This, in the face of resource constraints caused by deep cuts to the judiciary’s budget.

They also need to manage a leadership transition at the court. Both men retire in the next three years (Waglay in 2024, Molahlehi in 2026) and will soon have to recruit their own successors. Although most of the Labour court’s current judges are women, no woman has ever been permanently appointed judge president or deputy.

The lack of women in judicial leadership positions is an issue organisations like Judges Matter have been raising for some time now. Currently, only six of the 16 seats on the powerful Heads of Court forum are held by women, half of them in an acting capacity. The forum is consulted on important judicial policy decisions such as judges’ salaries, the acting judges’ policy, and the upcoming anti-sexual harassment policy. Regardless of gender, the Labour Court needs judicial leaders with intellect, integrity and industry.  This will require the JSC to play a strategic ‘human resources’ function to find them.

This week’s JSC sitting will be pivotal to the future of the Labour Court and the Labour Appeal Court. Not only will both courts get a fresh crop of judges to carry the heavy caseloads, but also a new deputy judge president to assist in the court’s leadership, management and administration. After several years of frustration, things are finally looking up for a key cog in the labour relations system in South Africa. We could all use this bit of good news.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a civil society watchdog of the judiciary based at the Democratic Governance and Rights Unit at UCT Law Faculty. Follow this week’s interviews on www.judgesmatter.co.za and on X: @WhyJudgesMatter and #JSCinterviews

A version of this article is published in the Sunday Times (1 October 2023).