The State of the Labour Court and the need for interventions to improve its performance

With 1 May being worker’s day, it is important to assess the health of the Labour Court, an institution that sits at the nerve centre of South Africa’s labour dispute resolution system.

According to the 2021/22 Judiciary Annual Report, the Labour Court performed well, finalising 60% of its 4307 cases against a target of 58% per year. However, the court’s rolls are so clogged that as from October 2022, the Labour Court has not been able to enrol any new trials until 2024. This is a crisis! But how did it come to be so, and what is the solution?

The role of the Labour Court

The Labour Court was created by the Labour Relations Act of 1995 (“the LRA”) as a specialist court — with a similar status to the High Court — to adjudicate labour disputes. It deals with reviews from the CCMA (the Commission for Conciliation, Mediation and Arbitration) and industry bargaining councils. It also deals with trials and applications that are initiated at the court itself. Appeals against its decisions lie with the Labour Appeal Court.

As a specialist court, the Labour Court was meant to deal with a narrower scope of cases than the High Court. The expectation at its founding was that it would also have a smaller caseload, and thus need only a few judges. But the experiences of the last 25 years have dashed those expectations.

CASE LOAD of the Labour Court

According to the Judiciary Annual Report, the Labour Court dealt with 4307 cases in 2021/2022 compared to 4168 in 2020/2021. This is also comparable to the 4998 cases handled by the generalist Free State High Court which also has a similar number of judges, but only focused on Bloemfontein.

Unique among all courts is that the Labour Court permanently operates across 4 major cities: Cape Town, Durban, Gqeberha and Johannesburg.  Each is effectively its own court, serving multiple provinces (for example, the Joburg court serves Gauteng, Free State, Limpopo, Mpumalanga and North West; the Cape Town court serves Northern and Western Cape).

ISSUES FACING the Labour Court

The Labour Court operates with strained judicial capacity. There’s no doubt that its 13 judges are overworked. Judge President Basheer Waglay – who also doubles up as the judge president of the Labour Appeal Court – commutes weekly between his home in Cape Town and the Labour Court’s Johannesburg seat.

In addition, he has had no permanent deputy judge president since 2017. This is partly due to a statutory stipulation in the LRA that only High Court judges may be deputy judge president – but also due to the Judicial Service Commission not attracting suitable candidates when the position was advertised in late 2022.
What is even more worrying is that several of the Labour Court’s most senior, and industrious judges are close to retirement.

In the 2020/21 Judiciary Annual Report, the Labour Court was the worst performer among all superior courts, with a 52% case finalisation rate (against a 60% target). To have improved this rate by 8% in the 2021/2022 report required its judges to pull those efforts from their deepest storage wells. Such a feat is unlikely to be repeated – and this is precisely the problem — the wells are running dry.

The Labour Court needs more judges. But even if it got a dozen judges today, where will it house them? It also needs more courtrooms, office space and chamber space. In the current fiscal climate, government is unlikely to build new courtrooms, or hire more judges, or secretaries – even though it is ultimately government’s responsibility.

So what are the alternatives?

Some have suggested as a short term measure to deal with the case backlog that senior legal practitioners make their pro bono hours available to the court. These cases could be heard at private arbitration centres or even virtually, away from the inundated courts.

The Covid-19 pandemic has shown that digital technologies may provide a faster, cheaper, and more secure method of court document management and virtual hearings. National Treasury has allocated R174 million in the 2023 national budget to rollout the Court Online system to the rest of the provincial high courts, other than Gauteng. But no money has been set aside for the Labour Court in the 2023 budget, and a call should be made to rectify this situation in subsequent years.

A longer-term intervention, which Judge President Waglay mentioned in an address to the CCMA’s September 2022 conference, is the need for a comprehensive review of the Labour Court’s rules. To make its processes more informal and flexible, and not subject to the straight-jacket like rules applicable in the High Courts.

We need to salute our Labour Court judges for performing above their target. A 60% finalisation rate is not nearly enough, but in the context of strained resources and a deluge of cases, it’s an incredible feat.

Another intervention is to delink the Labour Court from the Labour Appeal Court. Each court should have its own leadership and complement of judges and registrars who would be able to deal with appeals much faster. This was an intervention proposed more than 20 years ago by then judge president and now Chief Justice Raymond Zondo in a dicta (comment in passing) in Langeveldt v Vryburg Transitional Local Council (JA21/00) [2001] ZALAC 3; 5 BLLR 501 LAC (28 February 2001). This would requirement minor amendments to the LRA.

Although judges matter, the bulk of the work in our labour dispute resolution system is done at the CCMA and industry bargaining councils.  Severe budget cuts to the CCMA and a generally more litigious, less conciliatory society has also meant that more cases, that should’ve ended elsewhere, are now going to the Labour Court. A more systemic intervention would therefore be to channel those cases back to the CCMA.

Another systemic intervention is for employers and trade unions to come to the party. Many cases drag on for years because the parties (and their lawyers) are simply unwilling to see them to finality. Delay-causing technical points are raised not to protect rights or interests, but simply used as leverage to strengthen bargaining power. So a change in attitude is needed, and so too are strict case managers.

IN SUMMARY

We need to salute our Labour Court judges for performing above their target. A 60% finalisation rate is not nearly enough, but in the context of strained resources and a deluge of cases, it’s an incredible feat. However, the Labour Court needs support to be a top performer and achieve its mission of cheap, efficient and effective dispute resolution and labour peace.

Mbekezeli Benjamin LLB (Wits) is a research and advocacy officer at Judges Matter.
Image courtesy of: Ashraf Hendricks/GroundUp

This article was first published in De Rebus in 2023 (May) DR 48.