By Barbara Whittle

During 2012 the Labour Law Committee of the Law Society of South Africa (LSSA) resolved that one of its focus areas would be to network with other similar organisations, institutions and relevant stakeholders in the field of labour law and to foster closer relations with such parties. As a result of this resolution, the committee met with the national director of the Commission for Conciliation, Mediation and Arbitration (CCMA), Nerine Kahn, and her staff in November 2012.

On 20 June 2013, a similar meeting was arranged with the Judge President of the Labour Court, Justice Basheer Waglay and acting Deputy Judge President, Justice Pule Tlaletsi. The delegation was led by the committee chairperson Jerome Mthembu and included Melatong Ramushu, Jan Stemmett, Lloyd Fortuin, Vuyo Morobane and Lizette Burger.

The delegation was warmly welcomed by Judge President Waglay and his deputy and he said that the meeting was long overdue. Mr Mthembu congratulated Judge President Waglay on his appointment and wished him well with the many challenges he faced and assured him of the committee’s support.

Judge President Waglay raised concerns regarding the training of attorneys in the field of labour law and Labour Court practices. He urged the committee to include Labour Court practice in the training syllabus for aspirant attorneys. As a gesture of goodwill, he indicated that the Labour Court would be prepared to make a judge available to assist with training. The committee welcomed the offer and undertook to engage with the LSSA’s Legal Education and Development (LEAD) department so that it could prepare a manual on Labour Court practice and include it in its training syllabus. Judge President Waglay also offered to assist with the development of the material.

The meeting also dealt with the new Labour Court Practice Manual that was recently distributed. Judge President Waglay spoke at length about the manual and why it was important that attorneys have the manual and understand the practice and procedure in the Labour Court. He assured the committee that he will ensure that any updates to the practice directives of the Labour Court will be distributed to practitioners. The committee informed Judge President Waglay that the manual had been published in De Rebus in May 2013 (2013 (May) DR 8), placed on the LSSA website and forwarded to its constituents and their members.

The fact that the Labour Court had four seats in the country was also discussed and Judge President Waglay said that he will endeavor to bring the courts nearer to the people. He raised the possibility that matters could be heard in other courts outside the usual seats of the Labour Court. He said that where there were a sufficient number of Labour Court matters in a specific area, the court would be prepared to hear the cases in those areas. This would be subject to there being a High Court or a circuit court in the specific area. He cautioned that it might take a while longer for the matters to be enrolled and it might necessitate that the court will have to sit during recess. However, he did not see this as a stumbling block.

Judge President Waglay agreed that proper accommodation for the Labour Court continued to be a challenge and, in particular, the state of the Labour Court premises in Cape Town left much to be desired. The matter was, however, being addressed by the Department of Public Works, which is in the process of acquiring suitable accommodation for the Labour Court in Cape Town.

Another concern was the major backlog that exists in respect of reviews. Judge President Waglay said that the Labour Court did not have sufficient judges to carry the workload. The Labour Court has only ten permanent judges and more judges cannot be appointed, even in an acting capacity, because of the lack of court rooms. However, the problem of reviews in Johannesburg is being addressed with the assistance of attorneys and advocates. These attorneys and advocates are asked to act on a pro bono basis in the Labour Court for one week only, during the long recesses. About 60 acting appointments are made in the Johannesburg Labour Court during the long recesses.

Judge President Waglay requested the committee to consider whether the various law societies would recommend attorneys to act on a pro bono basis to assist with the backlogs of reviews. Attorneys who are interested in assisting with the reviews can forward their CVs to the committee. As stated above, these attorneys will be required to work on a pro bono basis for one week and during the long recesses only. Such persons must comply with the minimum requirements, which are that he or she is an expert in labour law and have appeared fairly often in the Labour Court.

The committee was made aware that discussions were under way to separate the Labour Court from the Labour Appeals Court. The importance thereof is that – since the Labour Appeal Court has the same status as the Supreme Court of Appeal, particularly in view of the fact that it was now a final court of appeal in respect of all labour matters – the Labour Appeal Court should have its own Judge President, Deputy Judge President and judges and it should be at an arm’s length in its relationship with the Labour Court. This aspect was debated at great length and the delegation expressed their support for this view.

The committee informed Judge President Waglay of the CCMA r 25(1)(c) court challenge by the Law Society of the Northern Provinces (LSNP). The LSNP has challenged the constitutionality and validity of CCMA r 25(1)(c) in the North Gauteng High Court. The court had subsequently declared the rule inconsistent with the Constitution and invalid. The CCMA had taken the matter on appeal and it was heard by the Supreme Court of Appeal on 6 September 2013.

Judge President Waglay expressed his concern about the fact that more and more matters were being brought before the Labour Court on an urgent basis without merit. Although the Labour Court is careful not to award cost orders, it might be forced to do so, which might include cost orders de bonis propriis, if this trend continues.

The delegation was informed of instances of unprofessional conduct. Judge President Waglay expressed the view that law societies should investigate such cases more vigorously. The committee urged Judge President Waglay to refer instances of unprofessional conduct by attorneys to the relevant provincial law society, if he becomes aware of it.

The meeting concluded with Judge President Waglay and his deputy and the committee expressing their satisfaction with the fruitful first interaction. Both parties committed themselves to such engagements in future.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2013 (Oct) DR 22.