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

May 1st, 2023

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

According to the 2021/22 Judiciary Annual Report (JAR), the LC performed well. It finalised 60% of its 4 307 cases against a target of 58% per year (2021/22 JAR pg 31). It also handed down 87% (1 122 of 1 294) reserved judgments (2021/22 JAR at 39). However, the court’s rolls are so clogged that as from October 2022, the LC 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 are the solutions?

The LC was created by the Labour Relations Act 66 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 Commission for Conciliation, Mediation and Arbitration (CCMA) 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 (LAC).

As a specialist court, the LC 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, only restricted to labour law, and thus needing only a few judges. But the experiences of the last 25 years have dashed those expectations.

According to the JAR 2021/2022 (at 31) the LC dealt with a total of 4 307 matters in 2021/2022. By comparison, in 2020/2021 the LC dealt with a total 4 168 matters (JAR 2020/2021 at pg 28), while 4 980 matters were handled by the generalist Free State High Court (JAR 2021/2022 at 37) that also had a similar number of judges (15, compared to the LC’s 13) – but only in Bloemfontein.

Unique among all courts is that the LC permanently operates across four major cities: Cape Town, Durban, Gqeberha and Johannesburg. Each city is effectively its own court, which also serves multiple provinces. For example, the Johannesburg court serves Gauteng, Free State, Limpopo, Mpumalanga and North West; and the Cape Town court serves Northern and Western Cape.

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

In addition, he has had no permanent deputy judge president since 2017. This is partly due to a statutory stipulation in s 153(2)(a) of 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. Most worrying is that several of the LC’s most senior, most industrious judges are close to retirement.

In the JAR 2020/21, the LC was the worst performer among all superior courts, with a 52% case finalisation rate (against a 58% target). To have improved this rate by 8% in the the space of a year (JAR 2021/2022) 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 LC needs more judges. But even if it received a dozen judges today, where will it house them? It also needs more courtrooms and office 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.

While daily loadshedding is now a new obstacle, the COVID-19 pandemic has proved that digital technologies may provide a faster, cheaper, and more secure method of court document management and virtual hearings. According to the 2023 Office of the Chief Justice budget vote (2023 Estimates of National Expenditure at 2) released by National Treasury, budgeted R 174,1 million has been budgeted to rollout the Court Online system to the rest of the provincial High Courts other than Gauteng. It is not clear if any money has been set aside for the LC in the 2023 budget, and a call should be made to rectify this situation in subsequent years.

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

Another intervention is to delink the LC from the LAC. 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 in Langeveldt v Vryburg Transitional Local Council and Others [2001] 5 BLLR 501 (LAC). It 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 have also meant that many more cases that should have ended up elsewhere are now going to the LC. 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. A change in attitude is needed, and so too are strict case managers.

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

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