Representations made by Judge President Myburgh of the Labour Court to the Labour Portfolio Committee on Monday 19 October
(1) The judges of the Labour Court request Parliament to amend
Labour Relations Act 66 of 1995 ("LRA") to reflect the principle that judges of the Labour Court are appointed judges of the High Court.
(2) l commenced the debate about the principle in July 1996 in a meeting with the Minister of Justice, continued the debate in February 1997 in a meeting with the then Minister of Labour, Mr Tito Mboweni, in July 1997, with NEDLAC, and in July 1998 with the Minister of Justice. Numerous meetings have been held between representatives of the Department of Labour, Business South Africa ("BSA") and Mr Ebrahim Patel, representing the trade union movement, during the course of 1998. Since the beginning of June 1998 the issue has been intensively discussed many times with Mr Patel in bilateral discussions3 including a discussion with me.
(3) My understanding is that at the moment the principle, which is proposed by all the judges of the Labour Court, has been accepted by Mr Mboweni, the Department of Labour, the Minister of Justice and BSA. The consent of COSATU has been sought, not obtained, but not refused. Mr Patel is not willing to commit himself, and hence COSATU, to an acceptance of the principle, but he has not indicated that he opposes the principle.
(4) The problem in a nutshell is that while the LRA provides that the Labour Court is equivalent to the High Court, the reality is that the Labour Court is not equivalent to the High Court, with potentially serious consequences for the Labour Court.
(5) The intention of the social partners and the legislature was to create a superior court, equivalent to the High Court, consisting of experts in labour law exercising exclusive jurisdiction in labour matters. That intention is derived from the following. The Labour Court consists partially of High Court judges. The Judge President and the Deputy Judge President of the Labour Court must be judges of the High Court (s 153(2)(a)). A judge of the Labour Court must be a judge of the High Court or a person who is a legal practitioner, who has knowledge, experience and expertise in labour law (s 153(6)). The Labour Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a court of a provincial division of the High Court has in relation to the matters under its jurisdiction (s 151(2)). The remuneration payable to a Labour Court judge who was not a High Court judge at the time of appointment must be the same as that payable to a judge of the High Court and the terms and conditions of appointment must be similar to those of a judge of the High Court (s154(5)). The relevant provisions are attached hereto marked "A".
(6) While the Labour Court may be said to be the equivalent of the High Court, a Labour Court judge who was not a High Court judge at the time of appointment is not appointed to the High Court. The provision of the Act which most clearly distinguishes a Labour Court judge (who was not a High Court judge at the time of appointment) is 5 154(1), which provides:
"A judge of the Labour Court must be appointed for a period determined by the President at the time of appointment." In making appointments to the Labour Court the President appointed the judges for ten years.
(7) In terms of the Judges' Remuneration and Conditions of Employment Act, Act 88 of 1989 ("the Judges' Act"), a High Court judge, by contrast, is appointed for life, i.e. until date of retirement (at age 70 or 75 years). Included in the remuneration package of a High Court judge is a pension, described in s5 as a "salary", a gratuity (s 6) and a widow's pension (s 8). Those benefits are calculated in relation to 15 years service by the judge. So, for example the gratuity is payable only after 15 years and if a judge dies after 10 years service, his widow receives 2/3 of 10/15 of his salary as a pension. The relevant provisions are attached hereto marked "B".
(8) By contrast, the Labour Court judge receives no pension, no gratuity and a widow's pension is not payable. It follows that despite the provisions of s154(5) of the LRA, the remuneration and terms and conditions of a Labour Court judge are not the same as those of a High Court judge. That is manifestly unfair and a source of great anxiety for the Labour Court judges.
(9) The fact that a Labour Court judge does not enjoy life tenure impacts on the independence, and just as vitally, the perception of independence, of the Labour Court it is regarded as axiomatic that for a court to be independent, the members of the court must be appointed for life. The government of the day must not have the power to remove a judge from office (except in exceptional circumstances) and a judge must not be obliged to seek reemployment from the government. At the end of the ten year period, a Labour Court judge may wish to remain in service. The only way to achieve that end would be to apply for re-appointment. In order to be re-appointed, the judge will have to be acceptable to the social partners, and especially to the government. There is a danger that in order to ensure re-appointment, the judge will curry favour with the party who has the power to re-appoint the judge. One way of dealing with that risk is to provide now that a judge may not be re-appointed after the lapse of the ten year period. But it may be desirable to retain the services of some judges, particularly the younger ones, and such a provision would preclude the re-appointment of those judges.
(10) As the period of appointment of Labour Court judges is ten years, the Labour Court is not equivalent to the High Court. The Labour Court may consequently be regarded as a tribunal -. as something less than the High Court. The status of the Labour Court is perceived as lower than that of the High Court, for that reason.
(11) One of the consequences of a fixed period of appointment is that it provides the judge with no security. The risk is that a judge will seek alternative employment, before the expiry of the ten years, in order to obtain that security. That risk is real. A Labour Court judge may quite easily seek job security in the High Court. The probabilities are that the Labour Court judges will in due course seek appointment to the High Court and there is every reason to believe that they will be appointed. They all have a track record of having run the equivalent of a High Court for a number of years. Their judgments are being reported monthly in industrial law journals Already the Judge President of the Natal Provincial Division of the High Court has approached Judge Zondo of the Labour Court to apply for appointment to the High Court in Natal. So far Judge Zondo has resisted the temptation to move to the High Court. It is important to stress that particular emphasis has been placed on representivity in recruiting judges to the Labour Court. The High Court has been less successful. I have no doubt that pressure will continue to be placed on black judges of the Labour Court to move to the High Court.
(12) In terms of the LRA, a Labour Court judge, who was not a High Court judge at the time of appointment, cannot be appointed Judge President or Deputy Judge President of the Labour Court nor can the judge be appointed a member of the Labour Appeal Court. It means that there is no career path on the Labour Court for such a judge. The persons who will be having contact on a daily basis with labour law under the new dispensation are the Labour Court judges. In future, the persons who will deserve to be appointed to the Labour Appeal Court will be the Labour Court judges. The Labour Court judges, who were not High Court judges at the time of appointment, cannot, however, be appointed to the Labour Appeal Court.
(13) Unless the principle is accepted, and the LRA amended, it will be increasingly difficult to recruit judges of quality in the future. The Labour Court and the High Court are in competition for suitable candidates. A number of practitioners have indicated that they would prefer a high Court appointment rather than a Labour Court appointment (because the Labour Court judge does not enjoy tenure). While the morale and working conditions of the Labour Court are better than those in some High Courts, and labour practitioners are keen to serve on the Labour Court, without a suitable amendment to the LRA, the prestige of the Court will be eroded to a point where the Labour Court is regarded as no higher than that of the industrial court. There should be no need to remind anyone of the fate of the industrial court.
(14) The amendments which are proposed are the following:
1. Section 154 of principal Act is hereby amended by -(a) the substitution for subsection (5) of the following subsection:
"(5) When a person referred to in section 153(6)(a)(ii) is appointed as a judge of the Labour Court, that person is appointed a judge of the High Court"
2. Schedule 7 of the principal Act is hereby amended by the insertion of the following sub-item after item 22(6):
"Any person appointed as a judge of the Labour Court between the date of commencement of the principal Act and the date of commencement of this sub-item, and who was not a judge of the High Court at the time of appointment, is deemed to have been appointed as a judge of the High Court"
J F MYBURGH
Judge President of the Labour Appeal Court and Labour Court