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LABOUR PORTFOLIO COMMITTEE
19 October 1998
LABOUR RELATIONS AMENDMENT BILL [B133-98]: HEARINGS
Documents handed out
Letter to Judge Myburgh from the Minister of Justice
Explanatory Memorandum on Labour Relations Amendment Bill
Business South Africa Submission
Submission from V. Alexander, Housing branch
Submission from Zamile August (General Workers Advice Office)
Report of the National Economic Development and Labour Council on Labour Relations Amendment Bill
Discussion focussed on Judge Myburgh’s presentation of amendments from the judges of the Labour Court that; "when a person is appointed as a judge of the Labour Court, that person is appointed a judge of the High Court".
In a letter to Judge Myburgh, Minister D Omar opposed this amendment and proposed that at the end of their fixed period of tenure (10 years) the judges received a gratuity. There was considerable discussion around this and the committee decided to refer the matter to the Minister, the Justice committee, and all stakeholders for further consultation, before a decision could be taken, hopefully by October 21st. There was also a full explanation of all amendments by the Department of Labour.
Judge Myburgh, the judge president of the Labour Court
Judge Myburgh, the judge president of the Labour Appeal Court and Labour Court, presented his memorandum (see document) to the committee. He stated that when the Labour Courts were established under the Labour Relations Act 66 of 1995 substantial authority was conferred on them. The feed back was that the Labour Appeal Court and Labour Court were functioning well. They were viable institutions. There was credibility amongst the users and they should be encouraged so as to maintain a high standard of jurisprudence. However Judge Myburgh proposed that there had been a mistake in the drafting of the Labour Relations Act. The Act said the Labour Court should be equal to a High Court in authority and powers (section 151(2)) and that " the terms and conditions of appointment of a judge of the Labour Court must be similar to those of a judge of the Supreme Court" (section 154(5)(b)). But the Labour Court judge (who is not already a High Court judge) has no tenure – s/he is appointed for a fixed period of 10 years, whereas the High Court judge is appointed for life (i.e. until s/he reaches the age of 70 to 75 years) with gratuity after 15 years service and pension at retirement, and pension for the widow. Therefore the remuneration for the High Court judge is very secure. While the Act says the Labour Court judge should be equivalent to a High Court judge, when tested s/he is not.
This has an impact on the Labour Court in that it is a temptation for Labour Court judges to move to the High Court. As good appointments are made to the Labour Court they can tend to be siphoned off to a High Court. Major work in the labour field has been done by Black lawyers as labour practitioners. They have had enormous experience in the field. But as they are appointed as a black judge in Labour Court, they can then be sought after for the High Court. So the Act has created a court which is functioning well but unless this concern is sorted out, Judge Myburgh maintained, the quality and credibility of the court will drop. He therefore asked for an amendment to make the Labour Court judge a High Court judge. He said if parliament does not agree to this amendment now, in a year Labour Court judges may move on. Two new posts were to be created expanding the Labour Court. The committee was urged to move on this issue. He said the issue had been canvassed since July 1996 with former Labour Minister, Tito Mboweni, the Justice Department, Nedlac, Labour, Business South Africa – all supported it. Mr Patel of the trade union movement has not agreed to amendment, but does not oppose it.
Judge Myburgh had received a letter from the Chief Justice which accepted the principle, the chief justice had appointed a committee to consider slight technical amendments. Judge Howard from KwaZulu Natal was concerned about differences in appointment of High Court and Labour Court judges. Judge Myburgh appealed to the committee to accept the principle and then the technical concerns can be addressed.
Copies of the letter to Judge Myburgh on 19/10/98 from the Minister of Justice were handed out to the committee. In this letter the Minister opposed the amendments. He suggested a gratuity paid to Labour Court judges, who were not High Court judges, at the end of their appointment. Judge Myburgh said that this would be the kiss of death to the Labour Court, that it did not touch the problem, and they would not be able to retain good people.
Discussion and comments from the committee
The committee recognised the problem about this amendment and felt they should confer with the Justice Portfolio Committee.
A comparison was made with the Water Court or Income Tax Court, but with these courts a High Court judge was taken off to preside for a particular time. The Labour Court was a specialised court where the volume of work required the full-time work of a judge and the Act required judges to be labour law specialists.
The point was made that labour had favoured the built-in specification of a 10 year tenure. Then if Nedlac was not satisfied there would not be re-appointment after 10 years. Nedlac felt that a judge should not automatically be taken on to the High Court from the Labour Court, the High Court require more general knowledge and experience.
Business South Africa
Mr A van Niekerk of Business South Africa said that they were concerned that the judges of the Labour Court should be satisfied with their conditions of tenure, and this would secure the standards of the Labour Court. They therefore were in favour of Judge Myburg’s recommendation instead of a gratuity.
Mr Botha of Business South Africa also spoke in support of Judge Myburgh’s amendments saying that the Labour Court was required to be of the very highest standard, and they were concerned that it did not diminish into the kind of court the Industrial Court had become. Business South Africa felt that the Labour Relations Act should continue to be reviewed all the time for appropriate amendments.
Mr van de Walt from the Department of Labour presented to the committee the department’s explanatory memorandum on the Bill, explaining the reasons for all the amendments to the Labour Relations Act no 66 of 1995 (see document).
The chairman, Mr G Oliphant, led the committee in a discussion on the way forward. He recognised that there was a problem about whether to accept Judge Myburgh’s amendment, giving security of tenure, or the Minister ofJjustice’s proposal of a gratuity after 10 years. This would be similar to the constitutional court judges who are appointed for 12 years and then receive a gratuity. He believed they must confer with the Justice Portfolio Committee and political parties must also discuss their position on the issue. Although the judge had made a strong case, it was a political matter. He therefore proposed that a sub-committee of Labour and Justice committee members should work on the amendment.
Mr Bunting (ANC) made the point that it was difficult to come to a conclusion with no representation from labour. Mr Oliphant pointed out they had been invited to the meeting. He repeated that they must confer with Justice, the political parties and all stake holders.
It was therefore decided that there would be consultation on the issue, including with the Minister of Labour and Mr Patel. The report on the consultation should be tabled next day, Tuesday (i.e. October 20) and everything finalised hopefully on Tuesday, if possible, otherwise Wednesday (October 23).