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[2019] ZALCPE 16
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Director General: Department of Employment and Labour and Another v Green Secure Group (P76/2018) [2019] ZALCPE 16; (2020) 41 ILJ 189 (LC) (23 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
CASE
NO: P 76/2018
In
the matter between:
DIRECTOR GENERAL:
DEPARTMENT
OF
EMPLOYMENT AND LABOUR
First
Applicant
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Applicant
And
GREEN
SECURE GROUP
Respondent
Heard:
23 August 2019
Delivered:
23 August 2019
JUDGMENT
VAN NIEKERK J
[1]
In this unopposed application, the first applicant seeks to have a
compliance order issued
against the respondent made an order of court
in terms of s 77A(a) of the Basic Conditions of Employment Act
(BCEA). The second
applicant participates in these proceedings at the
invitation of the Judge President, in circumstances where the issue
to be determined
is whether this court has the jurisdiction to make
the order sought, and the consequences of any lack of jurisdiction
for similar,
pending applications.
[2]
Until 1 January 2019, s 77A(a) of the BCEA read as follows:
77A
Powers of the Labour Court
Subject
to the provisions of this Act, the Labour Court may make any
appropriate order, including an order –
(a)
Making a compliance order issued in terms
of this Act, an order of the Labour Court, on application by the
Director-General in terms
of section 73(1) or 73(2) …
[3]
Paragraph (a) was deleted by s 21 of Act 7 of 2018, with effect from
1 January 2019.
Various other amendments to the BCEA came into force
on the same day, including an amendment to s 73, which now empowers
the CCMA,
on application by the director-general, to issue an
arbitration award requiring an employer to comply with a compliance
order.
In essence, the process for the enforcement of compliance
orders has been shifted from this court to the CCMA.
[4]
The compliance order that is the subject of the present application
was issued before
1 January 2019 and the application was initiated,
served and filed prior to that date.
[5]
The applicants submit that the court retains jurisdiction over all
matters in which the
‘cause of action’ arose before the
amendment became effective, i.e. 1 January 2019. By this they mean
the securing
by inspectors of written undertakings from employers
alleged to be in breach of the BCEA, or the issuing of a compliance
order
by an inspector. The applicants thus seek a declaratory
order to the effect that the court retains its jurisdiction under
the
now-repealed s 77A(a) to make a compliance order an order of court
where the compliance order was issued prior to 1 January
2019.
[6]
As a starting point, the general principle is that no statute is to
be construed as having
retrospective operation, in the sense of
taking away or impairing a vested right acquired under existing law,
unless the legislature
clearly intended the statute to have that
effect (see
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission and others; Transnet Ltd (Autonet
Division)
Division v Chairman, National Transport Commission, and others
.)
[1]
In
Veldman
v Director of Public Prosecutions (Witwatersrand Local Division)
[2]
the
Constitutional Court confirmed the common law rule that in the
absence of express provision to the contrary, statutes should
be
considered as affecting future matters only and not to take away
rights vested at the time of their promulgation.
[3]
The court held:
[26] Generally,
legislation is not to be interpreted to extinguish existing rights
and obligations. This is so unless the statute
provides otherwise or
its language clearly shows such a meaning. That legislation will
affect only future matters and will not
take away existing rights is
basic to notions of fairness and justice which are integral to the
rule of law, a foundational principle
of our Constitution. Also
central to the rule of law is the principle of legality which
requires that law must be certain, clear
and stable.
[7]
A distinction has been drawn between ‘hard’ or strong
retrospectivity, where
a statute provides that from a past date the
new law is deemed to have been in operation, and a ‘soft’
or weaker sense
of the term, where the question is merely whether the
new statute interferes with or is applicable to existing rights.
[4]
A further distinction has been made between amending statutes that
affect substantive rights, and those affecting procedure only.
The
courts have held that ordinarily, an amendment that is purely
procedural does not trigger the presumption against retrospectivity.
In
Curtis
v Johannesburg Municipality
[5]
, the court said:
Every law regulating
legal procedure must, in the absence of express provision to the
contrary, necessarily govern, so far as it
is applicable, the
procedure in every suit which comes to trial after the date of its
promulgation… It must regulate all
such procedure even though
the cause of action arose before the date of promulgation, and even
though the suit may have been then
pending.
However,
this distinction has not been regarded as decisive, if only because
of the frequently-encountered difficulty of distinguishing
substantive and procedural matters.
[6]
[8]
Finally, the courts have drawn a distinction between a situation
where an amending statute
comes into effect before the procedure has
been initiated, and those cases where the amending statute comes into
effect after the
procedure has been initiated and are thus
pending.
[7]
[9]
Both applicants accept that this court does not have jurisdiction
where the ‘cause
of action’ arose after the amendment
that took effect on 1 January 2019. As I have indicated, the present
proceedings concern
a matter in which a compliance order was issued
by an inspector prior to 1 January 2019.
[9]
Although a case could be made to the effect that the amending
legislation is procedural
(in that it substitutes the power of this
court for that of the CCMA), the authorities are clear that the
substantive effect of
a procedural amendment must necessarily be
considered.
[8]
In
Minister
of Public Works v Haffegee N.O
[9]
what was then the Appellate Division of the Supreme Court said the
following regarding the question of fairness and equity as factors
to
be considered in deciding whether legislation amending procedure is
applicable to pending applications or actions:
The
manifest purpose of the amending legislation was to eliminate
compensation courts from the expropriation scene and to direct
all
future claims for compensation, irrespective of the amount, to the
Supreme Court or to arbitration if the parties so agreed.
The fact
that the Legislature may have had perforce and
ex
necessitate
to allow such compensation courts as had already been appointed and
were already seized with claims to compensation to complete
their
tasks does not derogate from the plainly expressed intent of the
Legislature to do away with such courts with effect from
1 May 1992.
The unavailability after 1 May 1992 of a compensation court to a
claimant whose right to compensation arose before
that date but had
not been invoked in that court by that date is not the consequence of
an anomalous act of irrational legislative
discrimination against him
or her…. The disruption, inconvenience, wastage of time and
money, and other complications which
could attend insistence upon
pending and,
a
fortiori
,
pending part-heard cases being re-instituted before the Supreme Court
are so obvious that they require no elaboration and there
is no
provision in the legislation for a mere transfer of such cases to the
Supreme Court. Indeed, it is difficult to envisage
how provision
could fairly and effectively be made for the transfer of the case
which is actually part-heard.
[10]
[10]
There is no indication from the amending legislation as to what the
intention of the legislature may
have been in relation to pending
applications to have compliance orders made an order of this court.
There is no transitional provision
regulating pending cases;
specifically, there is no provision made for the transfer of pending
applications from this court to
the CCMA. No provision is made for
compensating parties for the wasted costs of preparing and presenting
any pending application.
On an application of the above principles,
it seems to me that all applications to have compliance orders made
orders of this court
that were pending in this court on 1 January
2019 fall to be heard and determined by this court. Put another way,
the amending
statute does not affect applications in terms of s 73
that were pending before this court prior to 1 January 2019. To be
clear,
‘pending’ means that the application has been
delivered (i.e. served and filed in terms of Rules 4 and 5 of the
Rules
of this court).
[11]
In so far as the applicants submit that the same principle should be
extended to compliance orders
issued or written undertakings given
prior to 1 January 2019, this cannot be so. In the absence of a
pending application, the first
applicant has no vested right to have
the matter determined by this court. The processes initiated by
labour inspectors are not
processes of this court. It does not assist
the first applicant to say, as he does, that the standard forms
already issued by labour
inspectors refer to the first applicant’s
right to have the compliance order made an order of this court in
terms of s 73.
I fail to appreciate why mere notice to this effect
either establishes a basis for the first applicant to file such an
application
in this court notwithstanding the amending legislation
and conversely, why it precludes the first applicant from seeking to
have
a compliance order made an arbitration award in terms of the new
procedure. The fact that a compliance order records that a failure
to
comply with its terms will have the result that the first applicant
will apply to this court for an order does not bind the
first
applicant to make such an application. He would remain entitled to
approach any forum having jurisdiction to grant the relief
that he
seeks, in terms of the procedure applicable in that forum.
[12]
Finally, the applicants have raised the status of applications that
were pending and then withdrawn
from the roll pending adjudication on
the jurisdictional point raised. The principles enunciated above
would not be infringed if
the first applicant were simply permitted
to re-enroll the applications for hearing.
[13]
The present application was pending in this court on 1 January 2019.
The court is thus empowered to
make the compliance order an order of
this court. I am satisfied that the first applicant has made out a
case for the relief sought
in the notice of motion.
I make the following
order:
1.
An order is granted in terms of prayers 1,
2 and 3 of the notice of motion.
André van Niekerk
Judge
APPEARANCES:
Officials for the first and second applicants
[1]
1999
(4) SA 1).
[2]
2007
(3) SA 210 (CC).
[3]
Curtis
v Johannesburg Municipality
1906 TS 308
at 311.
[4]
Unitrans
at paragraph [13].
[5]
1906
TS 308.
[6]
Unitrans
at paragraph [15];
Veldman
at paragraph [28].
[7]
Unitrans
paragraph [16] and [17].
[8]
Veldman
paragraph [34].
[9]
1996
(3) SA 745 (A).
[10]
At
754B-G.