Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others (CCT 72/09) [2010] ZACC 3; 2010 (5) BCLR 422 (CC) ; (2010) 31 ILJ 273 (CC) ; [2010] 5 BLLR 465 (CC) (18 February 2010)

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Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others (CCT 72/09) [2010] ZACC 3; 2010 (5) BCLR 422 (CC) ; (2010) 31 ILJ 273 (CC) ; [2010] 5 BLLR 465 (CC) (18 February 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 72/09
[2010] ZACC 3
In the
matter between:
BILLITON
ALUMINIUM SA LTD t/a HILLSIDE
ALUMINIUM
.............................................................................
Applicant
and
NTOKOZO
ARCHIBALD
KHANYILE
.........................................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
.........................................................................................................
Second
Respondent
COMMISSIONER
A ZWANE
NO
...............................................................................................................
Third
Respondent
Heard
on : 19 November 2009
Decided
on : 18 February 2010
JUDGMENT
FRONEMAN
J:
Introduction
The
issue presented in this matter is whether there is a constitutional
duty on an appellate or review court to fashion a just
and
equitable remedy by having regard to facts that occurred after the
decision appealed against or taken on review. This
issue has
arisen only because of systemic delays in the dispute resolution
system under the provisions of the Labour Relations
Act
1
(the LRA). There can be no question that systemic delay of this
kind undermines confidence in the courts and that urgent steps
need
to be taken to alleviate and eradicate them. Whether their
occurrence creates constitutional duties for courts to create

remedies where none previously existed is a different and more
complicated issue to determine. The conclusion reached here
is
that the facts of the present case do not compel the creation of a
remedy different to the one granted in the tribunal of
first
instance. What follows explains the road travelled to arrive at
this conclusion.
Factual
background and litigation history
The
first respondent, Mr Ntokozo Archibald Khanyile (employee) was
employed by the applicant, Billiton Aluminium SA Ltd t/a
Hillside
Aluminium (employer) in 1995. Sometime in 2001, the employee
appeared as a witness in an arbitration hearing before
the
Commission for Conciliation, Mediation and Arbitration (CCMA).
This was at the behest of a fellow employee whose dismissal
by the
employer was being disputed. At this hearing the employee
disclosed certain information which was deemed confidential

according to the employer’s rules. The employee was summoned
to a disciplinary hearing for this alleged transgression.
At the
disciplinary hearing, he intimated that he would do what he did
again if circumstances demanded it. He was found guilty
and
dismissed.
After
a failed attempt at conciliation, the dispute concerning the
unfairness or otherwise of the employee’s dismissal
was
referred to the CCMA for arbitration in terms of the provisions of
the LRA.
On
18 March 2002 an arbitration award (first arbitration award) was
handed down. The commissioner accepted the employee’s

explanation as genuine and that he had acted in good faith
throughout. Accordingly the commissioner found that the dismissal

was substantively unfair and ordered reinstatement of the employee
from the time of dismissal. He did not, however, give reasons
for
his decision. On review by the employer in terms of section 145 of
the LRA,
2
the first arbitration award was set aside by the Labour Court on 15
April 2003, one year after the first arbitration award.
The reason
for setting it aside was that a proper record of the proceedings
was not available to decide the review on its
merits. The Court
referred the dispute back to the CCMA to be heard by another
commissioner with an instruction that a proper
record of the
proceedings be kept.
On
30 March 2004 the second arbitration commenced. During this
arbitration the employer again supported the fairness of the

dismissal. The employer also intimated that it would oppose
reinstatement on the basis that the trust relationship between

employer and employee had broken down and that there had been
changes in the employer’s business which excluded
reinstatement
as an option. The employer called two witnesses, but
neither of them gave any specific evidence that related to the
alleged
breakdown in trust, nor to the alleged change in the
business environment. What emerged from their testimony, however,
was
that the employer had itself disclosed the kind of information
at the co-employee’s arbitration hearing that it had sought

to prevent the employee from disclosing as being confidential at
the same hearing.
The
employee testified in his own defence. He explained that he had
decided to disclose the information at the earlier hearing
of his
co-employee in the interest of fairness, because he realised that
the employer was not prepared to disclose the full
particulars
relating to the co-employee’s alleged offences. When he made
the statement at his own disciplinary hearing
that he would do the
same again, he did so in the context of his own belief that he was
legally entitled to disclose the information
and that if the
employer knew what was disclosed at the hearing it would realise
that the disclosure was inoffensive to its
interests. He indicated
that by the time of the second arbitration he realised that if the
employer regarded the information
as confidential he would be bound
by that. He indicated that he realised that he should not disclose
any such information.
He also asked for reinstatement.
The
outcome of this arbitration was that on 20 April 2004 a similar
award to that in the first arbitration was made ––

namely of reinstatement from the date of dismissal based on a
finding of substantively unfair dismissal. Six weeks later,
on
1 June 2004, the employer again instituted review proceedings
in the Labour Court to have this award set aside. The
hearing took
place on 6 December 2005. In its judgment of 10 April 2006, the
Labour Court found that the dismissal was substantively
unfair.
The Labour Court, however, set aside the remedy of reinstatement on
the basis that the employee’s indication,
at the disciplinary
hearing, that he would do the same again pointed to a breakdown in
trust which precluded reinstatement.
The Labour Court granted
compensation in its stead.
On
22 June 2006 the employee filed an application for leave to appeal
and also sought condonation for late filing. On 24 August
2006 the
Labour Court refused to grant condonation. The Labour Court held
that even if condonation had been granted it would
still have
refused leave to appeal for lack of prospects of success on appeal.
A petition for leave to appeal to the Labour
Appeal Court followed
on 6 October 2006. Four months later, the Labour Appeal Court
granted leave to appeal to it. The
appeal was heard on 28 May
2008. Judgment was, however, only delivered on 24 February 2009.
This judgment found that the
Labour Court had erred in its
assessment of the breakdown of trust and its refusal to order
reinstatement essentially on the
basis that it approached the
matter as an appeal, rather than a review. The Labour Appeal Court
confirmed the commissioner’s
award of reinstatement
retrospective to the date of the employee’s dismissal.
The
employer then sought special leave to appeal to the Supreme Court
of Appeal which was dismissed with costs on 3 June 2009.
On 6
August 2009 the employer filed an application for leave to appeal
to this Court. On 31 August this Court directed that
the
application for leave to appeal be set down for hearing on
19 November 2009. This Court also issued directions as
a
result of which it emerged that the employee had earned some income
from other sources during the time he waited to be reinstated.
3
This information was not placed before the Labour Court or the
Labour Appeal Court at the respective hearings before those
courts.
As
can be seen from this chronology of events, there was a delay of
one year before the first arbitration award was set aside
on review
in the Labour Court. It took nearly two years for the review of
the second arbitration award to be finalised. The
Labour Court
took four months to deliver its judgment on review of the second
arbitration award. The appeal process in the
Labour Appeal Court
took a further two years and eight months to be finalised. The
Labour Appeal Court took nine months to
deliver its judgment after
hearing the appeal.
Before
this Court the employer argued that the Labour Appeal Court was
wrong to restore the second arbitration award and that
the Labour
Court’s review of the award, to the extent that compensation
rather than reinstatement was the appropriate
remedy, should have
been upheld. It was only as an alternative that the employer also
argued that even if the second arbitration
award did not fall to be
set aside on the question of remedy, the Labour Appeal Court was
nevertheless under a constitutional
duty to grant an order that was
appropriate and just and equitable in terms of section 172(1)(b) of
the Constitution. It was
submitted that an order of reinstatement
to a date eight years earlier was not just and equitable,
particularly where it appeared
that the employee had earned some
other income during that period.
This
alternative argument was not raised at all in the Labour Appeal
Court. The employer did not present any evidence in the
second
arbitration hearing that raised the issue of the inappropriateness
of reinstatement to the date of dismissal as a remedy.
It did not
seek to introduce any further evidence relating to this issue
either in the review before the Labour Court, or
on appeal before
the Labour Appeal Court. The sole basis for raising the point
before this Court was the systemic delay outlined
above.
Issues
Three issues need to be dealt with. The first relates to the
condonation applications brought by both the employer and the

employee for lapses in adherence to the rules and directions of
this Court. These were adequately explained and should be

condoned. The second issue is whether to grant leave to appeal.
The conclusion reached here is that leave should be refused
because
the constitutional issue presented by the applicant has not been
raised timeously and that there has been no adequate
explanation
for that failure. Accordingly, leave should be refused because it
is not in the interests of justice. Closely
aligned to this is
that the form and manner in which the constitutional point was
presented in this Court did not, in the particular
circumstances of
the matter, justify the development of the law contended for by the
applicants. Leave should therefore be
refused for lack of
prospects of success on appeal as well. These findings effectively
dispose of the third issue, namely
whether the Labour Appeal Court
ought, on its own accord, to have considered and issued a just and
equitable remedy.
Condonation
Four
condonation applications are before this Court. The employer
lodged the application for leave to appeal more than one
month
late. It attributes its failure to lodge the application timeously
to an attempt to settle the dispute. In addition,
the employer’s
affidavit in response to the directions issued by the Chief Justice
dated 31 August 2009 was filed
one day late. The employee
does not oppose these applications for condonation. The remaining
condonation application relates
to the late filing of the
employee’s affidavit in response to the Chief Justice’s
directions,
4
as well as the late filing of written submissions which were 6 days
late. The employer does not oppose this application.
I need say
little about these applications. The test for condonation in this
Court is whether it is in the interests of justice
to grant
condonation.
5
It has unfortunately become common for litigants in this Court to
disregard its rules and directions. This invariably leads
to
delays in the disposal of cases. The fact that parties are
attempting a settlement does not necessarily provide a basis
for
disregarding the rules or directions of this Court. However, the
parties have explained the delays and there is no prejudice
to
either. Accordingly, the applications for condonation should be
granted.
Leave
to appeal
An
application for leave to appeal to this Court should satisfy the
requirements that (a) a constitutional issue has been raised
and
(b) that it is in the interests of justice to grant leave to
appeal.
6
On the facts of this case, the answer to this question depends
upon whether (a) it is desirable for this Court to sit as a
court
of first and last instance on the issues raised and (b) the
proposed appeal bears prospects of success. There can be
no
question that this application raises a constitutional issue,
namely, whether the Labour Appeal Court was under a constitutional

duty to grant an order that was just and equitable in terms of
section 172(1)(b) of the Constitution.
Was
a constitutional issue raised properly and timeously?
The
employee’s legal representative argued strenuously before us
that the constitutional issue now raised, namely that
the Labour
Appeal Court should have considered and issued a just and equitable
remedy ameliorating retrospective reinstatement,
was not raised
earlier. He also submitted that
in order to get
to the constitutional point raised, this Court would first have to
consider the Labour Appeal Court’s
findings on ordinary,
non-constitutional appellate grounds, and that such a course would
close the door on any constitutional
argument.
The
second arbitration award was subject only to review, not appeal, by
the Labour Court. It is now common cause that the finding
that the
employee’s dismissal was substantively unfair is correct.
The only remaining issue was whether the remedy granted
in the
second arbitration award, namely that of reinstatement to the date
of dismissal, was irregular to the extent that it
should have been
set aside on review. The Labour Court found that it was and
ordered compensation instead. The Labour Appeal
Court reversed
that finding, resulting in the reinstatement order, as made in the
second arbitration award. If this Court
finds that the Labour
Appeal Court was correct, the reinstatement order would ordinarily
stand. If it is held that the Labour
Appeal Court was wrong, the
Labour Court’s compensation order would also ordinarily stand
unaffected. Even before this
Court the employer preferred this
outcome to its alternative constitutional point. Thus, so it was
submitted, whatever the
outcome, the constitutional issue would not
have been reached.
As
a general principle this Court has required that constitutional
issues should be raised in the courts from which the appeal
arises
before leave to appeal will be granted by this Court.
7
Only in exceptional circumstances will it be in the interests of
justice to grant leave to appeal where the constitutional
issues
sought to be advanced in this Court were not raised earlier.
Counsel
for the employer submitted, however, that it was only in the
decision of this Court in
Equity Aviation Services (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
8
that clarity was reached about the nature and interrelationship
between the remedies of reinstatement, re-employment and

compensation under section 193(1) of the LRA,
9
the effect on the time of reinstatement in terms of section 193(2)
of the LRA,
10
and whether the limits on compensation in terms of section 194 of
the LRA
11
also applied to remuneration payable upon reinstatement. He
submitted that certain remarks in
Equity Aviation
foreshadowed, or laid the groundwork for, the constitutional
argument now raised. These remarks related to the purpose sought

to be achieved by reinstatement, the discretion a court or
commissioner exercises when determining the extent of retrospective

reinstatement, and the factors that should be taken into account in
determining the period of retrospectivity.
12
The
judgment in
Equity Aviation
was delivered after the appeal
in this matter was argued in the Labour Appeal Court, but before
judgment was delivered by that
court. The submission in this Court
was that the implication of
Equity Aviation
is that, when
faced with extensive delays, there is a constitutional duty on
courts, including appellate courts like the Labour
Appeal Court, to
grant just and equitable remedies under section 172(1)(b) of the
Constitution, by inquiring into matters such
as the effect of
delays on the position of employer and employee, even after
reinstatement orders had been granted in lower
tribunals or courts.
The
constitutional issues raised in this Court are no doubt important
in the context of the remedies available under the LRA.
They
concern what impact, if any, systemic delay should have on the
appropriateness or otherwise of reinstatement as a remedy
for
unfair dismissal. They are matters which manifestly fall within
the exclusive jurisdiction of the Labour Court in the
first
instance and this Court in the last instance. The problem is that
these issues were not raised in the court below.
The employer is
therefore asking this Court to sit as a court of first and last
instance on these issues. This Court has on
many occasions
indicated the undesirability of determining constitutional issues
as the court of first and last instance.
13
In
S v Bierman
,
14
this Court said the following, concerning the failure to raise a
constitutional issue in the lower courts:
“
The
applicant’s failure to raise the constitutional issues
concerning the admissibility of the Rev Bothma’s evidence
in
her application to the Supreme Court of Appeal inhibits her ability
to raise them now in this Court. As a result of that
failure, this
Court has not had the benefit of that Court’s consideration
of these issues, which relate directly to established
principles of
the common law and to the application of such principles. The
applicant’s failure to raise the constitutional
issues upon
which her application to this Court is based in the Supreme Court
of Appeal may well have been sufficient of itself
to mean that her
application to this Court should have been refused.”
15
As I have pointed out above, the issues raised by the employer in
this Court are issues that lie at the heart of the remedy
available
under the LRA. These are matters which the legislature has
assigned to the Labour Court. Over the years the labour
courts
have developed expertise in the field of labour law as they deal
with labour issues exclusively. It is therefore desirable
that
these courts should first consider the issues raised by the
employer in this case and bring their expertise to bear on
these
issues. It is undesirable that this Court should sit as a court of
first and last instance, without any possibility
of a further
appeal on these issues. As this Court pointed out in
Bruce and
Another v Fleecytex Johannesburg CC and Others
:
16
“
It
is . . . not ordinarily in the interests of justice for a court to
sit as a court of first and last instance, in which matters
are
decided without there being any possibility of appealing against
the decision given. Experience shows that decisions are
more
likely to be correct if more than one court has been required to
consider the issues raised. In such circumstances the
losing party
has an opportunity of challenging the reasoning on which the first
judgment is based, and of reconsidering and
refining arguments
previously raised in the light of such judgment
.”
17
The
employer has not proffered any explanation why these issues were
never raised in the courts below. There is therefore no
reason why
there should be a departure from our precedent requiring a party to
raise constitutional issues in the courts below
prior to raising
them here. For all these reasons it is not in the interests of
justice to grant leave to appeal.
Having
dealt with this point, it may be possible to leave the matter as it
stands. But there is another reason why the application
for leave
should be refused. As will be seen below, the constitutional point
the employer advances seeks to circumvent existing
procedural
remedies for leading after-the-fact evidence on appeal. Given the
particular circumstances of this matter it is
necessary to state
why the constitutional point, raised in this particular form and
manner, has no prospects of success on
appeal in any event.
Prospects of success:
Role of courts in ordering a just and equitable remedy
After
Equity Aviation
, there can be no doubt that reinstatement is
the primary remedy in unfair dismissal disputes and that section
193(1)(a) of
the LRA confers a discretion on the commissioner or
court of first instance to determine the extent of retrospectivity
of the
reinstatement. In
Equity Aviation,
Nkabinde J
stated:
“
The ordinary meaning of
the word ‘reinstate’ is to put the employee back into
the same job or position he or she
occupied before the dismissal,
on the same terms and conditions. Reinstatement is the primary
statutory remedy in unfair dismissal
disputes. It is aimed at
placing an employee in the position he or she would have been but
for the unfair dismissal. It safeguards
workers’ employment
by restoring the employment contract. Differently put, if
employees are reinstated they resume employment
on the same terms
and conditions that prevailed at the time of their dismissal. As
the language of section 193(1)(a) indicates,
the extent of
retrospectivity is dependent upon the exercise of a discretion by
the court or arbitrator. The only limitation
in this regard is
that the reinstatement cannot be fixed at a date earlier than the
actual date of the dismissal. The court
or arbitrator may thus
decide the date from which the reinstatement will run, but may not
order reinstatement from a date earlier
than the date of dismissal.
The ordinary meaning of the word ‘reinstate’ means
that the reinstatement will not
run from a date after the
arbitration award. Ordinarily then, if a Commissioner of the CCMA
orders the reinstatement of an
employee that reinstatement will
operate from the date of the award of the CCMA, unless the
Commissioner decides to render
the reinstatement retrospective.
The fact that the dismissed employee has been without income during
the period since his
or her dismissal must, among other things, be
taken into account in the exercise of the discretion, given that
the employee’s
having been without income for that period was
a direct result of the employer’s conduct in dismissing him
or her unfairly.”
18
(Footnotes omitted.)
It
should be noted that these remarks relate to the inquiry at the
first level of engagement, namely when a matter first comes
before
a court or commissioner. A commissioner or court, at that level,
must act in accordance with the provisions of section
193(1) and
(2) in the manner explained in
Equity Aviation
. The attack
on the commissioner’s award in this appeal was not premised
on any delays in the process, but on the ground
that the award does
not expressly address the issues bearing on the exercise of a
discretion under section 193(1) and (2) of
the LRA. This failure,
it was contended, showed that the commissioner did not exercise any
discretion at all in regard to
a proper remedy. Had he done so
properly, the provisions of section 142 of the LRA
19
should have been utilised to initiate an inquisitorial type of
inquiry into the appropriateness of reinstatement as a remedy
and
the period of retrospectivity of reinstatement, if that remedy was
considered appropriate.
I
do not consider the submission to be sound, for a number of
reasons. The employer is a large company. It was represented
at
the arbitration hearing, as was the employee. The employer
indicated that it would oppose reinstatement on the basis of

evidence it intended leading. It failed to present any such
evidence. The employee gave evidence explaining the circumstances

under which he made the only statement which might have been
considered as impacting adversely upon the resumption of an

employment relationship between the parties.
That
evidence was accepted by the commissioner, a finding not challenged
by the employer. It was conceded before this Court,
as
it was, for the first time, before the Labour Appeal Court,
that
the dismissal was substantively unfair in that the alleged breach
of confidentiality did not justify dismissal. If it
did not
justify dismissal I find it difficult to understand why, at the
same time, it could nevertheless provide a ground to
prevent
reinstatement. In short, on the facts on record before the
commissioner there was simply no reason for him to deviate
from the
statutory default remedy of reinstatement from the date of
dismissal, nor was there any reason for him to initiate
an inquiry
of his own into those issues after the employer failed to present
the evidence it promised.
The
next level of enquiry is the review of the second arbitration award
in the Labour Court. The Labour Appeal Court held that
the Labour
Court erred in treating the matter as an appeal, rather than as a
review in terms of the applicable provisions of
the LRA.
20
The enquiry in the review, in this instance, should have been
restricted to the issue whether the decision reached by the

commissioner was one a reasonable decision-maker could not reach.
21
There was at this stage of the proceedings no scope for him to
fashion a different remedy. On the record there was no suggestion

that the commissioner or the Labour Court was ever invited to
consider the effect of systemic delays in mitigating the effect
of
reinstatement, nor did the employer offer any evidence to address
this issue.
That
brings one to the appellate level: the decision in the Labour
Appeal Court where retrospective reinstatement was ordered.
In
that court the employer’s case was that reinstatement was not
an appropriate remedy. It is clear from what has been
stated above
that on ordinary grounds the appeal against the Labour Appeal
Court’s findings must fail. The submission
is now made,
however, that despite this there was a duty on the Labour Appeal
Court to initiate an inquiry into the factual
situation that arose
after the award made by the commissioner, to determine whether
reinstatement was still feasible and, if
so, whether the period of
retrospective operation of the original reinstatement order was
still warranted.
The
starting point for this argument is section 172(1) of the
Constitution:
“
When
deciding a constitutional matter within its power, a court–
must declare that any law or
conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency;
and
may make any order that is
just and equitable, including–
an order limiting the
retrospective effect of the declaration of invalidity; and
an order suspending the
declaration of invalidity for any period and on any conditions, to
allow the competent authority to
correct the defect.”
This
particular section is primarily concerned, on its face, with the
situation where a court has to decide on the validity
of law or
conduct that lies within its constitutional competence. This Court
has held that section 172(1) empowers a court
to make a just and
equitable order even in instances where the outcome of a
constitutional dispute does not hinge on the constitutional

invalidity of legislation or conduct.
22
Instead it merely requires that the constitutional issue be
decided in the Court but does not necessarily require an order
of
invalidity for the remedies in section 172(1)(b) to be available.
23
In the present matter there is no constitutional attack on the
validity of any law or conduct – the submission is that
the
law should be developed to provide for just and equitable relief
where circumstances may warrant such a development. There
are,
however, other provisions in the Constitution which require just
and equitable remedies to give proper effect to constitutional

demands,
24
so these interpretive hurdles are not too important in the broader
constitutional context.
The
more fundamental difficulty with direct reliance on any of these
constitutional provisions is that there are specific provisions
in
the LRA that provide for the reception of further evidence on
appeal and the remedies available under the LRA. These are

contained in sections 167(1) and 174 of the LRA. The former
provides that the Labour Appeal Court
(like the
Labour Court)
is a court of law and equity. The latter sets
out its powers on the hearing of appeals. Section 174 provides:
“
The Labour Appeal Court
has the power–
(a) on the hearing of an
appeal to receive further evidence, either orally or by deposition
before a person appointed by the
Labour Appeal Court, or to remit
the case to the Labour Court for further hearing, with such
instructions as regards the taking
of further evidence or otherwise
as the Labour Appeal Court considers necessary; and
(b) to confirm, amend or set
aside the judgment or order that is the subject of the appeal and
to give any judgment or make
any order that the circumstances may
require.”
The
provisions of section 174 of the LRA are not unique or exceptional
in our law. Similar provisions exist in relation to
ordinary civil
appeals,
25
appeals to this Court
26
and in applications for leave to appeal in criminal cases.
27
A considerable body of law has developed on the application of
these provisions in the courts. Considerations that play an

important role in determining whether further evidence on appeal
should be allowed include the importance of finality in legal

proceedings; that further evidence should only be allowed in
exceptional circumstances; that an explanation is required why
the
evidence was not led earlier; and that the proposed new evidence
should be credible, material and practically conclusive.
28
In
general a court of appeal when deciding whether the judgment
appealed from is right or wrong, will do so according to the
facts
in existence at the time it was given and not according to new
circumstances which came into existence afterwards.
29
This is not an inflexible rule and after-the-fact evidence may be
admitted in cases affecting children
30
and in “exceptional cases that cry out for the reception of
post-judgment facts”.
31
One
such exceptional case in this Court was
Prince v President, Cape
Law Society and Others
32
where Ngcobo J stated the following:
“
Parties who challenge
the constitutionality of a provision in a statute must raise the
constitutionality of the provisions sought
to be challenged at the
time they institute legal proceedings. In addition, a party must
place before the court information
relevant to the determination of
the constitutionality of the impugned provisions. Similarly, a
party seeking to justify a
limitation of a constitutional right
must place before the court information relevant to the issue of
justification. I would
emphasise that all this information must be
placed before the court of first instance. The placing of the
relevant information
is necessary to warn the other party of the
case it will have to meet, so as allow it the opportunity to
present factual material
and legal argument to meet that case. It
is not sufficient for a party to raise the constitutionality of a
statute only in
the heads of argument, without laying a proper
foundation for such a challenge in the papers or the pleadings.
The other party
must be left in no doubt as to the nature of the
case it has to meet and the relief that is sought. Nor can parties
hope to
supplement and make their case on appeal.
That said, the considerations
applicable to allowing further evidence on appeal in constitutional
matters are not necessarily
the same as the considerations
applicable in other matters. It is undesirable to attempt to lay
down precise rules when leave
to adduce further evidence on appeal
will be granted by this Court.”
33
(Footnotes omitted.)
The
employer did not seek to lead further evidence before this Court in
terms of this Court’s Rules 30 or 31. Nor did
it seek to
lead any such evidence before the Labour Appeal Court. On the
facts available on record such an application would,
in all
likelihood, have failed. There is nothing on record to indicate
what the evidence is that would have been “credible,
material
and conclusive”, or that it was either not in the possession
of the employer at the time or could not have been
obtained by
proper diligence.
34
What the employer seeks to do, in effect, is to circumvent
compliance with these requirements by asking this Court to develop

the existing law by stating that there is a constitutional duty on
the Labour Appeal Court to initiate an inquiry of its own
accord
into post-judgment facts even though none of the parties to an
appeal before it have requested that to happen or have
sought to
place any further evidence before it. No basis for requiring the
courts to do this has been shown.
Whether
an employee has an obligation to mitigate loss
I
understood counsel for the employer to submit that a burden of some
kind rested on an employee to mitigate his or her damages
after
dismissal and that this submission finds some support in this
Court’s decision in
Equity Aviation
.
35
The submission is that this mitigation rule triggers a duty to
seek after judgment facts, even when existing rules for adducing

further evidence have been ignored or disregarded, because not to
do so would lead to substantial unfairness between the parties.

Reliance was also placed on the effects of the systemic delay
described at the start of this judgment. In my view neither
of
these submissions can be sustained.
The
facts in
Equity Aviation
were largely common cause.
36
None of the issues that had to be decided involved the issue of
mitigation or whether a burden of any kind was associated
with that
issue.
37
In discussing the discretion that a commissioner or court has to
exercise in terms of section 193, Nkabinde J stated that
the period
between the dismissal and the trial as well as the fact that the
dismissed employee was without an income during
the period of
dismissal should be taken into consideration in such a manner that
“an employer is not unjustly burdened
if retrospective
reinstatement is ordered or awarded.
”
38
She said nothing that could legitimately be used in support of an
argument that a dismissed employee carries some burden to
mitigate
his or her loss after dismissal. The whole tenor of the discussion
about reinstatement in
Equity Aviation
, namely that it is
the primary statutory remedy in unfair dismissal disputes that is
aimed at reinstating employees “on
the same terms and
conditions that prevailed at the time of their dismissal”,
39
suggests the contrary.
To
talk in legal terms of a burden on an employee to mitigate loss in
the context of an unfair dismissal strikes one as decidedly
odd, if
not somewhat perverse. In real life, dismissed employees will seek
alternative means of income in order to sustain
their own survival
and that of their dependants. It requires little imagination to
appreciate that for many people in South
Africa obtaining
employment is, at best, a very difficult task. Equitable
considerations militate against transforming this
practical
necessity of life into a legal burden on employees to mitigate
their loss in dismissal cases. To do so might even
serve to
undermine their claim to the primary statutory remedy of
reinstatement available under the provisions of the LRA.
In
so-called ‘purely’ legal terms too, the argument is
misconceived. Mitigation principles in law are applied to
damages
or compensation claims. Even in contractual damages claims the
onus of establishing that there were other less costly
remedies
which a claimant should have adopted rests with the defendant.
40
The correct analogy in reinstatement cases would, however, be to
look at cases where specific performance was ordered under
the
common law contract of employment. Until the decision in
National
Union of Textile Workers and Others v Stag Packings (Pty) Ltd and
Another
,
41
reinstatement in common law employment contracts
was regarded as almost invariably undesirable for entailing the
enforcement
of an order for rendering of personal services
.
The LRA has changed that. Little help can thus be expected from
the common law in developing new principles in relation
to the
remedy of reinstatement.
The
remedies awarded in terms of the provisions of section 193 of the
LRA must be made in accordance with the approach set out
in
Equity
Aviation
. That approach is based on underlying fairness to
both employee and employer. It would introduce unwanted and
unnecessary
rigidity to saddle an inquiry into fairness with
notions of a legal
onus
.
There
is thus no legal rule of mitigation or otherwise that would trigger
the existence of a constitutional duty to seek after-judgment
facts
where existing rules for adducing further evidence have been
ignored or disregarded. The first ground advanced by counsel
for
the employer must thus fail.
Effect of systemic delay on remedies
The
second ground relied upon as an exceptional circumstance justifying
the development of that duty is that of the systemic
delay in this
matter. At this stage it is perhaps necessary to clarify what is
meant by ‘systemic delay’. It
means nothing greater or
less than a delay that occurs in the system of labour dispute
resolution under the provisions of the
LRA, such delay being one of
the underlying problems that the LRA seeks to remedy. The
participants in that system are employers
and employees, their
representatives (legal or otherwise), the officials tasked with
conciliation, mediation and arbitration
in the CCMA and last, but
not least, the judges in the Labour Court, the Labour Appeal Court,
the Supreme Court of Appeal and
in this Court. The delays in the
‘system’ are caused by any one or more of these actors.
‘Systemic delay’
is not an impersonal, inevitable and
independent force, it is simply a delay caused by the inaction of
people within the labour
dispute resolution process.
There
is no magic in relying on ‘systemic delay’ in order to
justify the development of the law. What is needed
is to
scrutinise the role of each of the actors in the system to
determine how and to what extent each may have contributed
to the
problem that is said to have been caused by the delay. It is only
in exceptional instances that there might be room
for the
development of the law in the manner advanced by the employer here.
As will be seen below I do not consider that exceptional

circumstances are present in this matter. In saying that it must
not be taken to imply that the general delays in this case
are not
to be deplored. Far from it.
In
three recent judgments this Court has found it necessary to make
adverse comments about institutional delays in the labour
dispute
resolution process.
42
In the same period two judgments were delivered in the Supreme
Court of Appeal on the same issue.
43
It is unfortunately necessary to make some forthright comments
about this unsatisfactory state of affairs again. There is
nothing
inevitable that causes delays in the dispute resolution process
under the provisions of the LRA. If there is an underlying
cause
it may be because problems in the process are not addressed
timeously and are then acknowledged as being the acceptable
norm.
If
delays in the conciliation, mediation and arbitration process under
the CCMA are caused by insufficient personnel numbers
or financial
resources, it should be addressed by the users of the system
(employers and employees) in institutions such as
the National
Economic Development and Labour Council (NEDLAC)
44
and, if needs be, by Parliament. If individuals overseeing
conciliation, mediation or arbitration in the CCMA are failing
in
their duties, the necessary steps must be taken up with their
employer in order to rectify these deficiencies. The Labour
Court
and Labour Appeal Court rules provide for a court-managed process
to ensure that matters are heard in proper form, and
expeditiously
so. If practitioners cause delays, the rules provide the means for
the Labour Courts’ judiciary to exercise
discipline and
control over them. As Judges we also need to produce our judgments
expeditiously. Accountability and responsibility
affect and
concern us all.
I
now return to the argument at hand. It is that ‘systemic
delays’ justify the development of a constitutional
duty for
the Labour Appeal Court to initiate an inquiry of its own into
post-judgment facts, even when the original order was
justified on
the facts at the time it was made and where no application to lead
further evidence on appeal was made by any
of the parties either.
The answer to that contention must, in each instance where it is
aired, be determined by an examination
of the facts of the
particular case. A similar kind of argument was raised, but
rejected, in
Equity Aviation
.
45
It needs to be rejected in the present case as well.
It
is true that there were delays in this matter not attributable to
the fault of the employer. But it is not these delays
that caused
the constitutional issue to arise only at this late stage of the
proceedings. What primarily caused this issue
to arise was the
employer’s failure to implement the reinstatement order after
it was given. A secondary cause was its
failure to raise the
constitutional issue earlier, at least at the stage when the matter
was heard in the Labour Appeal Court.
Any appeal process carries its own risk. In
Performing Arts
Council of the Transvaal v Paper Printing Wood and Allied Workers
Union and Others
,
46
Goldstone JA stated, in relation to the previous Labour
Relations Act,
47
that:
“
Whether or not
reinstatement is the appropriate relief, in my opinion, must be
judged as at the time the matter came before
the industrial court.
If at that time it was appropriate, it would be unjust and
illogical to allow delays caused by unsuccessful
appeals to the
Labour Appeal Court and to this Court to render reinstatement
inappropriate. Where an order for reinstatement
has been granted
by the industrial court, an employer who appeals from such an order
knowingly runs the risk of any prejudice
which may be the
consequence of delaying the implementation of the order.”
48
The
circumstances of this matter, however, go beyond the mere fact of
that institutional risk. ‘Systemic delay’
is often
also caused by rich and powerful litigants who use their superior
financial capabilities to take the review and appeal
opportunities
available to them to the very end in the hope of wearying out an
opposing litigant who may be in a less advantageous
financial
position. Where that does not eventuate the ‘appeal risk’
is one way of dealing with this use (or abuse)
of the legal system.
In the present matter the employer eventually conceded that its
dismissal of the employee was substantively
unfair. As pointed out
earlier in this judgment,
49
that concession should also have entailed the recognition that
reinstatement to the time of dismissal was the proper remedy.

Objectively then, the employer should have realised at the time the
second arbitration award was made that the reinstatement
remedy was
a proper one. It was only its own failure to appreciate that fact
that set the review and appeal process in motion.
Its own failure
to raise the constitutional point it now advances, earlier, at the
Labour Appeal Court hearing, merely compounded
its own remissness.
And, finally, things were not helped when even in argument before
this Court the employer did not abandon
its hope for an order of
compensation rather than reinstatement.
The
conclusion that I come to is that it was not any institutional
delay beyond the control of the employer that led to the

constitutional issue arising only at this late stage of the
proceedings. It was the employer’s own conduct in causing

this delay that led to this state of affairs. Whether that conduct
was motivated by a cynical ‘playing of the system’,
or
a genuine but belated recognition of its own misconception of the
correct legal principles, matters not. Neither the institutional

part of the system nor the employee was to blame for the
unnecessary prolonging of the proceedings. If the employee earned

some income since that order was granted it was because he had to
do so in order to survive and live a decent life. The employer

could have prevented that necessity by implementing the
reinstatement order.
Order
The
following order is made:
The applications for condonation are granted.
The application for leave to appeal is dismissed with costs.
Ngcobo
CJ, Moseneke DCJ, Cameron J, Mogoeng J, Nkabinde J, Skweyiya J and
Van der Westhuizen J concur in the judgment
of
Froneman J.
Counsel for the Applicant: Advocate
GJ Marcus SC
and
Advocate S Budlender
instructed by
Deneys Reitz Attorneys
.
Legal Representative Mr ZE Buthelezi of Buthelezi
for the First Respondent Incorporated.
1
66 of 1995.
2
Section 145 provides:
“
(1) Any party to a dispute
who alleges a defect in any arbitration proceedings under the
auspices of the Commission may apply
to the Labour Court for an
order setting aside the arbitration award–
(a) within six weeks of the date that the award was
served on the applicant, unless the alleged defect involves
corruption; or
(b) if the alleged defect involves corruption, within
six weeks of the date that the applicant discovers the corruption.
(1A) The Labour Court may on good cause shown condone
the late filing of an application in terms of subsection (1).
(2) A defect referred to in
subsection (1), means
–
(a) that the commissioner–
(i) committed misconduct in relation to the duties of
the commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of
the arbitration proceedings; or
(iii) exceeded the commissioner's powers; or
(b) that an award has been
improperly obtained.
(3) The Labour Court may stay the enforcement of the
award pending its decision.
(4) If the award is set aside, the Labour Court may–
(a) determine the dispute in the manner it considers
appropriate; or
(b) make any order it considers appropriate about the
procedures to be followed to determine the dispute.”
3
The directions of 31 August 2009 required the employee to lodge an
affidavit “a. [s]tating whether, since his dismissal
by the
applicant, he has, at any stage, been employed; and b. [i]f the
first respondent has at any stage been employed, indicating
his
earnings from such employment.”
4
In terms of the directions the employer was requested to lodge an
affidavit stating whether it has, during the period of dismissal,

invited the employee to tender his services. The first respondent,
in turn, was requested to lodge an affidavit stating whether,
since
the dismissal by the applicant, he has, at any stage, been employed
and if so, indicating his earnings from such employment.
The
affidavit in question was supposed to be filed at this Court on 15
September 2009. The deponent, Ms Bridget Tracy Bishenden,
was only
available to sign the affidavit on Tuesday morning, 15 September
2009. The affidavit was then forwarded by courier
to the employer’s
attorneys in Johannesburg who filed it on 16 September 2009. The
respondent’s affidavit was duly
prepared and signed on 5
September 2009 and forwarded to its Johannesburg correspondents via
Docex for filing at this Court.
However, the affidavit was only
filed on 7 October 2009.
5
See
Van Wyk v Unitas Hospital and Another (Open Democratic Advice
Centre as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at paras 20, 22, and 30-4;
S v
Mercer
[2003] ZACC 22
;
2004 (2) SA 598
(CC);
2004 (2) BCLR 109
(CC) at para 4;
Head of Department, Department of Education,
Limpopo Province v Settlers Agricultural High School and Others
[2003] ZACC 15
;
2003 (11) BCLR 1212
(CC) at para 11; and
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC
3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3, where
this Court held that the broad test for granting condonation of late
applications is whether it is in the
interests of justice.
6
See
Armbruster and Another v
Minister of Finance and Others
[2007] ZACC
17
;
2007 (6) SA 550
(CC);
2007 (12) BCLR 1283
(CC) at para 24;
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa, and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19;
S
v
Bierman
[2002]
ZACC 7
;
2002 (5) SA 243
(CC);
2002 (10) BCLR 1078
(CC);
S v Boesak
[2000]
ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at paras 10-2;
and
Fraser v Naude and Others
[1998] ZACC 13
;
1999
(1) SA 1
(CC);
1998 (11) BCLR 1357
(CC) at para 7.
7
See
Prophet v National Director
of Public Prosecutions
[2006] ZACC 17
;
2007
(6) SA 169
(CC);
2007 (2) BCLR 140
(CC) at paras
49-53;
Shaik v Minister of Justice and
Constitutional Development
[2003]
ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC) at para 40;
S v
Bierman
above n 6
at para 8;
Prince
v President, Cape Law Society and Others
[2000]
ZACC 28
;
2001 (2) SA
388
(CC);
2001 (2) BCLR 133
(CC) at para 22.
8
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC).
9
Section 193(1) provides:
“
If the
Labour Court or an arbitrator appointed in terms of this Act finds
that a dismissal is unfair, the Court or the arbitrator
may–
(a) order the employer to re-instate the employee from
any date not earlier than the date of dismissal;
(b) order the employer to re-employ
the employee, either in the work in which the employee was employed
before the dismissal or
in other reasonably suitable work on any
terms and from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the
employee.”
10
Section 193(2) provides:
“
The Labour Court or the
arbitrator must require the employer to re-instate or re-employ the
employee unless–
(a) the employee does not wish to be
re-instated or re-employed;
(b) the circumstances surrounding the dismissal are
such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable
for the employer to re-instate or re-employ the employee; or
(d) the dismissal is unfair only because the employer
did not follow a fair procedure.”
11
Section 194 provides:
“
(1)
The
compensation awarded to an employee whose dismissal is found to be
unfair either because the employer did not prove that the
reason for
dismissal was a fair reason relating to the employee’s conduct
or capacity or the employer’s operational
requirements or the
employer did not follow a fair procedure, or both, must be just and
equitable in all the circumstances, but
may not be more than the
equivalent of 12 months’ remuneration calculated at the
employee’s rate of remuneration
on the date of dismissal.
(2) . . .
(3) The compensation awarded to an
employee whose dismissal is automatically unfair must be just and
equitable in all the circumstances,
but not more than the equivalent
of 24 months’ remuneration calculated at the employee's rate
of remuneration on the date
of dismissal
(4)
The
compensation awarded to an employee in respect of an unfair labour
practice must be just and equitable in all the circumstances,
but
not more than the equivalent of 12 months remuneration
.”
12
Equity Aviation
above n 8 at paras 36 and 43.
13
See
Campus Law Clinic, University of
KwaZulu-Natal v Standard Bank of South Africa Ltd and Another
[2006]
ZACC 5
;
2006 (6) SA 103
(CC);
2006 (6) BCLR 669
(CC) at para 26 and
cases cited therein.
14
Above n 6.
15
Id at para 8.
16
[
1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4)
BCLR 415
(CC).
17
Id a
t para 8. See also
AParty
and Another v Minister for Home Affairs and Others; Moloko and
Others v Minister for Home Affairs and Another
[2009] ZACC 4
;
2009 (3) SA 649
(CC);
2009 (6) BCLR 611
(CC) at paras
26-30.
18
Equity Aviation
above n 8 at para 36.
19
Section 142(1) provides:
“
A commissioner who has been appointed to attempt
to resolve a dispute may–
(a) subpoena for questioning any person who may be able
to give information or whose presence at the conciliation or
arbitration
proceedings may help to resolve the dispute;
(b) subpoena any person who is believed to have
possession or control of any book, document or object relevant to
the resolution
of the dispute, to appear before the commissioner to
be questioned or to produce that book, document or object;
(c) call, and if necessary subpoena, any expert to
appear before the commissioner to give evidence relevant to the
resolution
of the dispute;
(d) call any person present at the conciliation or
arbitration proceedings or who was or could have been subpoenaed for
any purpose
set out in this section, to be questioned about any
matter relevant to the dispute;
(e) administer an oath or accept an affirmation from
any person called to give evidence or be questioned;
(f) at any reasonable time, but only after obtaining
the necessary written authorisation–
(i) enter and inspect any premises on or in which any
book, document or object, relevant to the resolution of the dispute
is to
be found or is suspected on reasonable grounds of being found
there; and
(ii) examine, demand the production of, and seize any
book, document or object that is on or in those premises and that is
relevant
to the resolution of the dispute; and
(iii) take a statement in respect of any matter
relevant to the resolution of the dispute from any person on the
premises who
is willing to make a statement; and
(g) inspect, and retain for a reasonable period, any of
the books, documents or objects that have been produced to, or
seized
by, the Commission.”
20
See section 145 above n 2.
Section 158(1)(g)-(h)
provides:
“
The
Labour Court may–
. . .
(g)
subject
to section 145, review the performance or purported performance of
any function provided for in this Act on any grounds
that are
permissible in law;
(h) review any decision taken or any
act performed by the State in its capacity as employer, on such
grounds as are permissible
in law”.
21
See
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC) at para
110.
22
See Head of Department: Mpumalanga Department of Education and
Another v Hoërskool Ermelo and Another
[2009] ZACC 32
, Case No
CCT 40/09, 14 October 2009, as yet unreported, at para 97.
23
Id. In
Sibiya and Others v Director of Public Prosecutions,
Johannesburg
High Court and Others
[2005] ZACC 6
;
2005
(5) SA 315
(CC);
2005 (8) BCLR 812
(CC), this Court made a
supervisory order despite a finding that the impugned legislation
relating to the substitution of death
sentences was not
unconstitutional.
24
Sections 38, 39(2) and 173 of the Constitution. Compare
Masiya v
Director of Public Prosecutions,
Pretoria
and Others
[2007] ZACC 9
;
2007 (5) SA 30
(CC);
2007 (8) BCLR 827
(CC)
at para 51 and
National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 24.
25
Section 22 of the Supreme Court Act 59 of 1959 provides:
“
The appellate division or a provincial division,
or a local division having appeal jurisdiction, shall have power–
(a) on the hearing of an appeal to receive further
evidence, either orally or by deposition before a person appointed
by such
division, or to remit the case to the court of first
instance, or the court whose judgment is the subject of the appeal,
for
further hearing, with such instructions as regards the taking of
further evidence or otherwise as to the division concerned seems

necessary; and
(b) to confirm, amend or set aside the judgment or
order which is the subject of the appeal and to give any judgment or
make any
order which the circumstances may require.”
26

Rule 30 of this Court’s Rules provides:
“
The following sections of the Supreme Court Act,
1959 (Act 59 of 1959), shall apply, with such modifications as may
be necessary,
to proceedings of and before the Court as if they were
rules of their court.
…
22.
Powers of court on hearing of appeals.”
Rule 31
provides:
“
1. Any party to any proceedings before the Court
and an amicus curiae properly admitted by the Court in any
proceedings shall
be entitled, in documents lodged with the
Registrar in terms of these rules, to canvass factual material that
is relevant to
the determination of the issues before the Court and
that does not specifically appear on the record: Provided that such
facts–
a. are common cause or otherwise incontrovertible; or
b. are of an official, scientific, technical or
statistical nature capable of easy verification.
2. All
other parties shall be entitled within the time allowed by these
rules for responding to such document, to admit, deny,
controvert
or elaborate upon such facts to the extent necessary and
appropriate for a proper decision by the Court.”
27
Section 316
of the
Criminal Procedure Act 51 of 1977
provides for a
similar process to that of section 22 of the Supreme Court Act,
albeit by application for leave to appeal.
28
See
S v Shaik and Others
[2007] ZACC 19
;
2008 (2) SA 208
(CC);
2007 (12) BCLR 1360
(CC) at paras 17-23;
Prophet
above
n 7 at para 33;
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR
301
(CC) at paras 34-43;
Prince
above n 7 at para 21.
29
Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd
[1992] ZASCA 2
;
1992
(2) SA 489
(A) at 507C-D;
S v Nofomela
[1991] ZASCA 180
;
1992 (1) SA 740
(A) at
748D-F;
S v V en ‘n Ander
1989 (1) SA 532
(A) at
544I-545C;
S v Immelman
1978 (3) SA 726
(A) at 730H;
Goodrich
v Botha and Others
1954 (2) SA 540
(A) at 546A.
30
See AD
and Another v DW and Others (Centre for Child Law as
Amicus Curiae; Department for Social Development as Intervening
Party)
[2007] ZACC 27
;
2008 (3) SA 183
(CC);
2008 (4) BCLR 359
(CC) at para 30;
J v J
2008 (6) SA 30
(C) at paras 15-21.
31
Harms
Civil Procedure in the Superior Courts,
August 2009,
C-21;
Van Eeden v Van Eeden
1999 (2) SA 448
(C) at 451H-454H.
32
Above n 7.
33
Id
at paras 22-3.
34
Id at para 21.
35
Above n 8.
36
Above n 8 at para 4.
37
Above n 8 at para 18.
38
Above n 8 at para 43.
39
Above n 8 at para 36.
40
See
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670
(A) at 689D-E.
41
1982 (4) SA 151
(T) at 158A-H.
42
Equity Aviation
above n 8 held at para 52:
“I should add in this regard that it is a matter of great
concern that the system of expedited adjudication of unfair
dismissal disputes which the LRA sought to establish often operates
far from expeditiously. The case at hand is a good example
of how
labour disputes are taking far too long to reach finality. The
adverse effects of these delays impose burdens both on
employers and
on workers, as this case again illustrates.”
In the same way it was
held in
Netherburn Engineering CC t/a Netherburn
Ceramics
v Mudau NO and Others
[2009] ZACC 10
;
[2009] 6 BLLR 517
(CC);
(2009) 30 ILJ 1521 (CC) at paras 1 and 12:
“
The case arises out of the dismissal by the
applicant of the third respondent, Ms Jane Moabelo, more than ten
years ago, on 26
October 1998. The time that has elapsed since the
dismissal is cause for significant concern.
…
“
We conclude by noting once again that it is a
matter of concern that proceedings concerning an unfair dismissal in
October 1998
should not have reached their final resolution some ten
years later. It is not clear to us from the record before us where
the
blame for the delay lies (and so far as we can discern it does
not lie singly), and so we can take the matter no further now.”
In
Strategic
Liquor Services v Mvumbi NO and Others
[2009] ZACC 17
; (2009) 30 ILJ 1526 (CC) at paras 12-3 it was held:
“
Some
comment is necessary. First, the delay. It is lamentable that so
many delays occurred, some (though not all) attributable
to judicial
management of the employer’s case. The Supreme Court of
Appeal has recently (in not incomparable circumstances,
where the
Labour Appeal Court took more than fifteen months to deliver
judgment) deplored what it called ‘systemic delays’
in
the labour courts. It pointed out that:
‘
The
entire scheme of the LRA and its motivating philosophy are directed
at cheap and easy access to dispute resolution procedures
and
courts. Speed of result was its clear intention. Labour matters
invariably have serious implications for both employers
and
employees. Dismissals affect the very survival of workers. It is
untenable that employees, whatever the rights or wrongs
of their
conduct, be put through the rigours, hardships and uncertainties
that accompany delays of the kind here encountered.
It is equally
unfair that employers bear the brunt of systemic failure.’
This Court has recently dealt with a matter where the
Labour Appeal Court delivered judgment more than two and a half
years after
oral argument was concluded before it, and the comments
of the Supreme Court of Appeal must be endorsed.” (Footnotes
omitted.)
43
Shoprite Checkers (Pty) Ltd v Commission for Conciliation
,
Mediation and Arbitration and Others
2009 (3) SA 493
(SCA);
[2009] 7 BLLR 619
(SCA) at paras 33-4 R
epublican Press (Pty) Ltd
v CEPPWAWU and Others
2008 (1) SA 404
(SCA) at paras 20-2.
44
As established by the
National Economic Development and Labour
Council Act 35 of 1994
.
45
Above n 8 at paras 50-1.
46
[1993] ZASCA 201
;
1994 (2) SA 204
(A).
47
28 of 1956.
48
Above n 46
at 219H-I.
49
Para [29] above.