The general principle is that a statute does not operate retrospectively unless it clearly indicates that it has such effect (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 1999 (4) SA 1 (SCA). What are some of the factors to be considered when determining whether legislation amending procedures is applicable to pending applications or actions, with reference to the Basic Conditions of Employment Amendment Act, 7 of 2018, effective from 1 January 2019, in respect of compliance orders?
In Director-General: Department of Employment and Labour v Green Secure Group (2019) 30 SALLR 47 (LC), the labour court recently provided the following answers to the above question:
- 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 (see Unitrans, paragraph );
- 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 1906 TS 308, 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;
- 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;
- although a case could be made to the effect that the amending legislation is procedural (in that it substitutes the power of the labour court for that of the CCMA), the authorities are clear that the substantive effect of a procedural amendment must necessarily be considered;
- in Minister of Public Works v Haffegee NO 1996 (3) SA 745 (A), 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.’;
- 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, the labour court was of the belief that all applications to have compliance orders made orders of the labour court that were pending before it on 1 January 2019 fell to be heard and determined by the labour court;
- put another way, the amending statute does not affect applications in terms of s73 that were pending before the labour 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 the labour court); and
- insofar as the applicants submitted that the same principle should be extended to compliance orders issued, or written undertakings given, prior to 1 January 2019, this could not be so. In the absence of a pending application, the first applicant had no vested right to have the matter determined by the labour
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