Article 25/2022

The constitutional court recently found that it was obliged to assign to s77 of the BCEA a meaning that promotes access to the labour court rather than a meaning that prevents that access.  It held so because s34 of the Constitution guarantees access by applicants to the labour court, which must resolve the disputes by means of a fair hearing and by application of law.  Taking such viewpoint into account, the constitutional court held that the labour court has jurisdiction in respect of all matters arising from the LRA, barring the exception, namely, where the LRA itself provides otherwise (for example, s77(3) stipulates that the labour court enjoys concurrent jurisdiction with civil courts in matters concerning contracts of employment).  Such exclusivity is, however, subject to the Constitution and the jurisdiction of the labour appeal court.  This also means that, on a proper reading of s77 of the LRA, as soon as a dispute is ripe for litigation, the claimant is entitled to refer it to the labour court.  Taking the above into account, what was the viewpoint of the constitutional court as to whether or not the labour court has the required jurisdiction to deal with matters in terms of the LRA only after the matter has been dealt with by the relevant labour inspector?

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In Amalungelo Workers Union and Others v Philip Morris SA (Pty) Ltd and Another (2020) 31 SALLR 137 (CC), the union and 75 of its members alleged that the employer had contravened s34 of the BCEA.  In terms of s34(1) of the BCEA, an employer may not make a deduction from an employee’s remuneration unless (i) the employee agrees in writing to the deduction in respect of a debt specified in an agreement, or (ii) such deduction is required or permitted in terms of law, collective agreement, court order or arbitration award.

In casu, the employer deducted tax in respect of company cars from the employee’s salaries.

In coming to the aforesaid conclusion, the constitutional court argued as follows:

  • there is no provision in the BCEA that provides that a party should first approach a labour inspector before it approaches the labour court
  • in addition, none of the functions of a labour inspector in s64 of the BCEA cover dispute resolution
  • the function of the labour court is to adjudicate legal claims and to hold otherwise would frustrate the objects of the BCEA

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?