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?


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

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.