The review function of the labour court
- Authors: Sauls, Paul Anthony
- Date: 2007
- Subjects: South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10232 , http://hdl.handle.net/10948/821 , South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Description: Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
- Full Text:
- Date Issued: 2007
- Authors: Sauls, Paul Anthony
- Date: 2007
- Subjects: South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10232 , http://hdl.handle.net/10948/821 , South Africa. Labour Court , Labor courts -- South Africa , Labor courts -- South Africa Rules and practice
- Description: Under the 1956 Labour relations Act, parties who were dissatisfied with decisions of the then Industrial Court, could appeal to the old Labour Appeal Court, and then if still further unhappiness persists, to the former Appellate Division. Such appeals entailed placing before the court the complete record of the Industrial Court, and requesting it to decide if on the evidence, it would have come to the same conclusion. Sometimes the courts of appeal decide that they would, sometimes that they would not. When planning the new Labour Relations Act 66 of 1995, the Cheadle Commission decided that this process was too slow, too technical, too cumbersome and too expansive. So it recommended that, at least in the case of the most common disputes, the issues should be decided quickly, informally and finally by arbitration. Unless the parties agree to private arbitration under the Arbitration Act, 42 of 1956, the Commission for Conciliation, Mediation & Arbitration (CCMA) would supply the arbitrators, who would exercise their powers, not under agreed terms of reference, but under the LRA itself. Like private arbitrators, those of the CCMA are also meant to dispose of matters with a minimum of legal formalities (see section 138(1) of the LRA). But the drafters of the LRA did not mean to insulate arbitration awards entirely from the watchful eye of the Labour Court. They therefore specifically provided for review of CCMA arbitrations awards in section 145, but they also gave general powers of review in section 158(1)(g) respectively of the LRA. As if the jurisdictional puzzle created by the LRA was not complex enough, the legislature added the Promotion of Justice Act 3 of 2000. It is an attempt to give expression to the constitutional right of fair labour practices and the constitutional standard of lawfulness and rationality. If section 145 limits the grounds on which commissioners’ actions can be reviewed, or if that section cannot be interpreted to reconcile it with the PAJA, it may well be that section 145 cannot pass constitutional muster - unless that section constitutes a limitation compliant with section 36 of the Constitution. That would be for the Constitutional court to decide.
- Full Text:
- Date Issued: 2007
The concurrent jurisdiction of the Labour Court and the High Court
- Authors: Wagener, Pieter Cornelius
- Date: 2002
- Subjects: South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11051 , http://hdl.handle.net/10948/286 , South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Description: An overview is given of the difficulties surrounding the concurrent jurisdiction of the Labour Court and High Court The main categories of the jurisdictional dispute are identified and systemised. The main branches are those of statutory overlap and interpretation of statutes. Statutory overlap concerns matters remaining from the industrial court era, urgent applications, delict and law of contract. Statutory interpretation mainly involves the interpretation of provisions in the Bill of Rights of the Constitution. An overview of the principles of jurisdiction with respect to the different courts, as well as a brief historical review of the development of such jurisdiction is given. Particular attention is given to the role of fundamental rights in the Constitution. Broad principles are identified whereby the difficulties may be addressed.
- Full Text:
- Date Issued: 2002
- Authors: Wagener, Pieter Cornelius
- Date: 2002
- Subjects: South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11051 , http://hdl.handle.net/10948/286 , South Africa. High Court , South Africa. Labour Court , Exclusive and concurrent legislative powers -- South Africa , Law, Interpretation and construction
- Description: An overview is given of the difficulties surrounding the concurrent jurisdiction of the Labour Court and High Court The main categories of the jurisdictional dispute are identified and systemised. The main branches are those of statutory overlap and interpretation of statutes. Statutory overlap concerns matters remaining from the industrial court era, urgent applications, delict and law of contract. Statutory interpretation mainly involves the interpretation of provisions in the Bill of Rights of the Constitution. An overview of the principles of jurisdiction with respect to the different courts, as well as a brief historical review of the development of such jurisdiction is given. Particular attention is given to the role of fundamental rights in the Constitution. Broad principles are identified whereby the difficulties may be addressed.
- Full Text:
- Date Issued: 2002
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