Myriad reasons, including shortage of courtrooms, behind backlogs at labour court

The backlog in labour court cases is caused by a number of factors, including the expansion of the court's jurisdiction in the past 25 years without the corresponding increase in personnel and infrastructure to manage the change.

This is the view of judge president of the labour court Basheer Waglay during a seminar on the backlog of cases in that court and the CCMA.

According to statistics contained in the judiciary annual report for 2021/2022 released in February, the labour court finalised 2,580 of the 4,307 cases, a 60% achievement compared to the the 58% target it had set.

However, Judges Matter said the court’s rolls were so clogged that as from October 2022, the court has not been able to enroll any new trials until 2024.

Waglay, in a webinar by Fedusa, said with the number of legislations that fell within the domain of the court during the years, the court had tripled its workload.

"We have 14 judges for the whole country. Of these, two are in Durban, which is insufficient, one in the Eastern Cape and two in Cape Town," he said.

The rest are in Johannesburg.

He said the bulk of the cases were in Johannesburg, with 2,968 of the 4,308 cases during the period under review. Waglay said judgments in Johannesburg had to be written after hours, during weekends and over recess. 

"Why not more judges? Even if we get more judges, we do not have a place," Waglay said.

He said during load-shedding, the courts in Cape Town and Durban struggle to operate as they have no generators, despite being promised generators every month.

"In Johannesburg, we have six courtrooms, we beg and borrow from other courts. The Land Claims Court lends us two courtrooms in Midrand. We use the labour appeal court courtroom when we can. Where we have cases where we do not need to record, we hear matters in the boardroom."

Waglay said during the recess period, he would get hold of many senior attorneys and advocates to help on a pro bono basis. "Nearly 30 of them are utilised per annum. These people resolve 200 cases."

He said another problem was that litigants are choosing to use both the CCMA and the labour court to challenge their dismissals.

Waglay suggested a tweak in the Basic Conditions of Employment Act and the Labour Relations Act, which would enable workers to either use one forum. "One cannot have two bites at the cherry," he said

He said before the CCMA, unions had shop stewards who fought and tried to resolve the matters on the shopfloor. "We found that 20% of matters referred should not have come to the CCMA or labour court."

Executive director of CCMA Cameron Morajane said another problem was that there was no integration between the CCMA's ICT systems and that of the labour court. He said improvements that CCMA made in new infrastructure had to be duplicated in the labour court.

Morajane said the number of commissioners the CCMA has and the total number of caseload they handled was incompatible. "What is more painful is if you are overloaded with cases, it affects the quality of outcomes and rulings made," he said

Employment and labour minister Thulas Nxesi said he knew the CCMA had to cope with persistent workload due to budget cuts applied to all levels of government.

"We did try to mitigate the effects of cuts by repurposing the budget and transferring surplus to areas taking the strain. It has not solved the budget cuts. I am not claiming everything is rosy," he said.

The department of justice was aware of a need for more courtrooms at the labour court and that there had been little progress in that regard, added Nxesi.

Waglay said at the labour appeal court, waiting time for the case to be heard was not more than a year. In the labour court, he said, 10 years ago the period it took for a case to be heard was two years and it was now three years.

"Matters referred have increased dramatically, mostly in Johannesburg."

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