Unjustifiable limitation of Right of Access to Court under SA labour law? – by By Yandisa Nongena

Unjustifiable limitation of Right of Access to Court under SA labour law?

By Yandisa Nongena

The right of access to court, a constitutional right pursuant to section 34 of Act 108 of 1996 (the “Constitution”), is limited by legislation in the labour sector. This limitation does not seem justifiable. Section 34 of the Constitution grants the right of access to court to all persons. This right is not defined by legislation, rather by case law. The following cases are instrumental in defining this right: (Mohlomi v Minister of Defence (CCT41/95) [1996] ZACC and S v Makwanyane and Another 1995 (3) SA 391 (CC)) and European Court of Human Rights (Golder v. UK; Kreuz v. Poland; Airey v. Ireland; Quaranta v. Switzerland (1991); Perks and others v UK (1999)).

These cases show the different dimensions to the right of access to court. Principal among those dimensions are: prescription; proximity to court; access to legal professionals; representation in court; access to legal aid where representation by a lawyer is mandatory; excessive court fees; and initiation or instituting of proceedings.

Section 191(1) of the Labour Relations Act (the “LRA”) limits the prescription period for challenging unfair dismissals to 30 days. However, the Prescription Act 68 of 1969 (“Prescription Act”) stipulates a prescription period of three years for all debts. Employment relationship is contractual and a unilateral variation of, a repudiation of, and/or a breach of the employment contract constitute unfair dismissal. One wonders why for employment contracts the prescription period is shortened to 30 days by the LRA when other contracts have three years from the Prescription Act.

The Employment Equity Act no 55 of 1998, (the “EEA”), a piece of legislation that deals with unfair discrimination in the workplace, limits the period of prescription to six months from the date of occurrence in terms of section 10(2). The Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000 (the “PEPUDA”), another legislation that deals with unfair discrimination in general, has no such limitation. I contend that PEPUDA is the ideal legislation to deal with unfair discrimination.

Firstly, it allows for a wide array of individuals or groups to institute action. Class actions are allowed and the Human Right Commission, Gender Commission, third parties, and other interested parties can also institute claims in terms of PEPUDA. The EEA is more limited in scope. Only the party with rights violated or a trade union can bring action under EEA, a limitation to section 38 of the Constitution.         Secondly, there are about 400 courts one can approach under PEPUDA as section 16 of PEPUDA defines equality courts as all magistrate’s courts and High Courts. The EEA limits its jurisdiction to Labour Courts and CCMA (which collectively have less than 30 courts) – a limitation to section 34 of the Constitution.

Lastly, the remedies available under PEPUDA have more teeth when compared to the EEA and as such could potentially have a more deterring effect than the EEA. The EEA on the other hand limits damages to 24 months salary and specifies no other remedies. Ideal as PEPUDA is, Section 5(3) of PEPUDA, precludes labour disputes from the realm of PEPUDA.

In the three paragraphs above, I have argued how section 191(1) of LRA, section 10(2) of EEA, and section 5(3) of PEPUDA limit the right of access to court and the right of enforcement of rights. One has to pose the question of whether it is lawful to limit these constitutional rights set out in sections 34 and 38 of the Bill of Rights. Section 36 provides the constitutional guideline on how constitutional rights are to be limited. This section reads as follows:

1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ¬

a. the nature of the right;

b. the importance of the purpose of the limitation;

c. the nature and extent of the limitation;

d. the relation between the limitation and its purpose; and

e. less restrictive means to achieve the purpose.

2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

With this section as a guide, it is important to see if the limitation of section 34 could be constitutionally justified or not.

Firstly, the nature of this right of access to court is that it a constitutional right. It ensures the enforcement of other rights (constitutional or not). Without access to court, there can be no rule of law and self help, vigilantism and anarchy would reign.

Secondly, many respondents gave the administrative and logistical burden as reasons to limit the right of access to court. How do the administrative and logistic burdens weigh against constitutional right? The constitutional rights had more weighting in Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21. One can reasonably argue that such limitation not only seeks to maintain and perpetuate the inequalities inherited from the past but also make it harder to fight against inequality and other forms of human rights violations.

Thirdly, the nature and extent of these limitations are such that they pitch vulnerable and often comparatively poor employees with limited access to legal professionals against well resourced employers with access of best legal minds.

Fourthly, the relation between the limitation and its purpose is unclear and/or inadequate. The purpose that has been argued in three of the four cases on limiting of right to access to court in the Constitutional Court were to lower the logistics and administrative burden of the respondents. Putting better document management systems; improving institutional memory and installing case management systems would alleviate the problem without the need to limit constitutional rights.

Lastly, whatever the purpose of this restriction, surely, there are better means to achieve it without going against the values that the Constitution seeks to entrench. For example organisations could keep data for much longer and put in place systems that ensure ease of following issues even if it is years since they occurred.

One has to wonder why the rights to access to court and enforcement of rights have been limited in the labour law. The workplace is one area where greatest strides can be made is reversing the imbalances of apartheid but legislature saw it wise to limit these rights.