CHAPTER SEVEN DISPUTE RESOLUTION
(ss 151-166)

PART D Labour Court

151. Establishment and status of Labour Court

The Labour Court is hereby established as a court of law and equity.

The Labour Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a court of a provincial division of the Supreme Court has in relation to the matters under its jurisdiction.

The Labour Court is a court of record.

152. Composition of Labour Court

The Labour Court consists of-
1. a Judge President;
2. a Deputy Judge President; and
3. as many judges as the President may consider necessary, acting on the advice of NEDLAC and in consultation with the Minister of Justice and the Judge President of the Labour Court.
The Labour Court is constituted before a single judge.

The Labour Court may sit in as many separate courts as the available judges may allow.

153. Appointment of judges of Labour Court

1. The President, acting on the advice of NEDLAC and the Judicial Service Commission provided for in the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), (in this Part and Part E called the Judicial Service Commission), and after consultation with the Minister of Justice, must appoint a Judge President of the Labour Court.
2. The President, acting on the advice of NEDLAC and the Judicial Service Commission, and after consultation with the Minister of Justice and the Judge President of the Labour Court must appoint the Deputy Judge President of the Labour Court.
The Judge President and the Deputy Judge President of the Labour Court-
1. must be judges of the Supreme Court; and
2. must have knowledge, experience and expertise in labour law.
The Deputy Judge President must act as Judge President of the Labour Court whenever the Judge President is unable to do so for any reason.

The President, acting on the advice of NEDLAC and the Judicial Service Commission, and after consultation with the Minister of Justice and the Judge President of the Labour Court may appoint one or more persons who meet the requirements of subsection (6) as judges of the Labour Court.

The Minister of Justice, after consultation with the Judge President of the Labour Court, may appoint one or more persons who meet the requirements of subsection (6) to serve as acting judges of the Labour Court for such a period as the Minister of Justice in each case may determine.

A judge of the Labour Court must-
1. 1. be a judge of the High Court; or
  2. be a person who is a legal practitioner; and
2. have knowledge, experience and expertise in labour law.

154. Tenure, remuneration and terms and conditions of appointment of Labour Court judges

A judge of the Labour Court must be appointed for a period determined by the President at the time of appointment.

A judge of the Labour Court may resign by giving written notice to the President.

1. Any judge of the Labour Court who is also a judge of the High Court holds office until-
  1. the judge's period of office in the Labour Court ends;
  2. the judge's resignation takes effect;
  3. the judge is removed from office;
  4. the judge ceases to be a judge of the High Court; or
  5. the judge dies.
2. Any other judge of the Labour Court holds office until-
  1. the judge's period of office ends;
  2. the judge's resignation takes effect;
  3. the judge is removed from office; or
  4. the judge dies.

Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), is affected by that judge's appointment and concurrent tenure of office as a judge of the Labour Court.

A person who has been appointed a judge of the Labour Court and who is not a judge of the High Court may perform the functions of a judge of the Labour Court only after having taken an oath or made a solemn affirmation in the prescribed form before the Judge President of the Labour Court.

1. A judge of the Labour Court who is also a judge of the High Court-
  1. may be removed from the office judge of the Labour Court only if that person has first been removed from the office of a judge of the High Court; and
  2. upon having been removed as judge of the High Court must be removed from office as a judge of the Labour Court.
2. The President, acting on the advice of NEDLAC, and in consultation with the Minister of Justice and the Judge President of the Labour Court, may remove any other judge of the Labour Court from office for misbehaviour or incapacity.

Despite the expiry of the period of a person's appointment as a judge of the Labour Court, that person may continue to perform the functions of a judge of that Court, and will be regarded as such in all respects, only-
1. for the purposes of disposing of any proceedings in which that person has taken part as a judge of that Court and which are still pending upon the expiry of that person's appointment or which, having been so disposed of before or after the expiry of that person's appointment, have been re-opened; and
2. for as long as that person will be necessarily engaged in connection with the disposal of the proceedings so pending or re-opened.

The provisions of subsections (2) to (8) apply, read with the changes required by the context, to acting judges appointed in terms of section 153 (5).

155. Officers of Labour Court

The Minister of Justice, subject to the laws governing the public service, must appoint the following officers of the Labour Court-
1. a person who has experience and expertise in labour law and administration to be the registrar of the Labour Court; and
2. one or more deputy registrars and so many other officers of the Labour Court as the administration of justice requires.
1. The officers of the Labour Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Court.
2. A deputy registrar of the Labour Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar.
The deputy registrar of the Labour Court or, if there is more than one, the most senior will act as registrar of the Labour Court whenever-
1. the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or
2. the office of registrar is vacant.
The officers of the Labour Court must provide secretarial and administrative assistance to the Rules Board for Labour Courts.

156. Area of jurisdiction and seat of Labour Court

The Labour Court has jurisdiction in all the provinces of the Republic.

The Minister of Justice, acting on the advice of NEDLAC, must determine the seat of the Labour Court.

The functions of the Labour Court may be performed at any place in the Republic.

157. Jurisdiction of Labour Court

Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from-
1. employment and from labour relations;
2. any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and
3. the application of any law for the administration of which the Minister is responsible.
Any reference to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be interpreted as referring to the Labour Court when an arbitration is conducted under that Act in respect of any dispute that may be referred to arbitration in terms of this Act.

1. The Labour Court may refuse to determine any dispute, other than an appeal or review before the Court, if the Court is not satisfied that an attempt has been made to resolve the dispute through conciliation.
2. A certificate issued by a commissioner or a council stating that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation.
Except as provided in section 158 (2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act or any employment law requires the dispute to be resolved through arbitration.

158. Powers of Labour Court

The Labour Court may-
1. make any appropriate order, including-
  1. the grant of urgent interim relief;
  2. an interdict;
  3. an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act;
  4. a declaratory order;
  5. an award of compensation in any circumstances contemplated in this Act;
  6. an award of damages in any circumstances contemplated in this Act; and
  7. an order for costs;
2. order compliance with any provision of this Act or any employment law;
3. make any arbitration award or any settlement agreement an order of the Court;
4. request the Commission to conduct an investigation to assist the Court and to submit a report to the Court;
5. determine a dispute between a registered trade union or registered employers' organisation and any one of the members or applicants for membership thereof, about any alleged non-compliance with-
  1. the constitution of that trade union or employers' organisation (as the case may be); or
  2. section 26 (5) (b);
6. subject to the provisions of this Act, condone the late filing of any document with, or the late referral of any dispute to, the Court;
7. subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law;
8. review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law;
9. hear and determine any appeal in terms of section 35 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); and
10. deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law.

1A.	For the purposes of subsection (1) (c), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is only entitled to refer to arbitration in terms of section 22 (4), 74 (4) or 75 (7).
	[Sub-s. (1A) inserted by s. 36 (c) of Act No. 12 of 2002.]
1B.	The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.

If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the Court may-
1. stay the proceedings and refer the dispute to arbitration; or
2. if it is expedient to do so, continue with the proceedings, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make. Provided that in relation to the question of costs, the provisions of section 162(2)(a) are applicable.
The reference to "arbitration" in subsection (2) must be interpreted to include arbitration-
1. under the auspices of the Commission;
2. under the auspices of an accredited council;
3. under the auspices of an accredited agency;
4. in accordance with a private dispute resolution procedure; or
5. if the dispute is about the interpretation or application of a collective agreement.
1. The Labour Court, on its own accord or, at the request of any party to the proceedings before it may reserve for the decision of the Labour Appeal Court any question of law that arises in those proceedings.
2. A question may be reserved only if it is decisive for the proper adjudication of the dispute.
3. Pending the decision of the Labour Appeal Court on any question of law reserved in terms of paragraph (a), the Labour Court may make any interim order.
A judgment of the Labour Court must be handed down as soon as reasonably possible.

159. Rules Board for Labour Courts and rules for Labour Court

The Rules Board for Labour Courts is hereby established.

The Board consists of-
1. the Judge President of the Labour Court, who is the chairperson;
2. the Deputy Judge President of the Labour Court; and
3. the following persons, to be appointed for a period of three years by the Minister of Justice, acting on the advice of NEDLAC-
  1. a practising advocate with knowledge, experience and expertise in labour law;
  2. a practising attorney with knowledge, experience and expertise in labour law;
  3. a person who represents the interests of employees;
  4. a person who represents the interests of employers; and
  5. a person who represents the interests of the State.
The Board may make rules to regulate the conduct of proceedings in the Labour Court including, but not limited to-
1. the process by which proceedings are brought before the Court, and the form and content of that process;
2. the period and process for noting appeals;
3. the taxation of bills of costs;
4. after consulting with the Minister of Finance, the fees payable and the costs and expenses allowable in respect of the service or execution of any process of the Labour Court, and the tariff of costs and expenses that may be allowed in respect of that service or execution; and
5. all other matters incidental to performing the functions of the Court, including any matters not expressly mentioned in this subsection that are similar to matters about which the Rules Board for Courts of Law may make rules in terms of section 6 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985).
The Board may alter or repeal any rule that it makes.

Five members of the Board are a quorum at any meeting of the Board.

The Board must publish any rules that it makes, alters or repeals in the Government Gazette.

1. A member of the Board who is a judge of the High Court may be paid an allowance determined in terms of subsection (9) in respect of the performance of the functions of a member of the Board.
2. Notwithstanding anything to the contrary in any other law, the payment, in terms of paragraph (a), of an allowance to a member of the Board who is a judge of the High Court, will be in addition to any salary or allowances, including allowances for re-imbursement of travelling and subsistence expenses, that is paid to that person in the capacity of a judge of that Court.
A member of the Board who is not a judge of the High Court nor subject to the Public Service Act, 1994, will be entitled to the remuneration, allowances (including allowances for re-imbursement of travelling and subsistence expenses), benefits and privileges determined in terms of subsection (9).

The remuneration, allowances, benefits and privileges of the members of the Board-
1. are determined by the Minister of Justice with the concurrence of the Minister of Finance;
2. may vary according to rank functions to be performed and whether office is held in a full-time or part-time capacity; and
3. may be varied by the Minister of Justice under any law in respect of any person or category of persons.
1. Pending publication in the Government Gazette of rules made by the Board, matters before the Court will be dealt with in accordance with such general directions as the Judge President of the Labour Court, or any other judge or judges of that Court designated by the Judge President for that purpose, may consider appropriate and issue in writing.
2. Those directions will cease to be of force on the date of the publication of the Board's rules in the Government Gazette, except in relation to proceedings already instituted before that date. With regard to those proceedings, those directions will continue to apply unless the Judge President of the Labour Court has withdrawn them in writing.
The Judge President must ensure that the Rules Board for Labour Courts meet at least once every two years to review the rules of the Labour Court.

160. Proceedings of Labour Court to be carried on in open court

The proceedings in the Labour Court must be carried on in open court.

Despite subsection (1), the Labour Court may exclude the members of the general public, or specific persons, or categories of persons from the proceedings in any case where a court of a provincial division of the Supreme Court could have done so.

161. Representation before Labour Court

In any proceedings before the Labour Court, a party to the proceedings may appear in person or be represented only by-
1. a legal practitioner;
2. a director or employee of the party;
3. any office-bearer or official of that party's registered trade union or registered employers' organisation;
4. a designated agent or official of a council; or
5. an official of the Department of Labour.
No person representing a party in proceedings before the Labour Court in a capacity contemplated in paragraphs (b) to (e) of subsection (1) may charge a fee or receive a financial benefit in consideration for agreeing to represent that party unless permitted to do so by order of the Labour Court.

162. Costs

The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.

When deciding whether or not to order the payment of costs, the Labour Court may take into account-
1. whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and
2. the conduct of the parties-
  1. in proceeding with or defending the matter before the Court; and
  2. during the proceedings before the Court.
The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court.

163. Service and enforcement of orders of Labour Court

Any decision, judgment or order of the Labour Court may be served and executed as if it were a decision, judgment or order of the High Court.

[S. 163 amended by s. 17 of Act No. 127 of 1998.]

164. Seal of Labour Court

The Labour Court for use as occasion may require will have an official seal of a design prescribed by the President by proclamation in the Government Gazette.

The registrar of the Labour Court must keep custody of the official seal of the Labour Court.

165. Variation and rescission of orders of Labour Court

The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order-

erroneously sought or erroneously granted in the absence of any party affected by that judgment or order;
in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or
granted as a result of a mistake common to the parties to the proceedings.

166. Appeals against judgment or order of Labour Court

Any party to any proceedings before the Labour Court may apply to the Labour Court for leave to appeal to the Labour Appeal Court against any final judgment or final order of the Labour Court.

If the application for leave to appeal is refused, the applicant may petition the Labour Appeal Court for leave to appeal.

Leave to appeal may be granted subject to any conditions that the Court concerned may determine.

Subject to the Constitution and despite any other law, an appeal against any final judgment or final order of the Labour Court in any matter in respect of which the Labour Court has exclusive jurisdiction may be brought only to the Labour Appeal Court.

CHAPTER SEVEN DISPUTE RESOLUTION
(ss 167-183)

PART E Labour Appeal Court

167. Establishment and status of Labour Appeal Court

The Labour Appeal Court is hereby established as a court of law and equity.

The Labour Appeal Court is the final court of appeal in respect of all judgments and orders made by the Labour Court in respect of the matters within its exclusive jurisdiction.

The Labour Appeal Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which the Supreme Court of Appeal has in relation to matters under its jurisdiction.

The Labour Appeal Court is a court of record.

168. Composition of Labour Appeal Court

The Labour Appeal Court consists of-
1. the Judge President of the Labour Court, who by virtue of that office is Judge President of the Labour Appeal Court;
2. the Deputy Judge President, who by virtue of that office is Deputy Judge President of the Labour Appeal Court; and
3. such number of other judges who are judges of the Labour Court or High Court, as may be required for the effective functioning of the Labour Appeal Court.
The Labour Appeal Court is constituted before any three judges whom the Judge President designates from the panel of judges contemplated in subsection (1).

No judge of the Labour Appeal Court may sit in the hearing of an appeal against a judgment or an order given in a case that was heard before that judge.

169. Appointment of other judges of Labour Appeal Court

The President, acting on the advice of NEDLAC and the Judicial Service Commission, after consultation with the Minister of Justice and the Judge President of the Labour Appeal Court, must appoint the judges of the Labour Appeal Court referred to in section 168 (1) (c).

The Minister of Justice, after consultation with the Judge President of the Labour Appeal Court, may appoint one or more judges of the High Court to serve as acting judges of the Labour Appeal Court.

170. Tenure, remuneration and terms and conditions of appointment of Labour Appeal Court judges

A judge of the Labour Appeal Court must be appointed for a fixed term determined by the President at the time of appointment.

A judge of the Labour Appeal Court may resign by giving written notice to the President.

1. A judge of the Labour Appeal Court holds office until-
  1. the judge's term of office in the Labour Appeal Court ends;
  2. the judge's resignation takes effect;
  3. the judge is removed from office;
  4. the judge ceases to be a judge of the High Court; or
  5. the judge dies.
2. The Judge President and the Deputy Judge President of the Labour Appeal Court hold their offices for as long as they hold their respective offices of Judge President and Deputy Judge President of the Labour Court.

Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges' Remuneration and Conditions of Employment Act, 1989 (Act No. 88 of 1989), is affected by that judge's appointment and concurrent tenure of office as a judge of the Labour Appeal Court.

A judge of the Labour Appeal Court-
1. may be removed from the office of judge of the Labour Appeal Court only if that person has first been removed from the office of a judge of the High Court; and
2. upon having been removed as judge of the High Court must be removed from office as a judge of the Labour Appeal Court.

Despite the expiry of the period of a person's appointment as a judge of the Labour Appeal Court, that person may continue to perform the functions of a judge of that Court, and will be regarded as such in all respects, only-
1. for the purposes of disposing of any proceedings in which that person has taken part as a judge of that Court and which are still pending upon the expiry of that person's appointment or which, having been so disposed of before or after the expiry of that person's appointment, have been re-opened; and
2. for as long as that person will be necessarily engaged in connection with the disposal of the proceedings so pending or re-opened.

The provisions of subsections (2) to (6) apply, read with the changes required by the context, to acting judges appointed in terms of section 169 (2).

171. Officers of Labour Appeal Court.

The registrar of the Labour Court is also the registrar of the Labour Appeal Court.

Each of the deputy registrars and other officers of the Labour Court also holds the corresponding office in relation to the Labour Appeal Court.

1. The officers of the Labour Appeal Court, under the supervision and control of the registrar of that Court must perform the administrative functions of the Labour Appeal Court.
2. A deputy registrar of the Labour Appeal Court may perform any of the functions of the registrar of that Court that have been delegated generally or specifically to the deputy registrar.
The deputy registrar of the Labour Appeal Court or, if there is more than one, the most senior will act as registrar of the Labour Appeal Court whenever-
1. the registrar is absent from the Republic or from duty, or for any reason is temporarily unable to perform the functions of registrar; or
2. the office of registrar is vacant.

172. Area of jurisdiction and seat of Labour Appeal Court.

The Labour Appeal Court has jurisdiction in all the provinces of the Republic.

The seat of the Labour Court is also the seat of the Labour Appeal Court.

The functions of the Labour Appeal Court may be performed at any place in the Republic.

173. Jurisdiction of the Labour Appeal Court

Subject to the Constitution and despite any other law, the Labour Appeal Court has exclusive jurisdiction-
1. to hear and determine all appeals against the final judgments and the final orders of the Labour Court; and
2. to decide any question of law reserved in terms of section 158 (4).
. . . . . .

. . . . . .

A decision to which any two judges of the Labour Appeal Court agree is the decision of the Court.

174. Powers of Labour Appeal Court on hearing of appeals

The Labour Appeal Court has the power-

on the hearing of an appeal to receive further evidence, either orally or by deposition before a person appointed by the Labour Appeal Court, or to remit the case to the Labour Court for further hearing, with such instructions as regards the taking of further evidence or otherwise as the Labour Appeal Court considers necessary; and
to confirm, amend or set aside the judgment or order that is the subject of the appeal and to give any judgment or make any order that the circumstances may require.

175. Labour Appeal Court may sit as court of first instance

Despite the provisions of this Part, the Judge President may direct that any matter before the Labour Court be heard by the Labour Appeal Court sitting as a court of first instance, in which case the Labour Appeal Court is entitled to make any order that the Labour Court would have been entitled to make.

176. Rules for Labour Appeal Court

The Rules Board for Labour Courts established by section 159 may make rules to regulate the conduct of proceedings in the Labour Appeal Court.

The Board has all the powers referred to in section 159 when it makes rules for the Labour Appeal Court.

The Board must publish in the Government Gazette any rules that it makes, alters or repeals.

177. Proceedings of Labour Appeal Court to be carried on in open court.

The proceedings in the Labour Appeal Court must be carried on in open court.

Despite subsection (1), the Labour Appeal Court may exclude the members of the general public, or specific persons, or categories of persons from the proceedings in any case where a High Court could have done so.

178. Representation before Labour Appeal Court

Any person who, in terms of section 161, may appear before the Labour Court has the right to appear before the Labour Appeal Court.

179. Costs

The Labour Appeal Court may make an order for the payment of costs, according to the requirements of the law and fairness.

When deciding whether or not to order the payment of costs, the Labour Appeal Court may take into account-
1. whether the matter referred to the Court should have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and
2. the conduct of the parties-
  1. in proceeding with or defending the matter before the Court; and
  2. during the proceedings before the Court.
The Labour Appeal Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court.

180. Service and enforcement of orders

Any decision, judgment or order of the Labour Appeal Court may be served and executed as if it were a decision, judgment or order of the High Court.

[S. 180 amended by s. 24 of Act No. 127 of 1998.]

181. Seal of Labour Appeal Court

The Labour Appeal Court for use as the occasion may require will have an official seal of a design prescribed by the President by proclamation in the Government Gazette.

The registrar of the Labour Appeal Court must keep custody of the official seal of the Labour Appeal Court.

182. Judgments of Labour Appeal Court binding on Labour Court

A judgment of the Labour Appeal Court is binding on the Labour Court.

183. Labour Appeal Court final court of appeal

Subject to the Constitution and despite any other law, no appeal lies against any decision, judgment or order given by the Labour Appeal Court in respect of-

any appeal in terms of section 173 (1) (a);
its decision on any question of law in terms of section 173 (1) (b); or
any judgment or order made in terms of section 175.

CHAPTER SEVEN DISPUTE RESOLUTION
(ss 184)

PART F General Provisions applicable to Courts established by this Act

184. General provisions applicable to courts established by this Act

Sections 5*, 18*, 25*, 30*, 31*, 39*, 40*, and 42*, of the Supreme Court Act, 1959 (Act No. 59 of 1959) apply, read with the changes required by the context, in relation to the Labour Court, or the Labour Appeal Court, or both, to the extent that they are not inconsistent with this Act.

*Scope and execution of process

*Certified copies of court records admissible as evidence

*No process to be issued against judge except with consent of court

*Manner of securing attendance of witnesses or the production of any document.

*Manner in which witness may be dealt with on refusal to give evidence or produce document

*Property not liable to be seized in execution

*Offences relating to execution

*Witness fees.

CHAPTER SEVEN DISPUTE RESOLUTION(ss 151-166)