RETIRED JUDGES AND THE JSC
CONSTITUTION – Judge – Jurisdiction of JSC – Retired judges – Definition of “judge” in JSC Act – Not inconsistent with Constitution – Making a person a judge for life is bound up with the expectations of the character of judgeship and especially the independence that a judge is required to assert in the South African context – Judicial Service Commission Act 9 of 1994, s 7(1)(g) – Constitution, s 176.
Facts: The findings of the Seriti Commission of enquiry into the arms deal were taken on review and set aside by the High Court. The conduct of Judge Seriti and Judge Musi (applicants) on the commission were criticised. After Open Secrets and Shadow World lodged complaints with the Judicial Service Commission (JSC) it decided to institute proceedings in terms of its disciplinary apparatus.
Application: Challenging the constitutionality of section 7(1)(g) of the Judicial Service Commission Act 9 of 1994 (JSC Act) which defines a “judge” to include a judge who has been discharged from active service.
Discussion: That the JSC, in terms of this definition of a judge, claims jurisdiction over the two applicants who are retired judges; whether the provision is unconstitutional by reason of its alleged inconsistency with the provisions of the Constitution; the contentions by the applicants on section 176 of the Constitution on the terms of office of judges; that they contend that section 176 exhaustively circumscribes the concept of a “judge” and once “discharged” the person who was a judge thereupon ceases to be one; and the relevant law about judges and the JSC.
Findings: The basic flaw in the applicants’ thesis is the notion that a person can only be a judge during the term of active service or term of office. Section 176 of the Constitution does not purport to define who is a judge. The tenor of section 176 is to regulate the duration of office, not the standing of judgeship. The choice of making a person a judge for life is bound up with the expectations of the character of judgeship and especially the independence that a judge is required to assert in the South African context.
Order: The application is dismissed with costs. It is declared that section 7(1)(g) of the JSC Act is not inconsistent with the Constitution.
SUTHERLAND DJP (WEPENER J and MOLAHLEHI J concurring)
LOCK-OUT AND REPLACEMENT LABOUR
LABOUR – Strike – Lock-out – Use of replacement labour – Interpretation of “in response to a strike” – Distinction between a terminated strike and a suspended strike – Use of replacement labour confined to duration of strike – Employer not entitled to use replacement labour where employees gave notice that they were suspending strike and going to return to work – Labour Relations Act 66 of 1995, s 76(1)(b).
NUMSA v Trenstar  ZACC 11 at -
Facts: NUMSA demanded payment of a once-off gratuity to employees but the conciliation failed and a strike continued for several weeks. NUMSA then notified Trenstar that its members would suspend the strike and return to work, but that the demand for the ex-gratia was not being withdrawn. Trenstar replied that it would lock out all NUMSA members in response to the strike action. NUMSA demanded an undertaking that Trenstar would not use temporary labour. Trenstar proceeded with the lock-out. NUMSA launched an urgent application in the Labour Court to interdict Trenstar from using replacement labour during the lock-out.
Appeal: The Labour Court dismissed the application, finding that the lock-out was lawful, with the effect that Trenstar could use replacement labour. The Labour Appeal Court dismissed the appeal and NUMSA now approaches the Constitutional Court.
Discussion: Section 76(1)(b) of the Labour Relations Act 66 of 1995 (LRA); that an employer who embarks on a lock-out may not, as a general rule, use replacement labour to perform the work of the locked out employees; that the exception is if the lock-out “is in response to a strike”; the definition in section 213 of “strike” and “lockout”; NUMSA’s argument that the right of an employer to engage replacement labour “in response to a strike” impacts negatively on the efficacy of strikes; and Trenstar’s submissions that NUMSA only suspended their strike and could at any time have reinstituted it.
Findings: The LRA, in allowing an employer in general to use replacement labour during a strike, has already allowed a significant weakening of the efficacy of strikes. An employer who decides to persist with an exclusion of employees from the workplace after they have ended their strike and tendered their services is no longer responding to the strike, but is choosing to use the lock-out offensively in a way that is indistinguishable from the employer who, in the complete absence of a strike, embarks on a lock-out to compel compliance with its demand. An interpretation is preferred which confines the use of replacement labour to the duration of the strike.
Order: The appeal succeeds and the order of the Labour Appeal Court is replaced with an order replacing the order of the Labour Court with one declaring that Trenstar was not entitled to use replacement labour for the purpose of performing the work of any employees who were locked out.
ROGERS J (unanimous)
PTSD AND DISABILITY
LABOUR – Compensation Commissioner – Disability – Post Traumatic Stress Disorder (PTSD) – Single stressful event bring on the condition – Police officer shot by suspect – Unable to resume duties – Expert evidence that appellant permanently disabled due to PTSD and unemployable due to his condition – Commissioner and tribunal’s finding of 39% disability not sustainable – Appeal succeeding and disablement to be determined at 100%.
Facts: The appellant was a police officer with 25 years’ experience when in 2015 he approached two men who appeared to be changing the number plate on a vehicle. One of them produced a firearm and fired two shots at him. The first shot hit appellant on abdomen and the second shot whistled past his ear and hit the windscreen of the SAPS vehicle, shattering it. He was saved by a bullet proof vest, but after the incident was unable to function and in 2016 the SAPS determined that he was unfit for further duties and his employment was terminated. Appellant lodged a claim with the Compensation Commissioner in terms of section 43(1)(a) the Compensation for Occupational Injuries and Diseases Act 130 of 1993. The ensuing award provided for a permanent disability of 39%. He lodged an objection which was heard by a tribunal.
Appeal: Against the dismissal of his objection by the tribunal and the finding that 39% disability was correct.
Discussion: Appellant’s treatment after the shooting and his diagnosis of Post Traumatic Stress Disorder (PTSD); that appellant contended that he ought to be classified as 100% disabled; the circular by the then Director-General of Labour to clarify the position with compensation of claims arising out of PTSD; the purpose of the Act and its interpretation; and that it was accepted that there was a single stressful event that brought upon the appellant’s PTSD.
Findings: The doctor found the appellant to be permanently disabled due to PTSD and unemployable due to his condition. The reports of the appellant’s experts went unchallenged and the doctor’s final findings remain undisturbed. His condition fell within the sixth classification in schedule 2 to the Act. The decision of the tribunal was based upon a misinterpretation of the Act. The circular was not binding on the Commissioner or the tribunal and in law has no status. It appears that the tribunal relied upon the physical appearance of the appellant and if this is true, it is a gross and severe misdirection. The tribunal appears to have overlooked the fact that where possible it should interpret the Act in a manner that is most beneficial to a claimant.
Order: The appeal succeeds and the decision of the tribunal is replaced with an order that the objection succeeds and that appellant’s disablement is determined at 100%.
MOSSOP J (SMART AJ concurring)
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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