17 August 2015 – Earlier this month, the Constitutional Court of South Africa began its third term of the year. In this post, we preview the fourth case of the term, Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration CCT 228/14 (court papers).
Date of hearing: Tuesday, 18 August 2015
Issue: Who stands to lose when a record of proceedings that are being reviewed is incomplete?
Background: Toyota fired one of its employees. The subsequent dispute was arbitrated before the Commission for Conciliation, Mediation and Arbitration (“CCMA”), which found that the dismissal had been unfair. Toyota promptly took that decision to the Labour Court on review, but realised there were serious problems with the record of the arbitration proceedings, large chunks of which had gone missing. Toyota’s lawyers tried to reconstruct the record, using their notes, but that did not adequately remedy the defects. Toyota, probably despondent by then, did nothing to pursue its review application for over a year.
Accordingly, the CCMA sought to have the review application dismissed in July 2014. The Labour Court granted that order, reasoning that the application was hopeless in the absence of a workable record. It pointed out that Toyota, whose notes had been inadequate to plug the gaps, and who had done nothing else to pursue the application, was at least partly to blame — and that the arbitrator, who had duly made the record before it went missing, was not. The Labour Court denied Toyota leave to appeal, as did the Labour Appeal Court.
But the Constitutional Court promptly asked for written submissions on specified issues — their essence being whether it is fair for the applicant, Toyota, to be the one who suffers when the record is inadequate. Days after those written submissions were filed, the Court set the matter down, and called upon the Minister of Labour and NEDLAC — a statutory body created in 1994 and composed of labour and business representatives — to provide their views.
Things to watch: Some matters, like confirmations of declarations of constitutional invalidity, the Court has no choice but to hear. And some are so high-profile or contentious, or involve important issues of law that so manifestly require resolution, that any apex court would feel obliged to step in. In those cases, it is hard to infer much about the Court’s sympathies from its decision to set the matter down.
But other cases — like this one — are innocuous disputes, without obvious broader interest, which could have been laid quietly to rest without any need for a Constitutional Court judgment. When the Court decides to intervene in a case like that, it means at least one judge is fired up by an issue it raises, or by the plight of one of its parties. That impression is confirmed when the Court specifies the issues it wants addressed, and takes the exceptional step of asking other stakeholders, not involved in the dispute, to make submissions.
In a way, this is not surprising. The Court has an outsized passion for labour law — probably because a disproportionate number of its judges once served on the Labour Appeal Court, and include its former Judge President. Expect at least one judgment to hold impassionedly that the CCMA, not Toyota, must take the fall.