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Delayed Justice

It is a trite saying that justice delayed is justice denied. If that is the yardstick, then the South African court system is denying justice on a regular basis.

This is not a comment at all on the quality of the decision-making or on the principles of the legal system. They remain strong and unassailable. However, the inherent delays are not justifiable. The focus on the denial of justice caused by delays is normally on the criminal justice system but it is definitely not unique to that area of law.

A recent Labour Appeal Court case (Maripane v Glencore Operations South Africa (Pty) Ltd [2019] ZALAC 34) demonstrates the absurd delays that are intrinsic in the court system as it is currently structured. At the outset, it must be pointed out that the Courts keep repeating that the dispute resolution system entrenched in the Labour Relations Act is meant to be expeditious.

Glencore dismissed Mr Maripane on 7 February 2014.

CCMA Proceedings

Mr Maripane approached the CCMA, which conciliated the dispute and heard the arbitration in very quick time. Those with experience of the CCMA will know how these matters regularly take a lot longer to be finalised. Mr Maripane’s dismissal was set aside and replaced with a final written warning. Glencore was ordered to reinstate him retrospectively by 7 September 2014.

Labour Court

In September 2014 Glencore instituted an application to review that decision. In early February 2015 Mr Maripane filed a counter-application to set aside the finding that he had been guilty of misconduct. So a year later, despite a ruling in his favour, Mr Maripane remained unemployed.

The Labour Court handed down judgement on 20 September 2016, ruling in Glencore’s favour. Mr Maripane applied for leave to appeal. The application for leave to appeal was heard on 28 November 2016. Judgement in that application was only handed down on 11 May 2017 – that is over five months later. Mr Maripane remained unemployed during that time. Leave to appeal was refused. To make matters worse, despite it being a labour matter, the Court granted a costs order against Mr Maripane.

Labour Appeal Court

Mr Maripane then applied to the Labour Appeal Court for leave to appeal, which was clearly granted, as his appeal was then heard on 26 February 2019. Yes, that is more than five years after he was dismissed.

On 7 May 2019, approximately two and a half months later the Labour Appeal Court handed down its judgement. The result was a complete victory for Mr Maripane. He was reinstated retrospectively with the CCMA’s finding of misconduct set aside. Glencore was ordered to pay his costs. (Although it was a labour matter, they no doubt pursued a costs order against Mr Maripane, so there is definitely justice in that order).

Five years to finalise case

Mr Maripane no doubt celebrated his victory. However, the question must be asked – how does anyone expect an individual to survive, unemployed, for a period of over five years? The retrospective order will compensate him handsomely for lost income, but is that enough? What if he starved to death on the streets before the Courts could finalise his case?

One can be assured that if he had been one day late with any document, the Court would have insisted on an application for condonation, but how could it take five months for a Court to hand down a three page judgement refusing leave to appeal (which was subsequently set aside)?

Whether the Courts are overloaded or not, and regardless of administrative challenges which they face, it cannot be said that justice is ever served when an employee waits for over five years to be reinstated. Mr Maripane’s case is not unique, it is a regular occurrence in the Labour Courts.

The labour dispute resolution system is definitely not expeditious. Perhaps if Judges had to apply to the parties for condonation for taking five months (and sometimes longer) to hand down judgements, with possible adverse costs orders, the process may be speeded up.

On a daily basis, justice is being delayed and denied.