Is there a constitution duty on courts of review or appeal to inquire into factors pertinent to reinstatement where reinstatement was ordered in the forum a quo

Posted: February 23, 2010 in Uncategorized

In Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others (CCT 72/09), Billiton avers that where a litigant is faced with extensive delays in the prosecution of its action, there rests a constitutional duty on courts, to grant just and equitable remedies under section 172(1)(b) of the Constitution, by inquiring into matters such as the effect of delays on the position of employer and employee, even after reinstatement orders had been granted in lower tribunals or courts (at §20).  The constitutional court in an unanimous judgment (per Froneman J) inter alia found: –

(1)    “[t]hey are matters which manifestly fall within the exclusive jurisdiction of the Labour Court in the first instance and this Court in the last instance. The problem is that these issues were not raised in the court below. The employer is therefore asking this Court to sit as a court of first and last instance on these issues. This Court has on many occasions indicated the undesirability of determining constitutional issues as the court of first and last instance” (at §21);

(2)    “[Billiton], has not proffered any explanation why these issues were never raised in the courts below. There is therefore no reason why there should be a departure from our precedent requiring a party to raise constitutional issues in the courts below prior to raising them here” (at §24);

(3)    “[c]onsiderations that play an important role in determining whether further evidence on appeal should be allowed include the importance of finality in legal proceedings; that further evidence should only be allowed in exceptional circumstances; that an explanation is required why the evidence was not led earlier; and that the proposed new evidence should be credible, material and practically conclusive… [o]r that it was either not in the possession of the employer at the time or could not have been obtained by proper diligence” (at §34 and§37);

Though the court clearly excluded any duty on an employee to mitigate his damages, e.g. by taking up alternative or temporary employment pending the finalisation of legal reviews / appeals (at (§40 and §43), it is more than likely that any employee, especially one burdened by systemic delays would take up such alternative or temporary employment.

This would then in instances where an employee is reinstated lead to an employee recovering (as averred in the Billiton case) double remuneration, i.e. firstly from the temporary or alternative employer  (whilst awaiting the finalisation of legal challenges) and secondly from the employer ordered to reinstate him or her where such challenges are unsuccessful.  The judgment in casu makes it clear that a litigant who challenges a reinstatement order is required to at every step of the way, i.e. in the Labour Court and Labour Appeal Court, seek (through the relevant sections of the Labour Relations Act) the introduction of evidence relating to the employee’s post reinstatement employment with third parties.

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