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We need to talk about what is happening at the CCMA – it’s a mess

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Tzvi Brivik is a director at Malcolm Lyons & Brivik and the founder of LegalLyons, the firm’s secure, online, legal consulting division. He has substantial experience in labour law, medical malpractice, personal injury and discrimination matters – including ground-breaking litigation regarding the rights of whistle-blowers.

In November 2020, part-time commissioners, who hear the bulk of CCMA cases, were advised that budget cuts would result in a significant reduction of their numbers and the number of matters allocated to them. No new cases would be set down for hearing by part-time commissioners until March 2021.

Protection and promotion of fair labour rights in South Africa are premised largely on a functioning and efficient Commission for Conciliation, Mediation and Arbitration (CCMA). But recent developments and R600-million in budget cuts seemingly portend the imminent collapse of the very institution South Africa has proudly put in place to ensure their enforcement through the provision of necessary advice, access to justice and (in appropriate cases) recourse for mostly individual, unrepresented and non-unionised workers who lack access to other forms of legal assistance.

Labour matters at the CCMA are heard by full-time and part-time commissioners, with the latter making up most of the matter-hearing staff complement nationwide. In Cape Town alone, the CCMA’s commissioner body comprises about 12 fulltime and 50 part-time commissioners. Not only do part-time commissioners deserve recognition for always having performed most of the CCMA’s work, but also for the valuable contribution they make – bringing, as many of them do, immense experience and knowledge from a variety of backgrounds including as lawyers, ex-unionists, industrial relations and human resources specialists, to name a few.

In November 2020, part-time commissioners were advised that budget cuts would result in their numbers as well as the number of matters allocated to them being significantly reduced and that no new cases would be set down for hearing by part-time commissioners until March 2021 — a directive that follows many months of lockdown and other necessary Covid-19 health and safety measures with concomitant case backlogs.

The result: no new unfair dismissal, unfair labour practice or mutual-interest matters will be heard for many months and the already immense backlogs of both part-heard and already referred matters will be worsened significantly as small numbers of full-time commissioners are left to drown under ever-increasing piles of referrals from those seeking assistance.

Notwithstanding indications that matters will be set down again for hearing from March 2021, there is, as yet, no indication of how the CCMA will suddenly find the funds necessary to pay its part-time commissioners – yes, the very same part-time commissioners that effectively keep the CCMA running and, in so doing, play a significant role in giving meaning to protective labour laws.

Additionally, and perhaps even more poignantly, little or no regard seems to be had for the once 250-person strong, pre-C0vid-19 lines of largely unrepresented, individual and non-unionised claimants seen daily, winding around the block outside the CCMA offices (certainly in Cape Town) seeking both advice and assistance.

Are these many thousands of human beings to be denied access to justice entirely? Not only has this walk-in advice and matter referral function ceased since the implementation of Covid-19 restrictions, but also there is no indication of when, or even if, it will resume… and that is to say nothing of the need for condonation applications when their matters are inevitably referred late (meaning outside the timeframes stipulated in law). Who will decide these thousands of applications for condonation and what will this further increase in workload do to existing case backlogs?

And what of matters of equity, demarcation, interpretation of agreements and retrenchments; or those requiring advisory awards that must go through the CCMA?

In a time when both suffering and unscrupulous employers are flouting South Africa’s labour laws and many workers are finding themselves unfairly dismissed, unfairly retrenched or subject to various other unfair labour practices, it seems a particularly inopportune time to render meaningless their rights, along with the very institution established to ensure their respect, promotion and protection.

At this point, it also bears remembering that, as independent contractors, part-time commissioners were left without income during the first few months of the Covid-19 lockdown as the CCMA was forced to close its doors and that, again, as independent contractors, they have been unable to access any of the financial aid packages that the government has made available. They offer their time and expertise because this is the work they want to be doing and they are motivated to do it.

If we refuse to acknowledge and talk about what is happening at the CCMA, fail to demand clarity regarding the rationality of the budget cuts, as well as the decision to reduce the number of part-time commissioners, and stand by in silence as we watch this happen, we render ourselves complicit in the devastation of hard-earned workers’ rights. This would not only suggest complete disregard for this country’s socioeconomic and political history, but will also ultimately affect us all and South Africa’s post-Covid-19 economic recovery. DM

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All Comments 3

  • Thanks for this. But right now, in sunny South Africa, this matter is just another matter to add to the heap of problem we have. We not only need to sit down and discuss this matter but many others. Question is, who do we need to discuss it with? And will that person listen?

  • Thank you for this article. Sad indeed… another institution for equity dashed at the foot of that giant that is corruption. The cumulative and pervasive effect of this giant is probably even more staggering than we can imagine.