Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO and Others

The applicant employer dismissed Ms Jane Moabelo for misconduct in October 1998. She referred an unfair dismissal dispute to the CCMA. At arbitration in May 2000, the commissioner refused to allow the employer legal representation under section 140(1) of the Labour Relations Act 66 of 1995 and refused a postponement when the employer said it could not proceed without its lawyer. The employer withdrew from the arbitration, after which the commissioner found the dismissal unfair and ordered reinstatement with compensation. The employer successfully reviewed the award in the Labour Court on the narrow ground that a postponement should have been granted, but failed on constitutional and bias arguments. The employer appealed to the Labour Appeal Court, which dismissed its constitutional challenge. The employer then sought leave to appeal to the Constitutional Court, challenging the constitutionality of section 140(1), despite the provision having been repealed.

The application for leave to appeal was dismissed. No order as to costs was made.

The case underscores the Constitutional Court’s discretionary approach to deciding constitutional issues, particularly where legislation has been repealed and no live dispute remains. It highlights the Court’s insistence on practical effect and the interests of justice as prerequisites for constitutional adjudication, especially in labour law disputes.