Director General: Department of Employment and Labour and Another v Green Secure Group

This was an unopposed application where the first applicant (Director General: Department of Employment and Labour) sought to have a compliance order issued against the respondent (Green Secure Group) made an order of court in terms of s 77A(a) of the Basic Conditions of Employment Act (BCEA). The compliance order was issued before 1 January 2019, and the application was initiated, served and filed prior to that date. On 1 January 2019, s 77A(a) of the BCEA was deleted by s 21 of Act 7 of 2018, effectively shifting the enforcement of compliance orders from the Labour Court to the CCMA. The second applicant (CCMA) was invited to participate by the Judge President to assist in determining whether the court still had jurisdiction to make the order sought, and the consequences of any lack of jurisdiction for similar pending applications.

• Whether the Labour Court retained jurisdiction to make compliance orders an order of court in respect of applications that were pending before 1 January 2019 when s 77A(a) of the BCEA was repealed
• Whether the amendment to the BCEA had retrospective effect on pending applications
• The application of the presumption against retrospectivity in statutory interpretation
• The distinction between substantive and procedural amendments to legislation
• The treatment of pending applications versus compliance orders issued but not yet subject to court applications

The court granted an order in terms of prayers 1, 2 and 3 of the notice of motion, making the compliance order an order of the Labour Court. The court confirmed its jurisdiction over this and other applications that were pending before it on 1 January 2019.

In the absence of express transitional provisions, legislative amendments that affect the jurisdiction of a court do not apply to proceedings that were already pending before that court at the time the amendment came into effect. An application is 'pending' when it has been delivered (served and filed) in the court. The presumption against retrospectivity, grounded in the rule of law and principles of fairness and legal certainty, means that parties who have already initiated proceedings in a particular forum retain the right to have those proceedings determined by that forum, notwithstanding subsequent amendments that would otherwise divest the court of jurisdiction. However, this protection extends only to pending proceedings, not to potential proceedings based on compliance orders or written undertakings that had not yet been brought before the court at the time of the amendment.

The court observed that applications that had been withdrawn from the roll pending adjudication on the jurisdictional point could be re-enrolled for hearing without infringing the principles enunciated in the judgment. The court also commented that the fact that standard forms issued by labour inspectors referred to the Director General's right to apply to the Labour Court does not create a binding obligation to use that forum, nor does it preclude the Director General from approaching any forum with jurisdiction under the new procedure. The court noted the obvious disruption, inconvenience, wastage of time and money, and other complications that would attend insistence upon pending cases being re-instituted before the CCMA, drawing on similar observations from Haffegee regarding the practical consequences of requiring re-institution of proceedings.

This case is significant for establishing the Labour Court's jurisdiction over transitional matters following legislative amendments to the BCEA that shifted enforcement powers from the Labour Court to the CCMA. It provides guidance on the application of the presumption against retrospectivity in labour law, particularly regarding pending applications when jurisdiction is transferred by statute. The judgment clarifies that 'pending' means the application must have been delivered (served and filed) in court before the amendment took effect, not merely that a compliance order was issued or written undertaking given. This case is important for understanding how courts interpret legislative amendments that affect jurisdiction, particularly where there are no express transitional provisions, and reinforces constitutional principles of fairness, legal certainty and the rule of law in the context of procedural changes.