May 16, 2019
May 16, 2019
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Magistrates in South Africa play an important role in the administration of justice. The scope of their duty is to ensure that law and order is maintained. On this premise, it is imperative that there be certainty regarding the appropriate remedies that are available to magistrates in the event that their constitutional right to fair labour practices be infringed whilst rendering of their duties. In this regard section 23 of the Constitution of the Republic of South Africa affords everyone the right to fair labour practices. This right has been given effect to by the enactment of the Labour Relations Act, 66 of 1995 (“LRA”), which affords the right to fair labour practices to employees only. 

In President of South Africa & Others v Reinecke [2014] 5 BLLR 419 (SCA) the court had to determine whether a magistrate is eligible to claim damages in consideration of being subjected to constructive dismissal. Reinecke initially approached the Commission for Conciliation, Mediation and Arbitration (“CCMA”) for relief, but subsequently abandoned the application based on an unreported judgment delivered by the CCMA in terms of which it was held that a magistrate is not deemed an employee under the LRA and, therefore, did not fall within the protective provisions of the LRA.

Similarly in Khanyile v Commission for Conciliation, Mediation & Arbitration & Others (2004) 25 ILJ 2348 (LC), a magistrate sought to review and set aside an arbitration award in terms of which the CCMA found that the Minister of Justice had not committed an unfair labour practice by failing to promote the applicant to the rank of senior magistrate. The Court noted that the scope and application of the LRA should be ascertained from the wording of the applicable sections or looked at purely from a contextual perspective. Magistrates prima facie fall within the definition of employee by virtue of being persons who work for other persons or for the state and who receive remuneration. However, given the special constitutional nature and function of a magistrate’s position, it is necessary to construe the definition within a broader constitutional framework.

The court went further by considering the provision of the Constitution dealing with judicial officers and those of the Magistrates Act relating to the appointment, promotion and remuneration, discipline and discharge of magistrates. It followed findings of the Constitutional Court in Van Rooyen & others v S & others 2002 (8) BCLR 810 (CC) which strongly suggested that, by virtue of their office, magistrates should not be seen as employees entitled to engage the processes of the LRA for the purposes of protecting their rights. As judicial officers they hold a constitutional and statutory office, and the requirements of judicial independence render it inappropriate for commissioners of the CCMA, who are not judicial officers, to pronounce on their conduct or suitability for promotion.

The court further found that the Constitutional Court judgment is unassailable authority for the proposition that the constitutional structure contemplates disputes about the promotion of magistrates to be matters falling within the exclusive remit of the Magistrates Commission. Therefore, the court held that a magistrate is not an employee as defined within the LRA by virtue of the special constitutional position a magistrate holds as a judicial officer appointed in terms of Chapter 8 of the Constitution.


This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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