New Zealand Legal Experience
I arrived in New Zealand from South Africa in December 1993, with considerable litigation experience and a broad understanding of the whole spectrum of employment law from litigation, mediation and arbitration to sitting on the bench. In New Zealand I built on this experience as an employment lawyer practicing as a barrister-sole. I have cultivated a business-centred approach focussed on the operational requirements of companies and providing practical and workable solutions to employment problems quickly.
I have resolved employment problems and given advice to a wide range of corporate clients in the following industries: fast-food, advertising, publishing, pharmaceutical, hospitality, retail, heavy industry, engineering and construction, fishing, shipping, forestry, manufacturing, television media, charities, health and education. I represented The Warehouse across the country for seven years and represented Fulton Hogan and McDonald’s for over thirteen years. I have acted for a broad spectrum of employees from senior management down. Working for employees has enabled me get to know the inner workings of companies in many other industries.
Parliamentary Select Committee Submissions
I have made written submissions and oral representations to Parliamentary Select Committees on the Employment Relations Act and its amendment as well as on the changes to the Holidays Act.
South African Experience
I hold a three-year Baccalaureas Legum Civilium (Bachelor of Civil Laws or BLC) degree and a two-year post-graduate Baccalaureas Legum (Bachelor of Laws or Llb) from the University of Pretoria, South Africa. I graduated in 1986. My degrees involved a total of 28 year-courses and 3 semester courses. In 1987 I became an articled clerk serving my first year in Pretoria at Stegmanns Attorney’s, Notaries and Conveyancers and my second year in Johannesburg at Routledge MacCallums.
Sitting in the South African Industrial Court
In 1989 I was thrust into the responsible position of having to hear labour disputes, applications and urgent injunctions and make determinations as an Additional Member of the South African Industrial Court. This court had the jurisdiction of the South African Supreme Court which is at the same level as the New Zealand Employment Court. The President of the Industrial Court at that time was Dr. D. B. Ehlers, who interviewed and appointed me as part of his program of effecting an ideological shift in the court to bring it into line with democratic ideals of the emerging new South Africa. I was extremely fortunate to have had the privilege of receiving intensive one-to-one personal training and continuing mentoring in all aspects of labour law from Dr Ehlers. Initially we sat together on the bench with me writing the decisions and later I sat with other members or alone. Sitting with Hans Schoeman on 16, 19, 20 January and 10 February 1989, we reinstated 200 strikers on an urgent injunction decided on the papers (for a full discussion of the MWASA v Perskor case see below). Draconian amendments to the Labour Relations Act came into effect during 1989 causing me a crisis of conscience and I then decided to go to the Bar.
Barrister at the Pretoria Bar
I was admitted as an Advocate of the Supreme Court of South Africa in 1989. I began my four-month pupillage in September 1989 which culminated in examinations on successive days that consisted of an 8-hour paper on the drafting of pleadings and four 1-hour papers on practice and procedure. This was followed by oral interviews with the Bar Council and two Judges of the Supreme Court. Recognised as having special expertise in employment law, I however also did other work including defending over thirty murder trials and cases such as armed robbery, rape and infanticide. At the Bar I practised as an advocate (barrister-sole) until I immigrated to New Zealand in December 1993.
Assessor on the Labour Appeal Court
While at the Pretoria Bar I was asked to sit as a specialist assessor in the Labour Appeal Court, assisting and advising the judges on Labour Law. The status of the assessors in this Court was examined by the Appellate Division which found them to be full members of the Court for all matters of fact and for deciding whether the facts constituted an unfair labour practice (see Media Workers Association of South Africa & Others v Press Corporation of South Africa Limited (Perskor), 1992 (4) SA 791). This gave me experience at the highest level of judicial decision making. As an example I sat as an Assessor in the case Council of Mining Unions v Chamber of Mines of SA (1991) 12 ILJ 796 below:
Independent Mediation Services of South Africa (IMSSA)
At the invitation of IMSSA, I was trained as a mediator and as an arbitrator. For example, between about December 1992 and March 1993, I decided 27 binding arbitrations (which could not be appealed) after the Transvaal Provincial Administration dismissed thousands of members of the Nurses Union for assaults and making threats to kill strike-breakers and burn down their houses.
Changing the bail onus in South Africa
In the course of my criminal work in South Africa I became increasingly outraged by the numbers of awaiting trial prisoners who had not been granted bail often for the most trivial of reasons. There were 640,000 people accused of serious crimes who went unrepresented through Regional Courts each year. More than one quarter of the prison population at that time was made up of these awaiting trial prisoners. The cost to the State was astronomical. I met with the then Minister of Justice, Kobie Coetzee and proposed that if the number of awaiting trial prisoners could be reduced then that cost saving could be diverted to the Legal Aid Board budget for legal representation. The Minister agreed to a pilot study headed by me aimed at streamlining the granting of bail and reducing costs to the Prison Services. A special Bail Court staffed by Regional Court Judges was proclaimed at the Pretoria Central Prison and I and three of my colleagues at the Pretoria Bar then consulted with the about 900 awaiting trial prisoners. Many new bail applications were brought in the cases where this was justified. It became clear that the real cause of the problem was that the onus in bail was on the accused instead of on the State. This was a contravention of fundamental human rights and I therefore recommended that a simple change of the onus in bail onto the State would radically change the numbers of awaiting trial prisoners. I also recommended that bail allocation procedures should be improved. The shift in of the onus in bail took place after I arrived in New Zealand with much complaint from the prosecution who now had to bring proper evidence to oppose bail.
The Mwasa V Perskor Cases
Sitting with Hans Schoeman (Additional Member) I heard the initial urgent application in a case that would become one of the most important cases in South African labour law: Media Workers Association of SA & Others v Perskor [The Press Corporation], Schoeman AM, Hartdegen AM (1989) 10 ILJ 441. We heard an application under Section 43 for a so-called status quo order which was argued with supporting affidavits before the Court on a prima facie basis without the tests usually applied for injunctive relief. This remedy was designed to provide fast relief while reinstating the workers therefore relieving hardship pending a full hearing of the case. In practice these status-quo orders frequently resulted in no substantive hearing occurring as the disputes were often resolved by the parties in the interim. It is important to note that these orders were subject to all the checks and balances of review and appeal to the highest court.
The initial Section 43 reinstatement order, January & February 1989
The dispute first came to the Industrial Court as an application for interim relief by workers who had been dismissed after an alleged illegal strike. I can vividly remember the approximately 200 chanting workers squeezed into the Court to listen to the arguments. We granted the order reinstating the workers and our first finding was that: “(1) The right, freedom or liberty to strike, is a corollary to collective bargaining. Under all circumstances the conduct of the parties should be weighed up against the concept of fairness which is inherent to the process of collective bargaining.” This concept of “fairness” ended up being examined by the Appellate Division after a series of applications, a review and appeals that flowed from this case. Our finding was that the strike was functional in relation to collective bargaining as there was no other avenue open to the workers and we therefore deemed the strike to be legal despite it being technically illegal. This raised the question of whether a “right to strike” existed in South African law. We also held the selective re-employment of some workers to be “a stratagem” and reinstated the workers.
The interim application suspending reinstatement, January & February 1989
The Company was unhappy with these findings and brought an urgent application in the Supreme Court before Mr Justice Daniels to suspend execution of the status quo order pending a review which the Company had lodged against Hans Schoeman and myself. This urgent application suspending Section 43 order was granted in the interim but only on the condition that the monetary equivalent of the workers wages was placed in their attorney’s trust account pending the review.
The review of the Section 43 reinstatement order, April 1989
The review of our initial interim order was then heard by Mr Justice Curlewis who dismissed the Company’s application with costs. The allegations of bias in favour of the workers was not upheld in this review.
The Industrial Court hearing of the dispute, August & September 1989
After the first application for interim relief in the form of a Section 43 status quo order and the flurry of applications had been heard, the original dispute was finally heard by John (Additional Member) in the Industrial Court in a trial lasting about two weeks. By that time the initial reinstatement of the workers had been suspended and their monies placed in trust. After hearing all the evidence, John agreed with our initial finding that the strike was functional to collective bargaining but decided to award the workers compensation instead of reinstating them as we had done in the interim order. His reason for this was the nine months that it had already taken for the matter to proceed through the courts. To compensate for this he awarded each worker 2 weeks wages per year of service in addition to nine months wages to the date of the decision.
The workers application for interim relief, December 1989 & January 1990.
The workers immediately sought the urgent payment of the compensation which now fell due in the Industrial Court. This was opposed by the Company on the grounds that an appeal had since been lodged in the Labour Appeal Court against the finding by John at the full hearing in Industrial Court. The workers’ application was dismissed but John ordered that the capital portion of the wages be held in trust and the interest which had accrued over the nine months it had taken to come to court be paid to the workers in alleviation of the hardship suffered as a result of the legal process.
The Labour Appeal Court hearing, October 1990
The Labour Appeal Court then heard the Company’s appeal of the Industrial Court decision. Mr Justice Spoelstra sitting with two assessors upheld the appeal holding first that “assessors play no part in deciding whether the facts found constitute an unfair labour practice”. He also found that “There is no provision in the Labour Relations Act which grants to employees ‘a right to strike’. At common law there is also no such right”. The findings of John (A.M.) and the initial Section 43 orders were accordingly set aside. Spoelstra J took no account of the principles of equity and the two specialist assessors who sat on the appeal dissented, agreeing only with the exposition of the facts. This opened the door to the final appeal to the Appellate Division.
The final Appellate Division hearing, August & September 1992
The dismissed workers filed an appeal against this finding, which was a strong attack on collective bargaining in South Africa. The Appellate Division sitting as a full bench of five judges heard the appeal. Mr E. M. Grosskopf JA, in the unanimous decision overturned the finding of the Labour Appeal Court on the main grounds that the Labour Appeal Court had not been properly constituted when the assessors were excluded. The Appellate Division held that the assessors were full members of the court for the purposes of deciding an unfair labour practice and other matters of fact. It held that by excluding the assessors, Spoelstra J had erred and the Appellate Division held the decision to be void referring it back to the Labour Appeal Court for a proper decision. This is a PDF of the decision.
Industrial Law Journal, Paul Benjamin, Martin Brassey, Edwin Cameron & others, eds., 1989-1991. Cape Town: Juta.
Media Workers Association of SA & Others v Perskor, 16 and 19 January; 10 February 1989.
Perskor v Schoeman NO & Others (1) 31 January; 1 February, 6 February 1989.
Perskor v Schoeman NO & Others (2) 5 April 1989.
Media Workers Association of SA & Others v Perskor, 11, 14-18, 21-25, 30-31 August; 5 October 1989.
Media Workers Association of SA & Others v Perskor, 6 December; 8 December 1989; 2 January 1990.
Media Workers Association of SA & Andere v Perskor, 5 October 1990.
Council of Mining Unions v Chamber of Mines of SA, 6 May 1991.
In the South African Law Reports, 1992 (4) SA 791.
Media Workers Association of South Africa & Others v Press Corporation of South Africa Ltd. (Perskor), 27 August 1992, 17 September 1992.