Policy considerations as an overriding mechanism against peremption in the South African Labour Law

Abstract

One of the primary objects of labour law litigation and similarly arbitration, is for an unbiased third party to come to a binding decision regarding a labour related matter. This would imply that justice is served as each party received the outcome that they deserved. Any party who may be unsatisfied with the said outcome, would have the option to appeal the judgment or take the arbitration award on review. In stark contrast to the labour law rights to appeal and review, is the doctrine of peremption. The doctrine of peremption is available as a defence in labour law proceedings where one party has exercised the option not to apply for appeal or review, and thereafter decided to alter that decision. Due to the severe impact that a successful plea of peremption would have on the rights of the unsatisfied litigant, the courts have adopted strict requirements for the successful implementation of the doctrine of peremption. In recent court cases there has been a deviation from the strict enforcement of the doctrine where courts have decided not to allow the successful plea of peremption despite the fact that all the requirements have been met effectively. The focus of this study will be on the identified policy considerations that have influenced the courts in their decision to enforce peremption or not. The two most prominent policy considerations is in the interest of justice, equality and non-racism. The study aims to provide some content and context for the in the interest of justice policy consideration. It is against this backdrop that focus will be placed on social justice in labour law and how it can influence a court to decide against the enforcement of peremption. The study will also investigate the policy standard of equality and how the infringement thereof, through racial remarks in the workplace, will affect the application of the doctrine of peremption. The outcome of the research shows that policy considerations will have an impact on the doctrine of peremption as the courts have opted to overlooked peremption due to the importance of policy considerations such as in the interest of justice and equality in an equal society such as South Africa.