Abstract:
Magistrates in South Africa play a very important role in the administration of justice.
They carry out both judicial and administrative duties to ensure that law and order
are maintained.
Because of the vital judicial role that magistrates play it is imperative that there
should be certainty regarding the appropriate remedies that are available to them
should their constitutional right to fair labour practices be infringed in the performance
of their duties.
In this regard section 23 of the Constitution of the Republic of South Africa, 1996 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. Even though magistrates are not
specifically excluded from the scope and ambit of the LRA, uncertainty still prevails
in South African law regarding their entitlement to the remedies provided for by labour
law. It has been suggested that magistrates cannot be employees in view of the
fact that the Constitution requires the judiciary to be independent.
This dissertation aims to establish whether magistrates could be categorised as employees
in terms of the traditional tests used to establish employment. It furthermore
seeks to establish whether the constitutional guarantee of an independent judiciary
and the existence of an employment relationship are mutually exclusive.
