With the new Labour Court and Labour Appeal Court rules having taken effect on 17 July, a crucial question remains unanswered: which rules will govern cases initiated before the new rules came into effect?
The new rules, which were published in the Government Gazette on 3 May, contain significant changes to procedure, many of which clarify the existing processes. They also reflect technological advancements, making provision for service and filing via email (as opposed to fax) and virtual hearings. The rules replace those that have been in force since 1996, as well as the Practice Manual for the Labour Court that has applied since 2013.
A blog from Fairbridges Wertheim Becker, written by director David Short and candidate attorney Ciara Pillay, notes there is no formal directive regarding which rules will apply to cases initiated before the new rules took effect.
“But, in line with the established principle in Samuels v Old Mutual Bank [2017] 7 BLLR 681 (LAC), the Court held that the Practice Manual that took effect on 1 April 2013 applied to matters instituted prior to the commencement thereof. Therefore, in the current context, the same principle is likely to find application, meaning that the new rules may apply to matters that had been instituted prior to 17 July 2024.”
Short and Pillay explain this means proceedings initiated before 17 July will continue under the existing rules until the new rules take effect. From that date onward, the new rules will govern all subsequent steps in these matters.
Provisions to streamline the court process
It is hoped the new rules will help reduce the backlog of cases at the Labour Court.
Read: New Labour Court rules target backlog: what employers need to know
The changes include several provisions designed to streamline the court process. In a Norton Rose Fulbright blog, employment law director Gillian Lumb outlines the changes to review applications and new archiving procedures.
Founding affidavits in review applications must now:
- Contain no more than a concise statement of the grounds of review.
- Include no more than a statement as to whether the whole or part of the award or ruling is to be reviewed.
- Record, with reference to the award or ruling and/or the conduct of the decisionmaker concerned, each alleged error or misdirection constituting a defect in the proceedings.
- Where relevant, and without making abstract statements of principle, state why the errors or mis-directions caused the result of the award or ruling to be unreasonable, and/or why the award is irrational in relation to the evidence led during the proceedings under review.
Costs may be ordered against a party that fails to comply with these requirements.
“Considering the challenges often experienced in securing the full record of the proceedings to be reviewed, the 60-day period within which the record must be filed will only start to run once a complete record has been filed,” says Lumb.
The new rules keep the previous guidelines for archiving in motion proceedings. Applications can be archived if six months pass since they were filed or since the last action was taken by the applicant. Similarly, referrals can be archived if six months pass without any further action from the referring party after filing the statement of claim or the last process.
“A file will now also automatically be closed and archived if three months have lapsed after the date on which the initiating document was filed, and no further document is filed or other action taken by the initiating party, provided the Registrar of the Labour Court has given the initiating party 15 days’ written notice of the closure and archiving,” adds Lumb.
According to Eversheds Sutherland, notable changes include more time to prepare exchange pleadings and restraint of trade applications.
In the blog, the law firm writes that the old rules have often been criticised as being too short to enable parties the opportunity to consider their position and articulate their case in formal court processes.
Traditionally, the respondent had 10 business days to deliver a statement of response after receiving a statement of case. The new rules change this: the defendant now has 10 business days to decide whether to defend the case and, if so, to file a notice of intention to defend. After that, the defendant will get an extra 15 business days to submit a statement of response. If the defendant fails to do this, they may face a notice of bar, which could prevent them from pleading. Additionally, the plaintiff will have 15 days to file a replication after receiving the defendant’s statement of response, with further pleadings allowed if needed.
Eversheds Sutherland states the periods and processes for referrals of disputes for adjudication have become more closely aligned with the Uniform Rules of the High Court.
“While it does mean that the litigation process will, at least initially, take a little longer, this move is welcomed, as it will afford litigants to a dispute a far more reasonable opportunity to deal with labour disputes without the undue pressure that has thus far prevailed. The new rules ushers in time periods which allow for a more considered approach to litigation which is ultimately in the best interests of all concerned, including the courts,” the blog reads.
Restraint of trade applications
The new rules for restraint of trade applications include stricter procedures and deadlines. They now set minimum time-frames for exchanging affidavits and even include a deadline for a fourth affidavit, which, according to the law firm, is often needed. Parties must file their heads of argument simultaneously within five days after the last affidavit is submitted.
Additionally, when launching a restraint of trade application, the applicant must request a provisional hearing date from the registrar. This date will account for the required periods for exchanging affidavits and filing heads of argument. Once both parties have filed their heads of argument, the application can be scheduled for a final hearing.
“This, too, is a welcome move because restraint of trade applications are, by their nature, inherently urgent. Without rules regulating time periods, parties have (often arbitrarily) set their own time periods for the filing of further affidavits and the like. The new rules ensure even-handedness and fairness in dealing with these applications,” states the firm.
