The recently introduced Labour Court and Labour Appeal Court (LAC) rules are poised to make headway in addressing the backlog of cases at the Labour Court.
Published in the Government Gazette on 3 May 2024, the new rules contain significant changes to procedure, many of which provide clarity on the existing processes. They also reflect technological advancements, making provision for service and filing via email (as opposed to fax) and virtual hearings.
Chloë Loubser and Ayanda Nkabinde of Bowmans say the changes appear to be aimed at ensuring that matters referred to the Labour Court are dealt with efficiently.
The rules replace the rules that have been in force since 1996, as well as the Practice Manual for the Labour Court that has applied since 2013. However, since no date of commencement has yet been announced, it is not clear when the new rules will become effective.
According to Jan Norval of ENSAfrica, it appears that the current rules will remain in effect until a date is announced to avoid the Labour Courts functioning without any rules.
Articles published by Bowmans and ENSafrica highlight some of the key provisions employers should know about.
Introduction of ‘dies non’
Going forward, dies non (days on which courts do not sit or conduct business) will be implemented over the Christmas period.
Previously, the periods for filing court process continued to run uninterrupted over the festive period, meaning that litigants (and their representatives) had to remain on-call to, for example, prepare and file opposing papers. The rules now exclude the period between 16 December and 15 January in the definition of “day” when calculating periods.
“This will no doubt come as a relief to employers, whose holiday plans will no longer be scuppered by unexpected litigation,” says Bowmans.
New requirements for review applications
The rules now specify new requirements for review applications, including that the application must contain “no more than a concise statement of the grounds of review”.
ENSafrica clarifies that the court requires the founding affidavits to state only the following:
- Whether a part or a whole of the award is being reviewed.
- With reference to the award, what error and/or misdirection is alleged.
- Stating concisely the errors and/or misdirections.
Similarly, an answering affidavit may do no more than record “in concise terms” the grounds on which the application is opposed.
Bowmans underlines that failing to comply with the new requirements may result in the litigant being penalised by an appropriate costs order.
“The effect of these changes is that going forward, it is best to be brief. This may, too, be beneficial for employers, as it could well bring down legal costs in preparing (and opposing) these applications,” says the firm.
Specific procedure for restraints of trade
The Labour Court rules now include a specific procedure that must be followed by a party seeking to enforce a restraint of trade, by way of an urgent interdict.
“In particular, the rules make provision for the exchange of four sets of affidavits (something that occurred regularly in practice but was not expressly catered for in the rules),” says Bowmans.
ENSafrica states that the periods relevant to restraint of trades are:
- once the application is filed, the respondent has seven days to file an answering affidavit;
- then the applicant has five days to reply; and
- the respondent has five days to file a fourth affidavit.
After filing the heads of argument within five days of the application index, the case will be heard the week following the exchange of these documents.
According to Bowmans, this means that a contested application regarding a restraint of trade could be heard just over a month after it was initiated by one of the parties.
“Unless the circumstances warrant a more urgent hearing, an application in restraint of trade will be enrolled only where the procedure set out in this Rule 39 has been strictly adhered to by the applicant,” Bowmans adds.
Virtual hearings
The Covid-19 pandemic brought about virtual hearings. Now, the Labour Court rules officially include guidelines for virtual hearings, either upon request from one or more parties or as directed by the presiding judge.
“The default position, however, remains that proceedings be conducted in open court. The decision to conduct proceedings virtually is that of the presiding judge, considering the nature of the proceedings, the public interest in the proceedings and the principles of open justice,” Bowmans explains.
Efforts to better manage actions
The periods related to statements of claims have been increased.
ENSafrica states that a notice of intention to defend can now be filed within 10 days after service of a statement of claim. This period is 20 days for the State. A statement of response must be delivered within 15 days from when the notice of intention to defend was delivered.
The new rules also specifically deal with exceptions and strike-out applications, as well as replications and pleas in reconvention.
“Previously, such matters were dealt with by a hybrid application of the Uniform Rules and the Labour Court Rules. The new rules now specifically deal with such situations,” says ENSafrica.
In addition, parties can be placed under bar.
“This means a party can be prevented from participating further in a case due to their failure to meet a specific deadline,” explains ENSafrica.
If parties foresee a trial running more than three days, a motivation must be provided. A directive will be required from the Judge President if the trial is expected to exceed five days.
“This is a clear effort to minimise the length of trials to less than three days, and only in extraordinary circumstances have trials run longer than five days,” says the firm.
