On Friday 3 May 2024, the Labour Court Rules and Labour Appeal Court Rules were published in the Government Gazette. The new rules supplement the rules that have been in force since 1996 as well as the Practice Manual for the Labour Court which has been applied since 2013. The new rules are currently in place with its effective date being that of 17 July 2024.
The new rules contain significant changes to procedure, many of which provide clarity and structure to existing processes. In addition, they reflect technology advancements, making provision for serving and filing via email (as opposed to fax) and even cater for virtual hearings.
The purpose of the new rules appear to be aimed at ensuring matters referred to the LC in particular are dealt with efficiently in an effort to clear a challenging backlog in the Labour Court.
Introduction of “dies non”
One of the major changes is the introduction of dies non over the Christmas period. Previously, the time periods for filing court processes continued to run uninterrupted over the festive period. The rules now exclude the period between 16 December and 15 January in the definition of “day” when calculating time periods.
This change will be a relief to many lawyers and clients as holiday plans need not be interrupted over the festive period.
Application for case number
Another change is found in Rule 7 relating to the application for a case number. The old form 1 has been done away with. Now, a party must send the initiating documents (so a notice of motion or statement of claim) to the Registrar by email with a request for a case number and will then receive a case number via email. That case number must be on all the pleadings before service and filing.
Service and Filing
With regards to service and filing, Rule 9 and Rule 10 now formally make provision for documents to be served and filed via email. If a pleading is filed by email, the party has 10 days to take the original to court.
Virtual Hearings
Covid introduced the concept of virtual hearings. The Labour Court rules (Rule 72) now formally make provision for virtual hearings on request by one or more of the parties or by the direction of the presiding judge.
However, it is important to note that the default position remains that proceedings be conducted in open court. The decision to conduct proceedings virtually is that of the presiding judge, considering the nature of proceedings, the public interest in the proceedings and the principles of open justice.
Honourable Judge Van Niekerk gave a presentation to SASLAW members on 5 June 2024 and he stated that virtual hearings will reduce legal costs, is more efficient and solves the problem of a court not being available. He stated that case lines will be implemented in the Labour Court soon and will make virtual hearings more possible.
Motivation for Trial days
Motivation must be provided if parties forsee a trial running more than 3 days. A directive will be required from the Judge President if the trial is expected to exceed 5 days.
This is a clear effort to minimise the length of trials to less than 3 days and only in extraordinary circumstances have trials run longer than 5 days.
All defended actions will be case managed
Meaning that a judge will certify that a case is trial ready before it is set down.
The idea here is that judges can thus control the pace of proceedings and not leave the next steps in the hands of the legal practitioner.
Media access to proceedings
The rules for both the Labour Court and Labour Appeal Court now regulate media access to proceedings of the Court. Unless the Court directs otherwise, members of the press will be entitled to take still photographs and/or video footage during court activities 15 minutes before the commencement of proceedings each day; and during any adjournments, arguments where no evidence is led and judgment and/or other judicial rulings.
Should representatives of the media wish to photograph, film or record any judicial proceedings, they must make application to the court.
Statement of claim
The time period related to the statement of claim have been increased. 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 now be delivered within 15 days from when the notice of intention to defend was delivered.
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 an urgent restraint of trade (Rule 39).
In particular, the rules make provision for the exchange of four sets of affidavits;
- Once the application is filed, the Respondent has 7 days to file an Answering Affidavit;
- The Applicant has 5 days to file a Replying Affidavit; and
- The Respondent has 5 days to file a fourth affidavit.
- Heads of argument must then be filed within 5 days of indexing the application.
The application will be provisionally enrolled for hearing during the week following the week in which heads of argument have been exchanged.
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 new Rule 39 has been strictly adhered to by the applicant and can take slightly over a month to be heard if opposed.
New requirements for review applications
One of the most common applications in the Labour Court is that of a review application. As a result, the rules now specify new requirements for these applications including that the application must contain “no more than a concise statement of the grounds of review.”
Similarly, an Answering Affidavit may do no more than record “in concise terms” the grounds on which the application is opposed.
Essentially, the Court wants the affidavits to be shorter, and only require the founding affidavits to state the following:
- Whether 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.
Failing to comply with the new requirements may result in the litigant being penalised with an appropriate costs order.
Essentially, the change means that gone are the days of lengthy affidavits with a detailed chronology of the background facts.
The time periods for filing of the record has also been clearly been stated after years of uncertainty created by some contradictions between the Rules and the Practice Manual.
The new provision states that the Applicant must deliver the record within 60 days of the date advised by the Registrar that the record has been received. However, if the CCMA for example does not deliver the complete record, the 60-day period will commence to run only once the complete record has been delivered.
Judge Van Niekerk stated that the new rules tend to bring the process of review closer to that of an appeal process by limiting the massive paper trials currently experienced in review applications.
Judge Andre Van Niekerk Presentation
Judge Van Niekerk essentially groups the new rules into three themes, namely:
- Consolidation;
- Expeditious dispute resolution; and
- Innovation
With regards to consolidation, he stated that the rules aim to consolidate everything such as directives and the practice manual into one document being the new rules. A one-stop shop.
With regards to Expeditious dispute resolution, this is evident from the introduction of case management for trials, fast tracking, deemed withdrawal and the concept of archiving. If a matter in motion proceedings has no action for 6 months, the Registrar must archive the file. There is also a new rule (Rule 69) that when a party fails to comply with a directive issued by a judge within the stipulated time, the Registrar must archive the file.
Finally, with innovation, these are the new rules such as the introduction of virtual hearings and media access.
The new rules will take time to be adjusted to especially since the old rules have been in force for such a long period of time. However, it will be a much needed and effective change to the efficiency of court proceedings.
Download a copy of the new rules here