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South Africa: New rules for the Labour Courts – what employers need to know

6 May 2024
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Overview

  • New Labour Court and Labour Appeal Court rules have been published in the Government Gazette.
  • The new rules reflect technological advancements, making provision, among other things, for service and filing via email (as opposed to fax) and virtual hearings.
  • The changes appear to be aimed at ensuring that matters referred to the Labour Court in particular, are dealt with efficiently in an effort to clear a challenging backlog.
  • Some of the key provisions that employers should know about are outlined in this article.

On Friday, 3 May 2024, the much-anticipated new Labour Court and Labour Appeal Court (LAC) rules were published in the Government Gazette. These rules replace the rules that have been in force since 1996, as well as the Practice Manual for the Labour Court which has applied since 2013.

The new rules contain significant changes to procedure, many of which provide welcome clarity and structure to existing processes. They also reflect technological advancements, making provision, among other things, for service and filing via email (as opposed to fax) and virtual hearings. All these changes appear to be aimed at ensuring that matters referred to the Labour Court in particular, are dealt with efficiently – an effort to clear a challenging backlog.

It is not yet clear when the new rules will become effective, and we anticipate that the effective date will be published in the Government Gazette in due course.

While practitioners will need to become familiar with the technical details of the rules, this article highlights some of the key provisions that employers should know about. 

Introduction of ‘dies non’

One of the first welcome changes to the rules in both the Labour Court and LAC is the introduction of dies non over the Christmas period. Previously, the time 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 time periods. This will no doubt come as a relief to employers, whose holiday plans will no longer be scuppered by unexpected litigation.

New requirements for review applications

One of the most common applications that fill our Labour Court rolls is review applications. 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. Failing to comply with the new requirements may result in the litigant being penalised by an appropriate costs order. 

Gone are the days of lengthy affidavits with a detailed chronology of the background facts. 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.

The time periods for filing the record and subsequent process in the review are also now clearly stated, after years of uncertainty created by some contradictions between the rules and the Practice Manual.

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).

The time periods for filing each affidavit are specified (being seven days to file an answering affidavit; five days to file a replying affidavit; and five days to file the fourth affidavit) and the application will be provisionally enrolled for hearing during the week following the week in which heads of argument have been exchanged. The effect of this is that an opposed application in restraint of trade could be heard within slightly over a month after it was launched by a party.  

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.

Virtual hearings

The Covid-19 pandemic introduced the concept of virtual hearings. The Labour Court rules now formally make specific provision for virtual hearings, on request by one or more of the parties, or by direction 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.

Media access to proceedings

The rules for both the Labour Court and the LAC 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 for 15 minutes before the commencement of proceedings each day; and during any adjournments, argument where no evidence is led and judgment and/or other juridical rulings.  Should representatives of the media wish to photograph, film or record any judicial proceedings, they must make application to the court.