Newly Adopted Labour Court Rules and Labour Appeal Court Rules

The Rules Board has made a number of new rules to regulate the conduct of proceedings in the Labour Court and Labour Appeal Court, which came into operation on 17 July 2024 (New Rules).

The New Rules contain guidance on various proceedings including proceedings in respect of cross appeals; urgent appeals; practice notes; the powers of the Judge President; and media access to proceedings.

In this regard the New Rules provide for the following:

• Definitions: The definition of “days” now excludes the period between 16 December and 15 January each year, with the effect that these dates are now dies non and therefore are not counted for purposes of litigation proceedings. In addition, the definition of “serve” expressly includes service by email and therefore service may be effected by email or by hand. In the case of service by email the originals must be filed with the registrar within 10 days of such electronic filing. The definition of “serve” now excludes service by registered post, telegram, telex or fax.
• Petitions for leave to appeal: In addition to the existing rules, in terms of the New Rules the court will not consider a petitioner's affidavit for leave to appeal if it exceeds 20 pages. In addition, the petitioner who applied for leave to appeal will, within 10 days after the answering affidavit has been received, be entitled to lodge a replying affidavit dealing strictly with any new matters raised in the answering affidavit. Furthermore the New Rules entitle the judges considering the petition to call for further information, submissions or a portion of the record. The New Rules stipulate that a failure to provide the requested information or documents within the period stipulated may result in the petition being deemed to have been withdrawn. If the petition is refused no reason need be provided for such refusal. A case number in the Labour Appeal Court will only be allocated and issued upon presentation of a petition for leave to appeal or a notice of appeal.
• Cross-appeal: The New Rules state that any respondent who wishes to cross-appeal has an automatic right to do so and must deliver a notice of cross-appeal within 15 days of receipt of the notice of appeal.
• Procedure on Appeal: In terms of the New Rules a notice of appeal must be delivered within 15 days of leave being granted. In addition, the New Rules state that after an appeal has been noted, the appellant must serve a copy of the record of the proceedings in the Labour Court on each respondent and file four copies of the record with the registrar, together with an electronic version of the record in an easily-accessible format. Furthermore, one of the copies of the record filed with the registrar must be certified as correct by the appellant, and the respondent/s must, within 5 days before the heads of argument of the appellant are due, raise any issue/s concerning the correctness of the record. Where the appellant has a limited appeal not requiring the whole of the record and there is a cross-appeal, the respondent must file the record necessary for the cross-appeal. In addition to the existing requirements for the copies of the record, every copy of the record must now also include contact numbers. In addition to the existing list of documents which must not be contained in the record, the list now includes closing addresses unless the closing address is relevant to the appeal.

Other relevant changes to the appeal procedure are that a failure to file a proper record may result in the matter being struck from the roll, with or without costs; if the record has not been filed timeously, the registrar will nevertheless set the matter down for hearing and the Court will then decide whether it will hear the appeal, dismiss the appeal, or strike it off the roll, with or without an order for costs; and if condonation or an application to reinstate the appeal is sought for the late filing of the record, it will be considered with the appeal. In addition, if the appellant fails to lodge the record within the prescribed period or within the period as agreed to between it and the respondents, the appellant will be deemed to have withdrawn the appeal and it will be archived. An archived file may only be retrieved on application once the matter is ready for the appeal.

• In terms of the New Rules, an indigent party may be excused from the rules, and such a party may write to the Judge President who may direct how, what and to what extent the rules must be complied with.
• According to the New Rules, acceptance by the registrar of the record does not indicate that the record complies with the rules. If the record does not comply with the rules or if the prescribed time limits for the filing of the record or other documents are not complied with, the court may on the date of the hearing dismiss the appeal or strike it off the roll with such orders, including an order as to costs, as it deems expedient. An application to condone non-compliance with any provision of the rules will be heard simultaneously with the appeal.
• Urgent appeals: In terms of the New Rules, parties are able to on notice to all other parties apply orally or in writing to the Judge President for an appeal to be heard urgently. The New Rules provide that the application must be supported by an affidavit setting out the reasons for the urgency. A respondent may file an answering affidavit within 10 days of receipt of the application; and no reply from the applicant will be permitted. The application for an urgent appeal will be decided in chambers.
• Date of the hearing: Currently, once the record on appeal has been delivered, the registrar must notify the parties of the date, time and place of the hearing. Prior to the New Rules coming into effect the notice was to be given by fax or registered letter. In addition, virtual hearings are permissible at the request of the parties or at the discretion and direction of the presiding judge.
• Heads of argument: In terms of the New Rules the time for delivery of a copy of the heads of argument has been extended from 15 days to 30 days and the time for the delivery by the respondent of a copy of its heads of argument has been extended from 10 to 15 days. In addition to the existing guidelines for heads of argument, the New Rules state that the heads of argument must not exceed 20 pages excluding the chronology and the list of authorities.
• Practice notes: In terms of the New Rules there must be a brief typed practice note attached to the heads of argument which must indicate the name and case number of the matter; the names and contact numbers of each party's representative; the nature of the appeal; the issues on appeal succinctly stated; an estimate of the duration of the argument; which portions or pages of the record are in a language other than English; a list reflecting those parts of the record that, in the opinion of counsel, are necessary for the determination of the appeal; and a summary of the argument, which must not exceed 100 words.
• Labour Appeal Court Sitting as a court of First Instance: The New Rules extend the jurisdiction of the Labour Appeal Court in that if a matter is of national importance or affects all or a majority of employers and/or employees within a single or multiple industries, a party may request the Judge President for a direction that a matter before the Labour Court be heard by the Labour Appeal Court sitting as a court of first instance. The decision of the Judge President will be final and reasons for the decision need not be provided.
• Restraint of trade proceedings: The New Rules provide for the filing of a fourth affidavit in restraint proceedings. The timelines for the affidavits are as follows: the respondent has 7 days to file an answering affidavit to an application made by the applicant; the applicant is then afforded 5 days to reply; and the respondent is afforded 5 days to file a fourth affidavit. Following either the filing of the fourth affidavit or the expiry of the deadline of the respondent to file a fourth affidavit, the applicant must prepare and serve an index. Heads of argument must be submitted by both parties within 5 days from the date of delivery of the index and the applicant must make an application for enrolment for a hearing scheduled the week following the delivery of the heads of argument.
• Media access to proceedings: In terms of the New Rules, members of the media may (upon application to the court) take photographs and film court proceedings for 15 minutes before the commencement of proceedings each day; during adjournments; during argument where no evidence is led; and when a judgment and/or other juridical ruling is given.