New practice manual for the Labour Court

May 1st, 2013
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By Mapula Sedutla

A new practice manual for the Labour Court came into effect on 1 April. The manual was modelled on similar ones that apply in various divisions of the High Court and it sets out guidelines on the standards of conduct expected of those who practise in the court.

The directive aims to promote access to justice to those who are served by the Labour Court and to promote consistency in practice and procedure.

The manual is not, however, intended to substitute the rules of the Labour Court; it is to be used for the application of these rules in the daily functioning of the court. The provisions of the manual also apply flexibly to promote their purpose.

Further, the directive seeks to obtain uniformity among judges in respect of practice rulings, although no judge is bound by practice manuals and the manual was not intended to limit judicial discretion. Rather, it sets out what is to be expected in the normal course of events.

Failure to comply with its provisions will be met with an applicable sanction, which may include an order for costs de bonis propriis.

Topics covered in the manual include dress code, mode of address and introduction, court sittings, format of legal process, referrals in terms of r 6 and trial procedures, motion procedures, urgent applications, contempt of court, general provisions, application for leave to appeal, archiving files and pro bono exemptions.

Below are some highlighted points from the manual. A full version of the document can be found at www.justice.gov.za/labourcourt/pracdir/2013-practice-manual.pdf.

Trial procedures
Dress code and mode of address

The manual sets out specific dress codes for attorneys, junior and senior counsel. Those who are not properly dressed run the risk of not been ‘seen’ by the presiding judge.

According to the manual, judges of the Labour Court are to be addressed in the same manner as judges of the High Court (ie, ‘my Lady’ or ‘my Lord’).

Default judgments

The practice manual states that default judgments will ordinarily be dealt with by a judge in chambers. The manual further states: ‘An application for default judgment must be made after the expiry of the dies for the filing of a statement of the response in terms of r 6(3)(c) of the rules of the Labour Court and form 1, which must be delivered to the registrar’ (10.1.2). The default judgment must be handed in with an affidavit prepared by the applicant to which he confirms the points set out in 10.1.3. Once the registrar has placed the application before the judge in chambers, and if the judge is satisfied that the requirements for default judgment have been met, the judge will grant judgment. If the judge is not satisfied that the requirements for default judgment have been met, the judge may issue a ruling as to any further requirements that the applicant must meet, and may require the applicant to appear in court, lead evidence or provide any document the judge may require in support of the applicant’s claim.

Pre-trial conferences and set downs

Point 10.4.1 states that, except for matters that are selected for case management, a pre-trial conference must be held and minutes of the conference are to be filed in the time limit prescribed by r 6(4)(a). If the issue in dispute relates to an alleged unfair dismissal for operational requirements, some of the aspects to be addressed are:

  • The applicant must indicate whether he admits that there was a need to retrench. If not, he must state the basis for failure to admit this. The respondent must give a response thereto.
  • If the applicant contends there were alternatives to retrenchment, he must state what these alternatives were. The respondent must give a response thereto.
  • If the issue in dispute relates to an alleged unfair dismissal for participation in unprotected strike action, some of the aspects to be addressed are:
  • The applicant must indicate whether he admits to participating in strike action. If he admits to this, he must indicate whether the strike was protected or unprotected.
  • If the applicant argues that dismissal was inappropriate, he is required to set out the factual basis for this. The respondent must give a response thereto.
  • If the issue in dispute relates to an alleged automatic unfair dismissal, the aspects to be addressed are:
  • The applicant is required to set out on what basis he contends the dismissal to be automatically unfair.
  • If the applicant contends that the dismissal is based on discrimination, he must set out the basis for so contending. The respondent must give a response thereto.
  • If the respondent admits that there was discrimination, but argues that the discrimination was fair, he must set out the basis for this. The applicant must give a response thereto.

Settlement agreements and draft orders

The manual states that if parties to a trial enter into a settlement agreement before the trial date, the registrar must be informed as soon as the settlement agreement is finalised. The settlement agreement will be made an order of court only if –

  • the representatives of all parties are present in court and confirm the signature of their clients and that their clients want the settlement agreement to be made an order of court, or
  • if proof is provided to the satisfaction of the judge of the identity of the persons who signed the settlement agreement and that the parties want the settlement made an order of court.

Also, if the parties to a trial have settled a dispute on terms set out in a draft order, a judge will only make the draft order an order of court if –

  • the representatives of all parties are present in court and confirm that the draft order correctly reflects the terms agreed on, or
  • proof is provided to the satisfaction of the presiding judge that the draft order correctly reflects the terms agreed on.

Motion proceedings
Applications to review and to set aside arbitration awards and rulings

According to the manual, if an applicant fails to file a record in the set period, the application will be regarded as withdrawn, unless the respondent has consented to an extension of time. If the respondent refuses to give consent, the applicant may apply to the Judge President in chambers for an extension of time. Applications under ss 145 and 158(1)(g) of the Labour Relations Act 66 of 1995 should not be brought in respect of proceedings that are incomplete.

Heads of argument

The manual sets out that the filing of heads of argument in unopposed motions is not a requirement for setting a matter down. The heads of argument need not be filed unless the judge directs that they should be filed. In opposed motions, unless otherwise stated in the notice of set down, the applicant must deliver heads of argument at least 15 days prior to the hearing of an opposed application. The heads of argument must be clear, concise and without unnecessary elaboration. If a party fails to file heads of argument timeously, the court may make a punitive costs order against it and may, in certain circumstances, strike the matter from the roll.

Postponements

Point 11.7 states that an application will generally not be postponed; when it is, it will be postponed to the roll of the presiding judge in the same week or at some future date. If both parties agree to a postponement, this shall be recorded in writing by them and shall be filed together with the relevant practice note. The written agreement to postpone must set out the grounds for such agreement being necessary.

Urgent applications

The manual explains that in Johannesburg there is a duty judge designated for hearing urgent applications for each week of the year. The week commences on Sunday at 6 pm and terminates the following Sunday at 6 pm. Those who wish to make an urgent application must contact the registrar (the after-hours number of the duty registrar is 082 462 0508); they must not approach a judge or a judge’s secretary for this reason.

The standard time for making an urgent application, whether during term or in recess, is 10 am on Tuesdays and Thursdays. If an urgent application cannot be brought at these times, it may be made on any other day of the week at any time, but the applicant in the founding affidavit must set out facts justifying this. However, this does not apply to applications for interdicts in respect of strikes and lock-outs that are contended to be unprotected, or to applications to interdict acts of violence or any unlawful conduct that may occur during industrial action.

Applicants seeking interdicts in respect of strikes or lock-outs that are contended to be unprotected are to do so under the provisions of s 68(2) and (3) of the Labour Relations Act.

Applications for leave to appeal

The manual states that a copy of any application for leave to appeal filed in terms of r 30 must be served on the judge’s secretary or, if the judge’s secretary is not available, on the secretary of any other judge in the seat where the matter was heard. Within ten days of filing the application, the party seeking leave must file its submissions in terms of r 30(3A) and the party opposing the leave must file its submissions five days thereafter. The application for leave to appeal will be decided by the judge in chambers on the basis of the submissions filed in terms of r 30(3A), unless the judge directs that the application be heard in open court. The application for leave to appeal must be filed with the registrar in charge of appeals.

Pro bono exemption

Point 17 states that: ‘In matters where one or both of the parties are represented by practitioners acting pro bono, a judge may grant an exemption from the full or partial application of the relevant portions of this manual, including issuing directives regarding, inter alia, the preparation of the record, indexing and pagination of the papers and the conduct of pre-trial conferences, as well as the need to file heads of argument.’

Mapula Sedutla, mapula@derebus.org.za

This article was first published in De Rebus in 2013 (May) DR 8.

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