Date of directive – 15 September 2010

The Judge President of the Labour Appeal Court and Labour Court of South Africa hereby issues the following Practice Directive in respect of the Labour Court.   This Directive consolidates and supplements all previous directives.

CONTENTS

1      Status of this Directive.

2      Terms.

3      Hours.

4      Mode of address and introduction.

5      Dress.

6      Urgent applications.

7      Motions.

7.1       Unopposed motions.

7.2       Opposed motions.

7.3       Applications to review and to set aside arbitration awards.

8      Referrals in terms of Rule 6.

8.1       Default judgments.

8.2       Trials.

8.2.1        Pre-trial procedures.

8.2.2        Court papers.

8.2.3      Continuous roll

9      Filing of practice notes and allocation of matters to judges.

10        Postponements and removal from the roll.

11        Fast tracking of matters.

12        Service of documents.

13        Applications for condonation.

14        Applications for leave to appeal .

Date of Directive: 15 September 2010.

FORM “A”.

Annexure “A”.

1          Status of this Directive

1.1       This Directive aims to promote active case management by Judges, to improve the efficiency with which disputes referred to the Labour Court are managed, and in particular, to promote access to justice by all those whom the Labour Court serves.

1.2       This Directive will come into operation on 18 October 2010 i.e. the commencement of the fourth term of 2010, after which any previous Directives issued by the Judge President regulating the matters referred to in this Directive cease to be of any effect.

2          Terms

Each year, the Judge President will determine the Court’s terms and administrative recesses.

3          Hours

The Labour Court will sit from 10:00 to 11.15, from 11.30 to 13:00, and from 14:00 to 16:00.   A judge may, where it is expedient to do so, direct that his/her court sit outside the above hours.

4          Mode of address and introduction

4.1       A Labour Court Judge must be addressed and referred to in the same way as a party or representative would address or refer to a High Court Judge.

4.2       It is not strictly necessary for legal representatives to present themselves to the presiding Judge prior to the commencement of proceedings, except in the case of trials, when legal representatives must arrange with the Judge’s secretary/associate to present themselves in Chambers at least 15 minutes prior to the time that proceedings are scheduled to commence.   In all other proceedings, only legal representatives who have not previously met the presiding Judge should introduce themselves.

4.3       All representatives must complete an attendance form which must be handed up when their matter is called.

4.4       All legal process filed with the Court must be typed or printed on standard A4 paper with at least: I.5 spacing; letters and numbers being no less than of size ‘12’; and, margins of about one inch on either side of the page.

5          Dress

Legal representatives must robe when they appear in the Labour Court.   Only white shirts and blouses may be worn. Union officials and officials of Employer Organisations must be appropriately dressed, persons wearing jeans and/or T-shirts will not be allowed to represent parties.

6          Urgent applications

6.1       In Johannesburg, the Judge President will assign a Judge for each week of the term to hear urgent applications.   The duties of the Judge may, at the direction of the Judge President or Deputy Judge President, be extended to other seats of the Court.

6.2       During recess, a duty Judge will be assigned to hear urgent applications.

6.3       An urgent application may be set down for hearing only by prior arrangement with the Registrar, at a time convenient to the Judge who is to hear the matter.    Parties may not approach a Judge or a Judge’s secretary/associate directly to arrange for an urgent application to be heard.

6.4             Prior to the hearing of any urgent application, the applicant’s representative must prepare a draft order and have a copy of the draft available in Court, both in printed and in electronic form.

7          Motions

7.1       Unopposed motions

7.1.1   In Johannesburg, unopposed motions will be set down on an unopposed motion roll and heard by the Judge assigned to hear unopposed applications.

7.1.2   An applicant must index and paginate the Court file before the matter is allocated a date of hearing, heads of argument need not be filed unless the applicant is directed to do so.

7.2       Opposed motions

7.2.1   No date will be allocated for the hearing of an opposed motion unless the parties have filed their heads of argument and the documents and           pleadings are secured and paginated and an index to the paginated bundle is filed.

7.2.2   Where a party fails to file heads because of an inability to do so on the grounds that the party is appearing for him/herself and is indigent, the Deputy Judge President may be approached for the matter to be allocated a date in the absence of compliance with 7.2.1 above.

7.2.3   In cases where one party for whatever reason fails, neglects or refuses to file heads timeously, an application to compel may be sought with a prayer that the opposition or the application, as the case may be, be dismissed if there is no compliance within a set time period.

7.2.4   Where a party is able to do so, heads of argument should in addition be sent via email to the following address: [email protected]

7.2.5   A Judge hearing an opposed application may at any time direct that all or any of the parties file supplementary heads of argument.

7.3       Applications to review and to set aside arbitration awards

Parties are reminded that Rule 7A requires an applicant in a review application to copy, serve and file only those portions of a record that are necessary for the purposes of the review.   The filing of unnecessary portions of a record is a factor that may be taken into account for the purposes of any order of costs.

8          Referrals in terms of Rule 6

8.1       Default judgments

8.1.1   An application for default judgment must be made in accordance with the attached Form “A”, which must be sent to the Registrar.

8.1.2   The application must be accompanied by an affidavit deposed to by the applicant in which the applicant:

  • Confirms the correctness of the facts averred in the statement of case and the relief sought;
  • Confirms that service of the statement of case has been effected in terms of the Rules and clause 12 of this directive;
  • Records the applicant’s remuneration (in dismissal cases) at the time that the claim arose and any details of employment subsequent to that date; and
  • Deposes to any other facts that the applicant considers relevant.

8.1.3   The Registrar must place the application for default judgment before a Judge in Chambers.

8.1.4   If the Judge is satisfied that the requirements for default judgment have been met, the Judge must grant judgment by default in favour of the applicant.

8.1.5   If the Judge is not satisfied that the requirements for default judgment have been met, the Judge may issue a directive as to any further requirements that the applicant must meet, and may require the applicant to appear in Court on a designated day to lead evidence in support of the applicant’s claim or to re-serve the referral upon the respondent to comply with clause 9 of this directive.   Default judgment may not be refused in chambers, but the matter will be set down on the unopposed roll and dealt with in open Court.

8.2       Trials

8.2.1   Pre-trial procedures

8.2.1.1            In addition to addressing the matters listed in Rule 6(4)(b), pre-trial minutes must address the questions recorded in any of the annexures attached to directives issued by the Judge President that are relevant to the dispute.

8.2.1.2            When the Registrar receives a pre-trial minute, or the time period for filing a pre-trial minute expires (as the case may be), the Registrar must without delay forward the file to a judge in terms of Rule 6 (5).

8.2.1.3           The Judge may issue a directive as to the further conduct of the matter, including, but not limited to:

  • a mediation meeting before a Judge in chambers;
  • a request for intervention by the CCMA;
  • any amendment to the pleadings that the Judge considers that the parties should consider;
  • the holding of a further pre-trial conference;
  • the filing of a further or a supplementary pre-trial minute dealing with such matters as the Judge may direct;
  • the manner in which any determination of any points in limine must be determined;
  • the exchange of documents; and
  • the allocation of a trial date.

8.2.2   Court papers

8.2.2.1     At least three court days prior to the hearing:

  • The referring party must prepare a bundle of pleadings and ensure that it is securely bound and paginated;
  • the referring party must prepare an index to the paginated bundle; and
  • a separate bundle of other documents, such as notices and copies, must be prepared and securely bound.

8.2.3      Continuous roll

The Labour Court in Johannesburg runs a continuous roll, i.e.   a trial continues from the date of set down until it is complete, and the parties and their representatives must be available to complete the trial.   A Judge in the other seats of the Labour Court may also insist that the matter before him/her continue until it is finalised.

9          Filing of practice notes and allocation of matters to judges

9.1       Before 9:30 at least three court days before a matter on the trial roll or opposed motion roll is set down to commence, the applicant’s counsel, instructing attorney, Trade Union or the Employer’s Organisation (where the party is represented by a Trade Union or Employer’s Organisation) must address an email or a fax marked for the attention of the Deputy Judge President [Email address  [email protected].   Fax no 011-403 2825] providing the following information on a note carrying the heading of the matter:

(a)       The date and the seat of the labour court where the matter is allocated to be heard;

(b)       whether the matter has been settled, or is otherwise to be withdrawn, or if any issue raised on the papers will not be pursued;

(c)        what prospect there is of the matter being settled;

(d)       the likely duration of the matter;

(e)       the names and telephone numbers (preferably cellphone numbers) of the representatives on both sides or, if not represented, the cell number of  the party concerned;

(f)         a brief description of the issues involved; and

(g)       if any witness and/or legal representative from out of town will be testifying or appearing.

9.2       If the applicant party fails to provide the information, the respondent party must do so and may seek a special costs order therefor.   The respondent must provide the above information before 12:30 at least two days before the matter is to be heard.

9.3       If the above information is not provided timeously, no Judge may be allocated to hear the matter or where a judge has been allocated he/she may refuse to the hear the matter.

10        Postponements and removal from the roll

Once a matter has been set down for hearing, the matter may only be removed from the roll or postponed with the consent of the Judge President or the Deputy Judge President or the Judge seized with the matter.

11        Fast tracking of matters

11.1    If any one or more parties are of the view that a matter ought appropriately to be afforded priority in the allocation of a hearing date, they may request the Judge President to direct the Registrar to afford the matter priority.

11.2      This is an exceptional provision and is intended to apply, for example, to disputes that concern matters involving important issues of public policy, claims for reinstatement by a significant number of employees, or some other circumstance that warrants priority being afforded to a referral.

12        Service of documents

When a party serves any document by fax in terms of Rule 4, the deponent to any affidavit filed in terms of Rule 4(2)(b) must, in addition to providing proof of the correct fax number and confirmation that the whole of the transmission was completed, state under oath that the party to whom the fax was addressed telephonically confirmed receipt of the whole of the fax transmission and the name of the person who confirmed receipt of the transmission.

13        Applications for condonation

Applications to condone the late referral of statements of claim or late filing of responses to statement of claim will be set down for hearing prior to the enrolment of the matter for trial.   In all other cases, applications for condonation will be heard with the main application.

14        Applications for leave to appeal

14.1    A copy of any application for leave to appeal filed in terms of Rule 30 must also be served on the secretary/associate to the Judge from whom leave to appeal is sought.   If the judge’s secretary/associate is not available it may be served on the secretary/associate of any other judge in the seat where the matter was heard.

14.2         An application for leave to appeal will be decided by the Judge, in Chambers, on the basis of the submissions filed in terms of Rule 30 (3A), unless the parties are of the opinion that the matter must be heard in open court or the Judge directs otherwise.

Date of Directive: 15 September 2010

FORM “A”

APPLICATION FOR JUDGEMENT BY DEFAULT

IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG/CAPETOWN/ DURBAN/ PORT ELIZABETH

Case no.

In the matter between

………………………………………………..                                                Applicant

and

……………………………………………….                                             Respondent

APPLICATION FOR DEFAULT JUDGEMENT

_______________________________________________________________

[1]        The referral having being duly served on the Respondent.

[2]        The time for giving notice to oppose the referral having expired on ………………………

[3]        The respondent has not given notice to oppose the matter.

[4]        The applicant hereby applies for judgment by default against the respondent as claimed in the referral.

[5]        An affidavit in support of this application is filed herewith marked ‘A”.

Dated this  ……………….   day of  ………………………….   20…..

Sign____________

Name and address of  ……………………………………………………………

Applicant/Applicants’ representative…………………………………………….

Telephone/fax no./ e-mail address………………………………………………

Annexure “A”

_____________________________________________________________

Affidavit

I the undersigned (full names)___________do hereby make oath and state:

1          I am the applicant in the matter and the facts contained herein are within my own knowledge and to the best of my belief true and correct.

2          I hereby confirm the correctness of the facts averred in my statement of case and the relief sought and further confirm that service of the statement of case has been properly affected (sic) as provided in the rules of this Court upon the respondent.

3          At the time of my dismissal my gross remuneration was the sum of R___ per month.   Since my dismissal I have been employed as and from _date/s_______ and have earned a total amount of R__________ from the date of my dismissal to the date of signing this affidavit.

4          I pray for the relief as prayed for in my statement of case.

___________________

Applicant

Signed and sworn before me on this       day of          2010 the deponent having declared that he knew and understood the contents of the affidavit, that he had no objection to taking the oath, considered the oath binding on his conscience and utter the words “so help me God”

_____________________

Commissioner of Oaths

(Stamp)