PRACTICE MANUAL
OF THE
LABOUR COURT OF SOUTH AFRICA
This
directive comes into effect from 2 April 2013.
INDEX PAGE
CONTENTS
1.
Introduction
4
2.
Application
of Practice Manual 4 - 5
3.
Definitions 5
4.
Compliance with the manual 5
5.
Court term
and recess 5
6.
Dress code 5 - 7
7.
Mode of
address and introduction 7
8.
Court
sittings 7
9.
Format of
legal process 7
10.
Referral in
terms of Rule 6 8
10.1
Default judgment 8
10.2
Case
management 9
10.3
Interlocutory
applications 10
10.4
Pre-trial
conferences and set downs 10
- 13
10.5
Pagination,
index, binding and general preparation 14 - 15
10.6
Bundles of
documents prepared for trial 15
10.7
Practice
note 15 - 16
10.8
Roll-call 16 - 17
10.9
Continuous
roll 17
10.10
Part-heard
matters 17 -
18
10.11
Settlement
agreements and draft orders 18
11.
Motion
proceedings (excluding urgent matters) 19
11.1
Case
management 19
11.2
Application
to review awards and rulings 19
- 21
11.3
Applications
for winding up of Trade Unions or Employers Organisations
21 - 22
11.4
Filing of
answering and replying affidavits 22
11.5
Index,
pagination, binding and general preparation 22 - 23
11.6
Heads of
argument 23 - 24
11.7
Postponements
24 - 25
11.8
Practice
note in motion proceedings 25 - 26
12.
Urgent
matters
26 - 29
13.
Contempt of
Court 29 - 30
14.
General
provisions 30
14.1
Service 30 - 31
14.2
Settlement 31
- 32
14.3
Noting
judgment 32
14.4
Striking
matters off the roll 32
14.5
Ex tempore
judgments 33
15.
Application
for leave to appeal 33
16.
Archiving
files
33 - 34
17.
Pro bono
exemption
34
18.
Pro- Forma
documents
35 - 39
1.
INTRODUCTION
1.1 This practice manual is modelled
on similar manuals that apply in various Divisions of the High Court. The
manual aims to promote access to justice by all those whom the Labour Court
serves. It is also intended to promote consistency in practice and procedure,
and to set guidelines on the standards of conduct expected of those who
practise in the Labour Court.
1.2 The practice manual is not a
substitute for the Rules of the Labour Court. It is concerned mainly with how
the Rules of Court are applied in the daily functioning of the court. The
manual tells representatives and litigants how things are done in this court,
and what is expected of them. By their nature, the provisions of the manual
call for flexibility in their application where this is required to promote
their purpose.
1.3 The manual addresses the need to
maintain respect for the court as an institution, and to promote efficiency in
the adjudication of disputes. It is hoped that the practice manual will also
improve the quality of the courts service to the public, and promote the
statutory imperative of expeditious dispute resolution.
2.
APPLICATION
OF THE PRACTICE MANUAL
2.1 This manual sets out the practice
to be observed in the Labour Court of South Africa.
2.2 The manual seeks to obtain
uniformity amongst judges in respect of practice rulings. It must be emphasised
that no judge is bound by practice directives; this manual is not intended to
limit judicial discretion. It should be noted though that the judges of the
Labour Court strive for uniformity in the functioning of the courts and their
practice-related rulings. The practice manual thus sets out what can be
anticipated, in the normal course of events, on any issue covered by it.
2.3 This manual supersedes all
previous practice directives issued by the Judge President.
2.4 Reference in this manual to the
Rules, is a reference to the Rules of Labour Court in Government Notice 1665 14
October 1996, as amended.
2.5 The practice manual will come into
force on a date to be determined by the Judge President.
Day means a day other than a Saturday, Sunday or
public holiday, and when any particular number of days is prescribed for the
doing of any act, the number of days must be calculated by excluding the first
day and including the last day.
Representative means the person appearing in court on
behalf of a party, and includes a legal practitioner as defined in the Labour
Relations Act, 66 of 1995, and any other person who has the right to appear in
the Labour Court by virtue of the provisions of s 161 of the Act.
4.
COMPLIANCE WITH THIS PRACTICE MANUAL
A failure to comply with the directives contained in
this manual will be viewed in a serious light and will be addressed by an
appropriate sanction which may include an order for costs de bonis propriis against the representative who failed to comply.
5.
COURT TERMS
AND RECESSES
5.1 The court calendar year is divided
into four court terms. The duration of each court term will be determined, in
advance, by the Judge President.
5.2 Only urgent applications will be
heard during recess, except that by directive of the Judge President or the
Deputy Judge President, other matters may be allocated during recess to acting
judges appointed for the purpose.
6.
DRESS CODE
6.1 Representatives who appear before
the court are required to be properly dressed. If not properly dressed they run
the risk of not being seen by the presiding judge.
6.2 Proper dress for attorneys
comprises:
·
A black
stuff attorneys gown
·
A white
shirt or blouse closed at the neck.
·
A white lace
jabot.
·
Dark pants
or skirt.
·
Black or
dark closed shoes.
6.3 Proper dress for junior counsel
comprises:
·
A black
stuff gown.
·
A plain
black long sleeved jacket which has both a collar and lapels. The jacket must
have, for closing, one or two buttons at the waist. The buttons must be black.
·
A white
shirt or blouse closed at the neck.
·
A white lace
jabot or white bands.
·
Dark pants
or skirt.
·
Black or
dark closed shoes.
6.4 Proper dress for senior counsel
comprises:
·
A silk gown.
·
A silk waist
coat.
·
A white
shirt or blouse closed at the neck.
·
A white lace
jabot or white bands.
·
Dark pants
or skirt.
·
Black or
dark closed shoes.
6.5 Representatives who are not
attorneys or advocates and who enjoy right of appearance in terms of s 161 (b)
to (e) of the Labour Relations Act must be dressed appropriately. Men should
wear a jacket, preferably with a tie.
7.
MODE OF ADDRESS AND INTRODUCTION
7.1 A
judge must be addressed and referred to in the same manner in which a High
Court judge is addressed as either My Lord or My Lady. It is not
necessary for representatives to introduce themselves to the presiding judge
each time they appear; representatives appearing before a particular judge for
the first time should present themselves at chambers fifteen minutes prior to
the hearing to introduce themselves. Otherwise, representatives should attend
at a judges chambers only when directed to do so or when there is a specific
issue that the representatives wish to draw to the judges attention, e.g. the
fact of a settlement, a request that a matter be stood down, etc.
7.2 In
all proceedings, representatives must complete an attendance form recording
their names and telephone numbers. The form must be handed to the presiding
judges secretary in court before the matter is called.
8.
COURT
SITTINGS
8.1 The court will commence sitting at
10h00. The court adjourns at 11h15 and resumes sitting at 11h30. The court
adjourns at 13h00 and resumes sitting at 14h00. The court adjourns for the day
at 16h00. The presiding judge may deviate from these times if the judge
considers it necessary.
8.2 Representatives must be
punctilious in their attendance in court at the above times.
9.
FORMAT OF LEGAL PROCESS
All legal processes filed with the court must be
typed or printed on standard A4 paper; in font size 12 point; with theme fonts
either Arial or Times-Roman; line spacing set at 1.5, and with margins of at
least 2 cm on all sides of the page.
10.
REFERRALS IN TERMS OF RULE 6 AND TRIAL
PROCEDURES (RULE 6)
10.1 Default
judgments
10.1.1 Default judgments will ordinarily be dealt with by a judge in
chambers.
10.1.2 An
application for default judgment must be made after the expiry of the dies for the filing of a statement of
response in terms of Rule 6(3) (c), and in accordance with Form I, which must
be delivered to the registrar.
10.1.3 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
provisions of this manual and provides proper proof of
such service;
·
records the
applicants remuneration 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.
10.1.4 The
registrar must place the application for default judgment before a judge in
chambers.
10.1.5 If
the judge is satisfied that the requirements for default judgment have been
met, the judge will grant judgment by default in favour of the applicant.
10.1.6 If
the judge is not satisfied that the above 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 give or lead evidence or
provide any document the judge may require in
support of the applicants claim.
10.2 Case management
10.2.1 When a statement of claim is filed in
terms of Rule 6 and the issue in
dispute concerns the dismissal of 10 or more employees whose reinstatement is
sought, the referring party must simultaneously with the filing of the
statement of case, deliver a letter to the registrar marked for the attention
of the Judge President, setting out:
·
the names of
the parties to the trial and the case number;
·
the nature
of the dispute; and
·
an estimate
of the probable duration of the trial.
10.2.2 The Judge President may appoint a judge
to undertake the case management of the file, and to ensure an expeditious
hearing.
10.2.3 If a judge is appointed to manage a
case:
·
the parties
will be notified accordingly;
·
all
interlocutory applications relating to the matter, will, as far as possible, be
heard by the appointed judge, on a date to be determined by the judge in
consultation with the Judge President
and the parties;
·
any party to
the matter, on notice to all other parties to the trial, may apply to the judge
for directions as to the conduct of the case. The judge may furnish such
directions or direct that an interlocutory application be brought.
10.2.4 The appointed judge may direct that one
or more pre-trial conference/s be held before the judge, or between the parties
in the judges absence.
10.2.5 Matters that have been designated for
case management will be set down for trial on an expedited basis by the judge
appointed to manage the file, in consultation with the Judge President.
10.3 Interlocutory applications: points in limine, exceptions and special pleas
that do not require the hearing of oral evidence.
10.3.1 Except for those matters that are the subject of case
management (where the judge concerned will issue directions on how
interlocutory matters are to be dealt with), all preliminary points raised in a
statement of claim and any response to a statement of claim (including but not
limited to applications for condonation of the late referral of a statement of
claim or the late filing of any statement of response, special pleas and
exceptions) will be set down for hearing on an interlocutory basis.
10.3.2 Once the preliminary point is ripe for determination, any of
the parties may index and paginate the court file
and request that the matter be enrolled
for hearing without delay. Filing of heads of argument is not a prerequisite
for making this request, though the registrar may, if directed to do so by a
judge, call upon the parties to file their heads of argument before allocating
the matter for hearing.
10.3.3 Despite the provisions of this paragraph, any interlocutory application
that is not opposed or in which any order by consent is sought may be dealt
with by a judge in chambers.
10.4 Pre-trial conferences and set downs
10.4.1 Except for matters that are designated
for case management, a pre-trial conference must be held and a minute filed
within the time limit prescribed by Rule 6(4) (a).
10.4.2 In such pre-trial minute, and in
addition to dealing with all the issues prescribed by Rule 6(4)(b) the parties
shall be required to specifically deal with and address the following in the
minute, which must be recorded in the minute:
10.4.2.1 Where the issue in dispute is that
of an alleged unfair dismissal for operational requirements, the following
questions must be answered:
(a) The applicant(s) must indicate whether the
applicant(s) admit(s) that in general there was a need to retrench;
(b) If the applicant(s) does/do not admit that
there was in general a need to retrench, the applicant(s) must state the
factual basis for the failure to admit this.
The respondent must give a response thereto;
(c) If the applicant(s) contend there were alternatives to
his/her/their retrenchment, the applicant(s) must state what these alternatives
were and the respondent must give a response thereto;
(d) If the fairness or otherwise of the selection criteria is in
dispute, the applicant(s) must state the applicant(s) basis for contending
that such selection criteria was unfair.
The respondent must give a response thereto;
(e) If the applicant(s) contends that someone else should have been
selected for retrenchment in his/her/their place, he/she/they should give the
respondent the name of such a person and why such person should have been
selected, and the respondent must give a response thereto;
(f) The applicant(s) must set out in sufficient particularity in
what respect the applicant(s) allege(s) that the termination of his/her/their
services was procedurally unfair and the Respondent must set out its response
thereto;
(g) Where meetings took place between the parties the parties must
each set out when these meetings took place, whether these meetings constituted
consultations in the retrenchment process and whether minutes exist for these
meetings. If minutes exist, the parties
must record the status of such minutes. If the applicant(s) case is that the
meetings as identified did not constitute consultation(s), he/she/they must
indicate the basis of such allegation and the respondent must respond thereto.
10.4.2.2 Where the issue in dispute is that
of an alleged unfair dismissal for participation in unprotected strike action,
the following questions must be answered:
(a) The applicant(s) must indicate whether the
applicant(s) admit(s) that the applicant(s) participated in strike action, i.e.
whether there was a strike;
(b) If
the applicant(s) does/do admit that there was a strike, the applicant(s) must
indicate whether such strike action was protected or unprotected;
(c) If the applicant(s) contend(s) that strike did not occur or if
the applicant(s) admit that strike did occur such strike was protected, the
applicant(s) must state the factual basis for any such contention. The respondent must give a response thereto;
(d) Should there have been ultimatums issued by the respondent, the
respondent must set out when and at what time such ultimatums were issued, how
such ultimatums were conveyed to employee parties / unions, and whether such
ultimatums were in any way adhered to.
The applicant(s) must give a response to this;
(e) Does/do the applicant(s) allege any provocation on the part of
the respondent, and if so, the applicant(s) must set out the factual basis for
so contending. The respondent must give
an answer thereto;
(f) If the applicant(s) dispute(s) that the sanction of dismissal
was inappropriate, the applicant(s) is/are required to set out the factual
basis for so contending. The respondent
must give an answer thereto;
(g) The applicant(s) must set out in sufficient particularity in
what respect the applicant(s) allege(s) that the termination of his/her/their
services was procedurally unfair and the Respondent must set out its response
thereto.
10.4.2.3 Where the issue in dispute is that
of an alleged automatic unfair dismissal, the following questions must be
answered:
(a) The
applicant(s) is/are required to set out on what basis he/she/they contend the
dismissal to be automatically unfair;
(b) If the applicant(s) contend that the dismissal is
based on discrimination, the applicant(s) must set out the factual basis for so
contending and the respondent must provide an answer thereto;
(c) If the respondent concedes that there is discrimination, but
contends that such discrimination is fair, the respondent must set out the
factual basis for so contending and the applicant(s) must provide an answer
thereto.
10.4.3 If a
pre-trial minute is not filed within the prescribed time limit, or the pre-trial minute does not comply with the
requirements of Rule 6(4)(b) or the provisions of clause 10.4.2 above, as the
case may be, the registrar must set the matter down in the motion court
for a formal pre-trial conference to be held before a judge.
10.4. 4 A judge may issue an order in respect of
filing of a pre-trial minute. A failure to comply with such an order may result
in the file being archived to be retrieved only on application, in which the
applicant will be required to show good cause why the failure to comply with
the order or directive of the judge should be condoned.
10.4.5 Once a
pre-trial minute is filed, the court file is sent for directions to a judge in
chambers. A judge may direct that a further and/or better minute be filed or
that the matter may be set down for trial. The registrar must allocate a trial
date as soon as possible (except for case managed matters) and notify the
parties.
10.5 Pagination, indexing, binding and general
preparation of papers in trials
10.5.1 Not
less than five days prior to the date allocated for the hearing of the trial,
the referring party must do the following:
·
collate,
number consecutively and suitably bind all the pleadings relating to the trial
as a separate bundle and ensure that they are in the court file;
·
collate,
number consecutively and suitably bind all the notices relating to the trial as
a separate bundle and ensure that they are in the court file;
·
collate,
number consecutively and suitably bind the pre-trial minute and all documents
relating thereto; and
·
prepare and
attach an index to the pleadings bundle, the notices bundle and any
pre-amendment pleadings bundle and the pre-trial bundle respectively. The index must briefly describe each
pleading or notice as a separate item.
·
File a
practice note as provided in paragraph 10.7 below.
10.5.2 In
binding the pleadings and notices, care must be taken to ensure that the method
of binding does not hinder the turning of pages.
10.5.3 The
pleadings and notices must be bound in volumes of not more than 120 pages,
unless the papers are collated and bound in a lever arch file.
10.5.4 The
pleadings bundle must only contain the original pleadings (as amended, if
applicable). If the original pleadings are lost or misplaced copies may be
filed; in this event the documents must be clearly marked as copies.
10.5.5 If
a document or documents attached to the pleadings or contained in the bundles
as referred to above is not readily legible, the referring party must ensure
that legible typed copies of the document or documents are provided.
10.5.6 Should the referring party not have complied with these
provisions this shall not be a basis for any other party seeking postponement
of the matter, and the presiding judge, on the day on which the matter is heard,
may make any order the judge deems appropriate which may include any order as
to costs, including depriving the referring party of any costs in the matter or
any order of costs de bonis propriis.
10.6 Bundles of documents prepared
for trial
10.6.1 If a party or the parties to a trial
intend utilising documents in the trial, the documents must be collated
chronologically, numbered consecutively and suitably bound.
10.6.2 Each bundle must be indexed. The index
must briefly describe each document in the bundle as a separate item.
10.6.3 The documents should be bound in volumes
of not more than 120 pages, unless the papers are collated and bound in a lever
arch file.
10.6.4 The parties must agree prior to the
commencement of the trial upon the evidential status of the documents contained
in the bundle. This agreement must be contained in the pre-trial minute.
10.6.5 The presiding judge may at any time
during a trial direct that the bundle of documents be reconstituted.
10.6.6 If
unnecessary documents are included in the bundle, the court may on the
application of any party to the trial or mero
motu make a punitive cost order.
10.7 Practice note for trials
10.7.1 The representative of the referring
party must send a practice note by facsimile transmission or email in respect of the trial enrolled
for hearing, marked for the attention of the Judge President (email address Labourcourts@justice.gov.za;
fax no 011 403 2825).
10.7.2 The practice note must be filed not
later than 12h00 at least five court days before the date on which the trial is
enrolled for hearing.
10.7.3 The practice note must set out:
·
the names of
the parties to the trial and the case number ;
·
the date of
the hearing;
·
the name of
each partys representative, and their cell phone and landline numbers;
·
the relief
sought at the trial by the party on whose behalf the representative completing
the practice note appears;
·
the nature
of the dispute;
·
an estimate
of the probable duration of the trial;
·
the prospect
of any settlement;
·
whether any
preference is sought for the hearing of the trial and if so the motivation
therefore (e.g. whether a witness or representative from out of town will be
testifying or appearing); and
·
any issue or
consideration that would interfere with the immediate commencement and the
continuous running of the trial to its conclusion, including the
preparation of bundles and the indexing and pagination of the papers.
10.7.4 If the above information is not provided
timeously, the referring party runs the risk of the matter not being allocated
a judge or the matter being postponed with an order for costs de bonis propriis against the representative of the referring
party.
10.7.5 Once a matter has been set down for
hearing, it may be removed from the trial roll only with the consent of the
Judge President or in the case of matters subject to case management, the
appointed judge.
10.8
Roll call
10.8.1 In Johannesburg, a roll call will be
held at 9h45 on each day during the court term of all trials enrolled for
hearing on that day.
10.8.2 If a trial cannot be allocated for
hearing on the day for which it is enrolled for hearing, the parties
representatives must attend at the Chambers of the judge holding roll call on
the next and subsequent days until the trial is allocated for hearing, or the
matter otherwise dealt with.
10.9 Continuous roll
10.9.1 The Labour Court runs a continuous roll,
and, notwithstanding the number of days for which the matter is enrolled as
indicated in the notice of set-down, a trial will ordinarily continue in one
sitting until the conclusion of all the evidence. Representatives must ensure
that they are available for the entire duration of the trial.
10.9.2 A postponement of a trial will not be
granted because a representative is not available for the trial or for the
entire duration of the trial.
10.10 Part-heard
matters
10.10.1 No trial should be commenced where any
issue or consideration exists to the knowledge of any partys representative
that would interfere with the completion of the trial.
10.10.2 A judge hearing a trial will not, unless
it becomes necessary, postpone a trial which will result in a part-heard trial.
10.10.3 If a trial is part-heard, unless otherwise
arranged with the presiding judge in consultation with the Judge President, a
date for the continuation of the trial must be applied for by delivering a
letter to the registrar marked for the attention of the Judge President. This
letter must set out:
·
the names of
the parties to the action and the case number;
·
the name of
the judge before whom the trial became part-heard;
·
the date
when the trial became part-heard;
·
an estimate
of the probable duration for the completion of the trial; and
·
whether a
copy of the record of the part-heard portion of the trial is necessary and
available.
10.10.4 If the letter addressed to the Judge
President is not a joint letter from all the parties to the trial, proof that a
copy of the letter has been forwarded to the other party or parties to the
trial, must be provided.
10.10.5 The Registrar must inform the parties in
writing of the date allocated for the completion of the trial.
10.11 Settlement agreements and draft orders
10.11.1 If the parties to a trial have entered
into a settlement agreement prior to the trial date, the registrar must be
informed as soon as the settlement agreement is concluded.
10.11.2 A judge will only make such settlement
agreement an order of court if:
·
the
representatives of all the parties are present in court and confirm the
signature of their respective clients to the settlement agreement and that
their clients want the settlement agreement made an order of court, or
·
proof is
provided to the satisfaction of the presiding judge as to the identity of the
person who signed the settlement agreement and that the parties want the
settlement made an order of court.
10.11.3 If the parties to a trial have settled the
dispute on the terms set out in a draft order, a judge will only make such
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 upon, or
·
proof is
provided to the satisfaction of the presiding judge that the draft order
correctly reflects the terms agreed upon.
11.
MOTION PROCEEDINGS (RULE 7 AND 7A)
11.1 Case
management
11.1.1 In any application brought in terms of s
189A(13) of the Labour Relations Act, the applicant must simultaneously with
the filing of the application deliver a letter to the registrar marked for the
attention of the Judge President setting out :
·
The names of
the parties and the case number;
·
A summary of
the facts; and
·
The relief
sought.
11.1.2 The Judge President may appoint a judge
to undertake the case management of the files, and to ensure an expeditious
hearing.
11.1.3 If a judge is appointed to manage the
application:
·
The parties
will be notified accordingly;
·
The
appointed judge will issue directions on hearing of the application.
11.2 Applications
to review and to set aside arbitration awards and rulings
11.2.1 Once the registrar has notified an
applicant in terms of Rule 7A (5) that a record has been received and may be
uplifted, the applicant must collect the record within seven days.
11.2.2 For the purposes of Rule 7A (6), records
must be filed within 60 days of the date on which the applicant is advised by
the registrar that the record has been received.
11.2.3 If the applicant fails to file a record
within the prescribed period, the applicant will be deemed to have withdrawn
the application, unless the applicant has during that period requested the
respondents consent for an extension of time and consent has been given. If
consent is refused, the applicant may, on notice of motion supported by
affidavit, apply to the Judge President in chambers for an extension of time.
The application must be accompanied by proof of service on all other parties,
and answering and replying affidavits may be filed within the time limits
prescribed by Rule 7. The Judge President will then allocate the file to a
judge for a ruling, to be made in chambers, on any extension of time that the
respondent should be afforded to file the record.
11.2.4 If the record of the proceedings under
review has been lost, or if the recording of the proceedings is of such poor
quality to the extent that the tapes are inaudible, the applicant may approach
the Judge President for a direction on the further conduct of the review
application. The Judge President will allocate the file to a judge for a
direction, which may include the remission of the matter to the person or body
whose award or ruling is under review, or where practicable, a direction to the
effect that the relevant parts of the record be reconstructed.
11.2.5 Applications under sections 145 and
158(1) (g) of the Labour Relations Act should not ordinarily be brought in
respect of proceedings that are incomplete.
11.2.6 Parties are reminded that Rule 7A (5)
requires an applicant in a review application to copy and deliver 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.
11.2.7 A review application is by its nature an urgent
application. An applicant in a review application is therefore required to
ensure that all the necessary papers in the application are filed within twelve
(12) months of the date of the launch of the application (excluding Heads of
Arguments) and the registrar is informed in writing that the application is
ready for allocation for hearing. Where this time limit is not complied with,
the application will be archived and be regarded as lapsed unless good cause is
shown why the application should not to be archived or be removed from the
archive.
11.2.8 A review application must be indexed and
paginated once all the pleadings and the record of the proceedings have been
filed. The application must be divided
into three sections, the first section containing the pleadings and affidavits,
the second section the relevant notices (including all Rule 7A notices) and the
third section the record of the proceedings.
The principles applicable to the indexing and pagination of application
proceedings as determined in this practice manual shall equally apply to each
section.
11.3 Winding up of a Trade Union or
Employers Organisation
11.3.1 An
application for the winding up of a trade union or employers organisation must
be in accordance with Form 2.
11.3.2 Notwithstanding
opposition to an application for the winding up of a trade union or employers
organisation, a final order will not be made without a rule nisi first being
issued setting out the terms on which a final order will be made.
11.3.3 A
rule nisi must be made on the following terms:
(i) that the respondent be placed under
provisional liquidation and in the hands of the Master of the [Western Cape]
High Court;
(ii) that a rule nisi is issued,
calling upon all interested parties to appear and show cause, if any, to this
Honourable Court on [Monday 14 June 2012] at 10 am or so soon as the
matter may be heard why a final order of liquidation should not be granted, and
why the costs of this application should not be costs in the liquidation;
(iii) that [Mr Peter Shabalala of XYZ
Trustees], failing him a liquidator appointed by the Master of the High
Court, be appointed to wind up the respondents estate on such terms and
conditions as the Master deems appropriate;
(iv) that the Registrar of the Labour Court
alternatively the Master of the High Court determine the liquidators fees for winding up the respondent.
(v) Service of this order should be
effected:
(a) by the Sheriff on the respondent at its
registered office; being [1st floor Trade Union Building,
Uniondale].
(b) by the Sheriff placing a copy of this
order on the notice board or a prominent place within the respondents premises
which is accessible to all its staff and members visiting it.
(c) by prepaid registered post to all
businesses [who are members, (where the respondent is an employers
organisation), or where the respondent has members (where the respondent is a
trade union)].
(vi) this order be published in the Times
newspaper[ optional].
11.3.4 On
the return date, before the court will grant the final order, proof of
compliance with the rule nisi must be provided. Where there has not been
full or proper compliance, the Court may, because of the new return date, order
that service should be affected again.
11.4 Filing of answering and replying affidavits
11.4.1If the respondent has delivered a
notice of intention to oppose but fails to deliver an answering affidavit
within the prescribed time limit, the registrar must at the request of the
applicant, enrol the application on the opposed motion roll and serve a notice
of set down to all parties.
11.4.2 Where the respondent or the
applicant has filed its opposing or replying affidavits outside the time period set out in the rules, there
is no need to apply for condonation for the late filling of such affidavits
unless the party upon whom the affidavits are served files and serves a Notice
of Objection to the late filing of the affidavits. The Notice of Objection must
be served and filed within 10 days of the receipt of the affidavits after which
time the right to object shall lapse.
11.5 Index,
binding of papers and pagination
11.5.1 Neither the indexing nor pagination of
the file or the filing of heads of argument is a pre-condition to any
application being set down for hearing, but prior to the hearing of any
application (including unopposed applications if the application consists of an
excess of 50 pages), the applicant must deliver a complete index of all
documentation before the court for the determination of the application.
11.5.2 The index should briefly describe each
affidavit and annexure as a separate item.
11.5.3 Prior to the hearing of any application,
the applicant must ensure that all the documentation before the court is
properly bound.
11.5.4 In binding the documents, care must be
taken to preclude that the method of binding hinders the turning of pages.
11.5.5 The documentation should not be bound in
volumes of more than 120 pages, unless the papers are collated and presented in
a lever arch file.
11.5.6 The applicant must paginate the notice
of motion, founding affidavit and annexures thereto prior to serving the
documents on the other party. After receiving the answering affidavit, the
applicant must paginate same together with the reply that it has file prior to
serving its reply.
11.5.7 Additional documents generated during
the proceedings (e.g. returns of service, reports, etc.) must be indexed,
registered and placed in an Additional Documents Bundle.
11.5.8 Notwithstanding the above, the applicant
must ensure that prior to the hearing of the application, the file is properly
paginated.
11.5.9 Should the applicant not have complied
with these provisions this shall not be a basis for any other party seeking
postponement of the matter, and the presiding judge, on the day on which the
matter is heard, may make any order the judge deems appropriate as to the
conduct of the matter, which may include any order as to costs, including
depriving the applicant of any costs in the matter or any order of costs de bonis propriis.
11.6 Heads
of Argument
11.6.1 In unopposed motions, at the applicants
request, the registrar will set down an unopposed motion on an unopposed motion
roll to be heard by the judge presiding in motion court. The filing of heads of
argument is not a precondition for the setting down of a matter, and heads need
not be filed unless the judge hearing the application directs that heads should
be filed.
11.6.2 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, succinct and without
unnecessary elaboration.
11.6.3 Each point should be numbered and be
stated as concisely as the nature of the case allows and must be followed by a
reference to the record or an authority in support of the point, without any
lengthy quotations from the record or authorities.
11.6.4 Unless otherwise stated in the notice of
set-down, at least seven days prior to the hearing of an opposed application,
the respondent(s) must deliver heads of argument. If the applicant has failed
to file heads of argument, the respondent must in any event file its heads
within the above time limit. Failure to file heads may not lead to the
matter not being heard by the Court.
11.6.5 In cases where a party for whatever
reason fails, neglects or refuses to file heads timeously, the court may make a
punitive costs order against the defaulting party and may in certain
circumstances strike the matter from the roll.
11.6.6 Where a party is able to do so, heads of
argument should in addition to being delivered in terms of the Rules, be sent
by email to the following address: LabourCourts@justice.gov.za. The heads must indicate, above the
heading of the matter, the date on which the matter has been set down to be
heard, if it is so set down.
11.6.7 A judge hearing an opposed application
may at any time direct that all or any of the parties file supplementary heads
of argument.
11.6.8 The failure by one party to file heads of argument shall
not be a basis upon which the other litigating party would be entitled to the
postponement of the hearing, and is shall remain up to the presiding judge to
determine how the matter shall be conducted in such event.
11.7 Postponements
11.7.1 An
application, whether opposed or unopposed, will generally not be postponed, and
certainly not for reasons related to the convenience of representatives. When
an application is postponed, it will be postponed to the roll of the presiding
judge in the same week or at some future date, unless otherwise directed by the
Judge President or his Deputy.
11.7.2 Should the presiding judge decide
to grant a postponement of the application, the presiding judge may determine
whatever terms and conditions will regulate the granting of such postponement,
including the determination of the next hearing date and further steps to be
taken in prosecution of the application to hearing date.
11.7.3 In the event of an agreed postponement by both parties,
this agreement shall be recorded in writing by both parties and shall be filed
together with the practice note referred to hereunder. This written agreement to postpone must set
out the grounds for such agreement being necessary. An agreement to postpone concluded after the deadline for the
filing of the practice note shall not form a basis for postponement in the
absence of compelling considerations to the contrary.
11.8 Practice note in motion proceedings
11.8.1 The representative for the referring
party must send a practice note by facsimile transmission or email in respect
of the application enrolled for hearing, marked for the attention of the Judge
President (email address Labourcourts@justice.gov.za;
fax no 011 403 2825).
11.8.2 The practice note must be filed not
later than 12h00 at least five court days before the date on which the
application is enrolled for hearing.
11.8.3 The practice note must set out:-
·
the case
number
·
the names of
the parties to the application;
·
the date of
hearing;
·
the name of
each partys representative, whom they represent and their cellular and
landline numbers;
·
the relief
sought by the applicant;
·
the nature
of the application;
·
an estimate
of the probable duration of the hearing; and
·
the prospect
of any settlement;
·
the terms of
the order sought, preferably in electronic format;
·
Whether
the matter will proceed on the hearing date and if not, the reason for this.
11.8.4 In the absence of a practice note from
the applicant, a motion to be heard on the opposed roll will not be dealt with
other than for removal from the roll, save in the event of the applicants
representative advancing considerations which are sufficient to persuade the
presiding judge to hear the application. In the absence of the applicant, the
respondent may file the practice note and may do so at least three days before
the hearing of the matter and seek a punitive costs order de bonis propriis against the applicants attorneys.
11.8.5 A practice note must be deposited as set
out above on each occasion the motion appears on the opposed roll.
12 URGENT
APPLICATIONS
12.1 In Johannesburg, a duty judge is
designated for the hearing of urgent applications for each week of the year.
For this purpose, the week commences on Sunday at 18h00 and terminates on the
Sunday of the next week at 18h00.
12.2 An applicant
wishing to bring an urgent application must do so by contacting the registrar (the after- hours number of the duty
Registrar is 082 4620508). Parties must not approach a judge or a judges
secretary directly to arrange for urgent applications to be heard.
12.3 The normal time for
the bringing of an urgent application, whether during term or in recess, is 10h00 on Tuesdays and Thursdays. If the
urgent application cannot be brought at 10h00 on Tuesday or Thursday of any
week, it may be brought on any other day of the week at any time, but the
applicant in the founding affidavit must set out facts which justify the
bringing of the application at a time other than 10h00 on Tuesdays or Thursdays.
12.4 The above paragraph
does not apply to applications to interdict 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 reminded of the
provisions of s 68(2) and (3) of the Labour Relations Act, which prescribe the
periods of notice to be given, and that good cause
must be shown of such time limits are not complied with.
12.5 The above
requirements are additional to the applicants obligation to set out explicitly
the circumstances which render the matter urgent. In this regard, it is
emphasised that while an application may be urgent, it may not be sufficiently
urgent to be heard at the time selected by the applicant.
12.6 The above practices
will be strictly enforced by the presiding judge. If an application is enrolled
on a day or at a time that is not justified, the application will not be
enrolled or if enrolled it will be struck from the roll and an appropriate
punitive cost order may be made.
12.7 The first paragraph of relief sought
in the applicants notice of motion must be for the enrolment of the
application as an urgent application and for the dispensing of the forms and
service provided for in the Rules of court, to the extent necessary.
12.8 In matters where opposition is
anticipated because of the nature and extent of the application and the
possibility that the relief may effect a substantial number of employees or
employers or bargaining councils etc or the costs implications attached to the
urgent application is such that the matter has to be heard urgently, then and
in that event the parties may approach the Judge President or the Deputy Judge
president, through the registrar at the time of launching the application, to
allocate a judge to that matter so that proper arrangements are made and the
matter is expeditiously heard without it being rolled over.
12.9 Unless the
circumstances are such that no notice of the application is given to the
respondent, or unless the urgency is so great that it is impossible to comply
therewith, the notice of motion must provide a reasonable time, place and
method for the respondent to give notice of intention to oppose the application
and must further provide a reasonable time within which the respondent may file
an answering affidavit. The date and time selected by the applicant for the
enrolment of the application must enable the applicant to file a replying
affidavit if necessary.
12.10 Deviation from the
time periods prescribed by the Rules of court must be strictly commensurate
with the urgency of the matter as set out in the founding papers. In cases of
extreme urgency, a reasonable time must be afforded to the respondent to give
notice of intention to oppose.
12.11
If the facts and circumstances set out in the applicants affidavits do
not constitute sufficient urgency for the application to be brought as an
urgent application and/or justify the abrogation or curtailment of the time
periods referred to in the Rule 6(5) and/or justify the failure to serve the
application as required, the court will decline to grant an order for the
enrolment of the application as an urgent application and/or for the dispensing
of the forms and services provided for in the rule. Save for a possible adverse
cost order against the applicant, the court will make no order on the
application or strike the matter off the roll. These requirements will be
strictly enforced by the presiding judge.
12.12 When an urgent application is brought
out of ordinary court hours, the applicant must present a draft order to the
Court which must also be available on a memory stick to ensure that the order
of the court can be typed so that it can be signed by the registrar or the
presiding judges secretary. The judge designated for the hearing of urgent
applications is not to be contacted directly.
12.13 Urgent applications
that are postponed will generally not be postponed for more than a week, for
the purpose of allowing the parties to file papers. The application must be
postponed to the roll of the urgent court, and not to the motion court. If a
rule nisi is issued, the return date
will be allocated by the presiding judge after consultation with the registrar,
and will be heard on the urgent court roll.
12.14 An
applicant that wishes to have an application heard on an expedited but not an
urgent basis may approach the Judge President or his deputy, with a properly
motivated request in writing, for a direction as to the conduct of the
application, time periods that will apply and the allocation
of a date for hearing.
13 CONTEMPT OF COURT
13.1 It has been found that applications
for contempt of court are so varied and often fail to meet the minimum
requirement to obtain the relief sought. This is often discovered months after
the application was launched. In order to avoid this and the prejudice which
results therefrom an application for contempt of Court must be launched on an
ex parte basis on a Friday in Motion Court, where the applicant must seek an
order that the respondent be ordered to appear at the Labour Court to show cause
why it should not be held to be in contempt.
13.2 An application which seeks for the
court to make a finding that a party is in contempt of an order of the Labour
Court must be made ex parte by way of a notice of motion accompanied by a founding
affidavit. The notice of motion must seek an order in the following terms:
a.
That the
respondent, [Chief Executive officer/Director General/owner/proprietor of the
respondent] (full and proper names) appear in the Labour Court on (date) of
(month) 2012 at 10 am to show cause why he/she should not be found guilty of
contempt of court for failing to comply with the order of this court dated xyz;
b.
that the
respondent may explain its conduct by way of affidavit on the date of hearing
or before that date (although this will not excuse him/her from being
present in court);
c.
that in the
absence of providing an explanation to the satisfaction of the Court, or
failing to appear in Court despite being properly served, the respondent(s) be
found guilty of contempt and that;
the respondent(s) be incarcerated for such period as
the Court deems appropriate; or for the respondent(s) to be fined in an amount
the court deems appropriate; or other alternative relief;
d.
That service
of this order be effected personally upon the respondent [Chief Executive
officer/Director General/owner/proprietor of the respondent].
13.3
The affidavit in support of the application must clearly set out how
service of the relevant Court order was effected upon the respondent; who
accepted the service on behalf of the respondent; the responsible person (who
the applicant seeks the court to find to be in contempt) of the respondent who was aware of the court order
and is deliberately refusing to comply therewith; in what respect the
respondent has failed to comply with
the order and other allegation that will constitute the grounds for obtaining
the order sought.
13.4 Where a defence is raised by the
respondent the court may either hear the matter on the date on which respondent
was ordered to appear in court or postpone the matter to the convenience of the
court.
14 GENERAL
PROVISIONS
14.1 Service
14.1.1 Service is proved by filing in the court
file the original return of service which establishes the service. In the
absence of an acceptable explanation, returns of service will generally not be
accepted from the Bar.
14.1.2 Where service is effected at a domicilium citandi et executandi, the
original document (or a copy with an affidavit explaining the absence of the
original) wherein the domicilium is
chosen must be placed in the court file.
14.1.3 In applications for committal or some
other penalty for contempt of court, personal service of the application must
be effected on the respondent.
14.1.4 When service of any document by
registered post is prescribed or authorised (in any action or application),
service is proved by the production of an affidavit by the person who procured
the despatch of such document, in which that person:
·
indicates
the date of despatch together with the name and address of the addressee;
·
describes
the document so despatched;
·
indicates,
if necessary, that the item in question has not been returned to the sender by
the Post Office as being undelivered; and
·
annexes the
documentary proof of posting of a registered article issued by the Post Office.
14.2 Settlement
14.2.1 The
registrar must be informed telephonically immediately when it becomes known
that a matter has become settled. Subsequent to the allocation of a matter to a
particular judge for hearing, either the registrar or the secretary of the
judge to whom the matter has been allocated, must be immediately informed
telephonically that the matter has become settled.
14.2.2 A
Judge will only make such settlement agreement an order of court if:
·
the
representatives of all the parties to the application are present in court and
confirm the signature of their respective clients to the settlement agreement
and that their clients want the settlement agreement made an order of
court; or
·
proof is
provided to the satisfaction of the presiding judge as to the identity of the
person who signed the settlement agreement and that the parties thereto want
the settlement made an order of court.
14.2.3 If the parties to an application have
settled the application on the terms set out in a draft order, a judge will
only make the draft order an order of court if:
·
the
representatives of all the parties to the application are present in court and
confirm that the draft order correctly reflects the term agreed upon; or
·
proof to the
satisfaction of the presiding judge is provided that the draft order correctly
reflects the terms agreed upon.
14.3.1 Parties
will be given a reasonable notice of the handing down of judgments.
14.3.2 Parties
are expected to arrange for a representative to attend court to note judgment.
14.3.3 In
exceptional circumstances, (e.g. where to avoid delay the presiding judge in a
matter heard outside of Johannesburg directs that the judgment will be
delivered in Johannesburg) a judgment may be handed down in any seat of the
court and in the manner directed by the judge.
14.4 Striking matters from the roll
14.4.1 If
there is no appearance when a matter is called it may there and then be struck
from the roll.
14.4.2 A
matter struck from the roll will only be re-enrolled if a proper explanation
for non-appearance is given. The explanation must be on oath.
14.5 Ex tempore judgments
When
ex tempore judgments are handed down,
it is the responsibility of the parties to arrange for the transcript of the
judgment. Awaiting the transcript does not delay the time periods from
continuing to run. The time periods run from the day the judgment was handed
down.
15. APPLICATIONS FOR LEAVE TO APPEAL
15.1 A copy of any application for leave
to appeal filed in terms of Rule 30 must also be served on the secretary to the
judge from whom leave to appeal is sought. If the judges secretary is not available, it may be served on the
secretary of any other judge in the seat where the matter was heard.
15.2 Within 10 days of the filing of the
application for leave to appeal, the party seeking leave must file its submissions
in terms of Rule 30(3A) and the party opposing the leave must file its
submissions five days thereafter. 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 judge directs that the application be heard in open
court.
15.3 An application for leave to appeal
must be filed with the registrar in charge of appeals.
16. ARCHIVING FILES
16.1 In spite of any other provision in
this manual, the Registrar will archive a file in the following circumstances:
·
in the case
of an application in terms of Rule 7 or Rule 7A, when a period of six months
has elapsed without any steps taken by the applicant from the date of filing
the application, or the date of the last process filed;
·
in the case
of referrals in terms of Rule 6, when a period of six months has elapsed from
the date of delivery of a statement of case without any steps taken by the
referring party from the date on which the statement of claim was filed, or the
date on which the last process was filed; and
·
when a party
fails to comply with a direction issued by a judge within the stipulated time
limit.
16.2 A party to a dispute in which the file
has been archived may submit an application, on affidavit, for the retrieval of
the file, on notice to all other parties to the dispute. The provisions of Rule
7 will apply to an application brought in terms of this provision.
16.3 Where a file has been placed in
archives, it shall have the same consequences as to further conduct by any
respondent party as to the matter having been dismissed.
17. PRO BONO EXEMPTION
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.
ends
FORM
A
APPLICATION
FOR DEFAULT JUDGEMENT
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG / CAPE TOWN / DURBAN / PORT ELIZABETH
Case no.............................................
In the matter
between
Applicant
and
Respondent
APPLICATION FO DEFAULT JUDGMENT
[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
....................
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 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 from _date/s_______. I
have earned a total amount of R__________ from the date of my dismissal
to the date of signing this affidavit.
4. I seek the relief as prayed for in my statement of
case.
___________________
Applicant
Signed and sworn before me on
this day
of 201 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)
FORM B
Usual
Heading
TAKE
NOTICE that an
application will be made on 10 May 2012 for an order in the following terms:
(i) that the respondent be placed under
provisional liquidation and in the hands of the Master of the High Court;
(ii) that a rule nisi is issued,
calling upon all interested parties to appear and show cause, if any, to this
Honourable Court on
at 10 am or so soon as the
matter may be heard why a final order of liquidation should not be granted, and
why the costs of this application should not be costs in the liquidation;
(iii) that of , failing him a person nominated by the
Master of the High Court, be appointed liquidator to wind up the respondents
estate on such terms and conditions as the Master deems appropriate;
(iv) that the Registrar of the Labour Court
alternatively the Master of the High Court determine the liquidators fees for
winding up the respondent.
(v) Service of this order should be
affected:
(a) by the Sheriff on the respondent at its
registered office; being
.;
(b) by the Sheriff placing a copy of this
order on the notice board or a prominent place within the respondents premises
which is accessible to all its staff and members visiting it;
(c) by prepaid registered post to all
businesses [who are members, (where the respondent is an employers
organisation), or where the respondent has members (where the respondent is a
trade union)]
(vi) publication in the Times Newspaper.
TAKE
NOTICE further that the
affidavit of John Jones will be used in support of the application.
To: Registrar Labour Court
To: Registrar
To: Respondent
Supporting affidavit
Affidavit
Other than the allegations necessary to obtain a winding up order the
following must be included:
·
Mr Peter
Shabalala of XYZ Trustees, an experienced practitioner in winding up of
liquidated businesses, has agreed to take up the appointment as liquidator to
wind up the respondent as can be seen from the letter forwarded by him annexed
hereto marked A
·
That I have
provided security to the satisfaction of the Master of the High Court to proceed with
the application as can be seen in the document annexed hereto marked B
________________
Deponent