New Labour Court and Labour Appeal Court rules on 17 July 2024

While there are several significant changes introduced by the new rules, we thought it useful to highlight a few notable changes.

More time to prepare and exchange pleadings

The old rules (which remain in place until 16 July 2024) have often been criticised as being far too short to enable parties the opportunity to consider their position and articulate their case in formal court processes.

Currently, after a referring party delivers a statement of case, the respondent has a mere 10 business days to deliver a statement of response. In the new rules, the (now-termed) defendant will have 10 business days after being served with a statement of case to decide whether to defend the matter and, if so, to deliver only a notice of intention to defend. Thereafter, the defendant will have an additional 15 business days to deliver a statement of response. If the defendant does not do so, the defendant may be exposed to being barred from pleading after receiving the requisite notice of bar. Furthermore, the plaintiff will now have an opportunity to deliver a replication within 15 days after receiving the defendant’s statement of response. Further pleadings may follow as well where necessary.

The time periods and processes for referrals of disputes for adjudication have become more closely aligned with the Uniform Rules of the High Court. While it does mean that the litigation process will, at least initially, take a little longer, this move is welcomed as it will afford litigants to a dispute a far more reasonable opportunity to deal with labour disputes without the undue pressure that has thus far prevailed. The new rules ushers in time periods which allow for a more considered approach to litigation which is ultimately in the best interests of all concerned, including the courts.

Restraint of trade applications

The new rules have introduced strict procedures and time periods in restraint of trade applications. The new rules have specified the minimum number of days that must be afforded to parties for the exchanging of affidavits, and even included a period for the filing of a fourth affidavit, which, in practice, often becomes necessary in applications of this nature. Heads of argument must be filed simultaneously by the parties 5 days after the filing of the last affidavit.

Furthermore, the new rules require that at the time of launching a restraint of trade application, the applicant must apply to the registrar to allocate a provisional date for the hearing application which is calculated so as to take into account the mandatory time periods for the exchanging of affidavits and filing of heads of argument referred to above. Once both parties’ heads of argument have been filed, the application can be finally enrolled for hearing.

This too is a welcome move because restraint of trade applications are, by their nature, inherently urgent. Without rules regulating time periods, parties have (often arbitrarily) set their own time periods for the filing of further affidavits and the like. The new rules ensure even handedness and fairness in dealing with these applications.

Review applications

Often one finds in review applications that the affidavits contain irrelevant and repetitive averments, which burden the papers. The new rules expressly indicate that a referring party must ensure that it includes concise statements of the grounds of review with reference to relevant portions of the award under review. The same goes for the opposing party’s affidavit when setting out the grounds of opposition.

If parties include irrelevant material in the affidavits, it might burn a hole in their pocket. Indeed, the new rules warn that the Court might penalise an offending litigant with an adverse costs order.

Dies non

For those who have had experiences of untimely referrals before the Courts over the festive period, and have had their plans disturbed to deliver papers, there is a welcome delight for you – dies non has been introduced at the Labour Courts! This means that for the period between 16 December and 15 January of each year, the clock stops running when calculating the number of ‘days’ for the doing of any act specified in the rules.

It is of the utmost importance that there is compliance with the new rules by parties. If there is any uncertainty in the interpretation and application of the rules, readers must consult with their legal representatives.