New labour rules for South Africa – what you need to know

 ·9 May 2024

New Labour Court and Labour Appeal Court rules, including changes to restraint of trade and holiday-time litigation, have been published in the Government Gazette.

According to Chloë Loubser and Ayanda Nkabinde from Bowmans, the new rules include major procedural changes and technical advancements. These aim to ensure that matters in the Labour Court are handled efficiently, which should help clear the challenging backlog.

Although the new rules’ effective date is yet to be published, Loubser and Nkabinde said they should be published in another Gazette in due course.

Practitioners will need to become familiar with the new technical details of the rules, with the experts highlighting some of the key provisions that employers should know about:

Holiday break

A welcome addition to the rules is the introduction of dies non (a day where no legal business may be done) over the Christmas period.

In the past, the time periods for filing court processes still occurred uninterrupted during the festive period, meaning that litigants had to remain on-call.

“The rules now exclude the period between 16 December and 15 January in the definition of ‘day’ when calculating time periods,” the experts said.

“This will no doubt come as a relief to employers, whose holiday plans will no longer be scuppered by unexpected litigation.”

Review applications

Review applications are one of the most common applications on Labour Court rolls, and the new rules state that these applications must now contain no more than a concise statement of the grounds of review.

An answering affidavit must also be concise regarding why the application is opposed.

Failure to comply with the new requirements could result in the litigant being punished by an appropriate costs order. 

“Gone are the days of lengthy affidavits with a detailed chronology of the background facts. The effect of these changes is that going forward, it is best to be brief,” said the experts.

“This may, too, be beneficial for employers, as it could well bring down legal costs in preparing (and opposing) these applications.”

“The time periods for filing the record and subsequent process in the review are also now clearly stated, after years of uncertainty created by some contradictions between the rules and the Practice Manual.”

Restraint of trade 

The new rules also include a procedure that a party seeking to enforce a restraint of trade through an unguent interdict must follow.

“In particular, the rules make provision for the exchange of four sets of affidavits (something that occurred regularly in practice but was not expressly catered for in the rules).”

Time periods for filing each affidavit are set, and the application will be provisionally enrolled for hearing during the week following the week in which heads of argument have been swapped.

This means an opposing application for restraint of trade could be heard just over a month after a party launched it.

In terms of urgent hearings, an application for restraint of trade will be enrolled only where the procedure set out in Rule 39 (the rule for restraint of trade) has been strictly adhered to by the applicant.

Online Court

Following their normalisation during the Covid-19 pandemic, the new rules also formally make provisions for virtual hearings on request by one or more parties or by direction by the presiding judge.

That said, the default position states that all proceedings must be conducted in open court.

The decision to go online rests with the presiding judge, who will consider the nature of the proceedings, the public interest of the proceedings and the principles of open justice.

Media Access

Media access to proceedings is also now regulated in the new rules.

“Unless the court directs otherwise, members of the press will be entitled to take still photographs and/or video footage during court activities for 15 minutes before the commencement of proceedings each day and during any adjournments, arguments where no evidence is led and judgment and/or other juridical rulings,” said the experts.

If a media representative wishes to take a record of any judicial proceedings, they will need to apply to the Court.

The new rules can be found below (mobile users click here):

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