Labour and Employment Law

Non dies in the labour court

Posted 01 November 2019

Kem Tumba Diong and Relebohile Motloung

Rule 19(1) of the High Court Rules provides for dies non only in respect of a notice of intention to defend. During this period, from 16 December to 15 January, the usual period of ten business days for filing a notice to defend after receipt of a summons is suspended.

The Labour Court is considered a superior court with authority, inherent powers and standing in relation to matters in its jurisdiction. As such, numerous matters are referred to it daily. However, unlike the other superior courts, the Labour Court Rules do not provide for the dies non period between December and January.

Therefore, litigants must bear in mind that in the Labour Court the prescribed periods for the lodgment of applications, filing of responding affidavits and other documents will continue to run throughout the year.

Although a reason for such non-provision has not been explicitly stated, one may assume that the absence of dies non is to ensure that labour related matters are expedited. The lack of a period of dies non may, however, prove difficult for litigants at certain times of the year. Many law firms, companies, employee organisations and government institutions close during the December and early January period and may be unable to comply with the prescribed time frames.

The Rules of Court, however, make provision for condonation applications if a dispute is referred outside the designated filing periods. It is advised that applicants should apply for condonation as soon as they realise that the prescribed period has lapsed.

Rule 12 of the Labour Court Rules provides as follows: "Extension of time limits and condonation:

  1. The court may extend or abridge any period prescribed by these rules on application, and on good cause shown, unless the court is precluded from doing so by any Act.
  2. If a party fails to comply with any notice or direction given in terms of these rules, any interested party may apply on notice for an order that the notice or direction be complied with within a period that may beĀ  specified, and that failing compliance with the order, the party in default will not be entitled to any relief in the proceedings;
  3. The court may, on good cause shown condone non-compliance with any period prescribed by these rules".

In Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A), the Appellate Division of the Supreme Court considered the meaning of "on good cause shown" or "on sufficient cause shown" and outlined the factors which need to be taken into account in this regard. These factors are: "the degree of lateness, the explanation for the delay, the prospects of success and the importance of the case". The court held that the factors are interrelated and should be considered holistically when making a decision on whether or not condonation should be granted.

Although provision is made for condonation applications, there is no uniform stance by the courts on whether to provide leeway in granting condonation applications for non-compliance during the December and January period.

In some instances, the courts have mentioned that parties still need to comply with Rules of Court and non-compliance with the Rules during the festive season is not an excuse for late filing. However, in other instances, the courts have recognised the difficulties litigants face in adhering the prescribed time periods during the festive season.

In the matter of South African Airways (Soc) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR271/15) [2018] ZALCJHB 6 (19 January 2018), the Labour Court dealt with the late filing of a review application. The reason provided for the late filing was that the staff members who were handling the matter over the December/January period had been on leave. The judge in the matter accepted that some leeway must be allowed during the festive season, "in that the court has rightfully acknowledged the fact that the absence of a Labour Court rule stipulating dies non during the ordinary annual shutdown period over December and January should be taken into account when delays over this period are being considered".

Furthermore, the judge in matter of Lentsane and others v Human Sciences Research Council (2002) ILJ 1433 (LC) stated that, in his view, the omission of such an institution in the Rules of this Court was "lamentable". He further stated that "It is not necessary for one to approve of the near complete collapse of national enterprise during the traditional year-end holiday period, but is seems manifestly obvious and sensible that any legal practitioner who institutes an action in the first week of December must appreciate that there will be considerable hardship, done unnecessarily, if individuals who are required to respond have, at the last moment, to rearrange their family and other commitments".

Whilst legal practitioners ought, as things currently stand, to familiarise themselves with the Rules of Court, in certain circumstances it may be argued that it would be impractical and unreasonable to expect strict compliance with the prescribed time limits within the December/January period.

Moreover it would seem to be beneficial and practical to consider implementing the dies non period in the Labour Court: Some individuals inevitably find themselves prejudiced because, being unrepresented during the dies non, they remain unaware of the Rules of Court, and are late with service. This causes unnecessary delays, expensive and time-consuming condonation applications, with the risk of refusal and prejudice.

Article published in Without Prejudice November 2019