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The Labour Court Rules and Practice Manual


Section 159 of the Labour Relations Act, 66 of 1995 makes provision for the establishment of a Rules Board. 

By: Jan Norval

The Board is vested with the power to make rules regulating the conduct of proceedings in the Labour Court. The first rules board for the Labour Court was established in 1996, and the Rules for the Labour Court were promulgated during October of the same year. The Rules of the Labour Court form an essential part of its functioning, as they constitute a refinement of the legal process, provide guidance to practitioners has to how to conduct litigation and promote the speedy resolution of disputes. Given the changing circumstances in which the Labour Court functions it is important that the Rules be amended or supplemented to meet these new circumstances. This has not occurred. The last amendment to the Rules was promulgated in August 2001. For over fifteen years, the rules have not been amended or updated. The lack of up to date rules in the Labour Court has meant that the Court has struggled to keep up to date with amendments to the LRA, particularly the latest round of amendments which includes the right of appeal to the Labour Court from discrimination arbitrations.

Due to the inability of the Labour Court Rules to keep pace with developments in labour law, a Practice Manual was compiled by the Court. It came into force during April 2013, with its primary purpose being to assist in case management. The Practice Manual states that it does not supersede the Labour Court Rules, but rather is there to assist in the interpretation of the Rules. The introduction also states that the Practice Manual does not bind judges; however should a litigant not comply with the Practice Manual, an appropriate cost order can be made against that litigant.

Decisions of the Labour Court have, however, dealt with the legal status of the Practice Manual and emphasised the importance of adhering to its provisions. A few instances of where the importance of adherence to the Practice Manual has been highlighted are discussed below.

Failure to file a record within 60 days

Rule 7A of the Rules of the Labour Court regulates the procedure to be followed if a person wishes to approach the Labour Court to review and set aside an award of a CCMA arbitrator. Rule 7A(5) states that the Registrar of the Labour Court must make available to the applicant seeking to review the award the record of the arbitration proceedings. If the arbitration proceedings have been recorded these recordings constitute the record of the proceedings. The applicant must transcribe the records and provide a copy of this transcript to the Registrar. This requirements often results in delays in finalising the review process.

In order to spur applicants on to deal with this requirement speedily, clause 11.2.3 of the Practice Manual provides that an applicant is deemed to have withdrawn its review application if the transcribed record of the arbitration is not filed within sixty days of the audio record becoming available to the applicant. Further, should all the necessary documents in the review application not be filed within twelve months, the review application will be archived.

The decision in MJRM Transport Services CC v CCMA & others (JR 1171/14 20/09/2016) sets out the Labour Court’s view on this aspect of the Practice Manual. In this case MRJM filed the transcribed record eight days late, and applied for condonation. The respondent employee argued that condonation could not be granted because, in terms of the Practice Manual, MJRM had already been deemed to have withdrawn the review application.

The Court ruled that, in the normal course, if an applicant files the transcribed record outside the sixty day period, the matter would be struck from the roll in order to give the applicant an opportunity to apply for condonation for the late filing and to apply to have the review reinstated. In this case, MJRM had applied for condonation and was granted the condonation. However, the Court held that the matter will continue to be deemed as withdrawn until condonation is granted.

Regarding the status of the Practice Manual, the Labour Court held that the purpose of the Practice Manual is to fill gaps that were not adequately catered for in the Rules and that the provisions of the Practice Manual must be applied with flexibility, but that litigants are still bound by the provisions of the Practice Manual.

What must be taken from this judgment is that, while the Practice Manual creates a situation where the review application is deemed to be withdrawn, this does not mean that the review application can be considered as being dismissed; the opportunity to apply for condonation and the revival of the matter still remains. Further, that adherence to the Practice Manual is expected from litigants.

Another recent Labour Court decision also dealt with the Practice Manual and the failure to file the transcribed record within the sixty day period. In SAMWU obo Nomava Mlalandle v SALGBC & others (PR115/15 02/11/2016) SAMWU was three months late in filing the transcribed record. The Nelson Mandela Bay Metropolitan Municipality, a Respondent, argued that because the review application was deemed to have been withdrawn, the Labour Court could not even consider an application for condonation. The Labour Court followed its approach in MJRM Transport that a condonation application may be brought, and held that the deemed withdrawal would not be a bar to bring a condonation application. However, in the absence of a condonation application and/or an application to reinstate, it would be a “big ask” for the Labour Court to exercise its discretion in such a situation and “willy-nilly” grant an extension.

In short, therefore, if a litigant does not meet the requirement of filing a transcribed record within sixty days, then the litigant will be deemed to have withdrawn its review application and will have to bring a condonation application along with an application for revival. The above cases also indicate that the Labour Court requires strict adherence to the Practice Manual, and that non-adherence requires condonation just as it would in the case of with non -compliance with the Rules.

Incomplete record

Another area of the Practice Manual which has been the source of litigation, has been the clause dealing with incomplete records. Clause 11.2.4 states that if the audio record of an arbitration is of such a poor quality that it cannot be transcribed, the applicant may approach the Judge President of the Labour Court to give direction on how to proceed with the review, which may include that the record be reconstructed or that the matter be remitted back for arbitration afresh. The Judge President therefore, in terms of the Practice Manual, has some discretion on how to deal with the matter, although reconstruction and remittance seem to be the primary options available. Nonetheless, there have been differing decisions which have led to some uncertainty on how to deal with incomplete records.

In Boale v National Prosecuting Authority (2003) 24 ILJ 1666 (LC) the Labour Court held that a review may be dismissed where the record is incomplete because the Applicant did not provide a full transcript of the arbitration proceedings. An exception to dismissal was when “the tape cassettes are missing or where the parties are unable to reconstruct the record”. InNathaniel v Northern Cleaners Kya Sands (Pty) Ltd and Others (2004) 25 ILJ 1286 (LC) the Court used this exception when it refused to set aside a review application where the parties had gone to great lengths to reconstruct the record, but were unable to do so, relying instead on what had been reconstructed, the documents from the arbitration and the arbitration award itself.

However, in other cases such as Balasana v Motor Bargaining Council and Others (2011) 32 ILJ 297 (LC) the Labour Court has held that the failure to provide a complete record, which is due to the fault of the Commissioner not properly recording proceedings, and where reconstruction is futile, the review should be remitted to the CCMA for a fresh hearing. There are thus approaches favouring remittance and others which do not.

The Constitutional Court in Toyota SA Motors (Pty) Ltd v CCMA & others (CCT228/14 15/12/2015) stated that the issue of missing and incomplete records of arbitrations was a long-standing issue in review applications. Although the Constitutional Court noted the differing case law on the matter, it did not make a decision on what the correct approach would be. The Constitutional Court did seem to favour the remittance of the matter to the CCMA using the Balasana approach.

Regardless, the approach in the Practice Manual still stands, and the Judge Oresident will have a discretion on how to deal with matters in which the audio recording are incomplete including whether reconstruction or remittance will be resorted to. It does, however, seem that, should the fault for the audio recording being incomplete lie with the Commissioner, it is likely that the matter will be remitted. This is once again indicative of the Labour Court’s use of the Practice Manual as if it had the status of a Rule, on a subject on which the Rules are silent; this seems to have approval of the Constitutional Court.

Application of the Practice Manual to cases prior to 2 April 2013

The Labour Court last year embarked upon a process of pre-enrolment hearings, during which matters may be allocated a date for a hearing; but during which any preliminary matters or case management issues would also be dealt with before the matter is allocated a date.

At these hearings, in order to explain away any non-adherence to the Practice Manual, litigants would argue that because their matter commenced prior to 2 April 2013, the Practice Manual would not be applicable to their case, and thus there could be no consequence for non-adherence. These arguments were not dealt with favourably at pre-enrolment hearings. It was ruled on a number of occasions that, despite the matter commencing after 2 April 2013, the matter would have to be dealt with in accordance with the Practice Manual from 2 April 2013 onwards.

This attitude reflected in pre-enrolment hearings was also echoed by the Constitutional Court in Toyota, where it was indicated, although not expressly stated so, that even if the Practice Manual came into effect part-way through litigation, Toyota would be expected to adhere to it. This also reflects the importance the Labour Court has placed on adherence to the Practice Manual.


The above are just a few instances of where the Labour Court has placed heavy emphasis on litigants adhering to the Practice Manual, and that even though the Practice Manual is not binding on the Labour Court, litigants are expected to adhere to the Practice Manual. As with the Rules, should there be non-adherence to the Practice Manual, a condonation application will have to be brought or good cause shown why the Labour Court must exercise flexibility in the application of the Practice Manual. The attitude that the Labour Court has adopted to the Practice Manual and the importance placed upon it, makes sense in the current situation where the Rules have not been updated for over fifteen years. Hopefully, the recent constitution of the Rules Board will result in new Rules being promulgated soon, which might result in a lesser reliance on the Practice Manual. Until such time, litigants should ensure that they meet the requirements of the Practice Manual, as it seems that the Labour Court treats the Practice Manual in a manner similar to the Rules.