New Directives from the Labour Court & Labour Appeal Court

Traditionally, service of documents in court proceedings has been in hard copy paper form with the exception of fax delivery. As such, delivery can be very time-consuming not to mention both costly and inconvenient.

Written By of Cowan-Harper-Madikizela Attorneys

A step in the right direction – Electronic service 

With the emergence of Covid-19 and the fourth industrial revolution, some of our Courts have formally adapted their procedures to allow for documents to be processed electronically such as for example, via Caselines in the High Courts. 

Although the Labour Court has not yet adopted a fully electronic process the Judge President of the Labour Court has issued a New Directive (LC 02/2022)  on 5 January 2022 which is a step in the right direction.

The Directive provides that all court processes when served between parties may be effected by email subject to the following conditions:

  • the person who effected service must file an affidavit of service;
  • the affidavit must state that the address to which the email was sent was the correct address of the recipient and must confirm the documents which were attached to the email;
  • the affidavit must state that the party to whom the email was addressed telephonically confirmed receipt of the email and attachment/s and include the name of the person who confirmed receipt of the transmission, alternatively attach an email from the party to whom it was addressed confirming receipt of the email. 

The parties must however still file with the Registrar the original hard copies of any court process forwarded by email. The Registrar on the other hand has been bestowed with the ability to serve correspondence and notices on parties electronically by way of email without the need for an affidavit. 

 

Physical hearings- Reverting to old ways

In addition to the above directive, a further Directive (LC/ LAC 01/2022) has been issued by the Judge President, which became effective on 17 January 2022, dealing with the way hearings are going to be conducted.

In the past two years, due to the pandemic, hearings have been conducted mostly by video conferencing. The Directive now reverts to the old way of doing things by making physical hearings the default position for all matters where evidence will be led. Therefore, all matters set for hearing will be heard in open court. Despite the benefits of having hearings conducted by video conferencing, the Directive has only made provision for matters to be heard on video conferencing platforms in exceptional circumstances. 

Accordingly, litigants who would like to have their matters heard on video conferencing platforms must thus not only try  to secure the agreement of their opponents but must also apply to the Judge 14 days prior to the hearing for the matter to be heard via video conferencing.  The application may be in the form of a letter setting out in detail why it is necessary for the matter not to be heard in open court and by way of video conference. 

This Directive also deals with the general conditions under which parties may enter Court buildings. The effect is that COVID-19 regulations such as;  screening, mask wearing as well as social distancing remain in place. Parties entering the building are limited to a maximum of 10 people plus any representatives. Should parties wish to exceed this limit, permission will have to be sought from the Registrar. 

Finally, the Directive provides that Orders and Judgments of the Court will be prepared in hard copy, signed, a copy retained by the Judge, a copy sent to the Registrar, and communicated to the Parties by email.

Whilst electronic service of documents is a positive and welcome change to our Court processes it remains to be seen whether physical hearings will be as well received. There are many pros and cons to virtual hearings. For example, virtual hearings have had the major advantage of being logistically efficient thereby avoiding the inconvenience and cost of travel as well as saving time. However, effective communication in the form of body language, facial expressions, and other nonverbal cues may be lost in virtual hearings. Also, Judges cannot necessarily control a virtual courtroom in the same way as a physical court. Regardless of the pros and cons, the New Directive is clearly supportive of physical hearings and parties are going to have to adapt.

Gael Barrable

Gael Barrable
Associate Director of Employment

Patience Kunene

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