Article 16/2024

LabourEdge

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

_____________________________________

  • Rule 7(7) of the Rules for the Conduct of Proceedings in the Labour Court (‘the labour court’) is not very helpful and appears to suggest that the only avenue open to a court is to refer the entire dispute for the hearing of oral evidence – the rule reads as follows:
    • 7(7) the Court must deal with an application in any manner it deems fit, which may include
      • (a) …
      • (b) referring a dispute for the hearing of oral evidence…’
  • On the other hand, rule 6(5)(g) of the Uniform Rules of Court, so it is submitted, provides the required guidelines and avenues available – rule 6(5)(g) reads as follows:
    • ‘Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as to it seems meet with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.’
  • From the above, it is apparent, when such material disputes of fact exist, leaving aside the issue as to whether or not it was reasonably foreseeable (with reference to footnote 21 to rule 7 of the labour court rules), the court has the following options available:
    • to dismiss the matter
    • to direct that oral evidence may be heard on specified issues with a view to resolving such disputes, or
    • may refer the matter to trial with appropriate directions as to the pleadings or definition of issues or otherwise
  • With reference to Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA), it is apparent that the application for hearing of oral evidence must, as a general rule, be made in limine and once it becomes clear that the applicant is failing to convince the court on the papers – only in exceptional circumstances will a court permit the applicant to apply in the alternative for a matter to be referred to evidence should the main argument fail (see, further, Santino Publishers CC v Waylite Marketing CC 2010 (2) SA 53 (GSJ))
March 10, 2025

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

March 7, 2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

March 4, 2025

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.