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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?

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  • 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))
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?