Article 16/2024

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))

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).