Labour Appeal Court Sitting as Special Tribunal Act

1. In this Act and in the Schedules hereto, unless the context otherwise indicates- 5 (i) "a law regulating employment" means any law in terms of which an employee was employed, or any labour relations law or other relevant law, or the common law applicable to employment, as at 1 November 1993; (ix) (ii) "Chief Justice" means the Chief Justice of the Supreme Court of South 10 Africa contemplated in section 97 of the Constitution; (vii) :iii) "day" means a calendar day and whfm any particular number of days are prescribed for the doing of any act; those days shall be reckoned by excluding the first and including the last day, unless the last day falls on a Saturday, a Sundayorany public holiday, i~ which case the number of 15 .days shall be reckoned by excluding the first day and also anv such ·Saturday, Sunday or public holiday; (iv) :iv) "dispute" means any claim or dispute of right, including, but not limited to, an alleged unfair labour practice, in terms of a law regulating employment and arising out of the implementation of sections 236 and 20 237 of the Constitution, and "in dispute" has a corresponding meaning; (v) . (v) "employee" means a person who; in terms of a law regulating · employment- (a) on the date of commencement of the Constitution, was in the 25 employ of a public service, department of state (including a· police force), administration, military force as defined in section 224(2)( a) o~ (b) of the Constitution or other institution (excluding any local government) performing, immediately prior to the commencement 4 No.16543 Act No. 30, 1995 GOVERNMENT GAZETTE, 19 JULY 1995 LABOUR APPEAL COURT SITTING AS SPECIAL TRIBUNAL ACT, 1995 of the Constitution, governmental functions under control of _an authority referred to in section 235(1)(a), (b) or (c) or 232 (1)(c) of the Constitution; or (b) after the commencement of the Constitution, was oris employed by • any of the above institutions or any institution rationalised in terms 5 of section 237.of the Constitution; (xv) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) 10 . . . . .. 15 . . "employee organisation" means a staff association or trade union which has employees as members; (xvi) "labour appeal oourt" means the labour appeal court established by section 17A of the Labour Relations Act; (i) "Labour Relations Act" means the Labour Relations Act, 1956 (Act No. 28 of 1956); (xvii) "Minister" means the Minister appointed by the President in ~erms of section 88 of the Constitution to administer the Office of the Public Service Commission; (viii) "order" means any final relief or remedy, including, but not limited to, a detennination; (iii): "party" an employee, employee organisation or responsible autho.rity, . and includes a duly authorised representative of such a person, . organisation or authority;. (xii) "public holiday" means a public holidayas referred _to in the Public Holidays Act, 1994 (Act No. 36 of 1994); (xi) "responsible authority" means a,ny authority which is a party to orwh~ch is responsible .for the . decision on ·or execution of the ·abolition, incorporation, integration, consolidation or rationalisation of institu~ 25 tions referred to in section 236(1) of the Constitution; (xiv) "serve" means the serving of any document in accordance with rule 3 of Schedule 1, and "service" has a corresponding meaning; (ii) "special tribunal" means the labour appeal court . sitting as a special tribunal as contemplat~d ' in section 237( 4) of the Constitution and 30 includes any member or assessor authorised to perform the functions of the labour appeal court; (xiii) "this Act", includes the rules contained in Schedule 1; (vi) "unfair labour practice" means any act or omission, other than a strike or a lock-out, which has or may have the effect that- (a) any employee or class of employees is or may be unfairly affected or that his, her or their employment opportunities or work security is or may be prejudiced or jeopardised thereby; · (b) labour unrest is or may be created or promoted thereby; or (c) the labour relationship between the responsible authority and 40 employee is or may pe detrimentally affec!~d there~Y: ~x) 20 35 · · . · Applicationof Act

2. This Act shall apply to any dispute between an employee, or where applicable, an employe~ organisa~ion, '.lnd a responsible authority. · Labour appeal court sitting as special tribunal 3. (1) Section 17A of the Labour Relations Act shall apply mutatis mutandis to the special tribunal except where otherwise provided for in this Act. · · · (2) The areas of jurisdiction of the respective divisions of the special tribunal shall be as set out in the second column of Schedule 2. (3) The special tribumi.l may iri respect of any dispute- (a) grant interim relief; (b) ·. make an order which-any court, including the industrial court, would have been competent to make in terms of a law regulating employment; and · · · 45 50 (c) generally deal with all matters necessary for or · incidental to the 55 performance of its functions under this Act. 6 No:16543 Act No. 30, 1995 GOVERNMENT GAZETIE, 19JULY 1995 LABOUR APPEAL COURTSI1TING AS SPECIAL TRIBUNAL ACT, 1995 (4) For purposes of this Act;the special tribunal may be approached without it being necessary to make use of or to exhaust any other procedure in terms of any other: law or. the-common: law: Provided .that· a_ party which so approaches the special tribunal shall observe the rules with regard to the referral and adjudication of disputes referred to in section 4(1): Provided further that in the case of an 5 application· for interim relief the applicant may:request the special tribunal to • dispense with any of those rules~ · Rules and Rules Committee for special tribunal 4. (1) The rules which give effect to the expeditious procedures prescribed by this Act' are contained in Schedule l. (2) The Minister may; after consultation with the Chief Justice, appoint a Rules Committee; other than the Rules Board referred to in section 17(22) of the Labour Relations ACt, consisting of a judge, as chairperson, an advocate and an attorney, which may: effect amendments; . not· inconsistent~ :with this Act, to the ,rules contained in Schedule 1. 10 15 Orders by special tribunal ,5_. (1) An employee who; or where applicable, an employee organisation which, is in dispute with a responsible authority may apply to the specialtribunal for an order under section 3(3)(a) or (b). - (2) Unless the special tribunal on good cause shown decides otherwise, no order 20 may be made under. section 3(3) (a) or (b) if the relevant application in terms of subsection (1) was not made within 90 days from the date on which the reasons for the dispute became known to the applicant, or from the date of the commence ment of this Act, whichever is thelater date. (3) The special tribunal shall as soon as possible, but not later than 60 days after 25 receipt of an application in terms of subsection (1), adjudicate on the dispute. (4) The special tribunal may on good cause shown or of its own motion- ( a) either before or after expiry of any period prescribed by this Act, extend : . , . such period; (b) condone non-compliance with any time limit prescribed by this Act. ( 5) The special tribunal shall not make an order as to costs in respect· of any 30 proceedings brought before it, except- ( a) on the grounds of unreasonableness or triviality. on the part of a party to a dispute; (b) on the grounds that a party refused or unjustifiably failed to attend the 35 pre-trial conference convened in terms of rule 5(5) of Schedule 1, or failed to participate properly at such conference in order .to limit or define the issues in dispute in terms of rule 5(7) of Schedule 1. Extraordinary procedure

6. Should a situation arise during proceedings for which no provision has been 40 made in this Act, the special tribunal may adopt any procedure or make any order which it deems necessary or expedient in order to achieve the objects of section 237( 4) of the Constitution. Short title and commencement .. 7• ThisActshal~ _\)e calle~ th.eJ ... ab()ur Appeal Court. Sitting as Special.Tribunal 45 Act, 1?,95, iuid shall come.iiito operation on ·a date fixed ,by the President by proclamation in the G.azette: 8 No. 16543 Act No. 30, 1995 GOVERNMENT GAZElTE, 19 JULY 1995 LABOUR APPEAL COURT SITTING AS SPECIAL TRIBUNAL ACT, 1995 SCHEDULE! RULES FOR PROCEEDINGS IN THE SPECIAL TRIBUNAL Definitions

1. In these Rules, unless the context otherwise indicates, any word or expression to which a meaning has been assigned in the Act shall bear the same meaning and- "notice" means a written notice and "notify" means to notify in writing; "registrar" means the registrar of the labour appeal court contemplated in section 17A(6) of the Labour Relations Act. Office hours and address of registrar, and filing documents with registrar 2. (l)(a) Subject to paragraph (b), the office of the registrar shall be open for the issue of process and the filing ofdocuments from 08:00 to 12:30 and from 14:00 to 15:30on everyday other than on a Saturday, Sunday or public holiday . . · (b) ·The· registrar;may in exceptional Circumstances issue process and aecept documents at any time, and shall do so when so· directed by the specialtribunal. '(2)(a)Subject to paragraph (b), the addresses of the registrar's offices shall be those me.ntioned in Appendix 3 to these Rules. · ·' · · (b) The registrar may from time to time give notice in the Gazette of any change of addressor addn!ss in addition to the addresses referred to iri paragraph (a). : · registered post. : (3)( a) The filirig of documents with the registrar may take place by hand or by · (b) Notwithstanding paragraph (a), the· registrar may accept documents transmitted by telefacsimile if the ·original document is also, within seven days thereafter, filed with the registrar or sent to him or her by registered post. (c) A document shall be deemed to have been filed with the registrar on the date- (i) on which such document was handed in to the registrar; (ii) on which such document was sent by registered postto the registrar; or (iii) of the completion of the telefacsimile transmission to the office of the registrar or to such other telefacsimile receiver as the registrar may appoint. Service. of documents 3. (1) Subject to subrule (2), any document which is'~equired t~ be served in terms of the Act and these Rules shall be served by or on behalf of the party who desires service thereof- ( a) by handing a copy t,hereof to the party concerned personally; (b) by le.aving a . copy· thereof. at the place :of employment of the party . concerned with a,ny person who,is apparently not less than 16 years of age ·and who is apparently in ·authority over the party concerned; (c) by leaving a copy thereof at the .address which the party concerned has chosen as domicilium citandi et executandi; (d) by handing a copy thereof to any representative authorised in writing to accept service pnb. ~half.of the party ccmcerned;.· , . . (4 ,bysending a· copyth~reof by registered post to the last known postal address of the party concerned, and in such a case, unless the contrary is proved, it shall be presumed that service was effected on the lOth day following the day upon which the document was posted; (f) by sending a copy thereof by telefacsimile transmission to · the telefac simile receiver of the party concerned; or 10 No. 16543 Act No; 30, 1995 GOVERNMENT GAZE1TE, 19 JULY 1995 LABOUR APPEAL COURT SIITING AS SPECIAL· TRIBUNAL ACT, 1995 (g) where a document is to be served on a statutory body, by handing a copy thereof to an officer or member of such body. (2) If the special tribunal is satisfied that . the service cannot conveniently or expeditiously be effected in any manner contemplated in sub rule (1), service may be effected in any manner directed by the special tribunal. (3) Unless otherwise directed by the specialtribunal, service shall be effected as near as possible between the hours of 07:00 and 19:00 on any day other than a Saturday, Sunday or public holiday~ (4) Service shall be proved before the special tribunal~ (a) by a signed acknowledgement ofreceipt by the party upori whom the document was served; (b) by an affidavit by the party who effected service; (c) in the case of service by registered post, by the party who effected service by producing the certificate issued by the post office for the. posting of such letter; or (d) in the case of service by telefacsimile transmission, by the party who effected service . by . producing • the . transmission slip ·relating to· such transmission. (5) If the special ·tribunal is not . satisfied that service · has been proved in accordance with subrule (4), it may make suchorderas it may deem-fit.· Fo_rm and contentof process . 4. (1) Unless otherwise provided, any process initiating proceedings or opposing an applicatioii' shall be substantially in accordance with· the. forins prescribed in Appendices 1 and 2 to these Rules,• arid a party niay· abbreviate a foriri by omitting·sections 'whiCh are not relevant. .. .. . . (2) (a) Any party which wishes to challenge an address provided in any form for the service of any document or the nomination of a representative shall do ·so by serving a copy of a notice setting out such changes on the otlier party and filing-the original· \VI_th the registrar; ·(b) Ariychange of address or change in the nomination of a representative shall only take effect on receipt of the relevant notice by the other party . . Application. notic~ of opposition. notice of exception, pre-trial . conference; and hearing . . ·s. (1) An application for an order_iu:ider: section 3(3) shall be ,com~ericed by requesting the registrar to affix a case number to the form 'prescribed in Appendix 1 to these Rules. · (2) The applicant shall serve a copy of the form contemplated in subrule (1) on the respondent and file the original with the registrar · together · witb ·proof of service as contemplated in rule 3(4). , · (3) The respondent referred to in subrule (2) may within -14 _days or, in the case of an application for interim relief, within five days from the date on which the copy of the application was served on such respondent, .serve ' a .notice of opposition, in the form prescribed in Appendix 2 to these Rules, on the applicant and file the original with the registrar . .• ' (4) The respondent may·, tol!ether wit_h the notice of opposition, give notice of an exception . . ·. (5) On receipt of a .notice ofexception the registrar shall fix a date,. time and venue for the hearing of the exception and shall give written notice. of set down to the parties. · · (6) On receipt of the notice of opposition, or after-the expiry,of the l4 days or the five days referred to in subrule (3), the regis.trar shall fix a date, time and venue for the hearin~ofthe application and shall ~ive written notice ofsetdown to the parties; ·>(7) The notice of set down referred to in subrule (6) shall, in the.absence of a notice of opposition, · contain a statementthat judgement by, default may be entered.against the respondent; (8) If a notice of opposition is received the registrar shall, except in the case of 12 No. 16543 Act No. 30, 1995 GOVERNMENT GAZETIE, 19 JULY1995 LABOUR APPEAL COURT SI1TING AS SPECIAL TRIBUNAL ACf, 1995 an application for interim relief or notice of exception, ftx a date, time anct venue for a pre-trial conference and shall give written notice thereof to the parties. (9) Each party shall, not later than 10 days prior to the pre-trial conference, furnish every other party with...:._ · · (a) a list ofthe admissions which he, she or itrequires; (b) the enquiries which he, she or it will direct and other matters regarding preparation for trial which· such party will raise for discussion at the pre-trial conference; (c) statements ofwitnesses or summaries thereof; and (d! summaries ofthe opinions aridreasonstherefor of his; her or its expert witnesses, if any. (10)(a) At the pre-trial conference the parties shall endeavour to limit or define the issues in· dispute and to facilitate the expeditious determination of the application, and shall thereafter prepare minutes in respect of that conference which shall reflect those endeavours. (b) The pre-trial conference may be chaired by a mediator agreed upon by the parties, and the parties shall share the costs of such mediator; · ··. (11) Whenever a matter issettled prior to the date of hearing or when the parties agree to postpone the matter, the applicant shall forthwith notify the registrar by delivering a notice of withdrawaLor postponement, as the case.may be. (12) At the commencement of the 'hearing and after hearing representations from the parties and having regard to the documents filed, the special tribunal shall determine whether any further documentary or written or oral evidence is required and· shall give directions .in respect of the presentation to the special tribunal of such evidence; (13) In respectofany. oral ~vidence presented pursuant to a direction ofthe special tribunal as contemplated in subrule (12) the special tribunal may proceed in ~n inquisitorial manner and may give directions concerning the examination, cross-examination or re-examination of witnesses. (14) Mterdire~tions maC:te in_ terinsof subrul(! (13) have been complied with, the parties may present argument tq the special tribunal.subject to any directions given by the special tribunal concerning the presentation tl:tereof. Joinder of parties 6. (1) Thespecial tribunal may of _its c;l\yn motion, ox: on application on notice to each party, make an order joining any person as a p~rtyto the proc~edings . . (2) An order referred to in subrule (1) shall be made only where the party to be joined 11as a subst~ntial interest in • ti.te . dispute~ (3) In making such order.the special .tribunal may .impose such conditions in respect of the delivery of documents and, subject to.section 5(5),- as t_o cqsts as it deems fit. Consolidation of disputes

7. The special tribunal may of its own motion, or on application by ;my party on noticeJo every other party, make.an order consolidatiqg th(! disputes pending before it in separate proce~d_ing~ where it deems such consolidation to be expedient andjust. Consent to judgment or relief claimed, and judgment by default 8.(1)(a) Aresp()ndent-may at any tjme in respect ofthewholeor any partof an application consent to judgment or to the relief.claimed. , (b) The consent_ referred to insubrule (1) shallbein writing, signed and dated by the respondent.. _ (c) .On receipt of a consent referred to in subru.le (1), the appltcant may apply in writing for an order to be made in accordance with such consent, (2) Whenever a respondent fails to. submit a 11otice of opposition in _response. to an application, the specialtribunal may on application, having _satisfied itse~f that notice of set down has been giv:entoall parties, proceedwith the matter and make such or order as it considers just in the ~bsence of the respondent. 14 No.16543 Act No. 30, 1995 Witness fees GOVERNMENT GAZETTE, 19 JULY 1995 LABOUR APPEAL COURT SilTING AS SPECIAL TRIBUNAL ACT, 1995

9. A witness subpoenaed to give evidence before the special tribunal shall be entitled to such fees and costs as such witness would have been entitled to receive if he or she had been subpoenaed to give evidence before the Supreme Court. Taxation of costs 10. (1) The costs ordered in terms of section 5(5) shall be taxed by the registrar on the scale which could have been allowed in a provincial division of the Supreme Court . . (2) Costs taxed by the regtstrarshall be subJect to review by the special tribunal on application by one or more of the parties within 14 days o~ such taxation. · (3) Any application referred to in subrule (2) shall identify each disputed item or part thereof together with the grounds of the objection to the allowance or disallowance thereof. Oath of office of interpreter 11. (1) Before any.interpreter may mterpret mthe spectal tribunal he or she !ihall take an oath or. make an affirmation in the following form: "I, .............. · .. do hereby swear/truly affirm that whenever I may be called upon to perform the functions of an interpreter in any proceedings in the special tribunal I shall truly and correctly and .to the. best of my ability interpret from the . .......... ~. languageinto the ............. . language and vice versa.". ~2) Such oath or affirmation shall be taken or made in the manner prescribed by law :for taking an oath or making an affirmation, and shall be signed by the interpreter. Correction, clarification, rescission or variation of order , 12. (1) The special tribunal may of its own motion, or on application by any party on notice to every other party, correct an omission or error or clarify any provision in any order. (2) The special tribunal may on good cause shown in an application by the respondent rescind or vary any order which was given on the grounds of the respondent having been in default in his, her or its reply or having failed to appear at the hearing. · (3) Any party bringing an application under subrule (2) shall within 14 days after having become aware ' of the , ord~r in question give notice of his, her.-or: its application to all parties whose interests may be affected by the rescission or variation sought. · ( 4) The special tribunal shall not rescind or vary any order unless it is satisfied that"all parties whose interests may be affected have notice of the rescission or variation proposed. · 16 No. 16543 Act No. 30, 1995 GOVERNMENT GAZE1TE,.19 JULY 1995 LABOUR APPEAL COURT SITTING AS SPECIAL TRIBUNAL ACT, 1995 APPENDIX 1 1 1.1 1.2 1.3 1.4 1.5 1.5.1 1.5.2 1.6 2 2.1 2.2 2.3 2.4 3 3.1 3.2 3.3 3.4 3.5 3.6 4 4;1 4~2 4.3 4A 4.5 5 5.1 5.2 5.3 6 7 Applicant Title and full names Details of position held Details of Department, organisational component or institution in which applicant is employed Persal reference number (or any other applicable reference number) Telephone, telefacsirnile and telex numbers Case Number •••••••••• Home: Work: Address at which applicant shall receive documents in the proceedings and where process are to be served Respondent Name of Department; organisational component-or institution Name of head of Department, organisational component or institution Address at which documents will be delivered and personon whom process will be·served Telephone, telefacsimile and telex numbers Particulars of employment relationship of applicant Date of employment Position employed in at present Place of work Salary or wages before deductions, if applicable Salary or wages after deductions, if applicable Date of termination of employment, if applicable Appointment of representative, if applicable Name of applicant's representative Business address Postal address Telephone~ telefacsimile and telex numbers Address at which . documents · are to be delivered an<l . process are to be served · The complaint The description of the action committed by the respondent against applicant: Alleged reasons for the action: Why applicant believes this aCtion to be unfair: Brief deScription of relief sought Reason why the matter is urgent (if applicable) DATED at ........................ on this the ............. day of .............. 19 ........ . SIGNED: TO: The Registrar AND TO: The Responder 18 No, 16543 Act No: 30, 1995 GOVERNMENT GAZElTE, 19 JULY 1995 LABOUR APPEAL COURT SilTING AS SPECIAL TRIBUNAL ACf, 1995 APPENDIX'2 Details of respondent 1 1.1 Name of Department, organisational component orinstitution 1.2 Name of head of Department, organisational component or institution 2 3 Notice of opposition I; the undersigned respondent, hereby give notice that I oppose the relief sought by the applicant in Appendix 1, Case No ................. . Order sought I seek an order dismissing the application or alternatively the following order: (Details of the order sought) Appointment of representative 4 4.1 Name ofrepresentative 4.2 Business address 4.3 4.4 4.5 Address at which documents· are to be delivered and person on whom Postal address Telephone, telefacsimile and telex numbers process are to be served 5 5.1 5.2 Defence to applicant's complaint The following allegations on the applicant's form are correct and are admitted: The following allegations on the applicant's form are incorrect and are denied, for the following reasons: The application is opposed by reason of the following facts: 5.3 5.4 Reasons why matter is urgent (if applicable): DATED at ........................ on this the .............. day of .............. 19 ........ . SIGNED: TO: The Registrar AND TO: The Applicant 20 No. 16543 Act No. 30, 1995 GOVERNMENTGAZE1TE,l9JUI.Y 1995 LABOUR APPEAL COURT SilTING AS SPECIAL TRIBUNAL ACf; 1995 APPENDIX3 REGISTRAR'S OFFICES· 1. PRETORIA NOTE: Postal address: Street address: Telephone number: ·Telefacsimile number: 2. CAPETOWN NOTE Postal address: Street address: Telephone number: felefacsimile number: 3. PORT ELIZABETH Postal address: Street address: Telephone number: Telefacsimile number:

4. DURBAN Postal address: Street address: Telephone number: Telefacsimile number: Also serves the Orange Free State Division Private Bag X117 PRETORIA 0001 Continental Building Visagie Street PRETORIA (012) 323 7643 (012) 323 9586 Also serves the Northern Cape Division Private Bag X6: ROGGEBAAI 8012 6th Floor Thomas Pattulo Building 19 Jan Smuts Street ·. Heerengracht ROGGEBAAI CAPETOWN. (021) 419 3555 ' (021) 251 933 . Private Bag X3912 NORTH END 6056 - Silver Oaks House North Street NORTH END PORT ELIZABETH (041) 542 404 (041) 547 142 Private Bag X5431:? DURBAN 4000 Suite No. 2 D'Urban Hall Cato Square DURBAN (031) 329 620, 329 629 or 329 631 (031) 370 857 22 No.16543 Act No. 30, 1995 GOVERNMENT GAZETTE, 19 JULY 1995 · LABOUR APPEAL COURT SITTING AS SPECIAL TRIBUNAL ACT, 1995 DMSIONS OF THE SPECIAL TRIBUNAL AND AREAS OF JURISDICTION SCHEDULE2 Divisions Area of Jurisdiction · Cape of Good Hope Division of the Special Tribunal The province of Western Cape Eastern Cape Division of the Special Tribunal The province of Eastern Cape Northern Cape Division of the Special Tribunal The province of Northern Cape Natal Division of the Special Tribunal The province of KwaZulu!Natal Orange Free State Division of the Special Tribunal Transvaal Division of the Special Tribunal The province of Orange Free State The province of Pretoria- Witwatersrand-Vereeniging The province of North-West : The province of Northern Transvaal The province of Eastern Transvaal .· .