This article outlines the directives issued by the Labour Court and the CCMA relating to access and process during the State of Disaster and Lockdown.

The Coronavirus (COVID-19) outbreak was declared a pandemic by the World Health Organisation (WHO) on 11 March 2020.

On 15 March 2020, in response to the magnitude and severity of the COVID-19 outbreak, South Africa declared a national state of disaster and President Cyril Ramaphosa announced significant measures that would be put in place in an attempt to inhibit the spread of COVID-19 in South Africa.

On 18 March 2020, regulations promulgated by the Minister of Cooperative Governance and Traditional Affairs in accordance with the National Disaster Management Act 57 of 2002, came into effect. These regulations enabled the Minister of Justice and Correctional Services , after consultation with the Chief Justice, to issue directions to address, prevent and combat the spread of COVID-19 in all courts.

On 23 March 2020, President Ramaphosa declared that there would be a national lockdown from 23h59 on 26 March 2020 for a period of 21 days until 23h59 16 April 2020 to further prevent the spread of COVID-19 in South Africa.

Government departments, courts, legal councils and organisations have all been required to take steps in order to comply with the Regulations.

This article deals with the steps taken by the South African Courts, with focus on the Labour Court, and the Commission for Conciliation, Mediation and Arbitration (CCMA) during both the State of Disaster and the Lockdown.

Directions Applicable to all South African Courts

On 26 March 2020, the Justice Minister issued directions to prevent and combat the spread of COVID-19 in all courts (including, therefore, the Labour and Labour Appeal Courts), court precincts and justice service points in South Africa. On 31 March 2020, the Justice Minister withdrew those directions and issued a new set of directions (the Courts' Directions).

Unless circumstances otherwise dictate, the Courts' Directions will be in force for the duration of the national state of disaster. In terms of the Courts' Directions:

  • only persons with a material interest in a case such as, litigants, accused, witnesses and persons accompanying, or persons who may be needed to provide support, such as those accompanying children, victims of domestic violence or sexually abused persons and persons with disabilities, family members, and members of the media will be permitted to enter the Court precinct, and the judicial officer concerned must order the number of persons in a room be limited to comply with safety measures and social distancing requirements;
  • entry into the courts and court precincts will only be allowed in respect of urgent and essential matters; and
  • civil cases that are not identified as urgent and essential services may not be placed on the court roll during the Lockdown. However, Heads of Courts retain the discretion to authorise the hearing of matters through teleconferencing or videoconference or any other electronic mode, which dispenses with the necessity to be physically present in the court room.

The Labour Court's State of Disaster Directive

On 18 March 2020, the Judge President of the Labour Court issued an urgent directive in respect of access to the Labour and Labour Appeal Courts, and service and filing of documents in light of COVID-19 (Labour Court's State of Disaster Directive).

In terms of the Labour Court's State of Disaster Directive:

  • save for urgent court matters, Judges and staff of the Labour Courts will only deal with matters that are enrolled for hearing;
  • matters will continue to be enrolled in the normal course; and
  • parties may agree to postpone matters that have already been enrolled during the State of Disaster on the basis of the COVID-19 pandemic. Parties in matters that have been postponed in terms of the Labour Court's State of Disaster Directive may approach the Judge President in writing for an expedited date for a new hearing.

Accordingly, for the most part, it will be business as usual in the Labour Court during the State of Disaster, save that access to the Court will be limited, in accordance with the Courts' Directions, and parties will be able to postpone matters enrolled if the reason for postponement relates to COVID-19.

The CCMA's State of Disaster Directive

On 17 March 2020, the CCMA issued a directive, which will be in effect from 18 March 2020 until 14 April 2020 (both dates inclusive) (CCMA's State of Disaster Directive).

Subject to the exceptions, the CCMA's State of Disaster Directive provides that:

  • all contact processes involving face to face interaction with users are postponed;
  • all matters set down between 18 March 2020 up to and including 14 April 2020 are postponed;
  • no persons will be allowed to walk into any of the CCMA offices for the purposes of enquiries and
  • serving/delivering any processes or documents and the CCMA will only accept referrals through non-contact methods such as email or fax;
  • all discretionary functions as provided in section 115 of the Labour Relations Act, such as conferences, training etc are postponed, unless otherwise advised by the CCMA.

The exceptions are that:

  • the pre-conciliation process, which is conducted by means of telephone, will continue;
  • conciliations may continue if to be conducted telephonically and agreed to by the parties, the CCMA and the Commissioner;
  • Commissioners may attempt to resolve disputes using telephonic or online methods prescribed and approved by the CCMA; and
  • in terms of discretionary functions, large scale dismissal processes under section 189A of the Labour Relations Act, the inquiry by the arbitrator process under section 188A of the Labour Relations Act, and identified matters of public interest, the CCMA may approve that these matters be set down in venues other than the CCMA offices, subject to the necessary health and safety and social distancing conditions being met, and the parties, the CCMA and the Commissioner agreeing in writing.

The Labour Court's and CCMA's Lockdown Directives

During the Lockdown it will still be necessary to have a means by which employment disputes can be resolved, particularly if those disputes relate to employees who are providing essential services as defined in the relevant regulations. Throughout the Lockdown, the Labour Court will continue functioning, albeit it will only hear matters in very specific circumstances and under very specific conditions. The CCMA will also continue functioning through the Lockdown, but their services will be scaled down.

The Labour Court's Lockdown Directive

On 25 March 2020, the Judge President of the Labour Court issued a further directive in respect of access to the Labour Courts during the Lockdown (Labour Court's Lockdown Directive). The Labour Court's Lockdown Directive will apply from 27 March 2020 until 16 April 2020. In terms of the Labour Court's Lockdown Directive:

  • no matters will be allocated for hearing from 27 March 2020 until 16 April 2020, and matters already allocated during that period will not be heard and will be removed from the roll;
  • no judges will be available at court to consider any matter nor will any member of staff be available to receive any documents;
  • with regard to urgent matters, parties must alert the Registrar, explaining in full detail why the matter is considered to be so urgent that it must be considered during the lockdown period. The Registrar will then contact the Judge on duty who will inform the Registrar whether or not they will consider the matter, and if they decide to entertain the matter, it will be done telephonically with the other side being duly informed by the Applicant where necessary; and
  • parties in matters that have been postponed under the Labour Court's Lockdown Directive may approach the Judge President (through the Registrars) in writing for an expedited date for a new hearing.

Accordingly, matters set down to be heard during the Lockdown will be postponed, albeit, after the Lockdown, parties can request an expedited date for a new hearing. Furthermore, the Labour Court will still be accessible in cases of the utmost urgency. Such cases may include, for example, cases wherein essential staff, who are performing essential services, unlawfully refuse to go to work.

The CCMA

The CCMA's services will be scaled down during the Lockdown. However, general enquiries can still be made through telephone, email and social media platforms. For essential services related issues and enquiries, parties are requested to email the CCMA for assistance.

Employees and employers in distress looking to apply for the temporary employee/employer relief scheme are urged to submit their applications to the CCMA via email.

In summary, while it is recognised that all efforts must be made to adhere to the various regulations made relating to the State of Disaster and the Lockdown, access to Courts cannot be, and is not, totally prohibited. In exceptional circumstances, and where the facts dictate, a litigant would still be able to approach the Labour Court during the Lockdown for urgent relief. So too, should the circumstances dictate, the CCMA can be approached for assistance, albeit that it is providing a minimised level of service.

Originally published 01 April 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.