EXCEPTIONS: Labour Court takes strong exception to an Exception

EXCEPTIONS: Labour Court takes strong exception to an Exception

The purpose of an Exception is to object to a defect in the opposing party’s pleadings. Typical exceptions are that the statement of claim is “vague and embarrassing” or that it “does not disclose a cause of action”.  The main case can’t proceed until the Exception has been dealt with.

The problem is that the exception procedure is often used as a deliberate strategy to delay and obstruct the progress of the case. A party can dig around for technical legal points to construct an Exception for this purpose. Apart from the delays, legal costs pile up because you need an experienced lawyer to argue the case for an Exception in open court.

There’s no specific procedure in the Labour Court Rules which deals with exceptions.  But there is Rule 6 which clearly describes what information must be included in a Statement of Claim – and a Reply for that matter. There’s good reason for this – the Labour Court is a court of fairness and equity. And it was designed to be less legalistic so it’s more accessible for non-lawyers and workers.

Things are very different in the High Court – it’s fraught with legal technicalities. That’s why it’s the domain of Advocates who are skilled in the cut and thrust of legalistic battles. The Uniform Rules of the High Court are much more detailed and prescriptive than the Labour Court.

Rule 11 (3) of the Labour Court gives the court a discretion to adopt any procedure it deems appropriate to deal with an issue such as an exception which is not covered in its rules. In the absence of any specific Rule in the Labour Court concerning exceptions, the court has recognised that parties may have recourse to the High Court Rules – including Rule 23 which deals specifically with exceptions. But the effect has been to import legalistic point taking into the more user friendly Labour Court.

The Labour Court has taken strong exception to the practice of importing the High Court Rules and everything that goes with them into the Labour Court arena. Judge van Niekerk has made this abundantly clear in a judgement dated 27 March 2018[1]. In dismissing an Exception, he had this to say[2]

“What I wish to emphasise is that this limited application of Rule 11 is not the gateway to the wholesale importation and application of the Uniform Rules, and thereby the creation of a parallel system of procedure in this court.


Whether or not the respondent’s statement of claim is excipiable is to be determined by reference to Rule 6 of the Rules of this court, not Rule 18 of the Uniform Rules.

Rule 6 requires no more that a party referring a statement of claim record in a concise manner the relevant facts on which the party relies, and also in concise terms, the legal issues that arise.”

The learned Judge went on to chastise the party’s strategy in making the Exception[3]

“Technical point taking has never been encouraged in this court, inimical as it is to the statutory purposes [of the Labour Court] to which I have referred. Litigating in the manner in which the excipient employer has approached this matter is to be discouraged in the strongest terms.

At best for the excipient [the employer], the terms of the exception evince an overly technical approach to litigation, one that is not welcome in this court. At worst, it is an attempt to consciously frustrate the statutory purposes to which I have referred.

And the punch line –

Either way, in my view, a punitive costs order is warranted.”  

TIPThis case confirms that the Labour Court is a specialised employment law court. It operates by its own rules and focuses on the merits of each case. It will not tolerate technical point taking or fancy legal footwork which is designed to frustrate the course of justice. And it will punish parties and practitioners who use this ill-advised strategy with punitive costs orders. The moral of the story: focus on the merits of the case – not on legal sidesh

Patrick Deale
Labour Lawyer & Mediator
[1] Liquid Telecommunication (Pty) Ltd vs Valerie Carmichael-Brown LC JS 987/17 (27 March 2018)
[2] para 14 page 6
[3] para 23 page 10

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Patrick Deale
Patrick Deale
Patrick has worked in law and alternative dispute resolution for 25 years in a wide range of industries and sectors. As a senior legal executive for a listed company, he gained first-hand experience of the issues business managers and employees deal with day-to-day.

Patrick co-founded Tokiso Dispute Settlement (Pty) Ltd in 2000, the largest private dispute resolution agency in the country, where he was full-time CEO for six years. He is a highly skilled and experienced labour negotiator, mediator, arbitrator and facilitator. He is a commercial mediator, coach and assessor, accredited by CEDA (UK). He also serves as Acting Judge of the Labour Court.

He is the co-author of the Labour Relations Handbook, published by Juta, and has been a regular host of the Labour Line on Talk Radio 702. Patrick established Deale Attorneys to focus on the opportunity to improve and build successful South African business relationships, in partnership with business clients.

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