Labour Law Update July to December 2025 (Marius Scheepers ©)

16.1.1

Administrative action

16.1.1

Administrative law

16.4.1

Affirmative action

16.2.1

Agreement

16.5.1

Arbitration awards

16.4.1

Automatically unfair dismissal

16.5.1

CCMA

duty of a commissioner when assessing disciplinary outcomes

JR1633/21

Idwala Holdings (Pty) Ltd v National Union of Mineworkers and Others (JR1633/21) [2025] ZALCJHB 307; [2025] 10 BLLR 1060 (LC) (15 July 2025)

“[32]  In respect of irreconcilable versions, the Labour Courts have generally held that the duty of a commissioner mirrors that of a judge in a trial court, as expressed by the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others[2003 (1) SA 11 (SCA) at para 5.] (Stellenbosch Farmers’ Winery):

‘To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’”

“[33]  In Sasol Mining (Pty) Ltd v Nggeleni NO and Others[(2011) 32 ILJ 723 (LC) at para 9.] (Sasol Mining), Van Niekerk J (as he then was), after quoting the abovementioned passage from Stellenbosch Farmers’ Winery, held as follows:

‘[9]  One of the commissioner’s prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the commissioner appears to have appreciated. What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version.’”

“[34]  The Labour Appeal Court cited and applied Stellenbosch Farmers’ Winery and Sasol Mining with approval in South African Breweries (Pty) Ltd v Hansen and others[(2017) 38 ILJ 1766 (LAC).]:

‘[16]    … There are, however, two irreconcilable versions on the evidence in relation to this question. In resolving the dispute of fact, the Commissioner was, accordingly, required to make findings on the credibility of the various factual witnesses; their reliability; and the probabilities. The Commissioner was, as such, obliged to assess the credibility of each of the witnesses who testified at the arbitration, and in doing so, was required to consider the prospects of any partiality, prejudice or self-interest on their part and the weight to be attached to their testimony by reason of its inherent probability or improbability. At the very least, in relation to the witnesses who testified in favour of SAB, the Commissioner ought to have considered (i) their candour and demeanour; (ii) their bias, latent and blatant compared to that of Hansen; (iii) internal and external contradictions in their evidence; (iv) the probability or improbability of particular aspects of their versions; and (v) the calibre and cogency of their performance compared to that of Hansen. It is, however, clear from her award, that the Commissioner failed to consider any of these things.’”

“36]  In Platinum Mile Resources (Pty) Ltd v CCMA and Others[(JR 427/20) [2023] ZALCJHB 52 (1 March 2023)], Prinsloo J held:

‘[54]  The arbitrator had to follow the approach as set out by this Court and he had to conduct an assessment of the credibility of the factual witnesses, their reliability and overall assessment of the inherent probabilities of the irreconcilable versions before him.

[56]  Glaringly absent from the arbitration award is an assessment of the versions, of the credibility of the witnesses and the inherent probabilities of the versions presented. In fact, there is no consideration of any of the factors set out in Sasol Mining.

[57]  The arbitrator merely recorded that, on a balance of probabilities, the Applicant failed to prove that Mr Maegala was guilty of the charge. This finding of the arbitrator is astonishing given the arbitrator’s failure to consider the evidence holistically. There was evidence of the Applicant’s two witnesses, which was uncontested in material respects, yet there is no consideration of their testimony. How the arbitrator could make a finding on a balance of probabilities without any consideration of the probabilities, is shocking.

[58]  The arbitrator failed to take cognisance of the material evidence placed before him and he had failed to assess the totality of the evidence presented. It was incumbent upon him to make credibility findings and to state why he accepted one version and rejected another, which he dismally failed to do. The arbitrator had no sense of how to accomplish this task and he failed in his duties as arbitrator. There was no analysis in the arbitration award and evidently, the arbitrator was wholly incapable of analysing the evidence.

[59]  The essential ingredients of an assessment of the credibility of the witnesses and the inherent probability or improbability of the versions before him are not there in the arbitration award. The arbitrator did not undertake a full analysis of the evidence and the probabilities as they presented themselves during the arbitration proceedings and he did not consider the evidence in light of the probabilities, self-interest and credibility of the witnesses.

[60]  The arbitrator was required to make a factual adjudication on the issue of misconduct and he had to do that by considering and assessing all the facts placed before him. The arbitrator did none of that. Glaringly absent from the award is any consideration of the probability of the versions, considered against all the evidence presented.

[67]  In summary: the arbitrator failed to consider the central dispute that served before him, he ignored relevant evidence, he failed to take into account the totality of the evidence, he failed to conduct a proper appraisal of the evidence, he rejected the Applicant’s version without any proper analysis and evaluation of the evidence, and he had no regard to evidence that was material and relevant. All of these constitute material misdirections.

[68]  The relevant authorities indicate that misdirections of this sort invariably have the consequence that an award will be unreasonable in its result. Whether the award stands to be set aside is a second-stage enquiry which requires an assessment of the reasonableness of the outcome. A review court may intervene if and only if the outcome or result of the proceedings under review represents a decision to which no reasonable decision maker could come on the available evidence. What this requires is for the review court to determine whether on the evidence, and regardless of any reviewable irregularity committed by the arbitrator, the result should nevertheless be sustained because it represents a reasonable outcome.

[69]  For the reasons already alluded to supra, I am not persuaded that the outcome of the proceedings under review can be sustained. It is unreasonable and does not pass the test as set out in Sidumo.’”

CCMA

retrenchment “pre-mature referral after notice of retrenchment

JS523/24

Sithole and Another v Haleon South Africa (Pty) Ltd (JS523/24) [2025] ZALCJHB 374 (22 August 2025)

“AI summary: the plaintiffs referred their disputes to the Commission for Conciliation, Mediation, and Arbitration (CCMA) before their employment officially ended.

 The court found that the referrals were not premature, as the plaintiffs were entitled to refer their disputes after receiving notice of dismissal.

“

“

[16]  On reading this subsection on its own, it appears that the defendant’s jurisdictional challenge must succeed as the section suggests that such a referral must be made after the dismissal. However, subsection 191(2A), which came into effect on 1 August 2002, provides that an employee whose contract of employment is terminated by notice may refer a dispute to the council or the CCMA once the employee has received that notice.”

CCMA

jurisdiction and Bargaining Council

JS523/24

Sithole and Another v Haleon South Africa (Pty) Ltd (JS523/24) [2025] ZALCJHB 374 (22 August 2025)

[30]  In this matter, it only became apparent that the defendant was a registered member of the NBCCI and that the CCMA did not have jurisdiction to conciliate the disputes when it raised a challenge to this Court’s jurisdiction on this basis in its statement of response to the plaintiffs’ claim.

“[33]  This is not a matter in which the CCMA has issued an arbitration award that must be set aside due to its lack of jurisdiction. This is a matter where all the CCMA has done is conciliate the disputes referred by the plaintiffs. As Landman AJ (as he then was) remarked in Spilhaus & Co (WP) Ltd v CCMA & others:[13]

‘In this case the certificate was issued by the commission itself which had assumed jurisdiction to conciliate. From a substantive point of view there seems to be no distinction to be drawn at all because whether conciliation was done by the bargaining council or the CCMA it would amount to the same thing. This is not however to say that there may not be material reasons why the autonomy of a bargaining council should not be undermined. In the present case I do not think it makes any difference and it would be over-technical for this Court to find that the senior commissioner lacked jurisdiction to arbitrate the matter on this ground.’”

[34]  In the Court’s view, in the circumstances of this matter, it does not make any difference that it was the CCMA that conciliated the disputes before they were referred to this Court for adjudication and not the NBCCI and that to uphold this point would be over-technical and antithetical to the effective and expeditious resolution of labour disputes.

CCMA

reasons in the award: ‘duty of proper consideration’

C536/23

Ndlovu v PHSDSBC and Others (C536/23) [2025] ZALCJHB 539 (20 November 2025)

[10]         Fundamental to the duties of arbitrating commissioners is to determine the substantive merits of the dispute[3], inclusive of the issues placed before them, and to provide reasons.[4] Where the commissioner fails to determine the issues placed before them by the parties, the commissioner commits a gross irregularity as the nature of the proceedings are misconceived.[5] Failure to give reasons would further constitute a gross irregularity and misconduct. Reason-giving is now common to the lawful exercise of all public power.[6]

“[11]         Generally speaking, reasons must be adequate.[7] What constitutes adequacy is context dependent.[8] They are however required to be explanatory in nature such that a dissatisfied party might know why the decision went against them.[9] Reasons should consist of more than mere conclusions and should refer to all relevant facts and law as well as the reasoning process leading to those conclusions.[10]

“

[12]         It is readily apparent from the award that the commissioner did not engage with the issues in dispute placed before him and did not give adequate reasons. I say so for the following reasons.

“[18]         The Constitutional Court has emphasised that a commissioner is required to determine all of the issues that are placed before them by the parties and even a failure to determine one of those issues would constitute both misconduct as well as a gross irregularity. Thus, in Toyota SA Motors (Pty) Ltd v CCMA and Others[(2016) 37 ILJ 313 (CC) at para 108.], the court held:

‘It is important that an arbitrator who is assigned a dispute about the fairness of a dismissal to arbitrate determines every component of the dispute that is in issue between the parties.  If he or she fails to determine any component of the dispute that is in issue between the parties, he or she will have failed to carry out his or her statutory function.  This would constitute misconduct as well as a gross irregularity in the proceedings.’”

“[21]         The position can be succinctly summarised as follows:

‘‘It is clear that the reasons given must be intelligible and must adequately meet the substance of the arguments advanced. It will not suffice to merely recite a general formula or restate a statutorily-prescribed conclusion. It is also preferable if the reasons demonstrate that a systematic analysis has been undertaken by the decision-maker . . . The reasons must generally state the decision-maker’s material findings of fact (and, if the facts were disputed at the hearing, their evidential support), and meet the substance of the principal arguments that the decision-maker was required to consider. If a decision is made on the basis of the evidence of witnesses or experts, reasons for preferring one witness or expert over another should generally be explained. In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, as the case may be, won.’[21]”

“[24]         All of the above is supported by the recent judgment of the Constitutional Court in Vodacom (Pty) Ltd v Makate and Another,[Vodacom (Pty) Ltd v Makate and Another [2025] 11 BLLR 1105 (CC).] where the Court emphasised that decisionmakers are subject to a ‘duty of proper consideration’ which was integral to the constitutional right to a fair hearing. The Court found further that a decisionmaker might (but not exclusively) discharge that duty by providing adequate reasons for its decision, particularly dealing with all of the material evidence and submissions placed before it. This the Court found underpinned the ‘duty to provide reasons’. In summary,

‘Woefully lacking reasons are symptomatic of a flawed assessment of facts and issues. For present purposes, flawed in the sense that amounts to a failure of justice. We must not lose sight of the fact that the adequacy of reasons relates to a proper consideration of the evidence and issues and – based on that – taking a reasoned decision. That, in no way, means that the reasons must be correct.’[27]”

[26]         Finally, the Court in Makate emphasised that the duty is context specific and will depend on the complexity of the matter and, this court suggests, the nature of the proceedings and type of decisionmaker in question.

CCMA

Postponement and rescission

JA21/25

Mobile Telephone Networks (Proprietary) Limited v Commission for Conciliation Mediation and Arbitration and Others (JA21/25) [2025] ZALAC 59 (24 November 2025)

[10]  The appellant contends that the Labour Court erred in upholding the commissioner’s refusal to postpone the arbitration proceedings because it accepted the commissioner’s reasons that the appellant was in wilful default in circumstances where the appellant’s representative had fallen ill the night before the hearing.

15]  Although, as the Labour Court appreciated, the threshold for review is ultimately the narrow ground of reasonableness, the failure by the commissioner to consider the prejudice that a refusal to postpone the matter would cause to the appellant and to balance the competing interests at stake is a reviewable irregularity, one that had the result of a decision that fell outside of the band of decisions to which a reasonable decision-maker could come on the available evidence.  The ruling refusing a postponement of the arbitration hearing thus stood to be set aside,

16.1.1

Collective agreement

interpretation

CA20/24

Sugar Berry CC t/a Horison Staff Solutions v Motor Industry Bargaining Council and Others (CA20/24) [2025] ZALAC 48 (2 October 2025)

[33]  More than a decade ago this Court has held that a collective agreement concluded in terms of the LRA is not an ordinary contract. Therefore, the context within which such an agreement operates is different from that of a commercial contract. Collective agreements operate within the framework established by the LRA and the interpretation thereof ought to be approached with the objects and purpose of the LRA in mind.[22]

“37]  In eThekwini Municipality (Health Department) v Independent Municipal & Allied Trade Union on behalf of Foster & others,[(2012) 33 ILJ 152 (LAC).] this Court held that a collective agreement must be interpreted “in such a manner as to ensure effective and sound industrial relations”.[26] Further, in Western Cape Department of Health v Van Wyk and others,[[2014] 11 BLLR 1122 (LAC); (2014) 35 ILJ 3078 at para 22.] this Court held:

‘In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements, namely, to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to all the parties.’

“

[38]  It must be emphasised that when interpreting a collective agreement, one must bear in mind that it is not like a commercial contract where a degree of primacy is placed on contractual autonomy, in the form particularly of the intention of the parties. When a collective agreement is interpreted, values based on the social character of the agreement are relevant. To this end, the emphasis is always on the objects and purposes of the LRA.

16.9.1

Collective bargaining

 the Minister had no duty to hear any non-parties before extending an agreement.

CA16/2023

South African Road Passenger Bargaining Council v Golden Arrow Bus Services (Pty) Ltd and Others (CA16/2023) [2025] ZALAC 61 (13 November 2025)

[68]  The non-parties have a further and important safeguard: the ability to judicially review the bargaining council’s decision to request an extension.[25] In view, section 32(2) does not envisage giving non-parties the right to be heard. It justifiably deprives them of the right to be heard. My conclusion that non-parties need not be consulted or given a hearing before a collective agreement is extended in terms of section 32(2) activates the bus companies’ constitutionality point.

“AI: The court found that Clause 3.2, which imposed a 4% across-the-board wage increase, was not ultra vires the LRA. The clause was deemed fair and consistent with the principles of collective bargaining.

“

“[30]  Section 23, which deals with the legal effect of collective agreements in the workplace, must be distinguished from sectoral collective agreements. The binding nature of sectoral-level collective agreements is governed by section 31, which states that, subject to section 32 and the constitution of the bargaining council, a collective agreement concluded in a bargaining council binds specific parties, under section 31. In Association of Mineworkers & Construction Union and Others v Chamber of Mines of SA and Others[(JA103/2014) [2016] ZALAC 11; (2016) 37 ILJ 1333 (LAC); [2016] 9 BLLR 872 (LAC) (24 March 2016).], this Court held that:

‘It is apparent from a reading of sections 32 and 23, within their proper contexts within the LRA, that the two sections contemplate, essentially, two different kinds of collective agreement. In section 23, collective agreements outside bargaining councils are contemplated and provided for, whereas section 32 contemplates collective agreements concluded on a broader [sectoral] basis, and more particularly, within bargaining councils.’[4]”

[66]  Section 32(2) extensions are not done in total disregard of the rights of non-parties. The Legislature, being mindful of the hardships that may, generally, be visited upon non-parties by such extensions, made provision for applications for exemptions. The collective agreement must embody mechanisms for non-members to apply to an independent panel for exemptions. They must give reasons why the collective agreement should not be extended to them. The independent panel would then assess whether the reasons provided are sufficient to warrant exemption. This is an important safeguard, and it also gives the non-parties an opportunity to be heard. The panel must be independent so that no aspersions of bias and partisanship can be thrown at the panel, which would be the case if the panel were constituted by members of the majority parties.

16.1.1

Common law

16.2.1

Conditions of employment

Promotion: once the applicant voluntarily subjected herself to an unlawful process, she cannot be heard to complain at a later stage when she failed to get the desired outcome out of that same process

2025/085510

Cebekhulu v City of Ekurhuleni Metropolitan Municipality and Others (2025/085510) [2025] ZALCJHB 282 (30 June 2025)

[19]  Thus since anything to do with the recruitment process is alleged to be unlawful, this implies that the applicant cannot as a starting point, be a party to that unlawfulness by participating in that process, and then complain about the same unlawfulness at a later stage. Thus, it would be inconsistent with her posture and allegations of unlawfulness, to complain about not being shortlisted in accordance with the very tainted process. This stance in my view demonstrates a classic case of approbating and reprobating. The applicant cannot blow hot and cold at the same time by seeking to impugn the legality of the entire recruitment process, whilst at the same time subjecting herself to the very same process and claiming a ‘legitimate expectation’ that she would be one of the candidates selected since she met the minimum requirements of the post; or that she met the very same minimum requirements set through an illegal process. To repeat, once the applicant voluntarily subjected herself to an unlawful process, she cannot be heard to complain at a later stage when she failed to get the desired outcome out of that same process. Equally odd was for the applicant on 17 June 2024, to have to enquired about the stage at which the supposedly illegal recruitment process was, or to even complain about the terms of the tenure as stated in the advertisement.

Conditions of employment

Leave – Maternity and parental

CCT 308/23

Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20 (3 October 2025)

Provisions unfairly discriminated against non-birth parents and violated rights to equality and dignity – Differentiation lacked a legitimate governmental purpose – Statutory scheme perpetuated outdated assumptions about caregiving roles – Failed to recognise diverse realities of modern families – Declarations of invalidity confirmed

[15]        The effect of these provisions is that the employee is entitled to take time off from work and has job security upon return.  Employers are not obliged to remunerate employees for their period of absence but it is commonplace for major employers to contract with employees to do so.  The employee may claim a financial benefit from the Unemployment Insurance Fund (UIF) in such sums as determined by the Minister.

25]        The High Court found that it was evident that there was differentiation between mothers and fathers, and between a birth mother and other mothers or parents in the impugned provisions of the BCEA.  The Court, relying on Harksen,[7] determined whether the differentiation bore a rational connection to a legitimate governmental purpose, whether it amounted to unfair discrimination, and if unfair, whether the provision could be justified under the limitation clause in the Constitution.[8]

[39]        If, for instance, parents who opt for adoption or surrogacy have a new-born child, their entitlement to leave is much less than that available to those who have a child biologically.  Of course, in respect of birth mothers, I accept that there are health considerations during which the mother has to be confined before birth and afterwards for recovery purposes, but it cannot be gainsaid that there is also a period for nurturing.  In respect of the other categories, there is an inadequate period set aside for the purposes of nurturing.

[60]        Therefore, there is a differentiation between adoptive parents, based on the age of the children they adopt, and also a differentiation between adopted children themselves, based on their age.  Such differentiation amounts to discrimination as age is one of the specified grounds of discrimination in section 9(3).  I also conclude that the discrimination is indeed unfair.  The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in their situation.[21]

82]        I hold that interim relief along the following lines would be appropriate:  the current allowance of four months (for biological mothers) should be retained.  Leave should not be restricted to mothers but should extend to fathers as well.  Where only one of the parents is employed, such parent should be entitled to the full parental leave.  In the case of a biological birth, the mother must have preference in respect of the time currently allocated as preparation for and recovery from birth.  Subject to this qualification, the parents should be entitled to share the available days as they choose.  In the event of disagreement, the leave contemplated in the relevant section shall be apportioned between the parents in such a way that each parent’s total parental leave is as close as possible to half of four months and 10 days.  There should be a requirement that a father who wishes to avail himself for paternity leave qualifies as one who has assumed parental rights and responsibilities over the child as contemplated in the Children’s Act.  The additional 10 days contemplated in section 25A should also be allowed, giving a total of four months and 10 days leave to be shared between the parents.

6.               Not later than six months before the expiry of the 36-month suspension period, the Minister of Employment and Labour, (Minister) must furnish a report to the Registrar, on notice to the parties, as to whether remedial legislation in respect of the BCEA and UIF Act has been brought into operation and, if such legislation has not been brought into operation, when it is expected to be brought into operation and the further processes that need to be completed in order for such legislation to be brought into operation.

“5.               Pending the coming into force of any remedial legislation as contemplated in paragraph 4, the impugned provisions of the BCEA shall read as follows, the changes being indicated by underlining:….

(a)            Section 25 of the BCEA shall read:

“

Conditions of employment

Section 77(3) BCEA

J3319/18

Musawenkosi Hlongwa v SM Xulu Incorporated and Another (J3319/18) [2025] ZALCJHB 317 (10 July 2025)

“AI case summary: “”Key Issue:

The plaintiff claimed unpaid remuneration of R573,387.91 from his employer, SM Xulu Incorporated, citing breach of contract under the Basic Conditions of Employment Act (BCEA). He had previously filed a constructive dismissal claim with the CCMA, which ruled in his favour and awarded him compensation of R900,000. The employer challenged the CCMA ruling in a pending Labour Court review.””

“

[21]…The CCMA is a competent tribunal to deal with and consider, as it has done, the issue relating to the non-payment of the plaintiff’s remuneration, albeit under the umbrella of section 186 of the LRA. The non-payment of the plaintiff’s remuneration is an essential issue before this Court. Upholding the plaintiff’s submission would defeat the very policy that underpins the lis pendens – which is non-replication of claims, conclusion and finality of the claim, and equity and fairness

Conditions of employment

leave payment

JS422/23

Kloppers v @Sold Properties CC (JS422/23) [2025] ZALCJHB 588 (10 December 2025)

[43]  The position with regard to leave pay is, however, regulated by the BCEA, which has been interpreted by several cases, setting out two different positions insofar as the accrual of leave pay in terms of the BCEA is concerned, albeit that position in favour of forfeiture of leave has been more readily accepted.[5] Section 19(2) of the BCEA, however, provides that Chapter three of the BCEA, which deals with leave, does not apply to leave granted to an employee in excess of the employee’s entitlement in terms of the chapter, unless an agreement provides otherwise. There is no provision in the employment agreement which makes the provisions of the BCEA applicable to it.

[48]  As a result, I find that the Plaintiff has discharged her onus to prove her entitlement to payment in respect of all leave accrued by her from the inception of her employment until termination, capped at the amount as claimed by the Plaintiff.

16.12.1

Condonation

“AI: Key points from the judgment include:

The Labour Court erred in not considering the interests of justice and the prospects of success.

The delay in filing the statement of claim was not excessive, and the appellant acted in good faith.

The dismissal of employees who were not involved in the strike (e.g., those on study leave or at home with permission) was deemed to have strong prospects of success.

The Labour Appeal Court emphasized the importance of considering the right to fair labour practices and access to justice under the Constitution.”

JA111/2024

Numsa obo Members v Macsteel Service Centres South Africa (Pty) Ltd (JA111/2024) [2025] ZALAC 60 (14 November 2025)

“Melane v Santam Insurance Co Ltd (1962):

Established the principle that condonation requires consideration of the degree of lateness, explanation for the delay, prospects of success, and the importance of the case.”

“Ditsoane v ACWA Power Africa Holdings (Pty) Ltd (2024):

Emphasized that courts must consider the interests of justice and prospects of success when deciding condonation applications.”

“Department of Transport and Others v Tasima (Pty) Limited (2018):

Highlighted that courts may overlook delays if it is in the interests of justice, even if the explanation for the delay is unsatisfactory.”

“Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited (2019):

Stated that courts must consider the merits of a case when deciding whether to condone delays”

“Khumalo v MEC for Education, KwaZulu-Natal (2014):

Stressed the importance of analysing the impugned decision and considering the merits of the challenge when assessing delays.”

“Road Accident Fund and Another v Mdeyide (2011):

Highlighted the importance of time limits in ensuring certainty and stability in legal disputes”

“Chief Lesapo v North West Agricultural Bank and Another (1999):

Affirmed the constitutional right of access to courts as foundational to an orderly society.”

“City of Johannesburg Metropolitan Municipality and Others v Independent Municipal and Allied Trade Union and Others (2017):

Emphasized the importance of considering the right to access courts and the interests of justice in condonation applications.”

“olett v Commission for Conciliation, Mediation and Arbitration and Others (2014):

Held that without a reasonable explanation for delay, prospects of success are immaterial”

“Matoto v Free State Gambling and Liquor Authority and Others (2017):

Stated that condonation may be refused if there is no satisfactory explanation for the delay, regardless of prospects of success.”

16.1.1

Constitutional law

Human dignity

CCT 308/23

Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20 (3 October 2025)

“[43]        In Dawood,[Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC).] this Court highlighted the interconnectedness of the right to equality with the right to human dignity, and why the right to human dignity is significant.  It reasoned:

“Human dignity therefore informs constitutional adjudication and interpretation at a range of levels.  It is a value that informs the interpretation of many, possibly all, other rights.  This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhumane or degrading way, and the right to life.  Human dignity is also a constitutional value that is of central significance in the limitations analysis.  Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected.  In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”[17]  (Emphasis in original.)”

“[44]        In Harksen, this Court said:

“The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner.  However, as L’Heureux-Dubé J acknowledged in Egan v Canada, ‘Dignity [is] a notoriously elusive concept . . . it is clear that [it] cannot, by itself, bear the weight of section 15’s task on its shoulders.  It needs precision and elaboration’.  It is made clear in paragraph 43 of Hugo that this stage of the enquiry focuses primarily on the experience of the ‘victim’ of discrimination.  In the final analysis, it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of the discrimination.”[18]”

Constitutional law

litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation in question

“[32]  In De Klerk v Cape Union Mart International (Pty) Ltd,[(2012) 33 ILJ 2887 (LC) at paras 23 – 27.] Steenkamp J, when faced with an application who relied directly on the right to fair labour practices in Section 23 of the Constitution, said the following:

‘As set out above, the applicant relies directly on the right to fair labour practices enshrined in Section 23 of the Constitution.

As the applicant herself acknowledges, national legislation – specifically the LRA – has been enacted to regulate and to give effect to the right to fair labour practices. Where legislation has been enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation in question.

“

“[37]  In Mazibuko and Another v City of Johannesburg and Others[2010 (3) BCLR 239 (CC).] at para 73, the Constitutional Court discussed the principle of constitutional subsidiarity and reiterated that:

‘This Court has repeatedly held that where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution.’”

Constitutional law

Dismissal of foreign nationals

JR280/23

GMP Trading Trading CC t/a Taxi Rand Food Market v Commission for Conciliation Mediation and Arbitration and Others (JR280/23) [2025] ZALCJHB 581 (10 December 2025)

8]  However, the Constitution of the Republic of South Africa, 1996 (the Constitution), in its preamble and Bill of Rights, affirms that the country belongs to all who live in it. Section 23 guarantees everyone the right to fair labour practices. The unlawful conduct of private groups cannot be permitted to override the constitutional and statutory rights of employees, whether nationals or foreign nationals no matter the threats they make.

16.2.1

Contract

Reasonableness of the restraint

2025/072515

TWK AGRI (Pty) Ltd v De Lange and Another (2025/072515) [2025] ZALCJHB 294 (30 June 2025)

[37]  In our law, agreements concluded in restraints of trade are valid, binding, and enforceable, unless their enforcement would be unreasonable.

[41]  In deciding whether it would be reasonable to enforce the restraint, the court must make a value judgment. Public policy dictates that agreements entered into voluntarily are binding and enforceable. The court must strike a balance between the need to respect agreements,[Brisley v Drotsky 2002 (4) SA 1 (SCA)] the freedom of the employee to be economically active and to practice his trade, professional or occupation, the nature of the restraint, and the competing interests of the parties.[Torrente & another v Grant Monaghan & Associates Incorporated (2024) 45 ILJ 798 (LAC)] The courts are more likely to take a more favourable view of the restraint where the parties engaged on an equal footing when the restraint was agreed.[Dickinson Holding Group v Du Plessis 2008 4 SA 218 N] Although this is a question of fact, there is a general acceptance that, in the employment context, parties seldom contract as absolute equals. However, exceptions will include instances where the employee is in senior management, highly skilled, or in high demand.

38]  The test for determining the reasonableness of a restraint of trade agreement is set out in Basson v Chilwan & others (“Basson”)[[1993] ZASCA 61; 1993 (3) SA 742 (A)] where Nienaber JA postulated the following: (a) Does the party have an interest that deserves protection? (b) Is the interest threatened or being prejudiced by another? (c) If so, does the interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive? (d) Is there an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected?

39]  In Reddy v Siemens Telecommunications (Pty) Ltd[(2007) 28 ILJ 317 (SCA)]  the Supreme Court of Appeal (“SCA”) suggested a further consideration, namely whether the restraint goes further than necessary to protect the interest. The SCA held that this corresponds with s 36(1)(e) of the Constitution, requiring a consideration of less restrictive measures to achieve the purpose of the limitation and that ‘[t]he value judgment required by Basson necessarily requires determining whether the restraint or limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”’.

45]  The applicant seeks a final interdict and must therefore satisfy three requirements[Setlogelo v Setlogelo 1914 AD 221 and 227] namely: a clear right, an injury actually committed or reasonably apprehended, and the absence of any alternative satisfactory remedy. The applicant has demonstrated a clear right. There is a reasonable apprehension that its right, and proprietary interests, are threatened. There is no satisfactory alternative remedy.

Contract

Labour Relations Act (LRA), Section 186(1)(b):: previous renewals of a fixed-term contract

JR2481/2022

Transport and Retail Allied Workers Union and Others v Grinding Media South Africa (Pty) Ltd (JR2481/2022) [2025] ZALCJHB 340 (8 August 2025)

Legitimate expectation – Correctness test – Employees hired as temporary replacements during training transition – Contracts explicitly stated they were of limited duration and required no expectation of renewal – Failed to demonstrate a subjective and objectively reasonable expectation of renewal – Repeated extensions and delays did not establish legitimate expectation of indefinite renewal – Contracts terminated lawfully – No dismissal occurred – Application dismissed.

“[26]  It is trite that the previous renewals of a fixed-term contract do not, alone, cause a reasonable expectation that such a contract will be renewed by the employer. Indeed, something else and something more would be required for such an expectation to be formed. Furthermore, where a fixed-term contract contains a clause to the effect that the employee can have no expectation that the contract would be renewed (as was the case in casu) the employee will be required to provide more compelling proof than would otherwise be the case that the expectation of renewal was reasonable.

“

“[28]  As per the case of SA Rugby (Pty) Ltd v CCMA & others,[[2006] 1 BLLR 27 (LC) at para 9.] the test for an employee to rely successfully on section 186(1)(b) of the LRA, is as follows:

28.1               he must establish that, subjectively, he had an expectation of continued employment (either in terms of another fixed term contract or indefinitely);

28.2               that the expectation was objectively reasonable; and

28.3               that the employer did not renew the contract or renewed it on less favourable terms.

 “

“[31]  On appeal,[De Milander v Member of the Executive Council for the Department of Finance, Eastern Cape and others (2013) 34 ILJ 1427 (LAC).] the LAC held as follows:

‘[31]    … In the circumstances, the letter of 30 September 2008 could not have led the appellant, on any plausible basis to expect that her contract would, upon its expiration, be renewed, upon its expiration, be renewed. Even if it did, her expectation could not, given the correspondence, have been genuinely or honestly held.

…

[35]    I disagree with the appellant. The question whether the employer’s failure to renew the fixed-term contract of employment constitutes a dismissal within the meaning of section 186(1)(b) is a legal one. In other words the Commissioner hearing the matter is called upon to determine the conclusion of law. It is therefore incumbent upon an employee who brings an unfair dismissal dispute in terms of section 186(1)(b) to set out the material facts upon which he relies for the conclusion of law he wishes the Commissioner to draw from those facts and it will not be sufficient, therefore to plead a conclusion of law without pleading the material facts giving rise to it. The mere ipse dixit of an employee, without further evidence, is not sufficient. The setting of this standard will prevent the opening of the floodgates for large numbers of other cases involving claims based on section 186(1)(b).’”

[32]  The second requirement in determining whether this form of dismissal has occurred is whether the employee’s claim that he/she expected: the contract to be renewed or to be retained permanently, was reasonable in the objective sense, i.e. whether the circumstances were such that any reasonable employee would, in the circumstances, have expected the contract to be renewed on the same or similar terms or to be retained permanently.

“[33]  In the case of SA Rugby Players’ Association & others v SA Rugby (Pty) Ltd & others,[(2008) 29 ILJ 2218 (LAC) at para 51 and 52.] the LAC held as follows:

‘[51]    Furthermore, Heymans acknowledged that the contracts would be coming to an end by mutual agreement and proposed that the players should remain on those contracts until such time that SA Rugby had communicated with the players. This proposal was in my view a request for an extension of the contracts that would expire and cannot be basis for a reasonable expectation of renewal. Lastly, on this aspect, Heymans expressed the view that players needed to know their future prospects in relation to their national contracts. This was, as contended on behalf of respondent, evidence of uncertainty and not of an expectation of renewal”

[52]    In my view, a statement by the then national coach-Straueli that the players were part of his plans for 2004 is not sufficient to form a basis for a reasonable expectation…’  (own emphasis)”

“[34]  In the case of Dierks v University of South Africa,[11] this Court summarised some of the factors which must be taken into consideration when determining whether or not an employee has been dismissed in terms of section 186(1)(b) of the LRA. The Court held as follows:

‘[132]  In my view, it can be deduced from the aforegoing and the use of the word “”reasonable”” that the Applicant as employee must prove that he had an expectation of renewal and that that expectation was reasonable in that apart from subjective say-so or perception there is an objective basis for the creation of his expectation”.

[133]   A number of criteria have been identified as considerations which have influenced the findings of past judgments of the Industrial and Labour Appeal Courts. These include an approach involving the evaluation of all the surrounding circumstances, the significance or otherwise of the contractual stipulation, agreements, undertakings by the employer, or practice or custom in regard to renewal or reemployment, the availability of the post, the purpose of or reason for concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice, and nature of the employer’s business. (See Olivier: supra at 1030).

[134]   These factors are not a numerus clausus. Indeed, in my view, the identified approach of an evaluation of all the surrounding circumstances entails an analysis of the facts in any given situation for the purpose of establishing whether a reasonable expectation has come into existence on an objective basis.’’”

Contract

Settlement agreement

JS98/25

Sello v Commission for Conciliation, Mediation and Arbitration and Others (JS98/25) [2025] ZALCJHB 358 (13 August 2025)

“[23]…In that respect, this Court understands Mr Sello’s position to be that there had not been true consent when he signed the agreement, because –

23.1.      The Commissioner misled him;

23.2.      He was confused; and

23.3.      He did not appreciate the consequences of signing the agreement.”

[17]  As a general rule, contractual arrangements must be honoured. In Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd[2018 (2) SA 314 (SCA); [2017] ZASCA 176.] the Supreme Court of Appeal (SCA) underscored that the “privity and sanctity of contract entails that contractual obligations must be honoured when the parties have entered into the contractual agreement freely and voluntarily. The notion of the privity and sanctity of contracts goes hand in hand with the freedom to contract. Taking into consideration the requirements of a valid contract, freedom to contract denotes that parties are free to enter into contracts and decide on the terms of the contract”.

“[18]  In Baedica[Bediaca 231 CC and others v Trustees for the Time Being of the Oregon Trust and others (Baedica) 2020 (9) BCLR 1098 (CC); [2020] ZACC 13.] the Constitutional Court made it clear that the rule of law requires that the law of contract should result in predictable outcomes, “enabling individuals to enter into contractual relationships with the belief that they will be able to approach a court to enforce their bargain”.[3] Therefore, the “enforcement of contractual terms does not depend on an individual judge’s sense of what fairness, reasonableness and justice require. To hold otherwise would be to make the enforcement of contractual terms dependent on the ‘idiosyncratic inferences of a few judicial minds’. This would introduce an unacceptable degree of uncertainty into our law of contract. The resultant uncertainty would be inimical to the rule of law”.[4]

“

[19]  In doing so, it restated the approach in Pridwin,[AB and Another v Pridwin Preparatory School and Others (Pridwin) 2019 (1) SA 327 (SCA); [2018] ZASCA 150.] including that public policy “demands that contracts freely and conscientiously entered into must be honoured”.[6]

“[20]  The judgment of the Constitutional Court in Gbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd & another (Gbenga-Oluwatoye CC)[(2016) 37 ILJ 2723 (CC); [2017] 1 BLLR 1 (CC).] further gives effect to the sanctity of contracts. The apex Court noted that “we must consider the importance of giving effect to agreements, solemnly concluded, by parties operating from the necessary position of approximate equality of bargaining power… What is at issue here is a powerful consideration of public policy – the need for parties to settle their disputes on terms agreeable to them. That need arises in their own interests and in the interests of the public”.[8] It continued:

‘The public, and indeed our courts, have a powerful interest in enforcing agreements of this sort. The applicant must be held bound. When parties settle an existing dispute in full and final settlement, none should be lightly released from an undertaking seriously and willingly embraced.’[9]

“

[21]  The sum of the precedent on contract is that a party should not easily escape one that is voluntarily entered into. Nonetheless, an agreement may be set aside if it was fraudulently obtained or on the grounds of iustus error, provided that the error vitiated true consent, and did not merely relate to motive or to the merits of a dispute which it was the very purpose of the parties to compromise.[Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and others 1978 (1) SA 914 (A).] The burden upon an applicant who wants to have an agreement set aside is high.

“[22.4]…The difficulty for Mr Sello is that the act of engaging in conciliation itself was not what had consequences in this case; rather, it was the conclusion of the settlement agreement that led to consequences. In the circumstances of the case, this Court cannot conclude on the available facts as pleaded that relief can be granted on the basis of the Commissioner proceeding to conciliation.

“

“33]  In this regard, the Court takes guidance from the unreported judgment of the LAC in Aveng Trident Steel, a Division of Aveng Africa (Pty) Ltd v Thembeka Nkonyane:[Case No JA16/2022, judgment of 17 April 2023.]

‘In an attempt to escape the consequences of… an agreement, the respondent argued that the contents of the agreement were never explained to her and as such, she is not bound by the terms thereof. I disagree… The agreement is a simple two-page document…

The argument by the respondent’s counsel that she was in a disadvantaged bargaining power with fewer resources compared to the appellant holds no water… She is an educated person and had demonstrated an ability to negotiate for herself as evident from the pleadings. She signed the retrenchment agreement and her signature serves as proof that she was aware of the content of the document. By signing the agreement, her intentions were to be bound by the terms thereof. We have to deal with her as the sort of person she is and she is not entitled to escape the consequences of the agreement on the basis that she was of less bargaining power than the appellant.’[15]

“

Contract

Restraint or Trade

2025/094429

Strydom v Castro (2025/094429) [2025] ZALCJHB 370 (21 August 2025)

“AI summary: The Applicant, Dr. Arnoldus Stefanus Strydom, sought to enforce a restraint of trade against the Respondent, Dr. Angelique Castro, who had resigned from his medical practice and opened her own practice within a prohibited 10 km radius. Court Findings:

The restraint of trade clauses were enforceable and separate from confidentiality clauses.

Dr. Castro had formed relationships with the Applicant’s clients during her employment, posing a threat to the Applicant’s business.

The restraint provisions were reasonable in protecting the Applicant’s interests but the three-year restriction was deemed excessive.”

Contract

Mutual Separation Agreement

2025/056322

Meth v Nedbank Limited and Others (2025/056322) [2025] ZALCJHB 438 (2 October 2025)

“[24]  In Nkosi v SSG Security Solutions (Pty) Ltd[(2020) 41 ILJ 1408 (LC) at paras [12]-[15].], this Court succinctly set out the legal principles relating to agreements in full and final settlement of disputes as follows:

‘In SA Municipal Workers Union & others v City of Johannesburg Metropolitan Municipality[(2013) 34 ILJ 1944 (LAC) at para [20].], the LAC considered the nature of an agreement in full and final settlement and held that:

‘An agreement more often is a product of compromise between two or more parties. In most cases, it is embodied in a written document which records the compromise made and is held up as an enforceable deal. The written agreement is therefore conclusive as to the rights and obligations of the parties.’

In Buthelezi v Liberty Group Ltd[(2012) 33 ILJ 607 (LC) at para [7].] this court held that:

‘Is the settlement agreement valid and binding between the parties? If yes cadit quaestio. It is correct as submitted by the respondent’s representative that as a general rule a person is bound by the terms of a signed agreement — the caveat rule. The rule applies even where the signatory has not read the agreement. … A party seeking to resile from the agreement has to prove that the agreement is not binding on him or her.’

In Gbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd & another[(2016) 37 ILJ 902 (LAC) at para [24].], the Constitutional Court also considered a full and final settlement and held that:

‘The public, and indeed our courts, have a powerful interest in enforcing agreements of this sort. The applicant must be held bound. When parties settle an existing dispute in full and final settlement, none should be lightly released from an undertaking seriously and willingly embraced. This is particularly so if the agreement was, as here, for the benefit of the party seeking to escape the consequences of his own conduct. Even if the clause excluding access to courts were on its own invalid and unenforceable, the applicant must still fail. This is because he concluded an enforceable agreement that finally settled his dispute with his employer.’

In summary, the legal position is that a person is bound by the terms of a signed agreement and the signed agreement is conclusive as to the rights and the obligations of the parties.’

“

[26]  Furthermore, as Nedbank’s counsel pointed out, the plaintiff does not seek to set aside the MSA nor does it tender restitution of performance received under the settlement agreement.

“[27]  In Makiwane v International Healthcare Distributors[(2003) 24 ILJ 2150 (LC).], this Court dealt with the effect of an agreement where payment was effected as full and final settlement of all claims an employee might have against his employer. It was held as follows:

‘[18] It is common cause between the parties that the applicant has been paid all the monies set out in the settlement agreement, that he has kept such monies and has made no tender to return them to the respondent. To my mind this clearly signifies his acceptance of such monies in full and final settlement of his claims against the respondent.

[19] Our law is trite that where a party accepts the benefits under any settlement agreement in full and final settlement of the benefits owing to him by his former employer arising from the termination of his employment relationship with such employer, and has abided by such acceptance of those benefits, he has placed himself beyond the jurisdiction of this court.

[20] Similarly, in the present case I am of the view that when the applicant signed the agreement, thereby signifying his acceptance of its terms, and later accepted the benefits paid to him in terms thereof, the dispute between him and the respondent was finally settled. From that time onwards there was no live dispute between the parties. There being no live dispute for this court to determine, it follows that this court has no jurisdiction to deal with this matter.’”

Contract

access to such confidential information, without Restrain of trade, confidential information

2025/144680

G4S Deposita (Rf) (Pty) Ltd v Harmse (2025/144680) [2025] ZALCJHB 525 (5 November 2025)

“[34]  So, what information did the respondent take? On the common cause facts, there can be no doubt that it is confidential information, proprietary to the applicant, and not in the public domain. Taking a leaf out of the playbook relating to restraints of trade, where confidential information of an employer is considered to be a protectable interest, I refer to what this Court said Dot Activ (Pty) Ltd v Daubinet and Another[(2023) 44 ILJ 785 (LC) at para 40.], where the Court described confidential information as being the following:

‘Confidential information would be: (a) Information received by an employee about business opportunities available to an employer; (b) information that is useful or potentially useful to a competitor, who would find value in it; (c) Information relating to proposals, marketing or submissions made to procure business; (d) information relating to price and/or pricing arrangements, not generally available to third parties; (e) information that has actual economic value to the person seeking to protect it; (f) customer information, details and particulars; (g) information the employee is contractually, regulatory or statutory required to keep confidential; (h) Information relating to the specifications of a product, or a process of manufacture, either of which has been arrived at by the expenditure of skill and industry which is kept confidential; and (i) information relating to know-how, technology or method that is unique and peculiar to a business. Importantly, the information summarized above must not be public knowledge or public property or in the public domain. In short, the confidential information must be objectively worthy of protection and have value.’[6]

The information appropriated by the respondent in casu ticks most of the aforesaid boxes. There can be no doubt that all the information she appropriated was confidential to the extent that it must qualify for protection.”

“[35]  Once it is so that the respondent had access to such confidential information, can it be said it would be in breach of her obligations of good faith towards the applicant in terms of her contract of employment, if she appropriated it, considering she was not subject to a restraint of trade per se? In my view, undoubtedly so. Despite what he respondent’s employment contract actually contains in casu, the Court Sappi Novoboard (Pty) Ltd v Bolleurs[(1998) 19 ILJ 784 (LAC) at para 7.] had the following to say where it comes to the duty of good faith an employee has towards an employer:

‘… It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully … The relationship between employer and employee has been described as a confidential one … The duty which an employee owes his employer is a fiduciary one ‘which involves an obligation not to work against his master’s interests’ …’”

“[36]  Also applying these principles of good faith and fiduciary duties specifically to the employment relationship, the Court in Ganes and Another v Telecom Namibia Ltd[(2004) 25 ILJ 995 (SCA) at para 25. See also Volvo (Southern Africa) (Pty) Ltd v Yssel (2009) 30 ILJ 2333 (SCA) at paras 16 – 17; Stoop and Another v Rand Water (2014) 35 ILJ 1391 (LC) at para 99.] held as follows:

‘As an employee of the respondent and in the absence of an agreement to the contrary the first appellant owed the respondent a duty of good faith. This duty entailed that he was obliged not to work against the respondent’s interests; not to place himself in a position where his interests conflicted with those of the respondent … ‘     The Labour Appeal Court in Bonfiglioli SA (Pty) Ltd v Panaino[9] applied the above ratio in Ganes supra as follows:

‘… at common law, the employee owes the employer a duty of good faith. In Ganes & another v Telecom Namibia Ltd, it was said that the duty of good faith entails that an employee is obliged not to work against the interests of his/her employer and not to place himself/herself in a position where his/her interests conflict with those of the employer. In Council for Scientific & Industrial Research v Fijen, it was stated that:

‘It is well established that the relationship between employer and employee is in essence one of trust and confidence and that, at common law, conduct clearly inconsistent therewith entitled the “”innocent party”” to cancel the agreement. …’”

“[37]  A final apposite reference would be to the judgment in National Union of Metalworkers of SA on Behalf of Nganezi and Others v Dunlop Mixing & Technical Services (Pty) Ltd and Others (Casual Workers Advice Office as Amicus Curiae)[(2019) 40 ILJ 1957 (CC) at para 61.], where the Court held as follows:

‘So despite the possibly confusing references to trust, confidence, loyalty and good faith in our case law it is clear that where contracting parties ‘are bound to promote the interest entrusted to their keeping … [t]hey cannot take any advantage to themselves out of the business for which they have been appointed, nor derive any benefit therefrom, beyond such commission and charges as the law allows in the particular instance’. This essentially amounts to the duties that Idensohn identifies as distinctive of fiduciary duties: (a) that fiduciary duties require a unilateral obligation to act in the beneficiaries’ interest; (b) the primary fiduciary obligations are only two — no profit and no conflict of interest; and (c) fiduciary remedies are strict, with no intent required …’

“

“[41]  And lastly, the respondent suggested that because she is no longer employed, the duty on her to keep the information of the applicant confidential has somehow expired along with the termination of her employment. A definitive answer to this can be found in Van Castricum v Theunissen and Another[1993 (2) SA 726 (T) at 736B-C.], where it was said:

‘… The duty to preserve confidential information is not merely limited to the existence of the contractual relationship of employer and employee, but extends to the period after determination of such contractual relationship …’”

16.2.1

Constructive dismissal

JR 2413/23

“

Manhattan Process Engineering (Pty) Ltd v Bachisi (JR 2413/23) [2025] ZALCJHB 495 (1 July 2025)”

“[9]  In Browns The Diamond Store (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others; 2023 (10) BLLR 1033 (LC), Nkutha-Nkontwana J, stated as follows:

“”Tritely, the review test in relation to constructive dismissal cases is correctness as opposed to reasonableness. The enquiry turns on the jurisdiction of the CCMA, a notion well explained in Solid Doors (Pty) Ltd Commissioner Theron and Others, where the Labour Appeal Court (LAC) held that:

‘Having established what the requirements are for a constructive dismissal, it is necessary to make the observation at this stage of the judgment that the question whether the employee was constructively dismissed or not is a jurisdictional fact that – even on review – must be established objectively. That is so because if there was no constructive dismissal, the CCMA would not have the jurisdiction to arbitrate. A tribunal such as the CCMA cannot give itself jurisdiction by wrongly finding that a state of affairs necessary to give it jurisdiction exists when such state of affairs does not exist. Accordingly, the enquiry is not really whether the commissioner’s finding that the employee was constructively dismissed was unjustifiable. The question in a case such as this one – even on review – is simply whether or not the employee was constructively dismissed. If I find that he was constructively dismissed, it will be necessary to consider other issues. However, if I find that he was not constructively dismissed, that will be the end of the matter and the commissioner’s award will stand to be reviewed and set aside.’”

“

“[10]  At paragraph 17, the learned judge stated as follows:

“”That being the case, as stated in HC Heat Exchangers (Pty) Ltd v Araujo and others, “the Labour Court is entitled, if not obliged, to determine the issue of jurisdiction on its own accord.  In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the arbitrator is right or wrong.’”

“11]  The test to determine whether there has been a constructive dismissal is also trite, and I am going to quote from the same judgment, paragraph 30:

“”In Gold One Limited v Madalani and Others, this Court sanctioned the well-established principle that: ‘Intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.’ The principle was recently concretised by the Constitutional Court, albeit in a context of reinstatement, in Booi v Amathole District Municipality and others, where it was stated that:

‘It is accordingly no surprise that the language, context and purpose of s 193(2)(b) dictate that the bar of intolerability is a high one. The term ‘intolerable’ implies a level of unbeatability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour.’”””

“12]  As the Court on review, I am required to determine de novo whether or not a constructive dismissal has been established. What is the approach in a constructive dismissal? The approach is also trite, and  I quote from another judgment, Sanlam Life Insurance v Mogomatsi & Others; 2023 (11) BLLR 1166 (LAC):

“”In constructive dismissal disputes, a two-stage approach is normally followed. First, the employee must prove that the employer effectively dismissed him or her by making her or his continued employment intolerable. It is an objective test. The employee need not prove that he had no choice but to resign.  All that is required is to prove that the employer made continued employment intolerable. The conduct of the employer towards the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with it. Second, after the dismissal had been established, the Court will then evaluate whether the dismissal was unfair. The two stages may overlap and be interrelated.”””

[23]  That is the respondent’s evidence. The respondent’s evidence was that she did not lodge an internal grievance. She gave evidence why she did not lodge an internal grievance. Although that evidence was challenged, it is not a requirement for a constructive dismissal that a formal grievance be lodged. 

[29]  The approach of the applicant from its own HR manager was if you are not happy, leave. There was no attempt by the applicant to deal with the grievances lodged by the respondent, or at least the grievances that Ms Pretorius was aware of. Her attitude was: if you do not like it, you can leave. 

Constructive dismissal

resignation: sent a draft resignation letter via WhatsApp to the Deputy Minister, but did not directly communicate his resignation to the Director-General (DG), his employer.

“[14]  Regarding the law on resignations, Van Niekerk J (as he then was) provides this useful summary in Sihlali:[Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC).]

“[11] A resignation is a unilateral termination of a contract of employment by the employee. The courts have held that the employee must evince a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harboured such an intention … . Notice of termination of employment given by an employee is a final unilateral act which once given cannot be withdrawn without the employer’s consent … . In other words, it is not necessary for the employer to accept any resignation that is tendered by an employee or to concur in it, nor is the employer party entitled to refuse to accept a resignation or decline to act on it. …

[12] This is not to say that a resignation need not be communicated to the employer party to be effective – indeed, it must, at least in the absence of a contrary stipulation … .

[13] A resignation is established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention. The courts generally look for unambiguous, unequivocal words that amount to a resignation … .” (Authorities omitted.)”

a)  It is declared that the applicant did not tender his resignation to the respondents on 18 December 2019 as alleged by the respondents;

16.2.1

Contract of employment

A deduction from remuneration must be distinguished from a reduction in remuneration

JA75/24

Sahara African Living (Pty) Ltd v Solidarity obo Members (JA75/24) [2025] ZALAC 57 (6 November 2025)

A deduction from remuneration must be distinguished from a reduction in remuneration

[44]  To the extent that the employees (and the Labour Court) referred to and sought to apply section 64(4) of the LRA, that section similarly has no application in the present instance. Section 64(4) does no more than establish a right to interim relief when an employee refers a claim to the statutory dispute resolution structures when the dispute so referred concerns an alleged unilateral change by an employer to employees’ terms and conditions of employment. The section functions to preserve the status quo (or to require the restoration of the status quo where terms and conditions of employment have been changed), pending the conclusion of a conciliation process. Section 64(4) is not intended to provide a substantive, self-standing remedy when an employer unilaterally changes an employee’s terms and conditions of employment. Rather, the section affords an employee an interim remedy to protect the integrity of the conciliation process, a remedy that expires once a certificate of non-resolution has been issued by a commissioner or 30 days (or any agreed, extended period) has elapsed after the referral of the dispute. Further, a dispute that concerns a unilateral change to terms and conditions of employment is not a dispute that is arbitrable, nor is it a dispute justiciable by the Labour Court. Should conciliation fail, the LRA contemplates that the dispute be determined by a resort to the exercise of economic power. However, those provisions aside, to the extent that any unilateral change by an employer to an employee’s terms and conditions of employment constitutes a breach of the employment contract, the employee may elect to pursue whatever contractual remedies may be available, either in the civil courts or in the Labour Court in terms of section 77(3) of the BCEA…in terms of section 77(3). In essence, the employees’ claim was one in which they sought an order of specific performance in the form of payment by the appellant of their remuneration, against a tender to work…The Labour Court, enjoying as it does concurrent jurisdiction with the civil courts in such a claim, was required to evaluate the claim as a civil court would…There is no scope for an appeal to considerations of fairness in these circumstances, or any award of compensation. The Labour Court erred when it made that award.

[49]  The facts disclose that while the employees may not have been happy about the amendment to their terms and conditions of employment, they did not expressly reject the unilateral change. On the contrary, the employees conducted themselves in a manner which gave rise to the inescapable inference that they consented to a temporary reduction in their salaries.

a.     ‘The applicant’s claim for remuneration is dismissed.

Contract of employment

legally enforceable agreement or some contractual working arrangement in place

JR1744/20

Waterberg District Municipality v South African Local Government Bargaining Council and Others (JR1744/20) [2025] ZALCJHB 453 (1 October 2025)

“56]  In Universal Church of the Kingdom of God v Myeni & Others [Universal Church of the Kingdom of God v Myeni & Others (2015) 36 ILJ 2832 (LAC) at paragraph 36.], the Labour Appeal Court found it necessary to first undertake a proper interpretation of section 200A, and, second to determine whether on the facts of the case the section applies.  The Labour Appeal Court importantly held as follows:

‘To my mind, a proper interpretation of the words ‘regardless of the form of contract’ in s 200A informs me that the existence of an employment contract or any other contractual arrangement between the disputing parties (regardless of the form thereof) is prerequisite for s 200A to apply.  Indeed, the portions of item 16 of the code of good practice (which I have emphasised above) appears to confirm this view.  In other words, some form of contract must be evident, which need not be formal or in writing.’”

[57]  What the Labour Appeal Court stressed was that a proper interpretation of section 200A of the LRA required, as a prerequisite for its application, some form of contract to be evident

“[58]  In Universal Church of the Kingdom of God [Universal Church of the Kingdom of God v Myeni & Others (2015) 36 ILJ 2832 (LAC) at paragraph 40.], the Labour Appeal Court importantly emphasised that a proper construction of section 200A requires, ‘that there must be a legally enforceable agreement or some contractual working arrangement in place between the parties for s 200A to apply.’

“

[67]  On the facts of this case, I am satisfied that the relationship between the Municipality and the third to fifth respondents was that of relief workers in the Municipality’s control rooms only as and when the need arose.

Contract of employment

tacit term: His employment contract stipulated that commission would be calculated and paid upon receipt of payment from clients, with no clause forfeiting entitlement upon resignation.

JS33/24

Solidarity obo van Rensburg v Stalion Security (Pty) Ltd (JS33/24) [2025] ZALCJHB 565 (1 December 2025)

Payment after termination – Secured several sales before resignation – Clients paid after departure – Contract provided that commission would be calculated and paid upon receipt of payment from client – No clause forfeiting entitlement upon termination – Employer’s reliance on an unproven industry norm failed on evidentiary and legal grounds – Failure to pay constituted a breach of contract.

“[17]  Even if the industry norm was proven, one must still consider whether the industry norm was a tacit term of the contract. In City of Cape Town (CMC Administration) v Bourbon Leftley and another NNO[6] (“Bourbon Leftley”) the Supreme Court of Appeal stated:

“[19] A discussion of the legal principles regarding tacit terms is to be found in the judgment of Nienaber JA in Wilkins NO v  Voges 1994 (3) SA 130 (A) at 136H – 137D. These principles have since been applied by this Court, inter alia, in Botha v Coopers & Lybrand 2002 (5) SA 347 (SCA) at paras [22] – [25] and in Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another  2005 (6) SA 1 (SCA) ([2004] 1 All SA 1) at paras [50] – [52]. As stated in these cases, a tacit term is based on an inference of what both parties must or would necessarily have agreed to, but which, for some reason or other, remained unexpressed. Like all other inferences, acceptance of the proposed tacit term is entirely dependent on the facts. But, as also appears from the cases referred to, a tacit term is not easily inferred by the courts. The reason for this reluctance is closely linked to the postulate that the courts can neither make contracts for people nor supplement their agreements merely because it appears reasonable or convenient to do so (see e.g. Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration  1974 (3) SA 506 (A) at 532H). It follows that a term cannot be inferred because it would, on the application of the well-known ‘officious bystander’ test, have been unreasonable of one of the parties not to agree to it upon the bystander’s suggestion. Nor can it be inferred because it would be convenient and might therefore very well have been incorporated in the contract if the parties had thought about it at the time. A proposed tacit term can only be imported into a contract if the court is satisfied that the parties would necessarily have agreed upon such a term if it had been suggested to them at the time (see e.g. Alfred McAlpine (supra) at 532H – 533B and Consol Ltd t/a Consol Glass (supra) at para [50]). If the inference is that the response by one of the parties to the bystander’s question might have been that he would first like to discuss and consider the suggested term, the importation of the term would not be justified. 

(own emphasis)”

[18]  It is clear from Bourbon Leftley that a tacit term should only be imported into the contract where the court is satisfied that the parties would necessarily have agreed upon such a term if it had been suggested at the time. The court is not satisfied that the parties would necessarily have agreed upon such a term if it had been suggested at the time. In fact, at trial, this was not even suggested to the plaintiff during cross examination.

Contract of employment

rescinding his appointment, citing irregularities in the recruitment process.

JR08/23

Public Servants Association v Commission for Conciliation, Mediation and Arbitration and Others (JR08/23) [2025] ZALCJHB 584 (4 December 2025)

“27]  Mamabolo v South African National Blood Service[2020 JDR 0082 (LP)] addressed the situation where a contract of employment was concluded, but performance has not yet commenced. The Court, relying on Wyeth SA (Pty) Ltd v Manqele and Others, found that an individual may be considered an employee upon acceptance of an offer and resignation from previous employment, even before starting work, thus enjoying protection under the LRA.

[28]  It is accepted that in our law, the validity of an employment relationship does not automatically depend on strict compliance with an employer’s internal recruitment policies, as the statutory framework governing employment relationships is broader than the contractual or procedural aspects alone. However, where legislation expressly requires compliance with specific recruitment procedures for certain positions, such as municipal managers under the Local Government: Municipal Systems Act, non-compliance can invalidate the appointment. The jurisprudence below buttresses this view.”

“[29]  The Apex Court in Steenkamp and Others v Edcon Ltd,[8] emphasised that the statutory concept of an employment relationship is broader than the contractual notion of employment. The Court noted that statutory definitions and protections apply to employment relationships, even where the strict requirements of contract law or internal employer policies have not been met.

[30]  The upshot of the Steenkamp judgment is that generally, even if an employer fails to adhere to its own recruitment policies, an employment relationship may still be recognised as valid under the law, provided that the statutory requirements for such a relationship are met. The statutory framework, including the LRA and other relevant legislation. “

16.12.1

Costs

16.12.1

Court Appeal

16.12.1

Damages

The Mine Health and Safety Act

JS382/2023

Mathebe v Cullinan Diamond Mine (Pty) Ltd (JS382/2023) [2025] ZALCJHB 330 (1 August 2025)

“35]  The applicant has pleaded that the first respondent breached sections 9 and 11 of the MHSA. However, the applicant, on the face of it, does not seek any relief arising from or in relation to such alleged breaches. Differently put, the applicant has not requested this Court to make any findings specifically in relation to sections 9 or 11 of the MHSA.

[36]  Section 9 of the MHSA deals with Codes of Practice to be prepared by employers. Section 11 of the MHSA deals with an employer’s obligation to assess and respond to risk.

[37]  Section 82 of the MHSA provides that the Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of any provision of that Act except where that Act provides otherwise.

[38]  On the face of it, this Court would indeed have jurisdiction to hear and adjudicate a dispute/claim concerning the interpretation or application of sections 9 and 11 of the MHSA.

[39]  However, as per the applicant’s pleadings, and as also argued by the applicant in his heads of argument, the applicant does not seek any relief specifically in regard to sections 9 and 11 of the MHSA. Rather, the applicant seeks damages and/or recompense for loss of earnings, due to an alleged workplace disease contracted by him. It appears that the applicant relied upon the alleged breaches of sections 9 and 11 of the MHSA to bolster his argument and claims for damages and reimbursement for loss of earnings, and serve as general (factual) allegations levelled against the first respondent, in support of the applicant’s alleged claims.

[40]  On this basis, I find that any purported dispute between the parties concerning the applicability and/or contravention of sections 9 and 11 of the MHSA is not a dispute which is legitimately before this Court “

“Mine Health and Safety Act (MHSA), No.

 29 of 1996:

Section 9: Codes of Practice to be prepared by employers.

Section 11: Employer’s obligation to assess and respond to risk.

Section 82: Labour Court’s exclusive jurisdiction over disputes about the interpretation or application of the MHSA.”

Damages

compensation as solatium

JR1794/22

Lucchini South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1794/22) [2025] ZALCJHB 589 (19 December 2025)

“[59]  However, several decisions have held that compensation is a solatium, and that patrimonial loss is irrelevant.[Zeda Car Leasing (Pty) Ltd v Van Dyk (2020) 41 ILJ 1360 (LAC), Association of Mineworkers & Construction Union & Others v Northam Platinum Mine Ltd (2021) 42 ILJ 2565 (LAC), ARB Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC), Bester v Small Enterprise Finance Agency SOC Ltd & Others (2020) 41 ILJ 877 (LAC), and Bester v Small Enterprise Finance Agency SOC Ltd & Others (2020) 41 ILJ 877 (LAC).] Recently, in Le Grange v Visser t/a Skukuza Medical Practice & Another[(2025) 46 ILJ 947 (LAC).] (Le Grange), the Labour Appeal Court was called upon to determine whether compensation for a procedurally unfair dismissal should be limited to the three months that an employee was unemployed. The court described the proposition as fallacious and stated this:

‘[24]  The proposition is based on a misunderstanding of the difference between patrimonial damages and a solatium. In Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union, this court explained it as follows:

‘The compensation for the wrong in failing to give effect to an employee’s right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another. So too, in this instance.’

[25]  Dr Visser totally disregarded Dr Le Grange’s rights. She had to endure the indignity of unemployment whilst the other employees returned to work, albeit for a short period. Compensation equal to three months’ salary is wholly inadequate.’

“

[61]  After reviewing all the above decisions, my understanding of the legal position is that the quantum of compensation must be just and equitable for both parties, taking into account all relevant factors, including the financial loss or gain suffered or realised by an employee as a result of the dismissal, as applicable. However, the quantum of compensation is not limited to the employee’s actual financial loss.

16.1.1

Definition

16.10.1

Desertion

16.3.1

Disciplinary hearing

unreasonable delay in bringing the proceedings to a disciplinary hearing

DA15/2024

Cibane and Another v Premier of Province of Kwazulu-Natal (DA15/2024) [2025] ZALAC 44; [2025] 10 BLLR 1004 (LAC); (2025) 46 ILJ 2587 (LAC) (15 July 2025)

[4]  This appeal thus serves us in lamentable circumstances. The misconduct that forms the basis of the case was allegedly committed more than 10 years ago, and the internal disciplinary enquiry into that misconduct has not yet proceeded beyond the stage of preliminary objections.

[9]…he appellants aver that the failure by the first respondent to act within a reasonable time constituted a waiver of the right to take disciplinary action against them. That aside, the appellants submit that the delay in charging them was a breach of the principle of legality, with the consequence that they were, as a matter of law, entitled to an order quashing the charges against them.

“[22]  This ruling has been interpreted to mean that the Labour Court has the jurisdiction to interdict or otherwise intervene in incomplete disciplinary proceedings, limited only by the consideration of exceptionality. The implication is that the Labour Court may exercise powers over matters that, in terms of the LRA, are to be determined by arbitration, in particular, the fairness of internal proceedings relating to alleged misconduct or incapacity.[7] The consequence, over the years, has been that described by Tlhotlhalemaje J in George v Nyoka and others:[8]

‘This application is representative of the now familiar and habitual abuse of the urgent Court by employees, especially those who occupy senior positions in all spheres of government, especially in the municipalities. These employees, after being placed on prolonged periods of precautionary suspensions and when called upon to answer to the charges of misconduct, will take all means necessary in order to avoid the conclusion of those enquiries. When all the strategies deployed to avoid the hearing comes to nought, the next step is to seek sanctuary from this Court, with contrived and legally unsustainable urgent applications, with the hope that the serious charges will vanish.

…

These antics are an antithesis of the primary purpose and objectives of the Labour Relations Act 66 of 1995, as amended (LRA), primary of which is to have labour disputes resolved expeditiously. They do not have a place either in the workplace or in this Court, if the primary objectives of the LRA are to be achieved.’”

[32]  In summary: to the extent that Booysen has been interpreted to establish a general rule, qualified only by exceptionality, that the Labour Court has jurisdiction to intervene in uncompleted disciplinary proceedings, this is not an interpretation that can be sustained by section 157(1) of the LRA. As with every matter that serves before the Labour Court, jurisdiction is a matter to be determined in every case by reference to the pleadings and an enabling statutory provision, in the form of the LRA or other jurisdiction conferring statute, that extends jurisdiction to the Court to adjudicate the dispute disclosed by the pleadings.

Disciplinary hearing

double jeopardy

JA 64/23

SAMWU obo Malatsi v South African Local Government Bargaining Council and Others (JA 64/23) [2025] ZALAC 40 (30 September 2025)

[8]…Put another way, the employee contended that a reasonable decision-maker could not have found that it was fair for him to be penalised twice for the same misconduct of failing to safeguard his password – first, with the penalty of unpaid suspension imposed in terms of the first arbitration and secondly, with the penalty of dismissal imposed by the municipality after the second disciplinary hearing.

“15]  The principles relating to an employer’s right to take disciplinary action in circumstances of what has been referred to as ‘double jeopardy’ are well-established. First, to the extent that ‘double jeopardy’ is derived from the principles of criminal law, its application in the workplace is to be approached with caution. In labour disputes, the ultimate yardstick is fairness. Thus, in BMW (SA) (Pty) Ltd v Van der Walt[(2000) 21 ILJ 113 (LAC); [1999] ZALAC 28.] and Branford v Metrorail Services (Durban) & others[(2003) 24 ILJ 2269 (LAC); [2004] 3 BLLR 199 (LAC).] this Court held that there was nothing to preclude an employer from conducting a second disciplinary enquiry into the same alleged misconduct where, in the circumstances, considerations of fairness so required. The Labour Court referred to both decisions. In BMW, this Court held:

‘… it is unnecessary to ask oneself whether the principles of autrefois acquit or res iudicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick.’[4]

“

“[18]  In Mahlakoane v SA Revenue Service (SARS),[(2018) 39 ILJ 1034 (LAC); [2018] 4 BLLR 337 (LAC).] the charges in the second disciplinary hearing emanated from information subsequently supplied to SARS, and the charges in the second disciplinary hearing related to the falsification of the dates on the letters. This Court held that in these circumstances, the charges in the first and second disciplinary hearings were clearly distinguishable and that the principle of double jeopardy therefore did not apply.

[19]  This Court held:

‘The principle of “”double jeopardy”” has, as its heart, fairness and this rule or principle simply entails that an employee cannot, generally, be charged again with the same misconduct that he or she was either found guilty or not guilty of. However, there are instances where breaches of this rule or principle can be condoned. The paramount consideration, however, is fairness to both sides.’[7]”

“[23]…he terms of the arbitrator’s award, which are both unequivocal and in terms of section 143(1) of the LRA final and binding on the parties, are that the appellant committed an act of misconduct (albeit an act less serious than the one that resulted in his dismissal) and that he should be sanctioned for that lesser misconduct by way of a penalty of what amounted to the deprivation of four months’ remuneration. There can be no doubt that the sanction applied by the arbitrator and the second disciplinary hearing was in respect of the same misconduct, i.e., the appellant’s sharing his password with other employees and failing to take adequate steps to preserve the integrity of the IT system. In these circumstances, for the third respondent to charge the appellant with the same misconduct in the face of an arbitration award by which it was bound and to impose the sanction of dismissal for that misconduct was substantively unfair.

“

Disciplinary hearing

No remorse for fraud for falsifying quality records and failing to perform required quality checks.

JR1400/22

East Rand Plastics (Proprietary) Limited v National Union of Metalworkers of South Africa obo Mabena (JR1400/22) [2025] ZALCJHB 345 (8 August 2025)

“[82]  Furthermore, at no point has the first respondent ever displayed a shred of remorse for her misconduct, either prior to or during the disciplinary hearing and CCMA arbitration. Instead, she put the employer to the trouble of embarking upon a disciplinary hearing (and subsequent arbitration) to prove her guilt. In De Beer Consolidated Mines Ltd vs Commission for Conciliation, Mediation and Arbitration and Others[(2000) 21 ILJ 1051 (LAC). ] the following was held in this regard:

“”It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgement of wrong- doing is the first step towards rehabilitation. In the absence of a re-commitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which she herself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”” (own emphasis)”

[84]  It is trite that the breach of an employee’s duty of good faith to an employer is destructive of the employment relationship[36]. In the case of Penta Publications (Pty) Ltd vs Scoombie[ (2000) 2 BLLR 199 (LC).]  the court held that every employee owes a fiduciary duty to his employer.

“[85]  The court in Phillips vs Fieldstone Africa (Pty) Ltd[[2004] 25 ILJ 1005 (SCA).] held that a contract of employment is regarded as a contract of the utmost good faith. In Thompson vs Samaki Beach Lodge[39] the commissioner stated that it is an implied term of the contract of employment that the employee will act with good faith towards his employer and that the duty which the employee owes his employer is a fiduciary one[court referenced SAPPI Novoboard (Pty) Ltd vs Bolleurs [1998] 5 BLLR 460 (LAC)]. The commissioner relied on the case of Council for Scientific and Industrial Research vs FIJEN[1996 (2) SA 1 (A) at p. 9 H.] where the court held that:

“it is a well-established principal that the relationship between an employer and employee is an essence one of trust and confidence.””

Disciplinary hearing

disciplinary charge sheets

JR1400/22

East Rand Plastics (Proprietary) Limited v National Union of Metalworkers of South Africa obo Mabena (JR1400/22) [2025] ZALCJHB 345 (8 August 2025)

“[64]  In the matter of EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[[2019] 12 BLLR 1304 (LAC).], the LAC maintained and held as follows in regard to disciplinary charge sheets, while recognising the settled legal position regarding employment charge sheets:

“It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them…” (at paragraph 15)

and

“… It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards.” (at paragraph 16)

“

[63]  While the legal position regarding the formulation of disciplinary charge sheets is unequivocally settled by now, in that such charge sheets should not be akin to or measured against the criminal law standard of charge sheets and employees need only be provided with adequate information to ascertain what misconduct they have allegedly committed and the workplace rule/s they have allegedly breached,[Avril Elizabeth Home for the Mentally Handicapped v CCMA and others [2006] 9 BLLR 833 (LC); and EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2019] 12 BLLR 1304 (LAC).] the charge sheet in this matter calls for further inspection.

Disciplinary hearing

have a second enquiry only in ‘exceptional circumstances”.

JR240/22

Food and Allied Workers Union and Another v Coca Cola Beverages South Africa (Pty) Ltd and Others (JR240/22) [2025] ZALCJHB 509 (29 October 2025)

[27]  The second respondent acknowledged that fairness dictates that a person cannot be tried twice for the same offence and that when the employer’s chairperson has taken a decision, the employer generally cannot revisit that decision. The second respondent referred to BMW (South Africa) (Pty) Ltd v Van Der Walt[[1999] ZALAC 28; [2000] 2 BLLR 121 (LAC).] and stated that “since in labour law fairness dictates, when the circumstances call for it” … “where it is fair to do so and in the circumstances where there is a code it is permissible to have a second enquiry only in ‘exceptional circumstances”.

“[31]  Phehane J in South African Commercial Catering and Allied Workers Union obo Manzini v Commission for Conciliation, Mediation and Arbitration and Others[(JR1505/23) [2025] ZALCJHB 288 (9 May 2025).] held that:

‘[38]     Our Courts have dealt with the overturning of disciplinary sanctions by management in higher positions and have held that fairness is the ultimate yardstick.[Samson supra. See also: Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC); [2004] 3 BLLR 199 (LAC); Member of the Executive Council for Finance, KwaZulu-Natal & another v Dorkin NO & another (2008) 29 ILJ 1707 (LAC); [2007] ZALAC 41.]

[39]      In National Union of Mineworkers obo Members and Others v ArcelorMittal South Africa Limited and Others,[(JR802/18) [2020] ZALCJHB 167 at para 30.] this Court confirmed that where there is no collective agreement regulating discipline in place, an employer may substitute the sanction of a disciplinary chairperson if it is fair to do so and after engaging the employee, either in another disciplinary inquiry or by having the employee make submissions.’

“

Disciplinary hearing

“[45]  In Tshabalala v Moqhaka Local Municipality and Another[36] the Court dealt with the Local Government: Disciplinary Regulations for Senior Managers, 2010, which contained provisions prescribing when disciplinary proceedings are commenced and when a disciplinary hearing is instituted, and the Court had the following to say:

‘What this construction contemplates is a disciplinary process that is commenced by the service of charges on the employee and which culminates in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral part of the disciplinary process or proceedings; it does not constitute the proceedings in themselves.’”

2025/212698

Modika v Industrial Development Corporation of South Africa and Another (2025/212698) [2025] ZALCJHB 529 (13 November 2025)

Disciplinary hearing

application of parity in the application of discipline in the workplace, consistency

JR546/2023

Cashbuild SA Ltd v Mamogale N.O and Others (JR546/2023) [2025] ZALCJHB 572 (3 December 2025)

“15]  The Labour Appeal Court explained the nature and ambit of the application of parity in the application of discipline in the workplace in National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section) (2104) 35 ILJ 2406 (LAC),

‘The notion of inconsistency in discipline

The idea of inconsistency in employee discipline derives from the notion that it is unfair that like and like are not treated alike.  The core of this ‘factor’ in the application of employee discipline (it would be a misconception to call it a principle) is the rejection of capricious or arbitrary conduct by an employer.

It has application in two respects.  Mainly, it is a recognition of the unfairness of the condemnation of one person for genuine misconduct when another indistinguishable case of misconduct by another person is condoned.  The second application is the recognition of the unfairness that results when disparate sanctions are meted out for indistinguishable misconduct to different persons.’[1]

“

16.10.1

Dismissal 

misconduct: sexual harassment

JA128/24

Mashele v South African Reserve Bank and Others (JA128/24) [2025] ZALAC 51 (21 October 2025)

[22]  The relevant regulatory framework encompasses international labour standards, the Constitution,[4] the Employment Equity Act,[5] and the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code).[6] All of these instruments take as their point of departure the values of personal integrity, dignity, equality, and the necessity for the working environment to be free of sexual harassment.

[23]  ILO Convention 2019 (No 190) concerning the Elimination of Violence and Harassment in the World of Work was ratified by South Africa on 29 November 2021. The Convention obliges member states that ratify the Convention to adopt measures to prevent and eliminate violence and harassment (defined to include a range of unacceptable behaviours and practices) in the world of work.

“[24]  The Code was adopted in fulfilment of international law obligations consequent on the ratification of Convention 190 and regards all forms of workplace harassment as acts of unfair discrimination. Item 5 of the Code deals specifically with sexual harassment, defined as a form of unfair discrimination on the grounds of sex, gender or sexual orientation. ‘Sexual harassment’ is broadly defined to encompass a range of behaviour and conduct. The Code provides that conduct amounting to sexual harassment may include:

‘5.2.5.4            sexual attention, advances or proposals; or other behaviour, whether explicit or implicit, including suggestions, messages, advances, attention or proposals of a sexual nature;

…

5.2.5.6             verbal conduct such as innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text;’”

“25]  The Code recognises that all forms of harassment in the workplace have their roots in an abuse of power. In McGregor v Public Health & Social Development Sectoral Bargaining Council & others[(2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC).], the Constitutional Court noted that “[S]exual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core”. In Campbell Scientific Africa (Pty) Ltd v Simmers and others[[2016] 1 BLLR 1 (LAC); [2015] ZALAC 51.] this Court (per Savage AJA) referred to the role of power dynamics in enabling workplace sexual harassment:

‘At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often “… less about the abuse of real economic power and more about the perceived societal power of men over women. This type of power abuse often is exerted by a (typically male) co-worker and not necessarily a supervisor”.

And:

‘By its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that this Court has characterised it as “the most heinous misconduct that plagues the workplace”.’[9]”

“32]  Turning to the appellant’s first ground for appeal, he submits that the Labour Court ought to have concluded that SARB failed to discharge its burden to establish, on a balance of probabilities, that the appellant committed the offences for which he was dismissed. In particular, the appellant submits that the arbitrator drew inferences from the evidence that had the effect of shifting the burden of proof to the appellant. In support of this submission, the appellant submits that the arbitrator drew an inference from the body of evidence that is inconsistent with all the proved facts. In this regard, counsel relied on South African Post Office v De Lacy and Another[(2009) (5) SA 255 (SCA); [2009] 3 All SA 437 (SCA).] in which the Court held that when a court draws an inference, what is required is an evaluation of all the evidence and not merely selected parts, and that the inference drawn be consistent with all the proved facts.

“

“[38]  In regard to the appellant’s contention that the charges represented a conspiracy against him, the arbitrator concluded that there was no evidence as to why a group of junior employees would “gang up against a senior manager to support someone whom it is alleged is evading consequences of poor performance when they themselves had nothing to gain from I”’.

“

“[41]  The appellant’s submission that the arbitrator ought to have regarded the delay as a factor militating against the probability of the complainant’s version ignores not only the appellant’s concession under cross-examination that it was difficult for women to come forward and report sexual harassment, but also the nature and effect of power dynamics in the workplace. In the comprehensive judgment by Tlhotlhalemaje J in Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others[[2018] ZALCJHB 72; (2018) 39 ILJ 1330 (LC).], the Labour Court said the following about delays in reporting incidents of sexual harassment:

‘[50]     Common sense however, and a bit of appreciation of the human mind dictates that one must look deeper and objectively into the reasons incidents of sexual harassment are not immediately reported…

[51]  In most cases, however, it might take ages for the complainant to finally muster the strength and courage to report the incidents. This could be for a variety of reasons including but not limited to:

(a)        Being ‘frozen’, and disbelieving what they are experiencing, and not having the human tools to respond immediately. The state of paralysis may be accompanied by guilt, confusion, self-anger, self-blame, shame, victimhood, unusual calm, being distraught and incapable of expression, withdrawal, helplessness, or outright terror. (The ‘paralysis mode’ syndrome).

(b)        Many fear a backlash if they complain, especially where the incident took place in a power/subordinate relationship…

(c)        There is a fear of causing a fossil disharmony in the workplace, with allegations that may not be taken seriously or believed, especially in the absence of corroborating evidence. (Most incidents of sexual harassment take place where there are no witnesses.)

(d)        Fear of consequential and negative labelling once an incident is reported…

(e)        Feeling pity for the harasser for whatever reason, irrespective of the reprehensible conduct.

(f)         Enduring the ordeal with the hope that it will go away, or that it was a once off incidents never to be repeated (the ‘quit or endure’ syndrome), coupled with the carrying of a sense of guilt for not reporting the matter.

(g)        The fear of publicity, and/or having to substantiate the allegations in public proceedings under relentless and unsympathetic cross-examination.

[52]  the above list of responses is not exhaustive, and will in most instances obviously require of the complainant/experience to attest to them. What is of significance though is that the inability to recall events with specifics, including the timelines within which events or incidents took place, is not an unusual phenomenon in such cases. Courts and Commissioners ought therefore to bear in mind that the fact that the complainant cannot recall specifics does not imply that the incidents did not take place.’”

Dismissal 

misconduct: drove his truck into a weighbridge / not reporting incident

JA130/24

Macdonals Transport Upington (Pty) Ltd v National Bargaining Council for Road Freight and Logistic Industry and Others (JA130/24) [2025] ZALAC 53 (30 October 2025)

“[30]  As stated earlier, the appellant contends that the commissioner committed an irregularity by failing to appreciate that Mr Koopman had been issued with a final written warning for gross negligence in November 2017. The offence for which he was found guilty in February 2019 was also for negligence, albeit for failing to report damage to company property when he was under a duty to do so. The chairperson of the disciplinary enquiry took into account the earlier final written warning and determined that Mr Koopman should be dismissed.

[31]  The appellant argues that this was a case of progressive discipline and that the dismissal of Mr Koopman, who did not deny his conduct, was fair and justified in the circumstances. Both charges arose out of the negligent conduct on the part of Mr Koopman. “

[33]  I am satisfied that there is a reasonable possibility that another court may come to a different conclusion to the commissioner as the commissioner appears to have drawn an artificial distinction between the two charges, both of which have their genesis in acts of negligence by the employee.

Dismissal 

misconduct: alcohol

C160/2024

Chill Beverages International (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C160/2024) [2025] ZALCJHB 298; [2025] 11 BLLR 1203 (LC) (14 July 2025)

“AI previous cases summary: 1. Zero-Tolerance Policies:

Air Products SA (Pty) Ltd v Matee and Others (2021): Upheld the validity of zero-tolerance policies in hazardous environments.

 However, the court in the current case noted that Chill Beverages failed to prove that the working environment was sufficiently dangerous to justify strict enforcement of the policy.

Shoprite Checkers (Pty) Ltd v TOKISO and Others (2015): Highlighted that zero-tolerance policies must be proportional and appropriate to the offense.

 The Labour Court in this case emphasized that fairness cannot be overridden by rigid policies.

2. Alcohol in Bloodstream vs Intoxication:

Samancor Chrome Ltd v Willemse and Others (2023): Distinguished between alcohol presence in the bloodstream and actual intoxication. ([20]…Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (Samancor) [2] where it was established that numerous factors can lead to a positive breathalyser test result, such as yeast in food or even not eating for several hours.)

 Similarly, the court here found no evidence of intoxication or impairment in Mr. Tsamse’s case.

Imperial Dedicated Contracts (Pty) Ltd v Mpshe and Others (2021): Addressed the issue of alcohol in the bloodstream due to medication.

 The court ruled that dismissal was unfair when there was no impairment, aligning with the findings in this case.

3. Proportionality and Contextual Fairness:

Tanker Services (Pty) Ltd v Magudulela (1997): Established that impairment must be demonstrated for dismissal to be fair.

 In this case, the court found no evidence of impairment, supporting the decision to reinstate the employee.

NUMSA obo Cloete v Trentyre (Pty) Ltd and Others (2016): Reinforced that dismissal is not always warranted for alcohol-related infractions, especially when proportionality and fairness are considered.

 This principle was applied in the current case.

4. Holistic Assessment:

Builders Trade Depot v CCMA and Others (2012): Outlined factors to consider in dismissal cases, such as the employee’s role, disciplinary record, and harm caused by the misconduct. The court in this case followed these guidelines, noting Mr. Tsamse’s clean record and lack of intoxication.”

Zero tolerance policy – Employee unknowingly consumed alcohol through cough mixture – Displayed no signs of impairment – Unblemished six-year service record – Dismissal found disproportionate to offense – Policy violations must be weighed against contextual fairness – Inadvertent breach and lack of intoxication – Approach aligned with required holistic assessment – Proper evaluation of proportionality and fairness – No misdirection – Application dismissed.

Dismissal 

misconduct: incite employees to withhold labour, ross insolence for not allowing a senior manager to speak during a meeting

JR1633/21

Idwala Holdings (Pty) Ltd v National Union of Mineworkers and Others (JR1633/21) [2025] ZALCJHB 307; [2025] 10 BLLR 1060 (LC) (15 July 2025)

[38]  Given the evidence of Mr Mahne and his uncontested lack of knowledge of the applicant’s operations, it would not have been possible for him to have conveyed the detailed information he had to the second respondent. There was accordingly no basis upon which the Commissioner could have rejected this evidence.

Dismissal 

misconduct: dishonesty

JR604/24

Govan Mbeki Local Municipality v MATUSA obo Nkosi and Others (JR604/24) [2025] ZALCJHB 315 (15 July 2025)

“[59]…In G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. & others[(2017) 38 ILJ 881 (LAC) at para 26.], it was held that an:

‘employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”.’”

[62]  In Humphries & Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others[(1991) 12 ILJ 1032 (LAC).], the LAC held that the employment relationship is one of trust, mutual confidence and respect and that this is the very essence of a master-servant relationship. In the absence of facts that this relationship was not detrimentally affected by the first respondent, it would be irrational to compel the applicant to continue with the employment relationship.

“[63]… The LAC in the matter of De Beers Consolidated Mines v CCMA[ [2000] 9 BLLR 995 (LAC) at para 22.] held in respect of a dismissal:

‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in a particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.’

“

Dismissal 

misconduct: unauthorized use of a company vehicle and providing false or misleading information about the time of a hijacking incident.

JR1558/2022

Gibela Rail Transport Consortium Rf Pty (Ltd) v NUMSA obo Dube and Others (JR1558/2022) [2025] ZALCJHB 301 (28 July 2025)

“42. On the Applicant’s return to work, he must be issued with a final written warning for unauthorised use of a vehicle, valid for twelve months from the date it is issued.”

“In this case, it is not self-evident that Dube’s failure to obtain authorisation for taking the vehicle home was the type of misconduct warranting dismissal for a first offence. There are cases of employees dismissed for this type of offence[8], but I have not been able to find any in which it was presumed that unauthorised use of a vehicle was conduct, which by its inherent nature was so serious, that it warranted dismissal in the absence of a prior warning. In all instances, the outcome turned on the specific circumstances of the misconduct in question.

“

“Footnote[8]: Examples of dismissal for similar misconduct are: Nemukhovhani v General Public Service Sector Bargaining Council and Others (JR80/2021) [2023] ZALCJHB 88 (23 March 2023) in which the employee was dismissed after being found guilty of unauthorised use of a vehicle on 14 occasions over a few months, a sanction the Labour Court upheld on review; Sanparks v Commission for Conciliation Mediation and Arbitration and Others (C 918/11) [2013] ZALCCT 23 (24 July 2013) in which the employee disobeyed instructions not to use the employer’s vehicles but did so on three occasions. The arbitrator’s decision the dismissal was unfair was upheld on the basis that the arbitrator had considered relevant factors in arriving at his decision. See also Maphai v South African Forestry SOC Ltd and Others (JR 1021 / 19) [2022] ZALCJHB 293 (7 October 2022), a case in which the employee had used the employer’s vehicle to travel 650 km without permission, disputed his guilt and was not contrite. The court dismissed the employee’s attempt to review the award upholding his dismissal.

“

Dismissal 

misconduct: insubordination

JR380/24

Rakgogo v South African Local Government Bargaining Council (SALGBC) and Others (JR380/24) [2025] ZALCJHB 335 (31 July 2025)

[57]  In TMT Services and Supplies (Pty) Ltd v CCMA and Others[[2019] 2 BLLR 142 (LAC).] the LAC clarified the issue of when dismissal would be appropriate for acts of insubordination. The LAC held that the employer’s managerial prerogative to issue instructions to its employees is a principle that is protected by the misconduct known as insubordination. This principle ensures that the operational requirements of the organisation are not weakened by insubordination on the part of employees. The LAC further held that the foundation of the employer and employee relationship is premised on the employer’s instructions being followed by the employee and that it is intolerable that an employer is forced to engage in negotiations regarding day-to-day organisational arrangements with employees. The LAC stated that the effect of the employee’s refusal to attend the meeting was to undermine the working relationship with her manager. The LAC upheld the appeal and confirmed the Commissioner’s finding that dismissal was fair.

[58]  In this instance, the evidence proved that the Applicant deliberately and intentionally failed or refuse to carry out the instruction in writing twice and she also continued to sign the attendance registers at her old workplace, and despite the two letters written with the transfer instruction, she persisted with her refusal. This misconduct constituted a wilful, deliberate and persistent of the most senior manager’s instruction by the Applicant and it makes it a serious offence under the circumstances because it undermines the Respondent’s authority.

Dismissal 

misconduct: gross dereliction of duty: left a Gate Release Booklet unsecured, which was later used in an attempted theft.

JR1233/21

Assmang (Pty) Ltd t/a Black Rock Mine v Moyo and Others (JR1233/21) [2025] ZALCJHB 359 (13 August 2025)

[26]  In light of those facts, the Court is mindful of the exposition of Justice Prinsloo in National Union of Metalworkers of SA & another v Commission for Conciliation, Mediation & Arbitration & others[(2023) 44 ILJ 1575 (LC); [2023] JOL 60529 (LC).] (the Lumka case): “an employee is obliged to act to protect the interests of the employer and when the employee fails to do so and the failure constitutes serious misconduct, the sanction of dismissal will be fair, as an employer is entitled, as an operational imperative, to rely on its employees to act in good faith and to protect the interests (which includes property) of the employer. In such a case, dismissal becomes an operational imperative and way of managing risk”.[13]

27]  Mr Moyo was charged with breaching the Rule, which was alleged to constitute a gross dereliction of duty. The concept of dereliction of duty “implies deliberate or wilful action on the part of the employee”,[15] not mere negligence.

[28]  In this case, there was a deliberate decision to leave the Gate Release Booklet in an unsecured locker, thereby exposing Assmang to the serious risk that items could be removed from its operations by persons unauthorised to do so. Although the evaluation of the evidence does not suggest Mr Moyo was actuated by malice, the circumstances in which the Rule was breached imply that Mr Moyo was at least grossly negligent: it was an instance of “conscious risk-taking, complete obtuseness of mind or… a total failure to take care”, and “departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme”, as described by the Supreme Court of Appeal in Transnet Ltd t/a Portnet v The Owners of the Mv “Stella Tingas” and another.[[2003] 1 All SA 286 (SCA); 2003 (2) SA 473 (SCA) at 290-1.]

Dismissal 

misconduct: debarment

JR 22/23

Anyadiegwu v Commission For Conciliation Mediation and Arbitration and Others (JR 22/23) [2025] ZALCJHB 373 (18 August 2025)

“[51]  Lastly, the Applicant contends that the Commissioner committed a reviewable irregularity in failing to attach weight to the fact that his manager approved the ROAs, which, according to him, indicates that the ROA complied with the Bank’s policies. This contention is patently without merit. Section 9 of the Code placed an obligation on the Applicant to render financial services honestly and fairly. On the objective facts, there was no evidence that the Manager was involved in rendering financial services to Padiri. Further in this regard, the Applicant’s manager would not have known that the funds used were disinvestments from the existing investments. The Applicant was deceitful in his description of the source of funds in the ROAs. In South African Society of Bank Officials – The Finance Union and Another v Standard Bank Ltd and Others[ [2022] 10 BLLR 934 (LAC) at para 17.] (SASBO), the LAC described dishonesty in the following terms:

‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception. This Court in Nedcor Bank Ltd v Frank & Others defined dishonesty as a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulent. Deceitfulness can manifest itself in various forms, which includes providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal…’ (footnote omitted)”

“[52]  I am of the view that the Applicant’s conduct was unethical, deceitful and constituted a material breach of Section 3 of the Code, which obliged him to render financial services honestly, fairly, with due skill, care, and diligence, and in the interests of clients and the integrity of the financial services industry. Self-evidently, the Applicant elevated his personal interests above the interests of the client and the integrity of the financial services industry. On the objective facts, the Applicant demonstrated a willingness to use deceptive and unethical methods to bypass the provisions of the Bank’s NFP Business Handbook designed to protect the public for his personal enrichment. This conduct, in my view, constitutes an egregious form of dishonesty.

“

“55]  In Mlombo v Standard Bank Financial Consultancy and Another[(FSP30/2019 [2019] ZAFST 4 (23 December 2019) at para 52.], the Financial Service Tribunal, dealing with a debarment of a Representative for dishonesty-related conduct, made the following observations:

‘Barring is not akin to a sentence. As long ago as 1778, Lord Mansfield stated in Ex parte Brounsall Cowp 829 that debarment (in that case of a solicitor) is not a punishment and that the question is rather whether the person concerned in the light of the conduct would be free from suspicion. In other words, debarring is for protecting the public and is not punitive.’ (footnote omitted)”

Dismissal 

misconduct: caused an accident while driving a 34-ton truck, overtaking recklessly, crossing double white barrier lines, and failing to wear a seatbelt.

JR2060/22

Namibia Logistics v Maduna and Others (JR2060/22) [2025] ZALCJHB 364 (19 August 2025)

“[30]  The Labour Appeal Court[Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Lebogate (2015) 36 ILJ 968 (LAC); See also Bestel v Astral Operations Ltd & others [2011] 2 BLLR 129 (LAC)  ] has emphasised that an arbitration award will be considered to be reasonable when there is a material connection between the evidence and the result.  Conversely, an arbitration award will be deemed to be unreasonable if it is entirely disconnected from the evidence, unsupported by any evidence and involves speculation by the arbitrator.

 “

[51]  All of the evidence that served before the arbitrator spoke to the magnitude of Mr Ncoyini’s misconduct, that he breached a workplace rule, and the rules of the road with calamitous consequences, including endangering fellow road users. [Algoa Bus Co (Pty) Ltd v Tirisano Transport & Services Workers Union on behalf Of Mzawi & others (2025) 46 ILJ 89 (LAC).]

Dismissal 

Misconduct: legal principle on common purpose

JR1598/22

Southern African Clothing and Textile Workers Union v Plusnet Geotex and Others (JR1598/22) [2025] ZALCJHB 380 (28 August 2025)

“[28]  Regarding the issue of a guilty finding for those who claimed they were not involved at all, this Court first looks at the established legal principle on common purpose, as per Mgedezi[[1989] 2 All SA 13 (A). See also NUMSA obo Aubrey Dhludhlu and 147 Others 2023 (1) SA 338 (CC).], as followed by the Labour Appeal Court in AMCU and others v KPMM Roads and Earthworks,[[2019] 4 BLLR 340 (LAC).] which is that:

“…In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of [the crime to be committed]….Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of [the crime] by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea [criminal intent]…””

Dismissal 

misconduct: sing petty cash to purchase chocolates for personal consumption without authorization and failing to disclose the purchases to management

JR1014/18

JDG (Pty) Ltd ta HI FI Corporation v Shear and Others (JR1014/18) [2025] ZALCJHB 402 (29 August 2025)

[14]  This court has no hesitation whatsoever to find that the act of using petty cash money, without permission, constitutes an act of dishonesty. It is immaterial whether the third respondent was charged with misuse of petty cash and not with dishonesty, as the use of petty cash without permission is an act of dishonesty. The third respondent was not charged with failure to comply with policies or procedures but with using petty cash monies. The first respondent’s finding therefore is a finding that a reasonable decision-maker could not reach.

“[20]  The Labour Appeal Court in Nedcor Bank Ltd v Frank & Others[(DA4/01) [2002] ZALAC 11; [2002] 7 BLLR 600 (LAC); (2002) 23 ILJ 1243 (LAC) (8 May 2002).] held that dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently[7]. The court referred to the Canadian case of Lynch & Co v United States Fidelity & Fidelity & Guaranty Co where the following was said:

“Dishonest is normally used to describe an act where there has been some intent to deceive to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage of the dictionary meaning.”   “

“[22]  The Labour Appeal Court in Anglo American Farms t/a Boschendal Restaurant v Komjwayo[(1992) 13 ILJ 573 (LAC)] the following was said:

“It seems to me that the relationship between such an employer and such an employee is of such a nature that, for it to be healthy, the employer must, of necessity, be confident that he can trust the employee not to steal his stock-in-trade. If that confidence is destroyed or substantially diminished by the realisation that the employee is a thief, the continuation of their relationship can be expected to become intolerable, at least for the employer.””

“[24]..In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(JA 08/2004) [2008] ZALAC 9; [2008] 9 BLLR 838 (LAC); (2008) 29 ILJ 2581 (LAC) (20 June 2008).] the Labour Appeal Court accepted that, despite the employee having a clean disciplinary record and having worked for the employer for nine years, the acts of dishonesty led to the trust relationship having broken down and the dismissal had been fair. This court has no hesitation in finding that, because of the third respondent’s acts of dishonesty, the trust relationship had broken down completely, as per the unchallenged evidence of Mr. Gaza.

 “

Dismissal 

misconduct: supervisor has the duty to oversee security(gross dereliction of duties)

JR58/24

Brakfontein Mine v Mkwanazi and Others (JR58/24) [2025] ZALCJHB 387 (3 September 2025)

“[18]  Plainly, the Commissioner failed to consider all relevant evidence. Not only that, his evaluation was flawed by legal error, as he imported a standard of proof for demonstrating gross dereliction of duty that implied Ms Mkwanazi had knowledge of theft occurring before concluding she was not grossly negligent in failing to notice that six unauthorized loads of coal left Brakfontein’s premises in question. When a supervisor has the duty to oversee security, a lack of knowledge about a security breach cannot be used as an excuse; the very fact that someone with such duties does not notice what is happening and fails to question it should be enough to establish that they have grossly failed in their responsibilities. As the LAC explained in LAC in National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section),[8] albeit in the context of consistency:

‘As regards the dereliction of duties by his subordinates, if any acts of misconduct were to be proven against any particular individual, it remains plain that they had no managerial role and it is illogical to draw a comparison as contemplated by the factor of inconsistency. Moreover, it would be a paradox if the appellant could legitimately invoke the failure of the very subordinates he was accountable to manage effectively to exonerate or mitigate his managerial neglect by managing them ineffectively.’ (own emphasis)

‘…Overall, the Arbitrator failed to appreciate that gross negligence or gross dereliction of duties or a material breach of a fiduciary duty will, in appropriate circumstances, be sufficient to destroy the trust and confidence which forms the bedrock of the employment relationship, particularly where an employer is dealing with a senior employee, or one who is placed in a particular position of trust, but who does not demonstrate remorse…’[9]

 “

Dismissal 

incompatibility

JR694/22

Department of Science and Innovation v General Public Service Sectoral Bargaining Council and Others (JR694/22) [2025] ZALCJHB 436 (3 September 2025)

[54]   The submission is a fundamental misconception of the principles of incompatibility and misconduct. As a species of incapacity, incompatibility must not be conflated with misconduct, which involves discrete allegations that could lead to a breakdown of a continued working relationship. It would be absurd for employers to raise discrete acts of misconduct without charging the employee for misconduct under the guise of incompatibility. Where the employee committed what the employer and the line manager consider to be misconduct, in this case, insolence or insubordination, it is the duty of the employer to charge the employee and prove the allegations. Breakdown of a trust relationship as a result of misconduct should never be conflated with incompatibility, which is the inability to maintain an appropriate standard of relationship with not only his or her immediate supervisor, but also peers, subordinates, and other superiors, as reasonably required by the employer.

Dismissal 

misconduct: contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course, that it is wilful and serious).

JR1169/22

Aveng Africa (Pty) Ltd v Burger and Others (JR1169/22) [2025] ZALCJHB 403 (5 September 2025)

[25]  A mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) cannot, on its own, constitute insubordination, which by its very nature requires disobedience or an outright challenge to authority. Insubordination can manifest itself in the refusal to obey a reasonable and lawful command or in the challenge (or resistance) to or defiance of the authority of the employer. It is, of course, required that insubordination must be deliberate (wilful) and serious. This is not to say contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course, that it is wilful and serious). One should, however, always distinguish between insubordination on the one hand and insolence on the other hand because they are not the same offence.

[27]  Thus, unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal.[Commercial Catering & Allied Workers Union of SA & Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) (Wooltru) at 314H-J.]

“[29]  This is apparent from what the LAC said in Palluci Home, when it said the following:

‘Although the respondent’s conduct can be described as insolent, impudent, disrespectful, and rude, it certainly does not constitute insubordination which in law requires a persistent, wilful and serious challenge to, or defiance of the employer’s authority. Nor, in my view can the first respondent’s conduct towards Lambrecht be described, on the evidence, as a “calculated challenge” to the employer’s authority, since it was neither deliberate nor intentional. The first respondent had been provoked by Lambrecht in two respects: firstly, by the unlawful deduction of monies from her salary which it is common cause was the basis of the impasse, and secondly, by the condescending manner in which Lambrecht had turned his back to her whilst she attempted to discuss the issue of the deduction with him. This resulted in nothing more than, at best, an isolated knee jerk in the heat of the moment by the first respondent, who had been provoked by her employer. It is clear from the evidence that she did not intend to challenge or defy Lambrecht’s authority, but in her anger at the deduction coupled with Lambrecht’s refusal to discuss the issue with her by inter alia condescendingly turning his back to her, she reacted precipitously by demanding, in a raised voice, that he should not turn his back to her while she was discussing the issue of the deduction with him. Whilst the first respondent’s conduct was manifestly insolent, it cannot be said to be a serious, persistent and deliberate challenge to the employer’s authority, on which to found a charge of insubordination or gross insubordination.’[(2015) 36 ILJ 1511 (LAC).]”

Employee’s conduct was disrespectful but did not amount to wilful and serious challenge to authority – Culture of meetings encouraged open criticism – Conduct was consistent with past tolerated behaviour – Actions were not malicious – Stemmed from legitimate workplace concerns – Application dismissed.

Dismissal 

misconduct: alcohol, zero tolerance

JR271/2023

Msitshana v Commission for Conciliation Mediation Arbitration and Others (JR271/2023) [2025] ZALCJHB 424 (9 September 2025)

“[63]  In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[21], the LAC outlined principles applicable to the zero-tolerance policy as follows:

‘[17]    It is also necessary to make some further remarks as regards dismissal for a first offence i.e. a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach.

[18]    But the law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a “no go area” for commissioners. A zero-tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin…

…

[22]    Even assuming that the appellant was pursuing a zero-tolerance policy, it was not one that is appropriate for an infringement of this rule without further evidence from appellant for the justification of such an inflexible policy. In any event, the commissioner is required to consider whether the circumstances of the case warrant dismissal. If it does not, then irrespective of the company’s policy, the commissioner is at large to set the dismissal aside and replace it with an appropriate sanction.’

 “

Zero tolerance policy – Alleged consumption of flu medication – Alcohol policy was valid and had been consistently applied – Employee aware of rule – Previously received a final written warning for similar misconduct – Acceptance of zero-tolerance approach was appropriate given safety-sensitive nature of mining operations – Dismissal was an appropriate sanction for contravention – Substantively fair dismissal – Application dismissed.

Dismissal 

misconduct: sexual harassment: not reported the incident immediately

JR 1525/22

Nedbank Limited v Olwage and Others (JR 1525/22) [2025] ZALCJHB 422 (12 September 2025)

[73]  The arbitrator also took issue with Ms W[…] having not reported the incident immediately because she had to gather courage.  The arbitrator failed to appreciate that in some instances the recipient may be unable to immediately express their revulsion, that it is not uncommon for recipients to process what has occurred and to act on the conduct in question at a later stage. [U v Commission for Conciliation, Mediation & Arbitration & Others (2021) 42 ILJ 1778 (LC).]

Conduct constituted sexual harassment – Employer could not reasonably be expected to continue employment relationship – Dismissal substantively fair.

dismissal

misconduct: not all offences of dishonesty warrant a sanction of dismissal.

JR1452/22

Sibanye Stillwater Ltd t-a Sibanye Gold Ltd v Commission for Conciliation Mediation Arbitration and Others (JR1452/22) [2025] ZALCJHB 431 (19 September 2025)

[16]  Before this Court is the question of whether the substitution of the dismissal sanction with a final written warning is a decision falling within the bands of reasonableness and/or whether it passes the review test, as Ms Ngwenya for the applicant argued. The decision falls to be reviewed and set aside as the second respondent placed more emphasis on mitigating factors than on aggravating factors. Dishonesty cannot be minimised to attract a lesser sanction than dismissal. She relied on Autozone v Dispute Resolution Centre of Motor Industry & Others[(2019) 40 ILJ 1501 (LAC)] where the LAC found it not to be mandatory for the employer to lead evidence on the breakdown of the trust relationship, where it can be drawn from the dishonest conduct of the employee, ‘who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible’[5]. A sanction of dismissal in circumstances of dishonesty is viewed as an appropriate response to operational risk.[See De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & others, (2000) 21 ILJ 1051 (LAC) at para 26 where it is said: ‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.’]

17]  The third respondent’s position, as argued by Mr Makalima, is that not all offences of dishonesty warrant a sanction of dismissal. He subscribed to a view expressed in ABSA Bank Ltd v Naidu[[2015] 1 BLLR 1 (LAC) at para 52.] that there are varying degrees of dishonesty which are determinable based on the facts of each case. The second respondent committed no irregularity, even on the award of reinstatement with full backpay, which is a primary relief.

[1]…The second respondent agreed with the applicant that the third respondent was indeed guilty of dishonesty. The second respondent, however, found the sanction of dismissal to be harsh. He substituted it with a final written warning valid for 12 months and ordered the applicant to reinstate the third respondent retrospectively to the date of dismissal with full backpay.

[6]  According to the applicant, the third respondent was not required to report for duty on 23 December 2017; however, he did and submitted a claim for overtime payment for the day and for the period he did not render any service, which is between 06h00 and 07h36. What the applicant found to be extremely dishonest about the third respondent’s conduct was to ask his colleague, Ms Nqini, to assist him with clocking manually. This request was made around 12h00.

“AI summary: The court upheld the arbitrator’s decision to substitute dismissal with a final written warning, considering mitigating factors such as the employee’s 31 years of service, clean record, and the minor nature of the dishonesty.

However, the court found the award of full backpay unreasonable due to delays caused by the third respondent. It reduced the backpay to six months.”

dismissal

misconduct: Threatening WhatsApp message

JR1997/2021

Weir Minerals Africa (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (JR1997/2021) [2025] ZALCJHB 448 (1 October 2025)

Threatening WhatsApp message sent to employees – Condemned reporting misconduct to supervisors and warned that such individuals would be exposed – Absence of remorse and acknowledgment of wrongdoing – Critical to assessing fairness of dismissal – Use of the term “mpimping” was inherently threatening in employment context – Evoked a history of retaliation and intimidation – Message discouraged whistleblowing and undermined workplace discipline – Dismissal substantively fair.

“[15]  Furthermore, Ms Kok argued for the employer, it is trite that the acknowledgement of wrongdoing and showing remorse are imperative differential treatment factors in deciding whether progressive discipline is appropriate in the circumstances. In the current matter, the commissioner erred by ignoring the employees’ non-acknowledgement of wrongdoing and lack of remorse in toto and on that basis, her finding is grossly unreasonable.

“

“[34]  The Court, in its conclusion above, finds refuge in the following passage from the Labour Court in National Union of Metalworkers of SA & another v Commission for Conciliation, Mediation & Arbitration & others:[(2023) 44 ILJ 1575 (LC); [2022] 3 BLLR 209 (CC) at para 54.]

‘… an employee is obliged to act to protect the interests of the employer and where an employee fails to do so and the failure constitutes serious misconduct, the sanction of dismissal will be fair, as the employer is entitled, as an operational imperative, to rely on its employees to act in good faith and to protect the interests… In such a case, dismissal becomes an operational imperative and way of a managing risk.’”

dismissal

misconduct: Arrested on suspicion of murder – Released on bail with conditions restricting access to Ermelo but not prohibiting employment elsewhere

JR1133/2023

Transnet Soc Ltd v Transnet Bargaining Council and Others (JR1133/2023) [2025] ZALCJHB 506 (27 October 2025)

[9]  The applicant terminated his employment contract with effect from 21 September 2022, based on the fourth respondent’s impossibility to tender his services and perform his duties.

“[20]  The fourth respondent had already advised the applicant of the upcoming bail hearing and requested that they await its outcome. Had the employer exercised patience and waited just a few more days, it would have had clarity on the bail conditions and could then have been in a position to make a well-informed, reasonable decision regarding the feasibility of alternative placement.

“

dismissal

misconduct: immoral, indecent, disgraceful conduct (e.g. sexual harassment)”

JR919/23

First National Bank Division of Firstrand Bank Limited v Ndlazi and Others (JR919/23) [2025] ZALCJHB 516 (5 November 2025)

[16]  The wording of the charge, which expressly refers to “immoral, indecent, disgraceful conduct (e.g. sexual harassment)”, clearly indicates that sexual harassment was cited merely as an example of the type of misconduct contemplated — not as the exclusive form of misconduct alleged. The essence of the charge in my view was that the first respondent’s behaviour was improper and unbecoming of a person in a supervisory position within the workplace.[2]

[24]  The Commissioner’s reasoning appears to have been unduly influenced by the framing of the issue as one of sexual harassment alone. By doing so, he failed to adequately consider whether the first respondent’s behaviour, even if falling short of sexual harassment, nonetheless violated the broader standards of professionalism and respect expected in the workplace.

dismissal

misconduct: AI dishonesty

JR1780/2022

Gauteng Department of Roads and Transport v General Public Service and Others (JR1780/2022) [2025] ZALCJHB 567 (28 November 2025)

Misconduct relating to soliciting money from a business license applicant – Employee not admitting misconduct until arbitration proceedings – employed in a position requiring confidence in the incumbent’s integrity – arbitrator inter alia collapsing issue of employees’ capability with her trustworthiness – operationally untenable to retain employee where trust relationship broken)

AutoZone v Dispute Resolution Centre of Motor Industry and Others (2019) 40 ILJ 1501 (LAC): This case emphasizes that dishonest conduct can irreparably damage the trust relationship between employer and employee, making dismissal justified even without evidence of irreparable damage.

“City of Johannesburg v Jacobs N.O.

 and Others [2021] 6 BLLR 579 (LC): The court held that dishonesty and misconduct that bring an employer into disrepute can destroy the trust relationship, justifying dismissal.”

Stokwe v MEC: Department of Education, Eastern Cape and Others (2019) 40 ILJ 773 (CC): The Constitutional Court upheld the substantive fairness of a dismissal despite a delay in disciplinary action, emphasizing that the delay does not necessarily mean trust remains intact.

City of Cape Town v SALGBC [2011] 5 BLLR 504 (LC): This case highlights the incompatibility of dishonesty with continued employment in positions requiring integrity.

Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others (2008) 29 ILJ 1180 (LC): The court ruled that dishonesty undermines the trust relationship, and factors like length of service or first-time offenses do not outweigh the severity of misconduct.

Mphigalale v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 1464 (LC): Reinforces the principle that dishonesty or corruption is incompatible with continued employment, regardless of mitigating factors like long service.

dismissal

misconduct: unauthorised use of a company vehicle by the employee for personal purposes

JR699/23

Europcar South Africa Division of Motors Group Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR699/23) [2025] ZALCJHB 587 (10 December 2025)

“10]  The commissioner could not find the employee’s conduct rendered the employment relationship intolerable, and concluded that the dismissal was substantively unfair.

“

Doctrine of common purpose

16.2.1

Employee

16.2.1

Employment

16.9.1

Essential service

16.7.1

Estoppel

polygraph tests

JR731/24

Securiforce CC v Mokoena N.O and Others (JR731/24) [2025] ZALCJHB 367 (21 August 2025)

[11]  The Commissioner found that the results of the polygraph test were valid on a balance of probabilities. He also found that Ntholeng was not dismissed for failing the test, but was removed from the client’s premises in terms of the contract between the Applicant and its client. The Applicant then attempted to find alternative employment for Ntholeng, which it failed to do, and he was dismissed.

[24]  In his award, the Commissioner stated that it would not be possible to order reinstatement or re-employment of a security guard who had failed a polygraph test and where there are no alternatives available for him within the Applicant. He then stated that he took into consideration that Ntholeng was employed on a permanent basis rather than a contract basis, which he commended the Applicant for. It was also common cause that Ntholeng had been in the Applicant’s employment for eight years before being dismissed. The Commissioner then indicated that, had Ntholeng been dismissed for operational requirements, which is the reason for his dismissal, he would have been entitled to severance pay. He therefore found it just and equitable to award Ntholeng two months’ remuneration.

16.7.1

Evidence

 that an employee acquiesces to such a change and must be held to their election.

JS1028/2016

Manato v Media Information and Communication Technologies Sector and Training Authority (JS1028/2016) [2025] ZALCJHB 386 (4 September 2025)

[The term “acquiesces” means to accept or agree to something reluctantly but without protest. It implies a passive compliance or yielding to a situation or demand.]

[12]  Although the applicant attended the meeting on 26 February 2016, where the retirement policy was discussed, he claims that the respondent did not consult him prior to implementing the policy. The respondent’s witnesses confirmed that the applicant actively participated in the meeting, and this testimony was not challenged. There is no evidence that the applicant in that meeting raised any objections to the implementation of the policy.

“[13]  In an instance where an employee fails to object to workplace policy changes following consultation, the Labour Appeal Court in Legal Aid South Africa v Theunissen[2], expounded that an employee acquiesces to such a change and must be held to their election.

“

“[14]  In dealing with acquiescence, the Appellate Division in McWilliams v First Consolidated Holdings[3] held that:

‘I accept that “quiescence is not necessarily acquiescence” … and that a party’s failure to reply to a letter asserting the existence of an obligation owed by such party to the writer does not always justify an inference that the assertion was accepted as the truth. But in general, when according to ordinary commercial practice and human expectation firm repudiation of such an assertion would be the norm if it was not accepted as correct, such party’s silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion, or at least will be an important factor telling against him in the assessment of the probabilities and in the final determination of the dispute. And an adverse inference will the more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject-matter of the assertion. …’”

[19]  The respondent’s employees testified that the applicant knew about the policy and was consulted, raising no objections. Additionally, the applicant was not the only employee notified of retirement and did not seek a work extension beyond retirement age. This evidence adequately shows that the alleged discrimination did not occur as claimed. Since the applicant’s claim of discrimination is not supported, it is unnecessary to evaluate whether the discrimination was rational or justified.

Evidence

Commissioner used criminal test in assessing evidence before her. Material error of law.

JR1179/19

Ergo Mining (Pty) Ltd v UASA obo Ngcobo and Others (JR1179/19) [2025] ZALCJHB 511 (27 October 2025)

[15]  Manifestly,   employment law disputes are not criminal proceedings, but rather akin to civil proceedings in nature. To underscore this, The Labour Appeal Court in Combined Transport Services (Pty) ltd v Buhle Zamokwakhe Miya and others[(DA15/2014) [2016] ZALAC 57 (25 November 2016)], affirmed the applicability of the “balance of probabilities test” in employment law disputes, when it held that a proper assessment of evidence requires the attachment of more weight on the evidence that is consistent and/ or more credible. Further, the test herein is “balance of probabilities”, dictating that a more probable version should be accepted, as opposed to a “beyond reasonable doubt” test, which is the test applicable to criminal cases.

[16]  Dealing with the standard of proof, in Govan v Skidmore[[1952] (1) SA 732] the Court held that it was trite law that in finding facts and making inferences in civil proceedings, the Court may go upon a mere preponderance of probabilities, even though in doing so it does not exclude every reasonable doubt, so that one may, by balancing probabilities, select a conclusion which seems to be a more natural, or plausible conclusion from amongst several conceivable ones, even though that conclusion may not be the only reasonable one.

[17]  The Constitutional Court in National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others[(CCT202/18) [2019] ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC); [2019] 9 BLLR 865 (CC) ; 2019 (5) SA 354 (CC) (28 June 2019] stated that an inference may be drawn from the proven or uncontested facts. Where there is more than one possible inference, the most probable and natural one should be accepted.

Led to an unreasonable outcome that could not be sustained on evidence presented – Failed to properly assess credibility of employee’s version or reliability of evidence – Fundamentally flawed approach – Award did not meet reasonableness threshold – Reviewed and set aside.

Evidence

Legal professional privilege

2025/13373

Department of Mineral Resources and Energy and Others v Impala Platinum Mines Ltd and Others (2025/13373) [2025] ZALCJHB 551 (20 November 2025)

[15]  While it is clear the document must have been obtained or brought into existence for the purpose of providing advice in the context of litigation, there is some uncertainty as to whether such purpose must be its sole or dominant purpose. In Ibex RSA Holdco Ltd and another v Tiso Blackstar Group (Pty) Ltd and others[2025 (2) SA 408 (SCA) at para 71] the Supreme Court of Appeal favoured the dominant purpose test. It is clear from the facts of this matter that the dominant purpose of the DRA report was to enable Impala’s lawyers to advise it on impending litigation.

[16]  In South African Airways SOC v BDFM Publishers (Pty) Ltd and others[2016 (2) SA 561 (GJ) at para 47] Sutherland J (as he then was) held that the guarantee of confidentiality over communications between clients and their legal advisor is an indispensable attribute of the right to counsel and the adversarial litigation system. Litigation privilege too is contextualized within the adversarial system. In Chief Inspector of Mines v Assmang (Pty) Ltd[(JA 42/19) [2020] ZALAC 57; (2021) 42 ILJ 753 (LAC) (12 November 2020) at para 29] Coppin JA stated: “In the MHSA the inquiry contemplated in section 65 is distinguished from an investigation in terms of that Act. It may be combined with an investigation, since an investigation may be converted into an inquiry … and it may even be held after an investigation has been completed …. It is an extensive formal process that, significantly, does not rely on the element of surprise for its effectiveness.” In this matter, the applicant does not contend that the inquiry is an inquisitorial process.

16.12.1

Execution

16.12.1

High Court

 requirements of section 18(3) of the Superior Courts Act No 10 of 2013

2025/121270

TWK Agri (Pty) Ltd v De Lange and Another (2025/121270) [2025] ZALCJHB 361 (19 August 2025)

“AI summary: Superior Courts Act No.

 10 of 2013:

Section 18(1): States that the operation and execution of a decision subject to an application for leave to appeal or an appeal is suspended unless the court orders otherwise under exceptional circumstances.

Section 18(3): Allows a court to order the enforcement of a decision pending appeal if exceptional circumstances exist, and the applicant proves on a balance of probabilities that they will suffer irreparable harm if the order is not enforced, and the respondent will not suffer irreparable harm if the order is enforced.”

“[14]  Section 18 of the SC Act provides that:

‘(1)     Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2)      Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.

(3)      A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.’

[15]  Therefore, the three requirements to be satisfied in such applications are (a) exceptional circumstances, (b) proof on a balance of probabilities that the applicant will suffer irreparable harm if the operation and execution of the order are not granted interim effect, and (c) that the party against whom the order was granted will not suffer irreparable harm if the order is enforced in the interim.

[16]  The provision applies to applications for leave to appeal in this Court, which has a status similar to that of the High Court.[6]”

16.10.1

Incapacity

16.1.1

Information

16.12.1

Interdict

16.1.1

Interest dispute

16.12.1

Joinder

16.12.1

Jurisdiction

16.2.1

Labour Broker

16.12.1

Labour Court

Rule 11 application due to a lapsed review application: Two main issues arise. First, whether the Labour Court has the power to entertain a Rule 11 application to dismiss a lapsed review application. Second, whether the Labour Court exercised its discretion improperly by making the arbitration award an order of court in terms of section 158(1)(c).

JA57/2024

City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA57/2024) [2025] ZALAC 46; [2025] 11 BLLR 1145 (LAC) (11 August 2025)

8]  The Labour Court held, on the strength of this Court’s dictum in Macsteel Trading Wadeville v Francois van der Merwe N.O and Others[5] (Macsteel), that it had residual power to entertain the Rule 11 application since there was no substantive application by the City of Tshwane to reinstate the lapsed review application. It dismissed the review application and made the arbitration award an order of court in terms of section 158 (1)(c) of the LRA.[6].

14]  The deemed withdrawn review application in terms of clause 11.2.3 is likewise a peculiar notion in the Practice Manual. While ‘deemed withdrawn’ is a legal fiction, it has a conclusive effect.[13] Consequently, the review application automatically lapses due to the failure to file the record of the impugned arbitration proceedings, as per clause 11.2.2.[14] That being the case, any notion that the Labour Court has discretionary power to refuse ‘to allow the deemed withdrawal and archiving of the review application’ as found in NUMSA obo Mavuso v Mini Mega (PTY) Ltd t/a Rustenberg Engine Centre[15], is untenable.

18]  In Aspen, the court rejected the dictum in Overberg and the dicta it followed to support its conclusion that a lapsed review application is ‘dead as a doornail’. It further observed that, to the extent to which this Court in MacSteel held that the correct approach would have been for Macsteel to launch a Rule 11 application to have the review application finally dismissed, even though the review application had already been archived, that meant that the Court accepted that the review application was ‘in limbo’, rather than ‘dead as a doornail’; otherwise there would be no need for a Rule 11 application.

“[22]  In addition, clause 16.3 provides, in line with promoting the statutory imperative for expeditious resolution of labour disputes, that a lapsed review application ‘shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed’.[22] Even though a lapsed review application lies in limbo, a respondent party can enforce the arbitration award or court order without invoking a Rule 11 dismissal application, as found in Overberg. That is also my understanding of the dictum in E Tradex.

“

[23]  There is, however, nothing in Macsteel and E Tradex that impedes the Labour Court from entertaining a Rule 11 application to dismiss a lapsed review application. A lapsed review application is not dead as a doornail; hence, it can be revived on good cause, as correctly found in Aspen. Therefore, a respondent party that seeks, inter alia, irrefutable finality for purposes of execution or due to inordinate delay can avail itself of the Rule 11 application.

28]  Here, likewise, the Labour Court should have found that the certified arbitration award was enforceable as if it were an order of the Labour Court and refused to grant an order in terms of section 158(1)(c). It follows that the Labour Court improperly exercised its discretion in making the arbitration award an order of the Labour Court.[27] That justifies interference by this Court.

Labour Court

Subsection 144(b) permits a variation

JA94/24

Khumalo and Another v Commission for Conciliation, Mediation and Arbitration and Others (JA94/24) [2025] ZALAC 54 (29 October 2025)

[20]  The general rule is that, once a court has duly pronounced a final judgment or order, it has itself no authority to set it aside or to correct, alter, or supplement it because it becomes functus officio.[12] Section 144[13] of the LRA does, however, make provision for the variation (or recission) of an award in exceptional instances.[14] Subsection 144(b) permits a variation but only “to the extent of that ambiguity, error or omission”. The courts have generally interpreted the provisions of section 144 narrowly.[15]

“[21]  A “patent” error or omission refers to a mistake that is clear, self-evident, and apparent on the face of the record without requiring elaborate argument, interpretation, or fresh evidence. The court’s corrective power exists solely to give effect to the court’s true intention where there is a patent error and may not be used to change the substance of the order.[16] The purpose of this section is to provide the parties with an expeditious procedural means to correct an obvious error.[17] The Constitutional Court in Minister for Correctional Services and Another v Van Vuuren and Another; In re Van Vuren v Minister for Correctional Services and Others explains:[18]

‘[8]       A court may clarify its order or judgment to give effect to its true intention which is to be ascertained from the language used without altering the sense and substance of the judgment if, on its proper interpretation, the meaning remains unclear. But once a court has pronounced a final judgment or order, it has, itself, no authority to correct, alter or supplement it. The rationale for this principle is delineated by Ngcobo J in Zondi v MEC, Traditional and Local Government Affairs that:

“In the first place a Judge who has given a final order is functus officio. Once a Judge has fully exercised his or her jurisdiction, his or her authority over the subject matter ceases. The other equally important consideration is the public interest in bringing litigation to finality. The parties must be assured that once an order of Court has been made, it is final and they can arrange their affairs in accordance with that order.”’[19]”

Labour Court

Section 195(1B)  request to halt arbitration proceedings

2025/104750

Bojanala Platinum District Municipality v Fourie and Others (2025/104750) [2025] ZALCJHB 306 (22 July 2025)

“[12]  The purpose of section 158(1B) is consistent with an earlier decision of this Court in Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & others[2] (Jacobson), where Van Niekerk J (as he then was), provided two reasons why this Court should not readily intervene in uncompleted arbitration proceedings. He said:

‘The first is a policy-related reason – for this court routinely to intervene in uncompleted arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the Act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run their course without intervention by this court.’[3]”

“[13]  In urgent proceedings to intervene in uncompleted arbitration proceedings, the test is one of exceptional circumstances, as articulated by the Labour Appeal Court (LAC) in Booysen v The Minister of Safety and Security & others[[2011] 1 BLLR 83 (LAC); (2011) 32 ILJ 112 (LAC) at para 54.] (Booysen) and most recently in Moolman v Commission for Conciliation, Mediation and Arbitration and Others[ [2024] ZALAC 339.] (Moolman).

[14]  In Moolman, the LAC held that this court may intervene in uncompleted arbitration proceedings where, if allowed, the ruling would cause irreparable harm to the other party. The LAC held further that the Court would be justified in intervening where the damage caused by the ruling, if allowed to stand, could not be adequately remedied after the finalisation of the arbitration proceedings.[6] A review of a jurisdictional ruling or any ruling which, if upheld on review the consequence of which is to dispose of the matter in its entirety would justify the intervention of this Court.[7]”

Labour Court

Jurisdiction Unfair discrimination referral 90 days

JS657/22

Msimanga v Johannesburg Water SOC Ltd and Others (JS657/22) [2025] ZALCJHB 371 (22 August 2025)

[22]  The plaintiff asks this Court to find that the 90-day period within which an unfair discrimination dispute must be referred to this Court for adjudication ought also not to apply to disputes in which the unfair discrimination complained of is continuous.

[23]  In my view, this proposition cannot be sustained. The rationale for the six-month time period not applying to such disputes does not exist in respect of those disputes once a certificate of outcome has been issued. The 90-day period commences from the date of issue of the certificate, which date is fixed and will not change regardless of whether the discrimination complained of is ongoing.

“[13]  Part C of Chapter VII of the LRA deals with dispute resolution in the CCMA and section 136(1) therein provides that, if the LRA requires a dispute to be resolved through arbitration, the CCMA must appoint a commissioner to arbitrate that dispute if a certificate of outcome has been issued and any party to the dispute has requested that the dispute be resolved through arbitration within 90 days after the date of the issue of the certificate.

“

“[13]  Part C of Chapter VII of the LRA deals with dispute resolution in the CCMA and section 136(1) therein provides that, if the LRA requires a dispute to be resolved through arbitration, the CCMA must appoint a commissioner to arbitrate that dispute if a certificate of outcome has been issued and any party to the dispute has requested that the dispute be resolved through arbitration within 90 days after the date of the issue of the certificate.

“

“15]  The LAC in Aspen Pharmacare[[2024] 12 BLLR 1234 (LAC) at paras 7 – 9.] confirmed the principle in NEHAWU[7] that:

‘Reading section 10(6) and 10(7) of the [Employment] Equity Act together, it would appear that the [Employment] Equity Act must be read together with the applicable provisions of the [Labour Relations] Act. By reference to the words with the changes required by the context in section 10(7), the 90-day time period as provided for in section 136(1) of the Act, which itself appears in Part C of Chapter VII of the Act, becomes applicable to the dispute. In other words, although the present dispute involves adjudication after an unresolved conciliation and section 136(1) refers expressly to arbitration, the savings provision in section 10(7) of the [Employment] Equity Act then becomes operative; hence the 90-day requirement is of equal application in the new context to the adjudication as envisaged in section 10(6) of the [Employment] Equity Act.’”

[16]  In response to this point in limine, the plaintiff submits that condonation is not necessary. In argument, Mr Grové for the plaintiff did not dispute the assertion made by counsel for the defendant that, ordinarily, the 90-day period in section 136(1) of the LRA is applicable to disputes referred to this Court for adjudication in terms of section 10(6)(a) of the EEA. Rather, what he argued on behalf of the plaintiff was that, since the six month time period prescribed in terms of section 10(2) of the EEA for the referral of a dispute to the CCMA for conciliation has been found not to apply in cases where the unfair discrimination complained of is ongoing in nature, this principle should also apply to the 90-day period in which a dispute in respect of which a certificate has been issued must be referred for adjudication.

[23]  In my view, this proposition cannot be sustained. The rationale for the six-month time period not applying to such disputes does not exist in respect of those disputes once a certificate of outcome has been issued. The 90-day period commences from the date of issue of the certificate, which date is fixed and will not change regardless of whether the discrimination complained of is ongoing.

Labour Court

Pleadings: exception

JS721/20

Seoposengwe v Lindsay Saker Audi Centre Sandton (JS721/20) [2025] ZALCJHB 466 (1 September 2025)

[11]  In the matter of Trope v South African Reserve Bank and another and two other cases[2] the court held that when an exception is taken on the basis of the pleadings being vague and embarrassing, the enquiry into same is a two stepped enquiry, the first being whether the pleading lacks particularity to the extent that it is vague and second whether the vagueness causes embarrassment to the extent that the excipient is prejudiced.

“[12]  In the matter of Uys v Municipality of Heidelberg[3] the Court held that as long as the cause of action is stated and or identifiable from your statement of claim or summons, and there is not enough information for the excipient to plead, they may then ask for further particulars. However, if the cause of action is not identifiable from the particulars, then that is a defect that cannot be sustained.

“

“[13]  In the matter of Simmadari v ABSA Bank Ltd[4] the court in upholding an exception to the statement of claim held that the test is whether, even on a generous reading of the particulars, a cause of action can be made out. When it comes to a claim for an automatic unfair dismissal, the pleadings have to show at the very least the basic framework on which the applicant relies to prove their claim.

“

“[14]…As the Constitutional Court in Le Roux and Another v Johannes G Coetzee and Seuns and Another[5] stated:

‘In pleadings, conclusions of law must be supported by facts … This is because the material facts and the legal conclusions that are to be drawn from those facts, are determined by the plaintiff’s pleaded claim.’

“

Labour Court

procedure: Court does have jurisdiction to entertain an application for the dismissal of a deemed withdrawn or archived review application brought in terms of Rule 11

JR2025/2018

Hlongwane v Red Alert (Pty) Ltd and Others (JR2025/2018) [2025] ZALCJHB 398 (3 September 2025)

“[15]  The Labour Appeal Court held that this Court does have jurisdiction to entertain an application for the dismissal of a deemed withdrawn or archived review application brought in terms of Rule 11 of the previous Rules, stating the following at paragraphs [See Greater Taung Local Municipality v SA Local Government Bargaining Council and Others (2023) 44 ILJ 761 (LAC) (Greater Taung) at para 16.] and [24] of its judgment:

“[23] There is, however, nothing in Macsteel and E Tradex that impedes the Labour Court from entertaining a Rule 11 application to dismiss a lapsed review application. A lapsed review application is not dead as a doornail; hence, it can be revived on good cause, as correctly found in Aspen. Therefore, a respondent party that seeks, inter alia, irrefutable finality for purposes of execution or due to inordinate delay can avail itself of the Rule 11 application. To the extent that the Labour Court has jurisdiction to entertain an application for the reinstatement of the lapsed review application, that power extends, by implication, to the Rule 11 dismissal application.[2] However, caution must be exercised to prevent the proliferation of litigation and to avoid negating the paramount statutory mandate for a speedy and cost-effective resolution of labour disputes.

[24] In the present case, no reinstatement application served before the Labour Court. Before us, counsel for the City of Tshwane confirmed that there was no intention to seek reinstatement of the lapsed review application. The Labour Court cannot, therefore, be faulted for upholding the Rule 11 dismissal application. It was, in my view, not only expedient but also fair in the circumstances.[3]”

Labour Court

[11]…cannot be deemed withdrawn after the expiry of 60 days, while the extension process, either by consent or application before the Judge President, is still unfolding.

JR187/24

DYPUSA obo Mahlalela and Others v Commission for Conciliation Mediation Arbitration and Others (JR187/24) [2025] ZALCJHB 416 (8 September 2025)

“[11]  On this note, this Court finds the third respondent’s opposition meritless and inducing technicalities that go against the intentions of the rules that review applications are to be dealt with expeditiously. The applicant’s initiation of the extension process by sending a letter seeking consent from the third respondent certainly bears an interruptive effect on the running of the 60 days. The review application cannot be deemed withdrawn after the expiry of 60 days, while the extension process, either by consent or application before the Judge President, is still unfolding. In this matter, there is no need for the applicant to seek the reinstatement of the review application. With the record already filed at the time of determination of this application, it will not be in the interest of justice to refuse the extension that was requested prior to its filing. Extension for the filing of the record and the supplementary affidavit should accordingly be granted.

“

16.2.1

Legal persona

A body corporate does not act

CA16/2023

South African Road Passenger Bargaining Council v Golden Arrow Bus Services (Pty) Ltd and Others (CA16/2023) [2025] ZALAC 61 (13 November 2025)

“[31]  A bargaining council must act in terms of its constitution. In University of the North v Franks and Others[(JA11/01) [2002] ZALAC 13; [2002] 8 BLLR 701 (LAC); (2002) 23 ILJ 1252 (LAC) (29 May 2002).], the court held the following with regard to the decision-making powers of a juristic person:

‘A body corporate does not act through mere discussions by its members. It acts through resolutions properly passed. Its decisions are to be sought in its resolutions. If these are clear, cadit quaestio. If there is no resolution, there is no decision.’[6]”

16.9.1

Lock-out

16.1.1

Mutual interest vs rights issue

16.1.1

Nature of dispute

16.12.1

Order

16.1.1

Parity principle

16.12.1

Plea

16.10.1

Poor performance

16.12.1

Prescription

16.5.1

Private arbitration

16.6.1

Procedure

16.1.1

Protected disclosure act

disclosed confidential documents to his attorney

2025-096639

Bangeni v Local Government SETA (Reasons) (2025-096639) [2025] ZALCJHB 379 (28 August 2025)

23.3        An employee is permitted to make a protected disclosure to his or her legal practitioner for the purpose of obtaining advice.[]

“AI summary: Radebe & another v Premier, Free State Province & others (2012) 33 ILJ 2353 (LAC) – Clarifies that an employee making a disclosure is not required to prove the information is correct.

Communication Workers Union v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1670 (LC) – Discusses the nexus between disclosure and occupational detriment.

Baxter v Minister of Justice & Correctional Services & others (2020) 41 ILJ 2553 (LAC) – Explains the requirement of good faith in disclosures.

Nxele v National Commissioner: Department of Correctional Services & others (2018) 39 ILJ 1799 (LC) – Clarifies the application of section 188A(11) of the LRA.

Potgieter v Tubatse Ferrochrome & others (2014) 35 ILJ 2419 (LAC) – Discusses whistleblower protections under the PDA.

Zungu v Premier of the Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC) – Addresses costs in labour court matters.

Department of Correctional Services v General Public Service Sectoral Bargaining Council & others (2025) 46 ILJ 310 (LAC) – Discusses abuse of process and costs.”

New rules

Protected disclosure act

section 188A(11) enquiry

2025/167534

Municipal Employees and Civil Servants Union obo Mlungwana v Ekurhuleni Metropolitan Municipality and Another (2025/167534) [2025] ZALCJHB 440 (30 September 2025)

“[11]  In Tsibane v Estate Agency Affairs Board and Others[[2021] ZALCJHB 150 (24 June 2021).], the Court held as follows at paragraph 64:

‘[64]     Section 188A(11) entitles an employee, who is about to be subjected to an internal disciplinary process and who alleges in good faith that the intended disciplinary hearing contravenes the PDA, to instead request an inquiry be conducted in terms of section 188A. I see no reason why, if an employer, under circumstances where the employee complies with the requirements of section 188A(11), refuses to have the inquiry into the conduct or capacity of the employee conducted in terms of section 188A, the employee would not be entitled to approach this Court for an order interdicting the impending internal disciplinary hearing and an order directing that the inquiry pertaining to the employee’s conduct or capacity be conducted in terms of section 188A of the LRA.’”

“2.  The first and second respondents are interdicted from proceeding with the internal disciplinary inquiry presided over by the second respondent pending finalisation of Section 188A(11) of the LRA application for an inquiry by an arbitrator under the auspices of the South African Government Bargaining Council.

“

Protected disclosure act

section 188A(11) enquiry

2025/169524

Matlala v Foskor Proprietary Limited and Others (2025/169524) [2025] ZALCJHB 478 (22 October 2025)

protected disclosure – Suspended and charged with misconduct – Disclosures made about vice president’s conduct and broader internal issues – Belief that disciplinary action constituted an occupational detriment was not frivolous or insincere – Merits of claim not assessed – Existence of a bona fide belief was sufficient to justify interim relief – Warranted to preserve integrity of referral process – Disciplinary inquiry suspended pending a decision by arbitrator – Labour Relations Act 66 of 1995, s 188A(11).

“[38]  In determining the prerequisites for an arbitrator to chair the enquiry, the court stated:

“(43) A casual and sloppy reading of the subsection suggests that an employee may make a simple allegation of contravention of the PDA in order to invoke the subsection. Not, the allegation must be one made in good faith. This requirement illuminates the fact that the legislature was alive to the fact that an employee may make a wild allegation and thereby gain the right to an inquiry by an arbitrator. This is an instance where an abuse of the subsection creeps in easily. The legislature must have carefully chosen the phrase good faith because in section 9 of the PDA any disclosure made in good faith is protected. It becomes so protected if an employee reasonably believes that the information disclosed and an allegation contained in it are substantially true and the disclosure is not made for the purposes of personal gain. The phrase good faith, when used as a noun, means honesty or sincerity of intention.

(44) It must follow that the allegation of contravention must have an element of honesty and sincerity. The veritable question is how does a Court faced with an application of this nature test honesty and sincerity of the allegation of contravention? To my mind a contravention must not only be alleged it must prima facie factually exist. I say so because in terms of section 1 of the PDA an occupational detriment in relation to the working environment of an employee means amongst others being subjected to any disciplinary action.””

[43]  I agree with the court in Mamodupi that the starting point for identifying the requisites for holding an enquiry under s 188A(11), must be the wording of the section, which states that an employee is entitled to require an enquiry into their conduct or capacity to be conducted under s 188A if the employee “alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000” (emphasis added).

“[44]  If the request for a statutory hearing is successful, it merely means that the internal incapacity or misconduct inquiry is substituted with an arbitration presided over by a completely independent chairperson. In Tsibani v Estate Agency Affairs Board and Others[6], this court emphasised the limited scope of the s 188A(11) procedure:

“(72) Section 188A(11) is not designed or intended to determine whether the facts constitute a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed. The section provides for an inquiry into allegations pertaining to the conduct or capacity of an employee.”

(emphasis added)

“

[46]  Because the section 188A(11) enquiry is simply a misconduct or incapacity hearing, whether the employee had actually suffered an occupational detriment is not within the remit of the arbitrator in that forum. Nevertheless, the arbitrator is not obliged to proceed with the inquiry regardless of the circumstances under which the disciplinary action arose. The threshold requirement that must still be met is that the employee’s allegation that the disciplinary steps taken by the employer amounts to an occupational detriment under the PDA must be one made in good faith.

[47]  In assessing the existence of good faith, it must be recognised that it possible that the allegation of being subjected to an occupational detriment might be made in the sincere belief it is correct, when objectively speaking it is wrong. An employee’s belief they have been subjected to an occupational detriment, might be mistaken on several grounds, both concerning the legal interpretation of the PDA and the factual basis for their belief. Plainly, if an employee relies on a factual assertion which they know to be false the allegation cannot be bona fide because it relies on an intentional misrepresentation. In instances where the allegation is not plainly false, there must at least be a tenable or plausible basis for them holding that belief. Accordingly, if there are undisputed facts that are irreconcilable with their belief, which the employee could not be unaware of, their belief cannot be accepted as bona fide one. Equally, if the belief is one that nobody in the position of that person could reasonably hold in the circumstances, it could not be held in good faith[7].

[51]  Should the court then grant interim relief by suspending the internal inquiry pending the decision of the CCMA commissioner whether to proceed with the s 188A(11) enquiry?  If the court does not stay the internal enquiry, Matlala could be denied the opportunity of exercising his right to request the statutory enquiry because, unless the request for the statutory enquiry is accepted, the employer can proceed with the internal one in the meantime.

“2.  The disciplinary enquiry into the charges of misconduct against the Applicant, set out in the First Respondent’s notice of 7 and 22 August 2025, is suspended pending a decision by the arbitrator appointed by the Third Respondent, whether the disciplinary enquiry should be conducted in accordance with Section 188A(11) of the Labour Relations Act, 66 of 1995.

“

Protected disclosure act

pre-dismissal arbitration under section 188A(11)

2025/189683

Fisher v Ngcuka N.O. and Others (2025/189683) [2025] ZALCJHB 514 (28 October 2025)

“[39]  Therefore, pre-dismissal arbitration under section 188A(11) is a process that completely substitutes the internal disciplinary hearing in all respects. The two processes cannot exist side by side. Once the pre-dismissal arbitration proceedings are convened, then internal disciplinary proceedings must terminate. This was made pertinently clear in a number of judgments. First, in Foskor supra it was held:[43] ‘… If the request for a statutory hearing is successful, it merely means that the internal incapacity or misconduct inquiry is substituted with an arbitration presided over by a completely independent chairperson …’. Next, and in the Labour Court judgment in Nxele supra, it was stated:[44] ‘… The internal disciplinary enquiry that would have commenced and is pending must terminate …’. The same sentiment was in expressed in SA Broadcasting Corporation SOC Ltd v Phasha[45] as follows: ‘… The essence of s 188A is to provide for a pre-dismissal arbitration which substitutes arbitration before an independent arbitrator for a disciplinary enquiry …’. As lastly, as succinctly said in Tsibani v Estate Agency Affairs Board and Others:[[2021] JOL 51625 (LC) at para 67.]

‘Section 188A(11) does not envisage the holding of two parallel hearings. Section 188A provides for an inquiry into allegations relating to an employee’s conduct or capacity and for such an inquiry to be conducted by an arbitrator, in accordance with the provisions of the said section. If the inquiry relates to allegations relating to an employee’s conduct, the section 188A inquiry will happen instead of an internal disciplinary hearing.’”

Protected disclosure act

Section 188A(11) of LRA

2025/212698

Modika v Industrial Development Corporation of South Africa and Another (2025/212698) [2025] ZALCJHB 529 (13 November 2025)

applicant only required to make out a case that disclosure was made and such disclosure would qualify as protected disclosure under Protected Disclosures Act (PDA) – not required for Court to decide whether applicant would be entitled to protection or whether disclosure bona fide or justified – purpose of s 188A(11) is not that decision be made on a protected disclosure – arbitrator decides whether to accept pre-dismissal arbitration in terms of s 188A(11) – not appropriate for Labour Court to decide such issue

purpose of section to move disciplinary proceedings to CCMA by way of pre-dismissal arbitration under s 188A – impartial arbitration on misconduct charges removes risk of influence in decision of misconduct as a result of protected disclosure – misconduct will thus finally be impartially decided based only on what employer can prove in respect of misconduct – statutory prescribed alternative to internal disciplinary hearing in cases of alleged protected disclosure 

[8]  What was undisputed is that the applicant lodged a complaint against Mdaka on 29 July 2025, using the anonymous whistle blowing report line in the IDC for this purpose. In this complaint, the applicant raised concerns about systemic bullying, harassment, unfair discrimination practices, and harassing employees perpetrated by Mdaka.

“28]  I believe that a refusal to consider the applicant’s application will lead to a grave injustice. It can nothing else but unfair to expect the applicant to participate in internal disciplinary proceedings which, if his case is successful, would effectively cause such internal disciplinary proceedings to be null and void. This is even more prejudicial, considering that he CCMA has convened arbitration proceedings for 17 November 2025 to determine whether to accept the referral or not. As held in Fisher v Ngcuka N.O. and Others[15]:

‘In my view, not to consider the application could cause a grave injustice. I believe it would be patently unfair to expect the applicant to participate in what would clearly be a comprehensive disciplinary hearing, in circumstances where the applicant has alleged an occupational detriment as a result of having made a protected disclosure, which according to her strikes at the very heart of the disciplinary proceedings against her. The issue of the possible occupational detriment following a protected disclosure is in itself an issue that carries with it an inherent quality of urgent intervention, especially where an alternative process to deal with it is available and has been invoked, but despite this, Bidvest Services is pressing on with internal discipline.’”

“30]  The applicant cannot obtain substantive redress in the ordinary course. This is because of the sui generis nature of section 188A proceedings, brought under section 188A(11). As will be discussed below in this judgment, it is intended to act as a complete substitute for internal disciplinary proceedings when allegations of an occupational detriment due to a protected disclosure is at stake. If internal disciplinary proceedings are allowed to proceed, even if a dismissal of course can be later challenged under the LRA, this up front protection, so to speak, will be lost. This equally justifies urgent intervention. As held in Matlala v Foskor Proprietary Limited and Others[19]:

‘Further, there is no equivalent ‘alternative’ to invoking s 188A(11), which Matlala has a right to exercise. While there is a possibility of the provision being abused to delay or avoid an internal hearing, it must be remembered that procedure initiated by the employer does not disappear if an employee successfully invokes the provision.  It simply relocates the subject matter of the internal enquiry to arbitral proceedings …’”

“[41]  I have little hesitation in concluding that, having proper regard to the contents of the applicant’s disclosure, that it would qualify as a protected disclosure under section 1 of the PDA. In particular, there is are allegations that the head of department of the TCOE unit (Mdaka), being the very person that instituted the disciplinary proceedings against the applicant, is failing to comply with the legal obligations on her, the health of individuals is being compromised by her, and that there exists discrimination perpetrated by her, all of which form part of the definition in section 1 of the PDA.[33] As pertinently held in Baxter v Minister of Justice and Correctional Services and Others[34]:

‘… it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase ‘tends to show’ in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity. …’”

“[42]  The Court in Baxter supra in fact accepted that disclosures concerning employees who served on interview panels having failed to comply with various legal obligations to which they were subject, would qualify under section 1 of the PDA. The Court decided:[35]

‘It is clear therefore that the disclosures made by the appellant relating to the irregularities in the various recruitment processes constituted disclosures in terms of the PDA. They disclosed information regarding the conduct of some members of the interview panels and Nxele which the appellant had reason to believe showed or tended to show that the members of the interview panels and/or Nxele had failed to comply with legal obligations to which they were subject in terms of the Public Service Regulations. The Labour Court erred in holding otherwise.’

The applicant, in his disclosure of 29 July 2025, basically says the same kind of thing. No doubt it qualifies, by definition, as a protected disclosure under section 1 of the PDA.”

“[45]  In Tshabalala v Moqhaka Local Municipality and Another[36] the Court dealt with the Local Government: Disciplinary Regulations for Senior Managers, 2010, which contained provisions prescribing when disciplinary proceedings are commenced and when a disciplinary hearing is instituted, and the Court had the following to say:

‘What this construction contemplates is a disciplinary process that is commenced by the service of charges on the employee and which culminates in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral part of the disciplinary process or proceedings; it does not constitute the proceedings in themselves.’”

16.1.1

Public Holidays Act 1994

16.12.1

Reinstatement

Meaning of

JA94/24

Khumalo and Another v Commission for Conciliation, Mediation and Arbitration and Others (JA94/24) [2025] ZALAC 54 (29 October 2025)

“[15]  The meaning of “reinstatement” is settled law, as explained by Nkabinde J in Equity Aviation Services (Pty) Ltd v CCMA & others,[4] which is “to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal”.

[16]  An order for reinstatement in terms of section 193(1)(a) thus contemplates the restoration of the status quo ante, as if the employee had never been dismissed. Reinstatement is often only ordered as of the date of the award, and an employer who reinstates an employee as of that date will be in compliance with the reinstatement order. From that date, the terms and conditions of the employee’s employment, as they existed at the time of dismissal, will again take effect.”

[18]  A distinction must therefore be drawn between the discretion to reinstate (in terms of section 193(1)(a))[7] and the discretion relating to the extent of its retrospectivity. The retrospective of the reinstatement is generally referred to as backpay and is, as pointed out, a separate issue for determination. The Constitutional Court in Equity Aviation explained that: “[i]f a Commissioner of the CCMA order the reinstatement of an employee that reinstatement will operate from the date of the award of the CCMA, unless the Commissioner decides to render the reinstatement retrospective to make it retrospective”.[8]

Reinstatement

“backpay for the period between his reinstatement date as per an arbitration award and the date he resumed work .

“

JS442/21

SATAWU obo Sibeko v G4S Cash Solutions (JS442/21) [2025] ZALCJHB 365 (4 August 2025)

“[26]  The Respondent submission that the Applicant failed to tender his services cannot be sustained in that, there is no evidence of an abscondment process which the Respondent said should ensue once a staff member fails to report for duty.

“

“[28]  This Court accepts, without reservation, that the Applicant in fact tendered his services. The Court further accepts without reservation that the tender of service by the Applicant was not accepted by the Respondent.

[29]  It is not in dispute that the arbitrator ordered that the Applicant be retrospectively reinstated without any loss of income. It is therefore automatically clear that the Applicant should be paid backpay in this regard.

“

“30]  The issue of backpay has been clarified by the Constitutional Court in the case of Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration,[Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration [2008] ZACC 16; 2009 (1) SA 390 (CC) at para 36.] this is how Nkabinde J explained reinstatement in Equity Aviation:

“The ordinary meaning of the word ‘reinstate’ is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator. The only limitation in this regard is that the reinstatement cannot be fixed at a date earlier than the actual date of the dismissal. The court or arbitrator may thus decide the date from which the reinstatement will run, but may not order reinstatement from a date earlier than the date of dismissal . . . The fact that the dismissed employee has been without income during the period since his or her dismissal must, among other things, be taken into account in the exercise of the discretion, given that the employee’s having been without income for that period was a direct result of the employer’s conduct in dismissing him or her unfairly.””

Reinstatement

reinstatement was not reasonably practicable due to the appellant’s financial difficulties and loss of contracts.

JA28/23

BLK Monitoring and Inspectorate CC v Paul and Others (JA28/23) [2025] ZALAC 63 (26 November 2025)

[50]  The appellant is therefore correct in its contention that the court a quo’s reinstatement order and the 18 months’ back pay would unreasonably exacerbate its financial woes. Consequently, it is not reasonably practicable under the circumstances.

[42]  The court a quo found, based on the dictum of the Constitutional Court in SA Commercial Catering & Allied Workers Union v Woolworths (Pty) Ltd[(2019) 40 ILJ 87 (CC) at paras 43 – 47; see also Booi v Amathole District Municipality & Others (2022) 43 ILJ 91 (CC) (Booi) at paras 34 – 43.] (Woolworths), that the appellant had the onus to lead evidence to show that reinstatement of the respondents was not reasonably practicable, but failed. Hence, it ordered the reinstatement of the respondents with 18 months’ back pay.

16.12.1

Remedies

Compensation

JR604/24

Govan Mbeki Local Municipality v MATUSA obo Nkosi and Others (JR604/24) [2025] ZALCJHB 315 (15 July 2025)

“71]  In considering compensation, Zondo JP (as he then was) in the matter of Kemp t/a Centralmed v Rawlins[(2009) 30 ILJ 2677 (LAC) (Kemp) at para 20.] outlined the applicable factors to be considered:

‘There are many factors that are relevant to the question whether the court should or should not order the employer to pay compensation. It would be both impractical as well as undesirable to attempt an exhaustive list of such factors. However, some of the relevant factors may be given. They are:

…

(b)   Whether the unfairness of the dismissal is on substantive or procedural grounds or both substantive and procedural grounds; obviously it counts more in favour of awarding compensation as against not awarding compensation at all that the dismissal is both substantively and procedurally unfair than is the case if it is only substantively unfair, or, even less, if it is only procedurally unfair.

(c)   Insofar as the dismissal is procedurally unfair, the nature and extent of the deviation from the procedural requirements; the less the employer’s deviation from what was procedurally required, the greater the chances are that the court or arbitrator may justifiably refuse to award compensation; obviously, the more serious the employer’s deviation from what was procedurally required, the stronger the case is for the awarding of compensation.

(d)  Insofar as the reason for dismissal is misconduct, whether or not the employee was guilty or innocent of the misconduct; if he was guilty, whether such misconduct was in the circumstances of the case not sufficient to constitute a fair reason for the dismissal.

(e)   The consequences to the parties if compensation is awarded and the consequences to the parties if compensation is not awarded.

(f)   The need for the courts, generally speaking, to provide a remedy where a wrong has been committed against a party to litigation but also the need to acknowledge that there are cases where no remedy should be provided despite a wrong having been committed even though these should not be frequent.

(g)   Insofar as the employee may have done something wrong which gave rise to his dismissal but which has been found not to have been sufficient to warrant dismissal, the impact of such conduct of the employee upon the employer or its operations or business.

(h)   Any conduct by either party that promotes or undermines any of the objects of the Act, for example, effective resolution of disputes.’”

Sanction was irrational – Findings of dishonesty and gross negligence warranted dismissal – Seniority role and breach of trust – Ignored severity of misconduct – Failed to consider whether reinstatement was appropriate – Acted unreasonably and ignored extensive evidence – Reinstatement unreasonable – Reviewed and set aside – Reduced compensation granted – Labour Relations Act 66 of 1995, ss 145 and 158(1)(h)

16.12.1

Representation

16.6.1

Res judicata 

16.4.1

Retirement age

Retirement age

Three CC judgements 1, 2 and 3

CCT298/22; CCT346/22

Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panelbeaters; Solidarity obo Strydom and Others v State Information Technology Agency SOC Limited (CCT298/22; CCT346/22) [2024] ZACC 29; 2025 (3) BCLR 312 (CC); (2025) 46 ILJ 481 (CC); [2025] 4 BLLR 337 (CC) (20 December 2024)

1.  A termination on the basis of age at a later date (THAN NORMALOR AGREED RETIREMENT AGE) is automatically unfair.

2. Such a termination, and notice thereof, may take place on a date later than the employee’s normal or agreed retirement age.  An employer may, however, be found to have elected not to terminate the employee’s employment if the employer fails to exercise the termination election within a reasonable period of time.

3. an employee has reached his or her normal or agreed retirement age, section 187(2)(b) permits the employer, then or at any time thereafter, to terminate the employee’s appointment on the basis of age, upon the giving of reasonable notice.  The third judgment leaves open the question whether the employer is required to give the employee a hearing, since a decision on that point is unnecessary.  It does, however, point to the desirability of affording such a hearing.

[10]     In Waco I held that, once an employee had reached an agreed retirement age, his or her dismissal on the ground that he or she had reached an agreed retirement age was fair.  I also held that, where, as in that case, an employee was not dismissed on reaching the agreed retirement age but was dismissed long after that date on the ground of age, the dismissal would be fair.

“14.4       Mr Landman reached 60 years of age on 15 March 2018.

14.5       The respondent was aware on 15 March 2018 that Mr Landman was reaching the retirement age but did not dismiss him at that stage on the basis of the agreed retirement age.  After he had reached the retirement age, Mr Landman continued to work as usual and the respondent continued to pay him as usual…..ten months after Mr Landman had reached the agreed retirement age – the respondent gave Mr Landman a letter informing him that his services would terminate…[17]…new contract of employment came into existence after Mr Landman had reached the agreed retirement age of 60 years, the Court would decide whether the respondent waived its right to dismiss in terms of the retirement clause “

[38]     In Waco[10] the employee had gone beyond the agreed retirement age by about three years.  The agreed retirement age was 65 and he had turned 65 years of age in 1994 and, after reaching the agreed retirement age, the employee had continued to work as usual.  He was 67 years of age when he was dismissed.  I held in Waco that section 187(2)(b) was applicable to that case.[11]  This meant that, where an employee had gone beyond the agreed retirement age and the employer dismissed him or her on the ground of having reached the agreed retirement age, the employer may rely upon section 187(2)(b) as a defence to an automatically unfair dismissal claim.  This meant that the dismissal would be regarded as fair.

[43]…The first is where the employer and employee are parties to a fixed term contract of employment which provides that the contract will come to an end upon the employee reaching the normal or agreed retirement age.

[44]     The second and third ways relate to a situation where the contract of employment between an employer and an employee is of an indefinite nature and contains an agreed retirement age.  Sometimes the agreed retirement age will be contained in the contract of employment but sometimes it will be contained in a separate document.  Such separate document could be the pension fund rules or provident fund rules applicable to the employer and employee.  In such a case, the contract of employment between the parties does not come to an end by the effluxion of time or by the operation of law, somebody has to do something to bring about the end of the contract.  In such a case, the employer may take the decision to dismiss the employee on the basis of the latter reaching the agreed retirement age.  That is the second way.  The employee may also terminate the contract of employment on the basis of reaching the agreed retirement age by resigning or retiring.  That is the third way.

53]     Once an employee is subject to an agreed retirement age, a normal retirement age does not apply.  Similarly, if an employee is subject to a normal retirement age because he or she has not agreed to any retirement age, there is no agreed retirement age applicable to him or her.  [55]     Furthermore, imagine an industry where there are about 200 employers all of whom are bound by a collective agreement which provides that the retirement age is 65 years.  If every one of the 200 employers is free to disregard the agreed retirement age and choose an age of their choice as the age at which they will retire their employees and still be able to invoke the protection of section 187(2)(b), that would render the agreed retirement age in the collective agreement redundant. [57]     Prior to reaching an agreed retirement age, an employee may not be dismissed, on the ground of age.  If he or she is dismissed on such a ground, the dismissal would constitute an automatically unfair dismissal in terms of section 187(1)(f) of the LRA. [65]     The interpretation of section 187(2)(b) that allows the employer to choose its own time when to dismiss an employee who has reached the agreed retirement age should be avoided because it is open to abuse by employers.[72]     Obviously, it is up to the employer and the employee to change the agreed retirement age or to conclude a new contract of employment that will govern the period after the agreed retirement age. [184]     A dismissal based on age is fair “if the employee has reached the normal or agreed retirement age”.

4. [122]     On the approach I take in this judgment, as opposed to the one I took in Waco, I am of the view that, if an employer wants to dismiss on the ground of age an employee who has continued to work beyond the agreed retirement age, that dismissal cannot be said to be fair by reason of section 187(2)(b) but can only be said to be fair if, by reason of age, the employee is no longer able to do his or her work as required.

[200]     In my view, the correct interpretation of section 187(2)(b) is that at any time as from the employee’s retirement age date the employer may fairly dismiss the employee based on age.  The employer’s choice is not time bound, provided that the relevant birthday has been reached.  If the normal or agreed retirement age is 65, the employer may fairly dismiss the employee when she is, say, 67 or 68, because the employee continues to be one who “has reached the normal or agreed retirement age”.

Retrenchment/ Misconduct

16.13.1

Retrenchment

Reliance on financial difficulties not supported by evidence

CA05/2024

HeroTel (Pty) Ltd v Moses and Others (CA05/2024) [2025] ZALAC 42; [2025] 10 BLLR 1026 (LAC) (10 July 2025)

Misleading rationale provided – Omitted key details about transfer of business units and revenue streams to business – Lack of transparency – Undermined fairness of consultation process and substantive justification for dismissals – Failure to disclose information directly impacted employees’ ability to challenge rationale for retrenchment – Reliance on financial difficulties not supported by evidence – Dismissals substantively unfair – Appeal dismissed – Labour Relations Act 66 of 1995, s 189.

16]  Despite the terms of the ruling requiring the disclosure of the audited financial statements for the year 2020, those were not forthcoming. Instead, a draft, unaudited statement was provided. In that respect, the reason proffered to the Affected Employees was that the 2020 audited financials were not yet ready and had not yet been audited. It was the position of the Affected Employees that without these audited financials, they were unable to engage meaningfully in the consultation process particularly as, had they been provided with the requested information, the Affected Employees would have been able to demonstrate that the rationale for retrenchment was unjustified, pre-determined or substantively unfair or to propose alternatives to retrenchment.

[33]  In their submissions, the Affected Employees have also revisited the issue of procedural fairness following the handing down of the Constitutional Court judgment of Regenesys Management (Pty) Ltd v Ilunga and Others[3] (Regenesys), delivered on 21 May 2024, particularly with respect to the non-disclosure of the 2020 audited financial statement. As the submission went, the audited financial statements had been requested on the basis that the documentation would show that the s 189(3) notice was misleading with regards to the reasons for retrenchment and that the failure to disclose the requested information rendered the dismissal procedurally unfair.

[49]  Thus, a decision to retrench will be substantively fair if it is a rational and reasonable response to the operational requirements predicament faced by an employer.[9]

[52]  The movement and transfer of the business of Fusion is not a transgression and the appellant did not proffer a business rationale for moving Fusion’s business but rather tried to justify its reason for embarking on the retrenchment process as Fusion’s financial downturn, which was clearly not the case; this was a self-created financial crisis. Had the appellant explained that the reason for the retrenchment exercise was that it wished to restructure its business, which they only really raised at the appeal, that might perhaps have justified its actions. As it stands, the business of Fusion is disconnected from the economic or financial reasons put forward by Fusion, and on that basis, the retrenchments of the Affected Employees were substantively unfair.

Retrenchment

Procedural unfairness jurisdiction

CA05/2024

HeroTel (Pty) Ltd v Moses and Others (CA05/2024) [2025] ZALAC 42; [2025] 10 BLLR 1026 (LAC) (10 July 2025)

“[35]  The Constitutional Court in Regenesys clarified the position relating to the adjudication of procedural unfairness complaints by the Labour Court in accordance with s 189A(18). Section 189A(18) provides that:

‘The Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal based on the employer’s operational requirements in any dispute referred to it in terms of section 191 (5) (b) (ii).’

[36]  The Constitutional Court held that, although s 189A(18) ousted the Labour Court’s jurisdiction to procedural fairness complaints in large-scale retrenchments under s 191, the same could not be said for cases where a referral was made in terms of s 189A(13). As such, the court a quo was correct in finding that, without a s 189A(13) application before it, it did not have jurisdiction to decide the procedural fairness complaint. “

[43]  It has been accepted by the Labour Court[4] that the line between procedural unfairness and substantive unfairness can be difficult to detect in dismissals for operational requirements. This is demonstrated in the second judgment of Unitrans Zululand (Pty) Ltd v Cebekhulu.[5], wherein it was held that ‘there may be circumstances in which the procedural fairness and the substantive fairness of a dismissal are so inextricably linked that the dismissal cannot be fair in the absence of a fair procedure. There may also be circumstances in which it will be impossible after the event to determine that the dismissal was fair despite the failure to follow a fair procedure’.[6]

“44]  Zondo JP (as he then was), writing for the majority and in carving out a distinction between procedural and substantive fairness, stated as follows:

‘… In relation to a dismissal, procedural fairness relates to the procedure followed in dismissing an employee. Substantive fairness relates to the existence of a fair reason to dismiss. In relation to substantive fairness the question is whether or not, on the evidence before the court, and not on the evidence produced during the consultation process, a fair reason to dismiss existed. With regard to procedural fairness, the question is not whether a fair procedure was followed in court. The question is whether, prior to the dismissal, the employer followed a fair procedure. The result hereof is, therefore, that, if the evidence placed before the court establishes a fair reason to dismiss which was present at the time of the dismissal, the dismissal is substantively fair. It does not matter, for purposes of determining the substantive fairness of the dismissal, that such reason was not the subject of discussion during the consultation process.’”

“[45]  However, this distinction is not always clear cut, as held in Banks & another v Coca-Cola SA (A Division of Coca-Cola Africa (Pty) Ltd)[7], where it was stated that:

‘The bifurcation in procedure established by section 189A is more easily established in legislation than it is applied in practice. There are a number of reasons why disputes about dismissals for reasons based on employer’s operational requirements do not always lend themselves to the convenient compartmentalisation contemplated by the LRA, chief amongst them being the extent to which, in the real world of work, substantive and procedural issues are intertwined.’”

Retrenchment

materially different from those under which the earlier consultations occurred, to such an extent that AMSA was obliged to resume consultation before issuing dismissal notices

2025/173974

National Union of Metalworkers of South Africa (NUMSA) obo Members v Arcelormittal South Africa Ltd (2025/173974) [2025] ZALCJHB 510 (30 October 2025)

[37]  The essential issue for determination is whether the circumstances arising after 14 March 2025 were materially different from those under which the earlier consultations occurred, to such an extent that AMSA was obliged to resume consultation before issuing dismissal notices. If they were, AMSA failed to comply with a fair procedure when issuing the dismissal letters that gave rise to this urgent application. I turn to consider the statutory framework governing that question, and the role of the Court under section 189A(13).

[47]  Numsa relied on National Union of Metalworkers of SA on behalf of Members v General Motors of SA (Pty) Ltd [8] to argue that, given the material changes, AMSA must issue a new section 189A notice and commence the consultation process afresh. That decision is distinguishable. In General Motors, Van Niekerk J (as he then was) held, on the facts, that the dismissals the employer sought to effect seven months after issuing a section 189(3) notice were not the same dismissals originally contemplated by that notice, and that a new consultation process was therefore required.

48]  In this case, the dismissals now contemplated by AMSA are the same as those foreshadowed in the January 2025 notice. Nevertheless, before giving notice of dismissal in September 2025, AMSA was obliged to resume consultations to assess the implications of the new developments, because renewed engagement could reasonably have produced different outcomes concerning the timing of the wind-down, the number of employees affected, and the measures available to mitigate their impact. The procedural defect lies in the employer’s failure to do so. By relying on a process that had been suspended and overtaken by material change, AMSA implemented dismissals on an outdated and incomplete procedural foundation. By treating the January consultations as concluded and the deferral period as irrelevant, the employer deprived the union of an opportunity to engage on matters that the LRA identifies as central to meaningful joint consensus-seeking. AMSA must therefore be ordered to comply with a fair procedure by reinstating any workers already dismissed and resuming consultations, as contemplated in section 189A(13)(c).

“[49]  The Court’s supervisory role under section 189A(13) must be exercised in a manner that is both practical and purposive. As this Court held in General Motors, the requirements of sections 189 and 189A are not mechanical, nor are they intended to be mechanically applied.[9] Renewed consultation is not ordered for its own sake, nor to compel the employer to revisit its business rationale, but to restore the opportunity for engagement on developments that have become materially relevant since the section 189 process was paused. The remedy is restorative rather than punitive: it protects the integrity of consultation, ensuring that fairness is not compromised for the sake of expedience, and returns the process to the point where its statutory purpose can still be fulfilled.

“

Retrenchment

Section 189A (17) , failing to disclose relevant information

2025/162307

Food and Allied Workers Union v South African Breweries (Pty) Ltd (2025/162307) [2025] ZALCJHB 528 (7 November 2025)

[25]… This is the reason the facilitator ordered that it be disclosed, and the respondent volunteered to do so. In this regard, it seems clear that by failing to disclose relevant information the respondent failed to comply with the procedural requirements of section 189 and 189A. Failure to disclose relevant information breeds distrust which undermines the objective of meaningful engagement.[See Lagrange R “Consultation over retrenchments after ADE – a stronger sense of purpose?” (1995) 16 ILJ 509 at p525; See also Moodley v Fidelity Cleaning Services (Pty) Ltd t/a Fidelity Supercare Cleaning [2005] ZALC 24; [2005] 6 BLLR 588 (LC); (2005) 26 ILJ 889 (LC) (20 April 2005) where Murphy AJ (as he then was) stated in relation to a failure to disclose sufficient information, the “failure of employers to fulfil this obligation meaningfully invariably leads to disputes, misconceptions, a break down in trust and the delegitimizing of the joint consensus process mandated by the statute”.]

16.6.1

Review

not review any decision or ruling made during consideration or arbitration proceedings before final determination

JA40/2024

South African Cabin Crew Association obo Members v South African Airways (Soc) Ltd and Others (JA40/2024) [2025] ZALAC 45; [2025] 10 BLLR 1048 (LAC) (21 July 2025)

[26]  Section 158(1B) of the LRA gives effect to the policy consideration that judicial intervention would generally be deferred until the issue in dispute had been finally determined. To this end, this section provides that the Labour Court may not review any decision or ruling made during consideration or arbitration proceedings before final determination of the issue in dispute by the CCMA, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling.[12] The court in South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation, Mediation and Arbitration and Others[13] noted that “[a] case must be truly exceptional to warrant a departure from the norm that a review is appropriate only once the dispute has been finally determined in a completed arbitration hearing. This is consistent with the statutory purpose of expeditious dispute resolution which the LRA seeks to achieve”.[14]

27]  Exceptional circumstances justifying judicial intervention in incomplete proceedings have been found to exist where such intervention was necessary to prevent illegality, to prevent grave injustice, or where justice could not otherwise be achieved.[15]

Review

of constructive dismissal cases

JR 2413/23

“

Manhattan Process Engineering (Pty) Ltd v Bachisi (JR 2413/23) [2025] ZALCJHB 495 (1 July 2025)”

“[9]  In Browns The Diamond Store (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others; 2023 (10) BLLR 1033 (LC), Nkutha-Nkontwana J, stated as follows:

“”Tritely, the review test in relation to constructive dismissal cases is correctness as opposed to reasonableness. The enquiry turns on the jurisdiction of the CCMA, a notion well explained in Solid Doors (Pty) Ltd Commissioner Theron and Others, where the Labour Appeal Court (LAC) held that:

‘Having established what the requirements are for a constructive dismissal, it is necessary to make the observation at this stage of the judgment that the question whether the employee was constructively dismissed or not is a jurisdictional fact that – even on review – must be established objectively. That is so because if there was no constructive dismissal, the CCMA would not have the jurisdiction to arbitrate. A tribunal such as the CCMA cannot give itself jurisdiction by wrongly finding that a state of affairs necessary to give it jurisdiction exists when such state of affairs does not exist. Accordingly, the enquiry is not really whether the commissioner’s finding that the employee was constructively dismissed was unjustifiable. The question in a case such as this one – even on review – is simply whether or not the employee was constructively dismissed. If I find that he was constructively dismissed, it will be necessary to consider other issues. However, if I find that he was not constructively dismissed, that will be the end of the matter and the commissioner’s award will stand to be reviewed and set aside.’”

“

“[10]  At paragraph 17, the learned judge stated as follows:

“”That being the case, as stated in HC Heat Exchangers (Pty) Ltd v Araujo and others, “the Labour Court is entitled, if not obliged, to determine the issue of jurisdiction on its own accord.  In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the arbitrator is right or wrong.’”

“11]  The test to determine whether there has been a constructive dismissal is also trite, and I am going to quote from the same judgment, paragraph 30:

“”In Gold One Limited v Madalani and Others, this Court sanctioned the well-established principle that: ‘Intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.’ The principle was recently concretised by the Constitutional Court, albeit in a context of reinstatement, in Booi v Amathole District Municipality and others, where it was stated that:

‘It is accordingly no surprise that the language, context and purpose of s 193(2)(b) dictate that the bar of intolerability is a high one. The term ‘intolerable’ implies a level of unbeatability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour.’”””

“12]  As the Court on review, I am required to determine de novo whether or not a constructive dismissal has been established. What is the approach in a constructive dismissal? The approach is also trite, and  I quote from another judgment, Sanlam Life Insurance v Mogomatsi & Others; 2023 (11) BLLR 1166 (LAC):

“”In constructive dismissal disputes, a two-stage approach is normally followed. First, the employee must prove that the employer effectively dismissed him or her by making her or his continued employment intolerable. It is an objective test. The employee need not prove that he had no choice but to resign.  All that is required is to prove that the employer made continued employment intolerable. The conduct of the employer towards the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with it. Second, after the dismissal had been established, the Court will then evaluate whether the dismissal was unfair. The two stages may overlap and be interrelated.”””

[23]  That is the respondent’s evidence. The respondent’s evidence was that she did not lodge an internal grievance. She gave evidence why she did not lodge an internal grievance. Although that evidence was challenged, it is not a requirement for a constructive dismissal that a formal grievance be lodged. 

[29]  The approach of the applicant from its own HR manager was if you are not happy, leave. There was no attempt by the applicant to deal with the grievances lodged by the respondent, or at least the grievances that Ms Pretorius was aware of. Her attitude was: if you do not like it, you can leave. 

[30]  Under the circumstances of this matter, specifically where the evidence of the respondent was unchallenged and undisputed and further considering the record, I am of the view that the commissioner’s decision that there was constructive dismissal is correct, and that the award is not subject to review and being set aside. 

Review

procedure: Court does have jurisdiction to entertain an application for the dismissal of a deemed withdrawn or archived review application brought in terms of Rule 11

JR2025/2018

Hlongwane v Red Alert (Pty) Ltd and Others (JR2025/2018) [2025] ZALCJHB 398 (3 September 2025)

“[15]  The Labour Appeal Court held that this Court does have jurisdiction to entertain an application for the dismissal of a deemed withdrawn or archived review application brought in terms of Rule 11 of the previous Rules, stating the following at paragraphs [See Greater Taung Local Municipality v SA Local Government Bargaining Council and Others (2023) 44 ILJ 761 (LAC) (Greater Taung) at para 16.] and [24] of its judgment:

“[23] There is, however, nothing in Macsteel and E Tradex that impedes the Labour Court from entertaining a Rule 11 application to dismiss a lapsed review application. A lapsed review application is not dead as a doornail; hence, it can be revived on good cause, as correctly found in Aspen. Therefore, a respondent party that seeks, inter alia, irrefutable finality for purposes of execution or due to inordinate delay can avail itself of the Rule 11 application. To the extent that the Labour Court has jurisdiction to entertain an application for the reinstatement of the lapsed review application, that power extends, by implication, to the Rule 11 dismissal application.[2] However, caution must be exercised to prevent the proliferation of litigation and to avoid negating the paramount statutory mandate for a speedy and cost-effective resolution of labour disputes.

[24] In the present case, no reinstatement application served before the Labour Court. Before us, counsel for the City of Tshwane confirmed that there was no intention to seek reinstatement of the lapsed review application. The Labour Court cannot, therefore, be faulted for upholding the Rule 11 dismissal application. It was, in my view, not only expedient but also fair in the circumstances.[3]”

16.6.1

Rule Nisi

16.13.1

Severance Pay

16.6.1

Special Plea

16.9.1

Strike

16.6.1

Subpoena

16.3.1

Suspension

“AI Conclusion:

The Labour Court reinstated Bombela’s review application and set aside the CCMA award. The court ruled that Lehlokwa’s suspension was both procedurally and substantively fair, as it was precautionary and aligned with the principles established in Long v SAB.

 No costs order was made.

“

JR 589/2021

Bombela Operating Company (Pty) LtdTD v Commission for Conciliation, Mediation and Arbitration and Others (JR 589/2021) [2025] ZALCJHB 297 (11 July 2025)

“in accordance with the Constitutional Court decision in Long v South African Breweries (Pty) Ltd and Others [40 ILJ 965 (CC); 2019 (5) BCLR 609 (CC) ; [2019] 6 BLLR 515 (CC)], which was handed down on 19 February 2019, where the court held:

[24] In respect of the merits, the Labour Court’s finding that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension, cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the applicant was a precautionary measure, not a disciplinary one. This is supported by Mogale, Mashego and Gradwell. Consequently, the requirements relating to fair disciplinary action under the LRA cannot find application. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations.

[25] In determining whether the precautionary suspension was permissible, the Labour Court reasoned that the fairness of the suspension is determined by assessing first, whether there is a fair reason for suspension and secondly, whether it prejudices the employee. The finding that the suspension was for a fair reason, namely for an investigation to take place, cannot be faulted. Generally where the suspension is on full pay, cognisable prejudice will be ameliorated. The Labour Court’s finding that the suspension was precautionary and did not materially prejudice the applicant, even if there was no opportunity for pre-suspension representations, is sound.”

(footnotes omitted – emphasis added)”

Disseminating confidential company documents – Employers need not afford employees a hearing before imposing precautionary suspensions – Incorrectly required employer to justify suspension beyond need for an investigation – Incorrect application of binding precedent – Suspension was justified merely as a precaution during investigation – Misconception of scope of inquiry – Error of law – Award reviewed and set aside.

6.1.1

Trade Union

scope: constitution allows for the inclusion of other industries through resolutions by its National Office Bearers,

JR1536/24

SACTWU obo Members v Commission for Conciliation Mediation and Arbitration (CCMA) and Others (JR1536/24) [2025] ZALCJHB 573 (2 December 2025)

[24]  In my view, the union’s decision to expand its scope to include the operations of the third respondent is clear. This extension was made through the resolution dated 7 May 2024.

[22]  Having referred, inter alia, to passages from the cases of Van Wyk and Taylor v Dando and Van Wyk Print (Pty) Ltd[[1997] 7 BLLR 906 (LC) at 910.], National Union of Metalworkers of SA v Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd) and Others[(2020) 41 ILJ 1846 (CC).] (Lufil), and the provisions of section 4(1)(b) and 21(1) of the LRA, the second respondent held that a trade union cannot create a class of membership outside the provisions of its own constitution, and if they purport to do so, they act in excess of its powers, and such an act has no validity. The second respondent further held that the scope of the trade union, SACTWU, does not include the business of the third respondent (Starfibco), which is plastic.

“17]  The Labour Appeal Court (LAC) In South African Clothing and Textile Workers Union v The Bargaining Council for the Furniture Manufacturing Industry and Others[[2024] 9 BLLR 976 (LAC).] held as follows:

‘[46]     For the union’s constitution to have been registered, the registrar would have had to have been satisfied that the requirements for registration had been met. This included that the constitution provided the “qualifications for, and admission to, membership”. The registered constitution not only set out in C 3.1.1 to C 3.1.11 specified industries which fell within the union’s scope of operation, but included, in clause C 3.1.12, that other industries may fall into the union’s scope where, in terms of clause C 3.2.12, either the National Executive Committee or the National Office Bearers from time to time defined “any other activity, industry, or interest group” as falling within the scope of the union. In providing as much, the registrar was clearly satisfied that the constitution provided the “qualifications for, and admission to, membership”.’

[18]  The LAC further held that:

‘[47]     The resolution taken by the National Office Bearers under clause C 3.2.12 of the appellant’s constitution did not amount to a change to or replacement of the appellant’s constitution as contemplated in section 101(1). This is so since the National Office Bearers acted in accordance with the terms of the union’s registered constitution in that clause C 3.2.12 expressly provided that either the National Executive Committee or the National Office Bearers from time to time were entitled to define “any other activity, industry, or interest group” as falling within the scope of the union. In resolving that the furniture industry fell within the union’s scope, the National Office Bearers did not change the union’s constitution but acted, as they were permitted, in accordance with the express terms of clause C 3.2.12.’”

16.1.1

Transfer of Employment

“AI: The respondent operated a grout plant at the Karee Mine (K4 shaft) under a contract with Sibanye Gold Limited.

 After the contract was terminated, the appellant won a tender to construct and operate new grout plants at the same site. Core Assets”

JA132/24

Electro Hydro World (Pty) Ltd v Murray and Roberts Cementation (Pty) Ltd and Others (JA132/24) [2025] ZALAC 62 (27 November 2025)

Transaction met requirements – There was a transfer between employers – Entity was a business capable of transfer – Retained its identity post-transfer – Core infrastructure and inputs remained constant – Continued performing same service for same client – Operational differences did not negate continuity of economic activity

“NEHAWU v University of Cape Town & Others (2003):

Established the test for determining whether a business has been transferred as a going concern under Section 197.

 It emphasized the need for a factual inquiry to assess whether the business retains its identity post-transfer.”

“Road Traffic Management Corporation v Tasima (Pty) Ltd; Tasima (Pty) Ltd v Road Traffic Management Corporation (2020):

Clarified the definition of “”business”” under Section 197, stating it includes tangible and intangible assets, goodwill, workforce, premises, contracts, activities, and operating methods.”

“viation Union of SA & Another v SA Airways (Pty) Ltd & Others (2012):

Highlighted the importance of determining the legal causa for the transfer before assessing whether the jurisdictional facts for a Section 197 transfer are met.”

“Mobile Telephone Networks (Pty) Ltd & Others v CCI SA (Umhlanga) (Pty) Ltd & Others (2023):

Emphasized the importance of assessing whether the “”operational capacity”” of the business was transferred.”

“King Cetshwayo District Municipality v Water and Sanitation Services South Africa (Pty) Ltd and Others (2025):

Reiterated that the application of Section 197 is not dependent on the labels parties give to the transaction but on the factual and legal circumstances of the transfer.”

“City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd (2015):

Discussed the transfer of core assets and their role in determining whether a business was transferred as a going concern.”

“Rural Maintenance (Pty) Ltd v Maluti-A-Phofung Local Municipality (2016):

Highlighted that the absence of core assets required for the business could mean no transfer as a going concern.”

16.4.1

Unfair Discrimination

Employment equity measures designed to promote designated groups without imposing rigid quotas

CA13/2024

Eskom Holdings Soc Ltd (Peaking Power Station) v Solidarity obo Erasmus (CA13/2024) [2025] ZALAC 55 (5 November 2025)

Shortlisting practice – Not excluded from recruitment process – Shortlisted, interviewed, and recommended – Employment equity measures designed to promote designated groups without imposing rigid quotas – Pipeline concept was a known and rational career pathing initiative – Legitimate restitution measures targeting historically disadvantaged groups and promoting substantive equality – Recruitment process did not violate rights – Appeal upheld.

[6]…appointment would not have caused a decline in the Employment Equity (EE), the reality was that white males were overrepresented by 16% in the Group Technology Division (GTD) and there would have been a missed opportunity to promote a candidate from the designated groups to improve the EE at the GTD….He confirmed that the GTD had a target of 25,2% for African male senior managers, but was sitting at 16,96% and that it was in line with the targets in senior management to appoint African males so that they could be part of the pipeline for senior management.

[17]  The Labour Court found that the evidence placed before it went to the question of whether Mr Erasmus was unfairly discriminated against and whether an ‘absolute barrier’ was created by the practice of only shortlisting a category of under-represented candidates. It concluded that the evidence established that Eskom’s employment practice amounted to an absolute barrier to non-designated groups and cannot be regarded as an affirmative action measure in terms of the Employment Equity Act[1] (EEA).

“[18]  Eskom’s EE plan was not challenged. Its validity and applicability were also not challenged. It was not disputed that, in terms of Eskom’s targets, white males were over-represented in the GTD. In South African Police Services v Solidarity obo Barnard[(CCT 01/14) [2014] ZACC 23; 2014 (6) SA 123 (CC); [2014] 11 BLLR 1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC) (2 September 2014).], it was stated:

‘[36]  The test whether a restitution measure falls within the ambit of s 9(2) is threefold. The measure must ―

(a)  Target a particular class of people who have been susceptible to unfair discrimination;

(b)  Be designed to protect or advance those classes of persons; and

(c)  Promote the achievement of equality.

[37]  Once the measure in question passes the test, it is neither unfair nor presumed to be unfair. This is so because the Constitution says so… This however, does not oust the court’s power to interrogate whether the measure is a legitimate restitution measure within the scope of the empowering s 9(2).

…

[42]  A designated employer is required to implement several measures in pursuit of affirmative action. They must identify and eliminate employment barriers, further diversify the workforce “based on equal dignity and respect of all people” and “retain and develop people” as well as “implement appropriate training measures”. Section 15(3) contains a vital proviso that the measures directed at affirmative action may include preferential treatment and numerical goals but must exclude “quotas”. Curiously, the statute does not furnish a definition of “quotas”. This not being an appropriate case, it would be unwise to give meaning to the term. Let it suffice to observe that s 15(4) sets the tone for the flexibility and inclusiveness required to advance employment equity. It makes it quite clear that a designated employer may not adopt an Employment Equity Policy or practice that would establish an absolute barrier to the future or continued employment or promotion of people who are not from designated groups.”

“[26]  In my view, the evidence establishes that Mr Erasmus was not appointed because of the EE targets and the pipeline that Eskom implemented to change the demographics at the senior management level. This was a rational way to target a particular class of persons who have been susceptible to unfair discrimination at that level; it was conceived to protect and advance them, and it promotes equality.

“

Unfair Discrimination

90 day period to refer dispute

JS657/22

Msimanga v Johannesburg Water SOC Ltd and Others (JS657/22) [2025] ZALCJHB 371 (22 August 2025)

[22]  The plaintiff asks this Court to find that the 90-day period within which an unfair discrimination dispute must be referred to this Court for adjudication ought also not to apply to disputes in which the unfair discrimination complained of is continuous.

[23]  In my view, this proposition cannot be sustained. The rationale for the six-month time period not applying to such disputes does not exist in respect of those disputes once a certificate of outcome has been issued. The 90-day period commences from the date of issue of the certificate, which date is fixed and will not change regardless of whether the discrimination complained of is ongoing.

“[13]  Part C of Chapter VII of the LRA deals with dispute resolution in the CCMA and section 136(1) therein provides that, if the LRA requires a dispute to be resolved through arbitration, the CCMA must appoint a commissioner to arbitrate that dispute if a certificate of outcome has been issued and any party to the dispute has requested that the dispute be resolved through arbitration within 90 days after the date of the issue of the certificate.

“

“[13]  Part C of Chapter VII of the LRA deals with dispute resolution in the CCMA and section 136(1) therein provides that, if the LRA requires a dispute to be resolved through arbitration, the CCMA must appoint a commissioner to arbitrate that dispute if a certificate of outcome has been issued and any party to the dispute has requested that the dispute be resolved through arbitration within 90 days after the date of the issue of the certificate.

“

“15]  The LAC in Aspen Pharmacare[[2024] 12 BLLR 1234 (LAC) at paras 7 – 9.] confirmed the principle in NEHAWU[7] that:

‘Reading section 10(6) and 10(7) of the [Employment] Equity Act together, it would appear that the [Employment] Equity Act must be read together with the applicable provisions of the [Labour Relations] Act. By reference to the words with the changes required by the context in section 10(7), the 90-day time period as provided for in section 136(1) of the Act, which itself appears in Part C of Chapter VII of the Act, becomes applicable to the dispute. In other words, although the present dispute involves adjudication after an unresolved conciliation and section 136(1) refers expressly to arbitration, the savings provision in section 10(7) of the [Employment] Equity Act then becomes operative; hence the 90-day requirement is of equal application in the new context to the adjudication as envisaged in section 10(6) of the [Employment] Equity Act.’”

[16]  In response to this point in limine, the plaintiff submits that condonation is not necessary. In argument, Mr Grové for the plaintiff did not dispute the assertion made by counsel for the defendant that, ordinarily, the 90-day period in section 136(1) of the LRA is applicable to disputes referred to this Court for adjudication in terms of section 10(6)(a) of the EEA. Rather, what he argued on behalf of the plaintiff was that, since the six month time period prescribed in terms of section 10(2) of the EEA for the referral of a dispute to the CCMA for conciliation has been found not to apply in cases where the unfair discrimination complained of is ongoing in nature, this principle should also apply to the 90-day period in which a dispute in respect of which a certificate has been issued must be referred for adjudication.

[23]  In my view, this proposition cannot be sustained. The rationale for the six-month time period not applying to such disputes does not exist in respect of those disputes once a certificate of outcome has been issued. The 90-day period commences from the date of issue of the certificate, which date is fixed and will not change regardless of whether the discrimination complained of is ongoing.

Unfair Discrimination

“The applicant claims that the respondent unfairly discriminated against him based on race, after it refused to purchase his residential property following his transfer to Kusile Power Station. In contrast, a white colleague in similar circumstances had his property purchased.

“

JS249/20

Veli v Eskom Holdings Soc Ltd (JS249/20) [2025] ZALCJHB 498 (23 October 2025)

[12]  She stated that the respondent’s decision not to buy the applicant’s property was not based on his race. The decision was solely due to the fact that the applicant did not qualify for the benefit under the respondent’s Conditions of Service. She testified that the respondent’s Conditions of Service recognise three types of transfers, which include, among others, when an employee is transferred by the respondent’s decision (forced transfer) and when an employee is transferred because they responded to an advertisement (job application transfer). According to paragraph 7.1.5H of the Conditions of Service, the respondent only purchased employees’ properties when they are transferred through a compulsory transfer.

“[17]  The term ‘discrimination’ is defined as follows in an International Labour Organization Convention[Article 1 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).]:

‘1.        For the purpose of this Convention the term discrimination includes:

(a)        Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction, or social origin which has the effect of nullifying, or impairing equality of opportunity or treatment in employment or occupation…’”

“[18]  The Constitutional Court in Prinsloo v Van Der Linde and Another[[1997] ZACC 5; 1997 (6) BCLR 759 (CC) at para 31.] explained that discrimination principally means treating people or categories of people differently in a way that impairs their fundamental dignity as human beings.

[19   The Court further explained that:

‘The proscribed activity is not stated to be “unfair differentiation” but is stated to be “unfair discrimination”. Given the history of this country we are of the view that “discrimination” has acquired a particular pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them…’”

“[20]  In Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd & others[(1998) 19 ILJ 285 (LC) at 289E – F. See also Department of Correctional Services & Another v Police & Prisons Civil Rights Union & Others (2011) ILJ 2629 (LAC).], discrimination based on race is defined as follows:

‘Direct race discrimination occurs where a person is treated differently because of their race or on the basis of some characteristic specific to members of that race. It is incorrect to equate discrimination with actual prejudice. Discrimination occurs when people are not treated as individuals. To discriminate is to assign to them characteristics which are generalized assumptions about groups of people… .

… Whether the discrimination is unfair is a separate enquiry…’”

“[21]  The Court in National Union of Metalworkers of SA & others v Gabriels (Pty) Ltd[(2002) 23 ILJ 2088 (LC) at para 9.], with approval, quoted the following test from Harksen v Lane NO and others[[1997] ZACC 12; 1998 (1) SA 300 (CC) at para 54.] (Harksen), where the Constitutional Court established a two-pronged test for determining whether differentiation between people or categories of people amounted to unfair discrimination:

‘(i)  Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii)  If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.’        [22]  The court in Harsken further stated that:

‘… whether there has been differentiation on a specified ground or an unspecified ground must be answered objectively. … If in either case the enquiry leads to a negative conclusion then s 8(2) has not been breached and the question falls away. If the answer is in the affirmative, however, then it is necessary to proceed to the second stage of the analysis and determine whether the discrimination is “unfair”.’[7]”

[23]…The evidence presented by both parties does not show that the case that the applicant raised as the basis for comparison justifies the conclusion that the respondent refused to purchase the applicant’s immovable property and purchased that of Mr Haasbroek because the differentiation was based on a prohibited ground of discrimination.

[24]  It is not enough for the applicant to merely allege that Mr Haasbroek’s immovable property was bought by the respondent because of his race (white). Something more is required to prove discrimination. The unequal treatment must be based on attributes and characteristics attaching to a person before it can fall within the meaning of ‘discrimination’.

16.11.1

Unfair Discrimination

16.1.1

Unfair Labour Practice

Unreasonable Delay Rule

16.8.1

Urgent Interdict

Urgent Relief

section 188A(11) enquiry

2025/169524

Matlala v Foskor Proprietary Limited and Others (2025/169524) [2025] ZALCJHB 478 (22 October 2025)

protected disclosure – Suspended and charged with misconduct – Disclosures made about vice president’s conduct and broader internal issues – Belief that disciplinary action constituted an occupational detriment was not frivolous or insincere – Merits of claim not assessed – Existence of a bona fide belief was sufficient to justify interim relief – Warranted to preserve integrity of referral process – Disciplinary inquiry suspended pending a decision by arbitrator – Labour Relations Act 66 of 1995, s 188A(11).

“[38]  In determining the prerequisites for an arbitrator to chair the enquiry, the court stated:

“(43) A casual and sloppy reading of the subsection suggests that an employee may make a simple allegation of contravention of the PDA in order to invoke the subsection. Not, the allegation must be one made in good faith. This requirement illuminates the fact that the legislature was alive to the fact that an employee may make a wild allegation and thereby gain the right to an inquiry by an arbitrator. This is an instance where an abuse of the subsection creeps in easily. The legislature must have carefully chosen the phrase good faith because in section 9 of the PDA any disclosure made in good faith is protected. It becomes so protected if an employee reasonably believes that the information disclosed and an allegation contained in it are substantially true and the disclosure is not made for the purposes of personal gain. The phrase good faith, when used as a noun, means honesty or sincerity of intention.

(44) It must follow that the allegation of contravention must have an element of honesty and sincerity. The veritable question is how does a Court faced with an application of this nature test honesty and sincerity of the allegation of contravention? To my mind a contravention must not only be alleged it must prima facie factually exist. I say so because in terms of section 1 of the PDA an occupational detriment in relation to the working environment of an employee means amongst others being subjected to any disciplinary action.””

[43]  I agree with the court in Mamodupi that the starting point for identifying the requisites for holding an enquiry under s 188A(11), must be the wording of the section, which states that an employee is entitled to require an enquiry into their conduct or capacity to be conducted under s 188A if the employee “alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000” (emphasis added).

“[44]  If the request for a statutory hearing is successful, it merely means that the internal incapacity or misconduct inquiry is substituted with an arbitration presided over by a completely independent chairperson. In Tsibani v Estate Agency Affairs Board and Others[6], this court emphasised the limited scope of the s 188A(11) procedure:

“(72) Section 188A(11) is not designed or intended to determine whether the facts constitute a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed. The section provides for an inquiry into allegations pertaining to the conduct or capacity of an employee.”

(emphasis added)

“

[46]  Because the section 188A(11) enquiry is simply a misconduct or incapacity hearing, whether the employee had actually suffered an occupational detriment is not within the remit of the arbitrator in that forum. Nevertheless, the arbitrator is not obliged to proceed with the inquiry regardless of the circumstances under which the disciplinary action arose. The threshold requirement that must still be met is that the employee’s allegation that the disciplinary steps taken by the employer amounts to an occupational detriment under the PDA must be one made in good faith.

[47]  In assessing the existence of good faith, it must be recognised that it possible that the allegation of being subjected to an occupational detriment might be made in the sincere belief it is correct, when objectively speaking it is wrong. An employee’s belief they have been subjected to an occupational detriment, might be mistaken on several grounds, both concerning the legal interpretation of the PDA and the factual basis for their belief. Plainly, if an employee relies on a factual assertion which they know to be false the allegation cannot be bona fide because it relies on an intentional misrepresentation. In instances where the allegation is not plainly false, there must at least be a tenable or plausible basis for them holding that belief. Accordingly, if there are undisputed facts that are irreconcilable with their belief, which the employee could not be unaware of, their belief cannot be accepted as bona fide one. Equally, if the belief is one that nobody in the position of that person could reasonably hold in the circumstances, it could not be held in good faith[7].

[51]  Should the court then grant interim relief by suspending the internal inquiry pending the decision of the CCMA commissioner whether to proceed with the s 188A(11) enquiry?  If the court does not stay the internal enquiry, Matlala could be denied the opportunity of exercising his right to request the statutory enquiry because, unless the request for the statutory enquiry is accepted, the employer can proceed with the internal one in the meantime.

“2.  The disciplinary enquiry into the charges of misconduct against the Applicant, set out in the First Respondent’s notice of 7 and 22 August 2025, is suspended pending a decision by the arbitrator appointed by the Third Respondent, whether the disciplinary enquiry should be conducted in accordance with Section 188A(11) of the Labour Relations Act, 66 of 1995.

“