New court cases for January to June 2026

17.1.1

Administrative action

Administrative law

17.4.1

Affirmative action

Discrimination – Affirmative action

JR56/24

South African Policing Union obo Singh v South African Police Services and Others (JR56/24) [2026] ZALCJHB 150 (13 May 2026)

SAPS promotion dispute where highest scoring candidate, an Indian female, was overlooked in favour of another candidate to advance equity targets – Commissioner dismissed claim, equating affirmative action with fairness – On review, court held commissioner misconceived enquiry, failed to assess procedural compliance and rationality – Appointment of candidate not recommended by panel procedurally irrational and discriminatory – Affirmative action must be rationally and fairly implemented, not shield arbitrary decisions – Award set aside, non-promotion held unfair discrimination, compensation ordered

“[25] A reasonable Commissioner must scrutinize the decision to appoint an affirmative action candidate against reasons provided in order to arrive at a conclusion about rationality. This Court in Ethekweni referred to this enquiry as an assessment of the “internal factors”, which comprise the following:[Ethekweni Municipality v Nadesan and Others (2021) 42 ILJ 1480 (LC).]

‘Internal factors deal with the validity and scope of the equity plan, its internal logic, rationality and compliance with the EEA and the factual accuracy of the information the decision-maker relied upon.’”

[20] In Ethekweni Municipality v Nadesan and Others (Ethekweni),[6] this Court (per Whitcher J) considered the seminal constitutional case of South African Police Service v Solidarity obo Barnard (Barnard)[7] and rejected the notion that a validity adopted employment equity plan was an absolute defence for a claim of unfair discrimination.

“[27] In Barnard, the Constitutional Court ultimately determined that the decision of the National Commissioner not to appoint Barnard was not unreasonable because the post was not critical, her non-appointment would not have sacrificed service delivery, the National Commissioner’s decision did not amount to undervaluing Barnard’s competence when weighed up against the need for representativity, the National Commissioner did not apply the employment equity measure too rigidly so that it amounted to job reservation when he declined to appoint her, and Barnard was well aware that her application was subject to the application of affirmative action measures that might preclude her for attaining the position even where she to emerge as the most meritorious candidate.

“

“[32] Put differently, in order to discharge his duties, a Commissioner must interrogate the affirmative action measure against the impact of the decision of the aggrieved candidate, the requirements of the job, the procedure followed in the recruitment process and whether the decision was taken maliciously, or in an arbitrary manner, etc.

“

[38] The Constitutional Court in Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others,[14] held that the question whether a decision is rationally related to the purpose for which the power is given calls for an objective enquiry. Otherwise, a decision viewed objectively, is in fact irrational, might pass muster simply because the person who took it mistakenly and in good faith believed it to be rational. Such a conclusion would place form above substance and undermine an important constitutional principle. Rationality in this sense is a minimum threshold requirement applicable to access of all public power by members of the Executive and other functionaries. Action that fails to pass this threshold is inconsistent.

“[42] I intend to agree with the Commissioner that in the event that the applicant or the second recommended candidate were not suitable for appointment, the correct approach in terms of the National Instruction was to readvertise the position.[16]

[43] The Commissioner thus failed to take into account considerations relating to efficiency of the service and made no reference thereto in the award.

“

“AI summary: Case Law Referred To

South African Police Service v Solidarity obo Barnard (2014 (6) SA 123 (CC))

The Constitutional Court considered the application of affirmative action in police promotions and held that such measures must be rational and fair, not absolute or arbitrary.

Ethekweni Municipality v Nadesan and Others (2021) 42 ILJ 1480 (LC)

The Labour Court rejected the notion that a valid employment equity plan is an absolute defence to unfair discrimination and set out a guide for assessing rationality and fairness in affirmative action decisions.

Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC)

Addressed the employer’s burden to justify affirmative action measures under the EEA.

Monyakeni v SSSBC and Others (JA 64/13) [2015] ZALAC 17

The Labour Appeal Court considered both procedural and substantive fairness in promotional disputes.

Solidarity obo Louw v South African Police Service and Others [2012] 6 BLLR 637 (LC)

Examined the fairness of affirmative action in SAPS promotions.

Carephone (Pty) Ltd v Marcus NO 1999 (3) SA 304 (LAC)

Established the rationality principle for administrative decisions: there must be a rational objective basis for the decision.

Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674

The Constitutional Court held that rationality is a minimum threshold for the exercise of public power.”

Affirmative action

Gender

Male chartered accountant ranked first for CFO post but excluded solely on basis of gender – Institute appointed female candidate lacking advertised qualifications to address representivity without equity plan – Court held reliance on affirmative action unlawful, ad hoc and not pleaded – Appointment created absolute barrier against male candidates, constituting unfair discrimination – Damages claim failed for lack of proof of patrimonial loss – Appeal dismissed on discrimination, damages award set aside

“AI summary: 1.

Unfair Discrimination:

The Institute admitted that Mr. Mzimele was excluded solely because he is male, and gender-based selection was introduced only after interviews.

The Labour Court found this to be unfair discrimination, as the Institute had no employment equity plan or policy in place and the process was ad hoc and not justified under the Employment Equity Act (EEA).

The appointment created an absolute barrier against male candidates, which is impermissible under the EEA.

Discusses the standard for neutrality and independence in disciplinary h”

[79] The Institute’s reliance on general constitutional values and on its status as a small, developing institution does not satisfy the statutory requirement that affirmative action be designed and implemented through lawful processes. Shareholder pressure cannot replace legislative requirements. On these facts, the process created an effective absolute barrier to Mr Mzimele as a male candidate, reminiscent of a quota and impermissible under sections 15(3) and 15(4) of the EEA. Thus, even if the unpleaded defence were considered on the merits, it would fail. The appointment did not arise from a lawful affirmative action measure and amounted to unfair discrimination. Effectively, Gordon’s case is not distinguishable on any material basis.

Affirmative action

A2025/117691

Solidarity obo Roberts v Ngwenya N.O. and Others (A2025/117691) [2026] ZALAC 23 (21 May 2026)

[28] In any event, contrary to the arbitrator’s finding, De Lange’s decision did not constitute administrative action. In Chirwa v Transnet Ltd and Others[[2009] 12 BLLR 1145 (CC).] and Gcaba v Minister of Safety and Security and Others[10] the Constitutional Court made clear that employment-related decisions by the state in its capacity as employer do not constitute administrative action capable of review under Promotion of Administrative Justice Act[11], and must be challenged in terms of the rights of recourse established by the LRA.[See also PSA obo De Bruyn v Minister of Safety and Security and another (2012) 33 ILJ 1822 (LAC). A state employee is not precluded, though, from seeking the review of an employment-related decision under section 158(1)(h) based on the principle of legality – see Hendricks v Overstrand Municipality and another [2014] 12 BLLR 1170 (LAC); Minister of Police and Another v Kgopa and Another [2019] 1 BLLR 16 (LAC).] Moreover, the fact remains that even if De Lange’s decision is completely removed from the equation, the decision subject to challenge by the appellant is that made by Van Graan, i.e., the decision to uphold the appellant’s dismissal. That was the only decision under consideration and scrutiny at the arbitration hearing.

17.2.1

Agreement

17.5.1

Arbitration awards

17.4.1

Automatically unfair dismissal

provision differentiate between people or categories of people

JS204/21

Oosthuizen v MEC Department of Education Northwest Province and Others (JS204/21) [2026] ZALCJHB 152 (7 May 2026)

24] The Applicant in these proceedings alleges Mr Meyer discriminated against her on the basis of sex and/or age by refusing to give her an opportunity to teach the grade 12 class and refusing to reinstate her as head of the gym and conditioning. Having regard to the evidence tendered and the submissions made by counsel, the court finds it difficult, albeit in the absence of a response by the Respondents to come to a conclusion that the Applicant has proven that the conduct she is complaining about amounts to unfair discrimination.

“[23] The Constitutional Court laid down an approach to interpretation and application of section 8 of the Interim Constitution, which section has now been replaced by section 9 of the Constitution for the Republic of South Africa, 1996. The test for unfair discrimination was set out in Harksen v Lane NO and Others[[1997] ZACC 12; 1998 (1) SA 300 (CC) at para 54.] as follows:

‘[54] At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on section 8 of the interim Constitution. They are:

(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of s 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two stage analysis:

(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. [If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of s 8(2)].

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s 33 of the interim Constitution).””

“[25] It is trite that when dealing with discrimination cases, the conduct complained of must be judged against the core value of human dignity. In Ndudula and others v Metrorail – PRASA (Western Cape)[(2017) 38 ILJ 2565 (LC) at para 73.] the Labour Court with reference to Harksen reaffirmed that:

“the crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect with a similar serious consequence.””

“[26] The Labour Appeal Court (LAC) in Naidoo and Others v Parliament of the Republic of South Africa[(2020) 41 ILJ 1931 (LAC) at para 25 to 27.] warned that the EEA is not a limitless remedy for all grievances within the workplace and stated:

‘[25] … The EEA is not intended to be a catch all or a panacea. Indeed, the EEA is the instrument of section 9 of the Constitution and therefore its mission is to give teeth to that Constitutional guarantee within the scope of the terms expressed in that section. Section 9 is not an all-encompassing injunction, rather its purpose is to give recognition to the value of our humanity and provide a remedy for aggression against us on the grounds of our intimate attributes, whether inherent or adopted. In other words, section 9 has a specific and concrete focus, intelligible within the context of the historical experience of South Africa’s legacy of oppression. The writers, Garbers and Le Roux, rightly caution against being seduced by the idea that anti-discrimination law can be weaponised to solve all labour market ills. Other vicissitudes of life find remedies elsewhere, not least of all in the panoply of protections in Labour Legislation.”

“[27] Garbers and Le Roux offer a critique of the broad compass idea and, in great detail, eviscerate the thesis. It is unnecessary to address all of their reasoning to demonstrate a convincing rejection of the broad compass interpretation. The essential point is that the phrase to which meaning must be attributed is “ … any other arbitrary ground” and not the word “arbitrary,” free from its context and function. In this context the word “arbitrary” is not a synonym for the word “capricious.” The injunction in section 6(1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair discrimination that is rooted in “another” arbitrary ground (the syntax of “ …any other…” cannot be understood as otherwise than looking back at what has been stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a “ground” must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the Grund norm of Human Dignity. The authors express this view, with which I agree:

“Discrimination is about infringement of dignity (or a comparably serious harm), about an identifiable and unacceptable ground and about the link directly or indirectly) between that ground and the differentiation. Should a ground not be listed, it should meet the well-established test for unlisted grounds: it must have the potential to impair the fundamental human dignity of a person (or have a comparably serious effect) and has to show a relationship with the listed grounds.’

“

“AI summary: Applicable Law:

Employment Equity Act 55 of 1998 (EEA), as amended

Section 6(1): Prohibits unfair discrimination, directly or indirectly, against an employee on grounds including race, gender, sex, age, and other listed or arbitrary grounds.

Section 6(2)(b): Provides that it is not unfair discrimination to distinguish, exclude, or prefer any person on the basis of an inherent requirement of a job.

Section 6(4): States that differences in terms and conditions of employment based on listed grounds constitute unfair discrimination.

Section 11(1): Places the burden of proof on the employer to show that alleged discrimination did not occur or was justified.

Section 50(2): Empowers the Labour Court to grant appropriate remedies, including compensation, damages, or orders to prevent future discrimination.

Section 60: Establishes employer vicarious liability for acts of discrimination by employees if the employer fails to take necessary steps to address the conduct.

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA)

Section 1 (Definitions): Defines ‘prohibited grounds’ for discrimination, including gender, sex, age, and any other ground causing systemic disadvantage or undermining human dignity.”

“AI summary: Key Case Law Cited

Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC)

Established the “”reasonableness test”” for reviewing arbitration awards: whether the award is one that no reasonable commissioner could reach on the material before them.

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others [2004] ZACC 15; 2004 (4) SA 490 (CC)

Discusses factors relevant to reasonableness in administrative decisions.

Goldfields Mining SA (Pty) Ltd v CCMA and others (2014) 35 ILJ 943 (LAC)

Clarifies that reasonableness embraces a range of possible outcomes.

Fidelity Cash Management Service v CCMA & others (2008) 29 ILJ 964 (LAC)

Reasonableness of outcome must be evaluated on all evidence, not just the reasons given.

Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC)

Material mistakes of fact or law can render an outcome unreasonable.

Vodacom (Pty) Ltd v Makate and another (CCT 51/24) [2025] ZACC 13 (31 July 2025)

Emphasizes the duty of proper consideration of all material evidence and submissions.

Exxaro Coal (Pty) Ltd v Chipana and others (2019) 40 ILJ 2485 (LAC)

Hearsay evidence is not admissible unless admitted in the interest of justice under LEAA.

Goldplat Recovery (Pty) Ltd v AMCU obo Maluleke and others (JA02/25; JA09/25) [2026] ZALAC 18 (29 April 2026)

Reinforces the inadmissibility of hearsay evidence without proper application.

Solidarity on behalf of Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority & Others (2021) 42 ILJ 852 (LAC)

Discusses the definition of intimidation in the employment context.

10.

Moyo and another v Minister of Police and others 2020 (1) SACR 373 (CC)

Constitutional Court’s interpretation of intimidation.

11.

Workforce Staffing (Pty) Ltd v Mjoli & another (2024) 45 ILJ 1627 (LAC)

Approach to resolving factual disputes in employment matters.

12.

Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC)

Sets out requirements for fair procedure in disciplinary hearings.

13.

Booi v Amathole District Municipality & others (2022) 43 ILJ 91 (CC)

On the threshold for intolerability in reinstatement remedies.

14.

Equity Aviation Services (Pty) Ltd v CCMA & others (2008) 29 ILJ 2507 (CC)

Factors to consider when determining the retrospectivity of reinstatement.”

17.5.1

CCMA / Arbitration

is an administrative body

DA09/2025

Bakhresa SA (Pty) Ltd v Jaipal and Others (DA09/2025) [2026] ZALAC 13; [2026] 2 All SA 376 (LAC) (24 March 2026)

[11] However, the Labour Court is a Court of law and not an administrative body like the CCMA or Bargaining Council. In terms of section 151(2) of the Labour Relations Act[1] (LRA),

CCMA

incorrectly order backpay

DA11/2025

Passenger Rail Agency of South Africa (PRASA) v Blom and Others (DA11/2025) [2026] ZALAC 19 (26 March 2026)

[12] This finding is startling in that section 193(1) of the LRA refers to three types of remedies; namely (i) reinstate; (ii) re-employ; and (iii) compensation. Nowhere in the LRA is there a power approbated to an arbitrator to order payment of a backpay. According to Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2008) 29 ILJ 2507 (CC).], backpay would arise from a reinstatement order. In any event, a backpay claim is a contractual one that will be available once a reinstatement order is complied with[Kubeka and others v Ni-DA Transport (Pty) Ltd [2021] 4 BLLR 352 (LAC) at para 41.]. The CCMA having not made a finding that the dismissal is unfair, it does not have statutory powers to order any of the remedies mentioned in section 193(1). It was the Labour Court that made a finding that the dismissal of the respondents is unfair – the jurisdictional requirement in section 193(1) – then it would be within the powers of the Labour Court to exercise a discretion on the remedies issue. Having chosen to reinstate, if so empowered, the Labour Court ought to have ordered payment of backpay itself and not shift responsibility, as it were, to the CCMA.

“[13] The Labour Court in Department of Public Works v General Public Service Bargaining Council and others[(JR 1483/18) [2021] ZALCJHB 475 (5 March 2021)] had the following to say:

‘[20] It must be remembered that wages are owed because of the contractual obligation to pay. That being so, the question is on what basis does a commissioner or a judge for that matter make an order for the payment of arrear wages when a contract of employment is not restored by an award or order of reinstatement? Section 193(1)(a) empowers an arbitrator or a Court to, in the exercise of discretion order the employer to reinstate the employee from any date not earlier than the date of dismissal. Nowhere in the section lies the power to order payment of arrear wages. Thus, on literal interpretation of the section, the power is that of ordering the employer to reinstate a dismissed employee on a particular date. In other words, for the purposes of this matter, the power was limited to ordering the DPW to reinstate Ntwana effective from the date of her dismissal. On application of the principle of legality a functionary cannot exercise powers it does not have.’

“

[14] Therefore, in my considered view, the order made by the Labour Court in paragraph 3 was incompetent. Section 145(4)(b) of the LRA empowers the Labour Court to make an appropriate order about procedures to be followed to determine the dispute. The dispute being one of alleged unfair dismissal. The order in paragraph 3 is not about the procedure to be followed. It is in the form of a mandamus, in the circumstances where the CCMA does not have a statutory duty to determine the issue of backpay. It being a contractual claim, the respondents could invoke the provisions of section 77(3) of the Basic Conditions of Employment Act[4] and institute a civil claim.

CCMA

procedural unfairness does not affect substantive unfairness

JA31/25

Universal Product Network (Pty) Ltd (UPN) v Mbatsana N.O. (JA31/25) [2026] ZALAC 14 (31 March 2026)

[22]…Therefore, under the current regime a dismissal without a fair reason is one that is substantively unfair and one without a fair procedure is one that is procedurally unfair[13]. No matter how gross the procedural defect is, procedural unfairness cannot morph into being substantive unfairness. Were that to be the case, a dismissal for theft for instance, effected without any hearing must by reason of a complete lack of a hearing become a substantively unfair dismissal, even in the circumstances where an employer would have had a fair reason – misconduct of theft – to have dismissed an employee. This is unsustainable and inconsistent with the LRA as well as the Convention.

[25] Such an unlegislated formulation of gross procedural unfairness morphing into substantive unfairness will also make section 193(2)(d)[16] of the current LRA incongruent. On the Labour Court’s reasoning, the subsection must be read to be excluding gross procedural unfairness. Accordingly, this Court disagrees with the approach adopted by the Labour Court to convert a “gross procedural unfairness” into a substantive unfairness. That is not only at odds with the current LRA but it is simply untenable.

[22] Section 188(1)(a)(i) of the current LRA is clear that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason – related to the employee’s conduct. This is in line with article 4 of the International Labour Organisation’s (ILO) Termination of Employment Convention No 158 of 1982 (Convention). Section 188(1)(b) specifically provides that a dismissal is also unfair if that dismissal was not effected in accordance with a fair procedure. Also, this is in line with article 7 of the Convention.

CCMA

New evidence at arbitration (but no new charges)

JR2282/22

G4S Cash Solutions (Pty) Ltd v NUMSA obo Mosinyane and Others (JR2282/22) [2026] ZALCJHB 117 (15 April 2026)

“Samancor Chrome Ltd (Eastern Chrome Mines) v CCMA and Others (2020) 41 ILJ 2129 (LAC):

Highlighted that employers can present additional evidence at arbitration, provided it relates to the original reason for dismissal.”

“[42] The issue of leading further evidence for the first time in the arbitration was specifically considered in Samancor Chrome Ltd (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration and Others,[(2020) 41 ILJ 2129 (LAC) at para 10. See also Independent Municipal and Allied Trade Union on Behalf of Strydom v Witzenberg Municipality and Others (2012) 33 ILJ 1081 (LAC) at para 25, where the Court held: ‘… If an arbitration hearing is a hearing de novo, then there is no valid reason why the additional evidence that was presented at the arbitration hearing was not considered …’.] and the Court decided as follows:

‘… The arbitration hearing is one de novo with there being no bar on relevant additional evidence being adduced at arbitration. This is so since the determination of the fairness of a dismissal at arbitration “is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator’. (emphasis added)

“

“[43] The above approach has been consistently applied in this Court. In Rambar Construction (Pty) Ltd t/a Rixi Taxi v Commission for Conciliation, Mediation and Arbitration and Others[(2012) 33 ILJ 1911 (LC) at para 48.] it was said that: ‘… It is trite that regardless of what transpired at the disciplinary enquiry an arbitration hearing is a hearing de novo …’. And in Western Cape Nature Conservation t/a Cape Nature v Commission for Conciliation, Mediation and Arbitration and Others[(2022) 43 ILJ 1394 (LC) at para 28. See also Magoda v Director-General of Rural Development and Land Reform and Another (2017) 38 ILJ 2795 (LC) at para 18(b).] the Court held as follows: ‘… It is trite that an arbitration hearing is a de novo proceeding and parties are not limited to evidence they led at the time of the hearing. The task of the arbitrator is to determine whether the employer acted fairly in dismissing the employee, in this case for misconduct …’ Lastly, in SA Breweries Ltd v Commission for Conciliation, Mediation and Arbitration and Others[21], the Court decided: ‘…The employer decides to dismiss. The commissioner conducts an arbitration de novo. In the light of the totality of circumstances, established by the evidence at arbitration the commissioner must then decide whether the decision to dismiss was fair …’.

“

“[45] The position where it comes to the enquiry being limited to the reasons why the employee was dismissed by the employer in the first place, even if it is a hearing de novo, was succinctly described in Samancor supra as being:[23]

‘… It is however not open to an employer to alter or amend the reason for dismissal or to rely on an entirely different reason for such dismissal at arbitration; and there is no merit in the appellant’s submission that the employee’s misconduct “must be viewed through the prism of the contextualised version during the course of the domestic hearing and subsequent arbitration proceedings”. To the extent that this suggests that it is permissible for the reason for dismissal to morph from that advanced by the employer at the time of dismissal to a different reason advanced at arbitration, this is simply not the case. …’

And in Pioneer Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2023) 44 ILJ 2281 (LC) at para 56. See also South African Municipal Workers Union v South African Local Government Bargaining Council 2013 JDR 0102 (LC) at para 26; Surgical Innovations (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others [2014] JOL 32510 (LC) at para 55.] the Court held as follows:

‘The legal principle enunciated above is unambiguous. Employers are not allowed, during the arbitration proceedings, to seek to justify the dismissal based on reasons outside those given during the internal hearing. The fact that arbitration proceedings are de novo hearings is not a licence for employers to bring new facts and reasons that are disconnected from, and different to, the reason given for the employee’s dismissal. …’

“

CCMA

disregarded the record of the disciplinary proceedings including the charges that were put against the applicant during the disciplinary hearing.

JR83/24

Solidarity obo Delport v Stucky Motors Group (Pty) Ltd and Others (JR83/24) [2026] ZALCJHB 148 (14 May 2026)

“[31] The Commissioner disregarded the record of the disciplinary proceedings including the charges that were put against the applicant during the disciplinary hearing. This conduct is contrary to the decision of this Honourable Court in the case of Department of Home Affairs v General Public Services Sectoral Bargaining Council and Others,[(JR 281/2017) [2019] ZALCJHB 386 (14 August 2019).] wherein the court held as follows:

“The Commissioner cannot disregard the record of disciplinary proceedings purely because he is hearing the matter for the first time. The record of disciplinary proceeding could also be used to assess whether the dismissal of the employee was effected in accordance with a fair procedure. Most importantly, the commissioner must test the totality of the evidence submitted by the employer against the guidelines on dismissal set out in the LRA Code of Good Practice: Dismissal.”[See also Sidumo and Palluci Home Depot (Pty) Ltd v Herskowits [2015] 5 BLLR 484 (LAC).]”

CCMA

Certificate needed: And if the correct interpretation is that after a failed facilitation it is necessary to resort to conciliation over a dismissal dispute before such dispute can be referred to the Labour Court

CCT 367/24

National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026)

Union challenged retrenchments after failed facilitation under section 189A – Preliminary objection raised that conciliation under section 191 was jurisdictional prerequisite – Court held facilitation and conciliation distinct but overlapping, statutory scheme permits direct referral to Labour Court after failed facilitation – Reference to section 191(11) regulates timing, not jurisdiction – Conciliation not mandatory in this context

[32] The LAC was right in Edcon to say that “[w]here there has been a facilitation process, it would be [an] unnecessary duplication to require an additional 30 day conciliation process at the end of the 60-day period allowed for facilitation”.[35] I accept that the statement was obiter, but I think it is correct.

[45] In Driveline,[National Union of Metalworkers of South Africa v Driveline Technologies (Pty) Ltd [1999] ZALC 157; [2000] 1 BLLR 20 (LAC) at paras 8 and 12.] the Labour Court held that conciliation does not have to be “meaningful”, as the LRA only appears to require that conciliation was, at the very least, attempted. On this basis, it seems to me that what is important is a referral to conciliation, rather than conciliation actually materialising. I accept that conciliation can be crucial in resolving dismissal disputes, such as in the case of Intervalve, but I have already mentioned that Intervalve is distinguishable from the present case. The matter before us makes me question whether conciliation is, in fact, a jurisdictional requirement having substantive value in every dismissal dispute process. As indicated above, what gets referred to conciliation in terms of section 189A(8)(a) is not a dismissal dispute but a pre-dismissal interest dispute.

[54] During the hearing, the respondent accepted that section 189A(7)(b)(ii) is a jurisdiction assigning provision: in plain terms, it gives dismissed employees a right (as an alternative to striking) to refer a dismissal dispute to the Labour Court.

CCMA

“AI text: However, the Labour Court erred by not considering the timely review of the arbitrator’s jurisdictional ruling (Part B).

The arbitrator was wrong to decline jurisdiction, as the dispute was clearly about unfair dismissal—a matter within the bargaining council’s authority.”

A2025/117691

Solidarity obo Roberts v Ngwenya N.O. and Others (A2025/117691) [2026] ZALAC 23 (21 May 2026)

[27] The dispute referred to the bargaining council on 17 January 2017 concerned the fairness of the appellant’s dismissal. As I have indicated, the dispute was not concerned with the validity of De Lange’s variation of the sanction of dismissal. Specifically, the appellant contended that his dismissal was substantively unfair and that there were ‘several discrepancies regarding procedures in the Disciplinary Investigation and hearing’. This is manifestly a dispute that falls within the bargaining council’s jurisdiction. It was thus incumbent on the arbitrator to determine the substantive and procedural fairness of the appellant’s dismissal by applying section 192(2) of the LRA and requiring the SAPS to prove that the dismissal was fair. Although it may on occasion be necessary for an arbitrator to identify the real dispute between the parties after considering all the facts, it is not for arbitrators to recast a clearly defined dispute referred to arbitration in entirely different terms and dictate to the parties how it should be litigated. In the present instance, the dispute referred to arbitration was unequivocally framed as an alleged unfair dismissal for misconduct. That is a dispute over which the bargaining council had jurisdiction.[Section 191(5)(a)(i).]

3. The unfair dismissal dispute between the appellant and the third respondent is remitted to the second respondent for arbitration before an arbitrator other than the first respondent, to be heard on terms determined by the appointed arbitrator”

CCMA

failed to deal with the pleaded ground of gross irregularity relating to failure of the determination of the appropriateness of the sanction of dismissal.

DA27/2024

Arunachellam v Woolworths (Pty) Ltd (DA27/2024) [2026] ZALAC 28 (1 June 2026)

[28] It is clear to this Court that the Labour Court failed to deal with the pleaded ground of gross irregularity relating to failure of the determination of the appropriateness of the sanction of dismissal. For this reason alone, the judgment of the Labour Court cannot be allowed to stand. This is not a situation where the commissioner determined the appropriateness of the sanction and reached a decision that the sanction was or was not harsh. In such an instance, the threshold of intervention is relatively high.[Algoa Bus Company (Pty) Ltd v TASWU obo Mzwai and others (2025) 46 ILJ 89 (LAC).] The Labour Court was not faced with the situation where, it could have held that on the same evidence it would have found different from the commissioner– the sanction was or was not harsh.

[31] There can be no doubt that in failing to determine the issue of the appropriateness of the sanction of dismissal, the commissioner either committed a misconduct or a gross irregularity in his duties or conduct of the arbitration. The duty to determine the substantive fairness of a dismissal rests with an arbitrating commissioner. Accordingly, the Labour Court was obligated to review and set aside the arbitration award for the failure to determine the appropriateness of the sanction, which failure had the distorting effect on the outcome reached. Having failed to do so, the Labour Court erred and its decision is liable to be set aside on appeal. Accordingly, the appeal must be upheld.

17.1.1

Collective agreement

17.9.1

Collective bargaining

17.1.1

Common law

17.2.1

Conditions of employment

remuneration and benefits and distinguishing , Maternity leave is unpaid in terms of policy, contract, collective agreement and section 25 of BCEA – Remuneration includes wages, salaries and benefits

JR701/23

Bumbana Mining (Pty) Ltd v SALU and Others (Reasons) (JR701/23) [2026] ZALCJHB 72 (25 February 2026)

“[20] Ms Msomi conceded that remuneration is a collective term relating to all payments she received. [15]

[21] In Apollo Tyres[Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration [2013] ZALAC 3 at para [25] (Apollo Tyres).] the Labour Appeal Court (LAC) stated as follows regarding remuneration and benefits and distinguishing between the two:

‘[25] The distinction that the Courts sought to draw between salaries or wages as remuneration and benefits is not laudable but artificial and unsustainable. The definition of remuneration in the Act is wide enough to include wages, salaries and most, if not all extras or benefits. Remuneration is defined as: “Remuneration means any payment in money or in kind made or owing to any person in return for that person working for any other person, including the State, and “remunerate” has a corresponding meaning.

[26] Many benefits that are payment in kind form part of the essentialia of practically all contemporary employment contracts. Many extras are given to employees as a quid pro quo for services rendered just as much as the wage is given as a quid pro quo for services rendered’.

(Own emphasis).”

[22] On the totality of evidence before the third respondent and on the ratio in Apollo Tyres that a distinction between wages and benefits is artificial, Ms Msomi did not discharge the onus on her to prove that the non-payment of her housing and medical benefits constituted an unfair labour practice. The concessions made by her in her evidence are fatal.

17.12.1

Condonation

The applicant’s statement of case was filed approximately two years and ten months late.

JS714/23

Mpako v South African Elevator Company (Pty) Ltd (JS714/23) [2026] ZALCJHB 66 (13 March 2026)

36] In summary, the explanation advanced by the applicant’s counsel at the hearing of the matter is that the delay in the filing of the statement of case is attributable neither to the wilful disregard of the Rules of this Court nor to indifference on the part of the applicant, but rather by the applicant’s former attorneys who referred the matter to the CCMA rather than the Labour Court, their failure to exercise adequate professional oversight, compounded by administrative and bureaucratic delays within Legal Wise, which is the applicant’s legal insurance provider.

AI Case Law Cited:Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A):This foundational case sets out the principles for condonation, requiring a full and satisfactory explanation for the delay and consideration of prospects of success. Steenkamp & Others v Edcon Ltd (2019) 40 ILJ 1731 (CC):Confirms the Labour Court’s discretion to grant condonation if it is in the interest of justice, considering the degree of lateness, explanation for delay, and prospects of success. Chetty v Baker McKenzie (2022) 43 ILJ 1599 (LAC):Further authority on condonation principles in labour matters. Groot v National Prosecuting Authority & another (2014) 35 ILJ 121 (CC):Emphasizes that condonation is not automatically granted and the applicant bears the onus to establish entitlement. National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) & others (2015) 36 ILJ 232 (LC):Adds the requirement of expedition in employment disputes and reiterates the applicant’s onus to prove good cause for condonation. Mphephu-Ramabulana and Another v Mphephu and Others [2021] ZACC 43; 2022 (1) BCLR 202 (CC):States that even where delay and explanation are unsatisfactory, other factors may justify condonation in the interests of justice. Summary Table: Law/Case Principle/Requirement Labour Relations Act (LRA) Sets time limits and requires expeditious dispute resolution Labour Court Rules Requires answering affidavits for opposition Melane v Santam Full explanation for delay, prospects of success Steenkamp v Edcon Discretion to grant condonation in interests of justice Chetty v Baker McKenzie Condonation principles in labour law Groot v NPA Condonation not automatic, onus on applicant Thilivali v Fry’s Metals Onus to prove good cause, need for expedition Mphephu-Ramabulana v Mphephu Interests of justice may outweigh poor explanation These laws and cases form the legal framework applied by the court in deciding the condonation application in this matter.

17.1.1

Constitutional law

allegation is made that a fundamental right has been infringed, defamation claim

2026/002899

“[34] Further, it is incumbent on any applicant to specifically identify what fundamental right is being violated, and then make out a case that that violation arises from employment and from labour relations. As made clear in Besani v Maquassi Hills Local Municipality[(2016) 37 ILJ 1386 (LC) at paras 33 and 37. See also Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 41 ILJ 228 (LC) at para 8; Tshepo v South African Police Service and Others (J 656/21) [2021] ZALCJHB 155 (25 June 2021) at para 26.]:

‘The first enquiry relates to whether an allegation is made that a fundamental right has been infringed or whether a threat to violate such a right has been made. …

The applicant has to tell this court what fundamental right as entrenched in chapter 2 of the Constitution has been violated or is being threatened. In casu no allegations are made that a fundamental right had been infringed and, in the absence of such averments, this case does not fall within the ambit of s 157(2) of the LRA.’ “

Constitutional law

Constitution – s 167(3)(b) considered – Constitutional Court has overall jurisdiction over all matters – does not mean that application for leave to appeal to Constitutional Court always competent – Constitutional Court does not assume jurisdiction on what is essentially factual determinations – fact that leave to appeal under s 167(3)(b) possible does not render same competent in face of clear purpose of statute especially where merits of matter not to be decided

2026/111287

Registrar of Labour Relations v Sono N.O and Others (2026/111287) [2026] ZALCJHB 179 (15 June 2026)

17.10.1 (former 17.2.1)

Constructive dismissal

Demotion – Unilateral change in reporting line, proposed change in his dotted reporting line from Mr Clarkson (as MD) to Mr Quinn (the Chief Financial Officer) amounted to a demotion, failing to exhaust ADT’s internal grievance procedures

CCT 175/23

Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7; (2026) 47 ILJ 839 (CC); 2026 (5) BCLR 453 (CC) (24 February 2026)

No reduction in title, responsibilities, remuneration or position – Change had not taken effect and remained prospective

[107] This judgment is at pains to point out that Mr Maleka does not make out a proper case for the relief he seeks. Simply put, he fails to satisfy the threshold test for intolerability. Additionally, his decision to resign and thereafter claim a constructive dismissal, without seriously exploring and exhausting other suitable means to resolve the impasse was, in my view, unduly rash, unreasonable and precipitous.

[4]…In addition to this issue, the application also raises the question of whether an employee who claims that they have been constructively dismissed by the employer is always required to exhaust the employer’s internal grievance procedures before resigning and the circumstances that would warrant not utilising such procedures. The judgment also addresses the issue whether an employee is entitled to invoke the provisions of section 186(1)(e) based on future or anticipated intolerability.

“[27] The Labour Court set out the test for constructive dismissal in terms of section 186(1)(e) as being the following:

“In broad terms, the key elements of the test are that the contract of employment must have been terminated by the employee, the employee must not have terminated the contract voluntarily (in the sense that he or she would have continued in employment indefinitely but for the unbearable situation created by the employer), continued employment must, objectively, be intolerable, the intolerable circumstances must have been of the employer’s making, and the employer must be culpably responsible for the conduct that created the intolerable conditions.” [Maleka v Boyce N.O. and Others, unreported judgment of the Labour Court, Johannesburg, Case No JR 2227/18 (2 December 2021) at para 14.]”

[28] The Labour Court also had regard to the matter of [Jordaan v Commissioner for Conciliation, Mediation and Arbitration [2010] ZALAC 10; [2010] 12 BLLR 1235 (LAC); (2010) 31 ILJ 2331 (LAC).] in which the Labour Appeal Court observed that considerable levels of irritation, frustration and tension are inherent in employment relationships, but that these in themselves are not sufficient to establish a level of intolerability to found a claim for constructive dismissal. More is required. The employer’s conduct as a whole was to be considered in order to determine whether, when judged “reasonably and sensibly”, the employee could not be expected to tolerate it. In other words, the conduct of the employer or the circumstances created by the employer must, objectively viewed, be intolerable.

[29] The Labour Court further held that the rule that an employee ought first to exhaust a grievance procedure prior to a resignation which is later alleged to be a constructive dismissal is a flexible one, particularly in cases where it would have been ineffective or futile for an employee to first exhaust such procedures. The Court found that Mr Maleka’s failure to provide compelling reasons for not having followed ADT’s grievance procedures was detrimental to his claim for constructive dismissal, providing grounds for a dismissal of his application altogether. It found that Mr Maleka’s conduct was impulsive and not a measure of last resort.

CC: [33] Before this Court, Mr Maleka contends that his appeal is based on the improper assessment by the Labour Court and Labour Appeal Court of the facts and their incorrect application of the test for constructive dismissal in terms of section 186(1)(e) of the LRA as laid down by this Court in Strategic Liquor Services.[13] There, this Court held that the test for constructive dismissal was not whether the employee had other alternatives short of resignation, but whether the employer made continued employment intolerable. Mr Maleka argues that both the Labour Court and the Labour Appeal Court focused on the fact that he did not exhaust all the internal grievance procedures of ADT before resigning. This was in circumstances where it was clear to him that his employer had thwarted all his efforts to preserve the employment relationship. Moreover, his employer made it clear to him that all legitimate avenues to remove the intolerable conditions would be futile, thereby effectively exacerbating the oppressive conduct and making the continued employment relationship intolerable.

“The concept of constructive dismissal

[63] The concept of “constructive dismissal” emanates from English law. It was imported into our law in the late 1980s.[45] As a result, contracts of employment were deemed to contain an implied general clause which prohibited an employer from conducting itself in a manner that was “calculated and likely to destroy or seriously damage the relationship of confidence and trust with the employee”, without reasonable and proper cause.[46] A breach of this term would result in the repudiation of the contract thereby justifying the employee’s resignation and subsequent claim for compensation.[47]”

“[65] The Labour Appeal Court in Solid Doors[Solid Doors (Pty) Ltd v Theron N.O. [2004] ZALAC 14; (2004) 25 ILJ 2337 (LAC).] set out three requirements for establishing that an employee has been constructively dismissed. It said:

“There are three requirements for constructive dismissal to be established. The first is that the employee must have terminated the contract of employment. The second is that the reason for the termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee’s employer who made continued employment intolerable. All three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established.””

“[67] The Labour Appeal Court in Mogomatsi[Sanlam Life Insurance Ltd v Mogomatsi [2023] ZALAC 15; [2023] 11 BLLR 1166 (LAC); (2023) 44 ILJ 2516 (LAC). See also Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration [2020] 11 BLLR 1123 (LC) at para 28 and Westcor above n 38 at para 30.] held:

“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.”[51]”

“[68] It is clear from the above that the inquiry into intolerability is an objective one, which requires a fine-tooth comb approach to determine the presence of intolerable conduct or working conditions. Grogan[Workplace Law 13 ed (Juta & Co Ltd, Cape Town 2014)] states:

“To discharge the onus of proving that they were constructively dismissed, employees must prove that it would have been ‘intolerable’ to remain in employment. The employer need not be shown to repudiate the contract in the formal sense; all that is needed is that the employer behaved in a deliberately oppressive manner and left the employee with no option but to resign.”[53]”

[70] The question that arises is what type of conduct on the part of the employer would be deemed to be intolerable? In other words, what constitutes intolerability? The Labour Appeal Court in Solidarity[Solidarity on behalf of Van Tonder v Armaments Corporations of South Africa (SOC) Ltd [2019] ZALAC 55; [2019] 8 BLLR 782 (LAC); (2019) 40 ILJ 1539 (LAC).] held that the word “intolerable” means a situation which is beyond that which can be tolerated or endured; or insufferable.[56] The Court went further to say that it is “something which is simply too great to bear, not to be put up with or beyond the limits of tolerance”.[57] This means that the threshold test to establish intolerability is high.[58]

[72] Much of what I have quoted above also accords with the approach to constructive dismissals by courts and tribunals in foreign jurisdictions, which have recognised that the threshold for establishing constructive dismissal is high.[61] When one borrows from these jurisdictions, what is evident is that a claim for constructive dismissal must be objectively scrutinised in order to ascertain, from the facts, whether the conduct or series of acts by the employer have “poisoned the environment”[62] or is such that it constitutes the “last straw” which broke the employment relationship, thereby justifying the employee’s resignation.[63]

[73] In my view, intolerability means something more than just conduct (on the part of the employer) or working conditions, which simply result in difficult, unpleasant or stressful situations for the employee. It would not be enough that the employer’s conduct is merely rude, uncompromising or unbecoming. Likewise, “even a breach of the employment contract, deductions from salary, or unfair disciplinary actions would not per se establish intolerability”.[64] The employee would need to show that such conduct is characterised by what can objectively be construed as unendurable or agonising and he or she must show that the perpetrator is their employer. In other words, it must be clear that the employer’s conduct was the cause for complaint and that it brought the employee’s tolerance to a breaking point.[65] This position is consistent with what has been followed by the labour courts since Solidarity.[66]

[74] It follows that termination in these circumstances must be a measure of last resort. As I pointed out already, and as the authorities show, the threshold for establishing intolerability under section 186(1)(e) of the LRA is high. And so it should be. This is to avoid an unhealthy situation in a workplace where employees, who have become disgruntled and dissatisfied for flimsy reasons, would simply walk out and thereafter claim a constructive dismissal. Such a situation would be at odds with the prescripts of fairness in labour practices, which requires that “an employee who is dissatisfied with his employer’s conduct, at first, offers the employer an opportunity to redress the dissatisfaction. Employees should refrain from hastily resigning and then arguing that the employment relationship had become unbearable”.[Old Mutual Group Schemes v Dreyer [1999] ZALAC 32; (1999) 20 ILJ 2030 (LAC).]

[87] Although I have already found that the Commissioner was correct in his finding that Mr Maleka was not constructively dismissed, I do, however, consider it important to address whether an employee in Mr Maleka’s position should first explore other suitably available alternative remedies to resolve the dispute before resigning. I do so because whether an employee has exhausted internal procedures to resolve their grievance is important in determining whether the situation was such that it can be regarded as intolerable. The labour courts have adopted an approach that supports the Commissioner’s finding that an employee who fails to exhaust the internal grievance remedies that were available to him would be hard-pressed to prove that continued employment was intolerable.[See Albany Bakeries above n 3 at paras 28-30; Distinctive Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre (2013) 34 ILJ 3184 (LC) (Motor Industry Bargaining Council) at para 131; Johnson v Rajah N.O. [2017] ZALCJHB 25 at para 74-6; and HC Heat Exchangers above n 64 at para 55.] I agree with this approach for the reasons set out below.

“[89] In circumstances where an employee elects not to follow such internal procedures, the employee cannot, as a matter of principle, claim a constructive dismissal, unless of course the employee is able to prove circumstances that make it appropriate for him to be absolved from this obligation. For an employee to merely assert that they have no confidence in the grievance procedure and its outcome or that the employer would not reform, cannot suffice as a sufficient circumstance. In Solidarity,[Solidarity on behalf of Van Tonder v Armaments Corporations of South Africa (SOC) Ltd [2019] ZALAC 55; [2019] 8 BLLR 782 (LAC); (2019) 40 ILJ 1539 (LAC).] the Court held that—

“[i]t may be that the appellant had a legitimate complaint about the performance outputs and appointments to his division. But such matters occur often and are run of the mill points of difference or tension in any workplace. Grievance procedures exist for that very purpose. They are the compulsory means of resolving conflict over run of the mill disagreements between subordinates and their superiors. A proper application of the grievance procedure aims at testing the legitimacy of any difference of opinion and through conciliation hopes to find workable remedial solutions.” (Emphasis added.)

“

Constructive dismissal

Employees cannot prescribe the management style of their superiors

JR1981/2023

Boshoff v Sesani N.O. and Others (JR1981/2023) [2026] ZALCJHB 141 (31 March 2026)

“[33] The LAC in Miladys (A Division of Mr Price Group Ltd) v Naidoo & others[(2002) 23 ILJ 1234 (LAC) at para 33.] held that employees cannot prescribe the management style of their superiors:

‘I do not believe that an employee is entitled to make a case of constructive dismissal out of her own excessive overreaction to a management style with which she does not agree.’

“

[35] From the above, it is clear that the Applicant’s resignation was fuelled by his anger due to the deduction of his bonus and he might have pursued a claim for constructive dismissal when he realized that he was now unemployed and the Third Respondent was intending to enforce the restraint of trade agreement. The Constitutional Court has recently confirmed that section 186 (1)(e) of the LRA does not envisage a future or anticipated intolerability but deals mainly with existing circumstances.[Maleka v Boyce N.O. and Others [2026] ZACC 7.]

“AI case summary: 3.

Solid Doors (Pty) Ltd v Theron N.O. (2004) 25 ILJ 2337 (LAC):

Restates the test for constructive dismissal, requiring proof of three elements:

The employee terminated the contract of employment.

The reason for termination was that continued employment became intolerable.

The employer’s conduct made continued employment intolerable.

Sanlam Life Insurance Ltd v Mogomatsi [2005] 11 BLLR 1166 (LAC):

Establishes a two-stage approach for constructive dismissal disputes:



The employee must prove that the employer made continued employment intolerable.



The conduct of the employer must be objectively intolerable.

Miladys (A Division of Mr Price Group Ltd) v Naidoo & Others (2002) 23 ILJ 1234 (LAC):

States that employees cannot claim constructive dismissal based on their own excessive reaction to a management style they disagree with.

Maleka v Boyce N.O. and Others [2026] ZACC 7:

Confirms that Section 186(1)(e) of the LRA deals with existing intolerable circumstances, not anticipated intolerability.”

Constructive dismissal

requirement of intolerability, the employee may have felt aggrieved by work conditions that caused difficult, unpleasant and stressful situations for him in the workplace.

JR1629/21

Jacobs v Commission for Conciliation Mediation and Arbitration and Others (JR1629/21) [2026] ZALCJHB 140 (5 May 2026)

“[29] The requirements or elements of a constructive dismissal claim were set out by the Labour Appeal Court in Solid Doors (Pty) Ltd v Commissioner Theron and Others, in the following terms:

“[28] … there are three requirements for constructive dismissal to be established. The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee’s employer who had made continued employment intolerable. All these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established”.[Solid Doors (Pty) Ltd v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC), para 28.]”

“[31] This approach has been confirmed recently by the Constitutional Court in Maleka v Boyce NO and Others.[Maleka v Boyce NO and Others (CCT 175/23) [2026] ZACC 7 (24 February 2026) at para 73.] The apex court defined “intolerability” in the following terms:

“[73] In my view, intolerability means something more than just conduct (on the part of the employer) or working conditions, which simply result in difficult, unpleasant or stressful situations for the employee. It would not be enough that the employer’s conduct is merely rude, uncompromising or unbecoming. Likewise, “even a breach of the employment contract, deductions from salary, or unfair disciplinary actions would not per se establish intolerability”. The employee would need to show that such conduct is characterised by what can objectively be construed as unendurable or agonising and he or she must show that the perpetrator is their employer. In other words, it must be clear that the employer’s conduct was the cause for complaint and that it brought the employee’s tolerance to a breaking point”.”

“[32] The Constitutional Court confirmed that resignation should be a measure of last resort:

“[74] It follows that termination in these circumstances must be a measure of last resort. As I pointed out already, and as the authorities show, the threshold for establishing intolerability under section 186(1)(e) of the LRA is high. And so it should be. This is to avoid an unhealthy situation in a workplace where employees, who have become disgruntled and dissatisfied for flimsy reasons, would simply walk out and thereafter claim a constructive dismissal. Such a situation would be at odds with the prescripts of fairness in labour practices, which requires that “an employee who is dissatisfied with his employer’s conduct, at first, offers the employer an opportunity to redress the dissatisfaction. Employees should refrain from hastily resigning and then arguing that the employment relationship had become unbearable”.”

“[33] The Constitutional Court considered the duration between the act that allegedly caused intolerability and the act of resignation, as a relevant factor in determining the existence of intolerability:

“[84] Given the relatively short duration of the period between December 2016, when Mr Clarkson made the announcement, and 23 March 2017, when Mr Maleka submitted his letter of resignation, it is difficult to conceive that the employer would have embarked on a deliberate and concerted effort to make continued employment for Mr Maleka so intolerable so as to force him to resign. It seems more likely that his resignation had more to do with an anticipated intolerability rather than an existing one, namely the new reporting lines that would come into operation upon the implementation of the FSG takeover”.”

“[34] On the facts of the current matter, it is my view that the employee may have felt aggrieved by work conditions that caused difficult, unpleasant and stressful situations for him in the workplace. He needed service providers to be paid in order for services to be rendered to the employer, which services were related to his line of work. The conduct of the Acting Managing Director may have been unbecoming to the extent that he did not respond to emails or speedily approve payments to service providers. The employee’s colleagues may have put pressure on him by constantly inquiring about matters that were beyond his control, due to the Acting Managing Director’s failure to act speedily on matters that required his approval.

[35] In my view, the conduct that caused the employee to be aggrieved was not sufficient to break the camel’s back, as it were. In other words, it was not sufficient to render his resignation an act of last resort. Importantly, just as the reasons for dismissal are to be gleaned from a letter of dismissal, the reasons for resignation must be gleaned from the resignation letter where such a letter ventures into providing reasons for resignation.

[36] The employee had other alternative methods available to him of dealing with the issues he set out in his resignation letter.”

[37] If he had a complaint about doing work that fell outside his job description without being remunerated adequately, then he could have requested a job evaluation and grading of his position or referred an unfair labour practice dispute relating to the provision of benefits…

[38] If he believed his suspension from work was unfair, he could have challenged the suspension at the CCMA and sought an order of compensation for the unfairness.

“[41] In Maleka v Boyce NO and Others (supra), the Constitutional Court dealt with a situation involving the lodging of a grievance against an official who was the highest person of authority in the business. The Court held the following:

“[93] I am unable to agree with Mr Maleka’s assertion that lodging a grievance procedure would have been a futile attempt to resolve his grievance. If a grievance had been lodged against Mr Clarkson, the ethical choice for Mr Clarkson, in my view, would have been to exclude himself from those processes and to nominate someone of similar status to oversee the finalisation of the issues. If Mr Maleka was, at that point, still concerned that he would not be given a fair opportunity to be heard, a reasonable expectation of an executive in his position would have been to propose the appointment of an independent person to oversee the finalisation of the grievance or to seek legal advice. Therefore, to render the outcome of a grievance process in this context as a fait accompli (an accomplished fact) without any attempt to utilise those internal dispute mechanisms provided for is, in my view, an incorrect understanding of the purpose of workplace policies”.”

Constructive dismissal

internal grievance

A2025/076355

Royale Energy (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (A2025/076355) [2026] ZALAC 26 (25 May 2026)

“[51] The Court in Maleka[(2026) 47 ILJ 839 (CC) at para 54 and 55.] remarked as follows:

‘[94] …It cannot be that every time an employee’s feelings are hurt or they are undermined or unfairly treated, they are entitled to resign and claim a constructive dismissal, without having attempted to resolve the grievance with the employer. This would not only have a devastating effect on the employee, but it would also adversely affect employers and the economy as a whole.”

Constructive dismissal

General Manager resigned alleging intolerable conduct by CEO – Employer initiated grievance process, appointed investigator and proposed interim reporting measures – Employee rejected proposals and resigned before process concluded – Court held intolerability threshold high, earlier incidents tolerated, resignation premature and speculative – No constructive dismissal established, CCMA lacked jurisdiction – Arbitration award and Labour Court decision set aside

A2025/076355

Royale Energy (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (A2025/076355) [2026] ZALAC 26 (25 May 2026)

“[18] On the objective facts, it is difficult to comprehend the reasoning of the commissioner on the finding of intolerability. Although Bavuma found it to be convenient on 3 September 2020; to lump together five incidents, all those incidents occurred in a space of two years or months in between. If the continuation of employment was truly intolerable, why would Bavuma tolerate what happened to her for years and in some instances months? This is truly perplexing and is devoid of any tapestry of intolerability in my considered view. The Constitutional Court in Maleka[(2026) 47 ILJ 839 (CC) ] held as follows:

‘[68] It is clear from the above[[5] The above being what was stated in Sanlam Life Insurance Ltd v Mogomatsi (2023) 44 ILJ 2516 (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 be expected to cope with it”.] that the inquiry into intolerability is an objective one, which requires a fine-tooth comb approach to determine the presence of intolerable conduct or working conditions. Grogan states:

“To discharge the onus of proving that they were constructively dismissed, employees must prove that it would have been intolerable to remain in employment. The employer need not be shown to repudiate the contract in a formal sense; all that is needed is that the employer behaved in a deliberately oppressive manner and left the employee with no option but to resign.””

“[21] In light of the above objective facts, the commissioner failed to adopt a fine comb approach to the presence of the intolerability issue. Intolerability implies the quality of being unbearable or impossible to endure. The Court in Maleka[] had put it thus:

‘[70] The question that arises is what type of conduct on the part of the employer would be deemed intolerable? In other words, what constitutes intolerability? The Labour Appeal Court in Solidarity held that the word “intolerable” means a situation which is beyond that which can be tolerated or endured; or insufferable. The Court went further to say that it is “something which is simply too great to bear, not to be put up with or beyond the limits of tolerance”. This means that the threshold test to establish intolerability is high.

[71] This Court in Booi held that the term ‘intolerable’ implies a level of unbearability, and must surely require more than a suggestion that the relationship is difficult, fraught or even sour…’

[73] In my view, intolerability means something more than just conduct (on the part of the employer or working conditions, which simply result in difficult, unpleasant or stressful situation for an employee). It would not be enough that the employer’s conduct is merely rude uncompromising or unbecoming… The employee would need to show that such conduct is characterised by what can objectively be construed as unendurable or agonising and he or she must show that the perpetrator is their employer.’”

“[33] The Supreme Court of Canada, in the matter, quoted with approval in Maleka, of General Motors of Canada Limited v Johnson (General Motors)[2013 ONCA 502 (CanLII).] held amongst others as follows:

‘[72] …Dissatisfaction with the results of a legitimate grievance process cannot anchor a claim for constructive dismissal.’”

“[41] In General Motors, the following was stated, which applies with sufficient vigour on the required element of intolerability.

‘[66] Workplace becomes poisoned for the purposes of constructive dismissal only where serious wrongful behaviour is demonstrated… A plaintiff’s subjective feelings or even genuinely held beliefs are insufficient to discharge the onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created…

[67] Moreover, except for particularly egregious stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated…’ “

[42] The five incidents complained of, were ostensibly not considered to be serious by Bavuma as and when they occurred. They were so sparse over a period of months and years. The fact that Bavuma continued employment after they happened lends credence to lack of hostility, intolerability and poison on the part of the incidents. Otherwise, the lodging of a grievance needed not to wait for the single event of 27 August 2020.

“[43] In General Motors, the following was said:

‘[91] … Further, in order to establish a claim of constructive dismissal, an employee must prove that the employer’s conduct constituted a repudiation of the contract of employment, such that the employer no longer intended to be bound by the contract.’

“

“[51] The Court in Maleka[15] remarked as follows:

17.2.1

Contract

the agreement was not a Mutual Separation Agreement but that the appellant retrenched the third respondent and failed to comply with the requirements of section 189 of the Labour Relations Act, the document’s wording, stating that the third respondent’s retrenchment package would include severance pay, bonus pay, and leave pay, and that the date of retrenchment would be 18 December 2020. The final page of the document indicated that the third respondent was retrenched, In the agreement, the following was recorded: “We confirm recent consultations held and wish to inform you that your retrenchment will be on December 1, 2020.”

JA124/24

WBHO Construction v Masenya N.O. and Others (JA124/24) [2026] ZALAC 10; [2026] 5 BLLR 486 (LAC); (2026) 47 ILJ 1122 (LAC) (26 February 2026)

“[16] In dealing with the privity and sanctity of a contract, the Supreme Court of Appeal in Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotels Interests (Pty) Ltd[2018 (2) SA 314 (SCA).] stated that:

‘[23] 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’”

“[17] Again, in Wells v South African Alumenite Company[1927 AD 69 at p. 73.] the court held that:

“If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and enforced by the courts of justice.””

“[20] As stated in Universal Church of the Kingdom of God v Myeni and Others[(2015) 36 ILJ 2832 (LAC) at para 44.] that :

“…….For a valid contract to exist, each party needs to have a serious and deliberate intention to contract or to be legally bound by the agreement, the animus contrahendi. The parties must also be ad idem (or have the meeting of the minds), as to the terms of the agreement. Obviously, absent the animus contrahendi between the parties or from either of them, no contractual obligation can be said to exist and be capable of legal enforcement.”

“

25] There was no finding that the third respondent was coerced into signing the agreement. It is a fact that both parties entered into and signed the agreement voluntarily. The third respondent received his severance package as agreed. The conclusion that the appellant avoided the section 189 processes is unfounded, as there is nothing preventing parties from entering into a mutual separation agreement at any time when operational requirements are discussed. The parties’ agreement was consensual, and there is no evidence of coercion; therefore, the mutual separation agreement is valid and enforceable. The agreement being valid, there is no question of dismissal, and as such, the first respondent had no jurisdiction to entertain the dispute.

[26] Even if the unfairness of the dismissal were to be considered, the appellant’s operational requirements were discussed with the third respondent, albeit informally. An alternative, his relocation to the Northern Cape, was considered but found unsuitable by the third respondent. Additionally, this does not make the dismissal procedurally or substantively unfair.

Contract

fixed term contract, employment linked to the term of office of an executive authority terminates automatically when the term ends

JR1774/2023

Masuku v General Public Services Sectoral Bargaining Council (GPSSBC) (JR1774/2023) [2026] ZALCJHB 69 (11 March 2026)

[31] From the plain reading of the aforementioned notice dated 28 October 2022, it is clear that the notice was not issued to terminate his employment. The notice merely informed him that the law was coming into operation as such the last day at work is 30 November 2022. His employment with the third respondent was regulated in terms of section 9 of the PSA read with regulation 66 (1) of the Public Service Regulations, 2016. The sensible conclusion is therefore that the applicant was not dismissed but his employment terminated by operation of the law.

[32] The letter informing an employee that the law is in operation is not an act of dismissal as envisaged in section 186 (1)(a) of the LRA. Termination by operation of law does not require a decision by the employer, what is prescribed in the Regulations is that the employment will terminate ‘at the end of the month after the month in which the term of that executive authority expired or came to an end’. The applicant was not dismissed and the commissioner’s arbitration award cannot be interfered with.

Contract

an urgent application for specific performance under sections 77(3) and 77A(e) of the Basic Conditions of Employment Act (BCEA), claiming the termination was in breach of her employment contract.

2026/059416

Public Servants Association of South Africa obo Malusha v Department of Military Veterans and Another (2026/059416) [2026] ZALCJHB 100 (30 March 2026)

[17] The primary consideration in determining whether a matter should be heard as one of urgency is whether substantial redress may be obtained in the normal course.[O’Connor v Lexis Nexis (Pty) Ltd (P18/24) [2024] ZALCPE 11; (2024) 45 ILJ 1287 at [28]. See also Maphalle v National Heritage Council & Others (2023) 44 ILJ 579 (LC) at [18]; Vumatel (Pty) Ltd v Majra & Others (2018) 39 ILJ 2771 (LC) at [8]; Association of Mineworkers & Construction Union & Others v Northam Platinum Ltd & Another (2016) 37 ILJ 2840 (LC) at [21]; East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others [2012] JOL 28244 (GSJ) at [6].] The Court will also consider whether, in the interests of justice, other factors may preclude an urgent hearing (such as culpable delay in approaching the court, procedural prejudice to the respondent, or prejudice to the administration of justice).

“[19] In Mahonono v National Heritage Council and another[Mahonono v National Heritage Council and another (note 6 above) at [24] as well as Ngubeni v National Youth Development Agency and another (2014) 35 ILJ 1356 (LC) and Letsholonyane v Minister of Human Settlements and Another (J616/23) [2023] ZALCJHB 147; [2023] 8 BLLR 796 (LC); (2023) 44 ILJ 1740 (LC).] Lagrange J dealt with urgency in the context of claim for specific performance where there was an alleged breach of contract and held as follows:

‘…Of course it also must not be forgotten that an order of specific performance for a material breach of contract is a remedy available to a party to a contract, who is not obliged to simply sue for damages. When applied to an unlawful termination of employment, it requires the restoration of the actual employment relationship to what it was prior to the breach. The value of this remedy is naturally diluted if it is not sought as a matter of urgency. The timely availability of an order of specific performance as a remedy cannot be equated, except superficially, to an order of reinstatement under the LRA, which must be given effect to if the prerequisites of s 193(2) are met, even years after the dismissal.’”

[20] The employee’s contract was terminated with immediate effect, based on allegations which carry reputational consequences, and with a resultant loss of livelihood. The applicant acted with expedition, launching this application within two days of the termination. In these circumstances, I am satisfied that the applicant will not obtain substantial redress in due course, and that the matter should be heard on an urgent basis.

“[30] In exercising that discretion, regard must be had to the nature of the contractual right asserted, the consequences of compelling continued performance, and whether the employment relationship remains capable of continuation. Where the breach consists in the failure to comply with a prescribed pre-termination process, the contractual limitation on the employer’s power to terminate is directed at regulating how and when that power may be exercised. If the contract is terminated in disregard of that limitation, the appropriate remedy may, in a proper case, be to restore the parties to the position they occupied before the breach, so that the agreed process may take its course.[See Mahonono (note 8 above) at [39] – [41] and the authorities cited there; Letsholonyane v Minister of Human Settlements and Another (note 8 above).]

“

[29] The discretion is informed by considerations of fairness, practicality, and justice between the parties. Specific performance will ordinarily be granted unless there are sound reasons for refusing it, such as where its enforcement would be inequitable, impracticable, or would give rise to consequences that are unconscionable in the circumstances. In the employment context, courts are cautious to ensure that the remedy does not compel the continuation of a relationship that has become untenable or incapable of performance, but equally they will not permit an employer to disregard binding contractual constraints on termination.[See National Union of Textile Workers v Stag Packings (Pty) Ltd & another (note 9 above) with reference to Haynes v King Williamstown Municipality 1951 (2) SA 371 (A) at 378 and 379.]

Contract

settlement, The respondent also raised an issue in limine, to the effect that the unfair dismissal dispute had been fully and finally settled by way of a retrenchment agreement signed on 24 June 2020 by the applicant’s trade union, UASA.

JS447/20

Mutavhatsindi v Prestige Pressings and Components (Pty) Ltd (JS447/20) [2026] ZALCJHB 126 (22 April 2026)

[31] In casu, the agreement establishes what can be said to be agreed selection criteria. The employees that fell to be retrenched was identified and listed in the agreement in terms of these agreed selection criteria. This establishes, as held in Hopley supra[20]: ‘Having found that nothing prevented the parties from agreeing to selection criteria as they did in this case what needs to be determined is whether the agreed selection criteria were applied …’, the application of the agreed criteria on a consensus basis. The applicant was one of the employees so identified for retrenchment in terms of the agreed criteria. The applicant was a member of UASA, and as such, would be bound by the terms of the agreement. It follows that the applicant was selected for retrenchment by agreement pursuant to agreed selection criteria.

AI: A retrenchment agreement was signed on 24 June 2020, which included agreed selection criteria (LIFO and skills retention) and identified employees for retrenchment, including the applicant.

Contract

Plea bargain agreement

JR1211/24; JR1357/24

Mahlobogwane v Capricorn District Municipality and Others (JR1211/24; JR1357/24) [2026] ZALCJHB 171 (5 May 2026)

AI summary: If an employer and employee reach a plea agreement in a disciplinary process, and it is approved as per the collective agreement, the employer cannot later change its mind and dismiss the employee for the same charges unless new, exceptional evidence arises. If the employer does so, the dismissal is likely to be found unfair, and the employee may be reinstated with backpay.

Contract

settlement, waver, dispute was settled when the Plaintiffs signed and accepted voluntary termination notices which included the severance packages

JS112/2021

Merafi and Others v Ithuba Holdings (Rf) (Pty) Ltd (JS112/2021) [2026] ZALCJHB 170 (26 May 2026)

[7] The Plaintiffs do not deny having signed the retrenchment notices and having received voluntary severance packages. They, however, stated that they signed the notices due to coercion by the Defendant who withheld their October salaries in exchange for signatures. They had no choice but to sign and accept the packages because they had bills to pay and they had worked for that month.

[8] On the other hand, the Defendant stressed that this matter had already been settled by the Parties in terms of clause 4 of the termination notice which is essentially a waiver of any potential claims against the employer. What this clause records is that the employee by his signature agrees that his or her termination of employment is substantively fair and he or she has no claims of any nature against the company. The question then for this Court is to consider whether the parties settled the matter and whether the employees waived their rights to pursue other claims against their employer?

“[10] In Lufuno Mphaphuli and Associates v Andrews and Another[2] Kroon AJ held as follows:

‘Waiver is first and foremost a matter of intention; the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person. Our courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the wavier be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive. The onus is strictly on the party asserting waiver; it must be shown that the other party with full knowledge of the right decided to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it. Waiver is a question of fact and is difficult to establish.’”

[11] In this matter, this Court is not satisfied that there was a mutual separation agreement signed by employees. The document presented to the Plaintiffs was a retrenchment notice which according to both parties constituted the required statutory written notice of the termination of employment. The Defendant’s first special defence is therefore not upheld.

Contract

fixed term contract not renewed, deemed to be full time employees

A2025/132542

Maphosa and Others v New Model Private College and Others (A2025/132542) [2026] ZALAC 22 (28 May 2026)

[22] On 1 March 2021, the earnings threshold referred to in section 198 was R211 596.30. It is common cause, from the terms of the main award and the variation issued by the commissioner, that the appellants’ earnings were below that threshold. It was also common cause that the appellants had been engaged on fixed-term contracts for a protracted period, each concluded for a year at a time. There was no evidence adduced at the arbitration hearing to establish any justifiable reason for employing the appellants on fixed-term contracts limited to a period of 12 months at a time.

[23] In Assign Services (Pty) Ltd v National Union of Metalworkers of SA and Others (Casual Workers Advice Office as Amicus Curiae),[(2018) 39 ILJ 1911 (CC).] the Constitutional Court held that, in relation to the application of section 198A of the LRA and the triangular relationship between the temporary employment service, the client, and the employee, the deeming provision in that section provides that placed employees are fully integrated into the workplace after a three-month period, and that the contractual relationship between the client and the placed employee does not arise from a negotiated agreement or the client’s normal recruitment processes. Rather, the employee automatically becomes employed on the same terms and conditions as similar employees, with the same employment benefits, the same prospects of internal growth, and the same job security. The same principle applies in respect of the deeming provision contained in section 198B(5).

Contract

restraint of trade: 24 months reasonable

2026/093159

Rham Equipment (Pty) Ltd v Botes and Another (2026/093159) [2026] ZALCJHB 199 (15 June 2026)

AI case law summary: Contract Law Principles: The case deals with the enforceability of restraint of trade and confidentiality clauses in employment contracts, which are governed by South African contract law and public policy considerations. Key Case Law Cited: AMCU & others v Northam Platinum Ltd & another (2016) 37 ILJ 2840 (LC):Cited for the principles relating to urgency in applications. Atlas 360 Commercial Vehicle Services (Pty) Ltd v De Witt & another (2026) 47 ILJ 561 (LC):Cited regarding the rules for affidavits in restraint disputes. Experian SA (Pty) Ltd v Haynes & another (2013) 34 ILJ 529 (GSJ):Cited for the definition and requirements of what constitutes a trade secret. Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA):Cited regarding the standard for raising genuine disputes of fact in affidavits. New Justfun Group (Pty) Ltd v Turner and others (2018) 39 ILJ 2721 (LC):Cited regarding access to confidential information. Reddy v Siemens Telecommunications (Pty) Ltd 2007 2 SA 486 (SCA):A leading case on the enforceability and reasonableness of restraint of trade agreements. The court must balance the interests of the parties and public policy. Basson v Chilwan and others [1993] ZASCA 61; 1993 (3) SA 742 (A):Sets out the test for reasonableness of a restraint of trade agreement. Sibex Engineering Services (Pty) Ltd v Van Wyk 1991 2 SA 482 (T):On the onus to prove that a restraint goes beyond what is reasonably required. Sadan & another v Workforce Staffing (Pty) Ltd (2023) 44 ILJ 2506 (LAC):Confirms the onus is on the party resisting enforcement to prove unreasonableness. Setlogelo v Setlogelo 1914 AD 221:Sets out the requirements for a final interdict (clear right, infringement, no adequate alternative remedy).BHT Water Treatment (Pty) Ltd v Leslie and another 1993 (1) SA 47 (W):On the risk of disclosure of trade secrets and the purpose of restraint agreements. Biase v Mianzo Asset Management (Pty) Ltd: On the principle that costs follow the result in civil claims under the BCEA. Summary Table of Key Cases Case Name Citation Principle/Issue Reddy v Siemens Telecommunications 2007 2 SA 486 (SCA) Reasonableness of restraint, balancing interests Basson v Chilwan and others [1993] ZASCA 61; 1993 (3) SA 742 (A) Test for reasonableness of restraint Sadan & another v Workforce Staffing (2023) 44 ILJ 2506 (LAC) Onus on resisting party to prove unreasonableness Experian SA v Haynes & another (2013) 34 ILJ 529 (GSJ) Definition of trade secrets Setlogelo v Setlogelo 1914 AD 221 Requirements for final interdict BHT Water Treatment v Leslie 1993 (1) SA 47 (W) Risk of disclosure, purpose of restraint These laws and cases form the legal foundation for the court’s decision to enforce the restraint of trade and confidentiality undertakings in this matter.

17.2.1

Contract of employment

17.12.1

Costs

17.12.1

Court Appeal

17.12.1

Damages

Damages vs Compensation

J2375/2019

Mongale v Mangaung Metropolitan Municipality (J2375/2019) [2026] ZALCJHB 125 (22 April 2026)

[11] As explained above, that claim for backpay constitutes damages is correct. The ILPA is clear that, where damages are claimed from an organ of state, arising from any cause of action, notice must be given to that organ of state unless it is prepared to consent to the failure to give notice. Here, no notice has been given to the defendant and no consent to the absence of such notice was given. Accordingly, the special plea must succeed.

“[1] The nature of damages for breach of contract was stated by Innes CJ in Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 as: “The sufferer by such a breach should be placed in the position he would have occupied had the contract been performed, so far as that can be done by the payment of money, and without undue hardship to the defaulting party.”

[2] In SA Airways (Pty) Ltd v Jansen van Vuuren & another (2014) 35 ILJ 2774 (LAC), in relation to a discrimination claim brought under the Employment Equity Act No. 55 of 1998, the Labour Appeal Court distinguished between damages and compensation. At para [76] Coppin JA stated: “In my view, the only rational meaning that can be given to the terms is that ‘damages’ connotes a monetary award for patrimonial loss and ‘compensation’ connotes a monetary award for non-patrimonial loss (including a ‘solatium’).””

Damages

distinction between back pay (damages) and compensation

“AI summary: Case Law Referred To: 2.

Equity Aviation Services (Pty) Ltd v CCMA & others (2008) 29 ILJ 2507 (CC):

Cited to support the distinction between back pay (damages) and compensation.

Victoria Falls & Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1:

Quoted for the principle that damages for breach of contract should place the sufferer in the position they would have been in had the contract been performed.

SA Airways (Pty) Ltd v Jansen van Vuuren & another (2014) 35 ILJ 2774 (LAC):

Cited to distinguish between damages (patrimonial loss) and compensation (non-patrimonial loss).”

Damages

Contractual Claims and Damages

2026/090955

Noyingana v Ethekwini Municipality and Others (2026/090955) [2026] ZALCJHB 160 (22 May 2026)

“AI summary on Contractual Claims and Damages: •

Themba v Mintroad Sawmills (Pty) Ltd (2015) 36 ILJ 1355 (LC):

Salary claims after reinstatement are contractual, not based on the arbitration award.

•

Coca Cola Sabco (Pty) Ltd v Van Wyk (2015) 36 ILJ 2013 (LAC):

Reinstatement revives the contract; salary claims are contractual.

•

Trotman and Another v Edwick 1951 (1) SA 443 (A):

Damages for breach of contract aim to place the claimant in the position they would have been in if the contract was performed.

•

Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A):

Fundamental rule for damages in contract.

•

Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T):

Illiquid damages claims are generally not suitable for motion proceedings.

•

Minister of Safety and Security v Omar 2013 JDR 0823 (GNP):

Damages should not be claimed on affidavit where computation is unclear.

•

Ferreira v Afiswitch (Pty) Ltd and Others 2026 JDR 0823 (GP):

Large, disputed damages claims are not suitable for urgent motion proceedings.

•

Triponza Trading 548 CC and Others v Head of Department of the Gauteng Department of Roads and Transport and Others 2026 JDR 0321 (GP):

Money claims should generally be brought by action, not motion.”

Damages

Not properly pleaded

DA18/2023

Moses Kotane Institute v Mzimele and Others (DA18/2023) [2026] ZALAC 24 (26 May 2026)

“[85] In BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of SA obo Deppe,[BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another [2020] ZALAC 22; (2020) 41 (ILJ) 1877 (LAC) ; [2020] 11 BLLR 1079 (LAC).] the Labour Appeal Court confirmed that an award of damages under section 50 of the EEA is contingent upon proof of actual patrimonial loss and the existence of a causal nexus between the employer’s conduct and the loss suffered. Likewise, in ARB Electrical Wholesalers (Pty) Ltd v Hibbert,[See ARB Electrical Wholesalers (Pty) Ltd v Hibbert [2015] ZALAC 34; [2015] 11 BLLR 1081 (LAC); (2015) 36 ILJ 2989 (LAC).] this Court drew a clear distinction between compensation and damages, holding that compensation operates as a solatium for humiliation or impairment of dignity, whereas damages constitute recompense for proven patrimonial loss and accordingly require evidentiary proof. This distinction was reiterated in SA Airways (Pty) Ltd v Jansen van Vuuren & another,[See South African Airways (Pty) Ltd v Jansen Van Vuuren and Another [2014] ZALAC 108 (12 June 2014) at paras 75 – 76 and ARB Electrical Wholesalers (Pty) Ltd v Hibbert N.D [2015] ZALAC 34; (2015) 36 ILJ 2987 (LAC) where this Court distinguished between compensation as a solatium for humiliation or impairment of dignity, and damages as recompense for proved patrimonial loss, holding that proof of loss is required for the latter.] where the Court stated:

“The EEA draws a distinction between “”compensation”” and “”damages””, and does not regard them as the same. …. The intention must have been that they connote different kinds of award. In my view, the only rational meaning that can be given to the terms is that “”damages”” connotes a monetary award for patrimonial loss and “”compensation”” connotes a In the EEA, “”damages”” refer to an actual or potential monetary loss (i.e patrimonial loss) and “”compensation”” refers to the award of an amount as a solatium (i.e to non-patrimonial loss) monetary award for non-patrimonial loss (including a “”solatium””)”

“[93] Mr Mzimele’s tax returns show, to some extent, what money he earned, not what he lost, and any loss, if ever, was caused by business volatility on his version.

[94] The reliance placed on the remuneration earned by Ms Ellenson, the successful candidate, which was introduced during re examination, does not avail the applicant. The establishment of unfair discrimination does not, without more, constitute proof of the quantum of any patrimonial loss. Whilst the comparator’s salary may serve as a reference point, it is not determinative in the absence of evidence establishing what the applicant would, in fact, have earned had he been appointed. Material considerations relevant to that enquiry were not addressed, including whether the applicant would have been appointed at the same salary notch, at a different level, or on materially different remuneration terms. In the absence of such evidence, reliance on the comparator’s salary alone is insufficient to establish the extent of the alleged loss.”

17.1.1

Definition

[83] I now turn to deal with the issue of the remedy. Although the Labour Court in its judgment makes reference to both subsections (a) and (b) of section 50(2) of the EEA, it is, however, clear that the pleaded case was for patrimonial damages and not compensation. The damages represent the difference between what Mr Mzimele would have earned and his actual earnings. This finding is based on the pleaded case and Mr Mzimele’s testimony.

DA18/2023

Moses Kotane Institute v Mzimele and Others (DA18/2023) [2026] ZALAC 24 (26 May 2026)

[86] Accordingly, as reaffirmed in Rapoo v Rustenburg Local Municipality,[Rapoo v Rustenburg Local Municipality [2020] ZALAC 5; [2020] 6 BLLR 533 (LAC).] a claim for damages must be properly pleaded and substantiated by cogent evidence. The Court emphasised that the mere filing of documents, absent a coherent and particularised damages case, does not constitute proof of patrimonial loss.

92] It is generally accepted that whilst tax returns may be accepted as evidence, they are insufficient on their own to conclusively establish financial loss. They show income, not loss per se; they reflect declared income to SARS and do not establish what Mr Mzimele would have earned but for the Institute’s discriminatory conduct. Put another way, they do not provide conclusive proof of earnings or loss, as they may be incomplete or unreliable and rely on self-reporting. They reflect taxable income, not actual income. In general, they may provide historical earnings. Such evidence needs to be considered with the totality of all other evidence.

[94] …The establishment of unfair discrimination does not, without more, constitute proof of the quantum of any patrimonial loss. Whilst the comparator’s salary may serve as a reference point, it is not determinative in the absence of evidence establishing what the applicant would, in fact, have earned had he been appointed. Material considerations relevant to that enquiry were not addressed, including whether the applicant would have been appointed at the same salary notch, at a different level, or on materially different remuneration terms. In the absence of such evidence, reliance on the comparator’s salary alone is insufficient to establish the extent of the alleged loss.

“4. The order of the Labour Court awarding patrimonial damages to the first respondent, Mr Mzimele, is set aside and substituted with the following order:

a. The plaintiff’s claim for patrimonial damages against the respondent is dismissed.

“

17.10.1

Desertion

17.3.1

Disciplinary hearing

plea-bargain discussions Police officers, Whether the chairperson has the power to reject the lenient sanction, Mr Mkonto was unable to account for the usage of the SAPS motor vehicle, which he had driven 799 km for private or unauthorised purposes.

PA8/24

South African Police Services v Mkonto and Others (PA8/24) [2026] ZALAC 2; [2026] 4 BLLR 361 (LAC); (2026) 47 ILJ 1089 (LAC) (8 January 2026)

“[24]…I, therefore, propose the following brief guidelines for the procedure to be followed when the chairperson of a disciplinary enquiry has reservations about the lenient sanction proposed in a plea bargain agreement.

24.1 First, the chairperson must inform the parties that they are disinclined to endorse the proposed lenient sanction and give reasons.

24.2 Second, the parties must be allowed to review their positions and consider their options, which may include the following:

26.2.1 To reopen the plea-bargain discussions to address the chairperson’s concerns and propose another sanction.

26.2.2 Alternatively, to terminate the plea bargain agreement.

24.3 Third, in the event the parties decide to terminate the plea-bargain agreement, the accused employee must be allowed to withdraw the plea of guilty.

24.4 Finally, the disciplinary enquiry must commence de novo before a different chairperson, unless the accused employee has consented that the same chairperson may continue to preside over the disciplinary enquiry.

[25] This guideline is, nonetheless, not cast in stone; a degree of flexibility ought to be permitted as and when practical justice demands.”

21] In the present case, the chairperson was similarly not bound by the plea-bargain agreement. As correctly contended by the SAPS, the Disciplinary Regulations enjoin the chairperson to decide on the sanction after considering mitigating and aggravating circumstances. That is what happened here. Having rejected the lenient sanction agreed to by the parties, the chairperson imposed a sanction she deemed appropriate, given the seriousness of the charges.

“[22]…conversely, SARS supports SAPS’s contention that the chairperson was clothed with the persona of the employer and, as such, her decision is that of the employer.[10] Therefore, the arbitrator’s finding that the plea-bargain agreement was binding on the chairperson is unreasonable.

“

“[33] Worse still, Mr Mkonto’s dishonest conduct, which reflects a lack of integrity or straightforwardness, marred the employment relationship.[ Nedcor Bank Ltd v Frank and Others (2002) 23 ILJ 1243 (LAC) at para 15.] A high premium is placed on honesty and integrity within the SAPS and all other national law enforcement agencies, a point aptly underscored in the cases referred to by SAPS.[SA Police Service v Magwaxaza (2020) 41 ILJ 408 (LAC) at para 48; and Booysen v Safety and Security Sectoral Bargaining Council and Others (2021) 42 ILJ 1192 (LAC) at para 19.] The following observations in National Commissioner of the SA Police Service & Another v Mphalele NO & Another,[(2019) 40 ILJ 806 (LAC) at para 19.] are instructive:

‘The evidence demonstrates indisputably that Mezichel had succumbed to his personal difficulties and had acted fraudulently in a manner that made him wholly unreliable as a police officer, a lawyer and an employee in whom the station commander needed to repose considerable trust. Such an employee is required to observe the highest standard of integrity, good faith, honesty and reliability. Police officers and lawyers should always (not only in the discharge of their official duties) act honourably in a manner befitting their office, free from fraud, deceit and falsehood, and be virtuous in their behaviour. A police officer must maintain high standards of rectitude in private as well as in public life. A police officer, who in fulfilment of his or her duties is required to act against fraud, when he or she practices such in his or her own life, is a hypocrite. This inevitably will result in a total loss of confidence in the officer concerned, which could rub off on the SAPS more generally, adding to a loss of public confidence in SAPS…’ (Emphasis added)”

Disciplinary hearing

charge found guilty not same as charges

DA22/2023

Machi and Chep SA (Pty) Ltd and Others (DA22/2023) [2026] ZALAC 3; [2026] 4 BLLR 344 (LAC) (19 January 2026)

“17] The first respondent’s case is that the Commissioner did not invent a new charge but rather correctly identified the true, core misconduct that was always embedded in the evidence and the narrative of the case against the appellant.

[18] It was argued before us on behalf of the first respondent that from the disciplinary hearing through to the arbitration, the central issue was the appellant’s abuse of trust, claiming to be unwell to be released from a work function, and then immediately performing work for a third party during company time.”

[20] The first respondent relied heavily on EOH Abantu[ [2019] ZALAC 57, (2019) 40 ILJ 2477 (LAC).], which held that a formalistic approach to charges should be avoided. The first respondent contended that the key question is whether the appellant had adequate notice of the misconduct alleged and was not prejudiced in mounting a defence.

[24]…A careful reading of the record reveals that this was not a new or alien concept introduced by the Commissioner. Rather, it was a succinct and accurate label for the conduct that formed the gravamen of the employer’s case from the outset. The charges, while perhaps inelegantly drafted, were part of a single narrative, the events of 6 July 2017. Charge 2 (dishonesty about her illness) and Charge 3 (conflict of interest through a directorship) were two facets of the same core conduct. The evidence led at the disciplinary hearing and the arbitration, that she chaired a hearing for Zala after being released on grounds of illness, was the factual bridge between these two charges. The disciplinary hearing chairperson explicitly relied on this conduct in his findings. The Appellant’s own representative at arbitration felt the need to warn the Commissioner about the prevalence of this evidence, indicating he was acutely aware of its centrality to the case.

“[25] Second, the legal principles in EOH Abantu are directly applicable and dispositive. This Court in EOH Abantu held:

‘[15] … courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.

…

[17] … there is no requirement that competent verdicts on disciplinary charges should be mentioned in the charge sheet… Prejudice is absent if the record shows that had the employee been alerted to the possibility of a competent verdict on a disciplinary charge he would not have conducted his defence any differently or would not have had any other defence.’”

[26] The appellant’s attempt to distinguish EOH Abantu is unconvincing. While the charge in that case mentioned the act but mischaracterised it, the principle is broader: the focus is on the employee’s knowledge of the substance of the allegation, not its legal label. Here, the Appellant knew from the charge sheet, the disciplinary report, and the employer’s opening address that her conduct on 6 July 2017, specifically chairing the Zala hearing after being released due to illness, was the fundamental issue.

“[28] On the question of sanction, the Commissioner and the court a quo were correct. The appellant held a senior and sensitive position in the HR department, a function where the incumbent is a custodian of company policy, ethics, and trust. Her conduct of using company time under the guise of illness to perform work for a third party, while holding herself out as a director of that entity, demonstrated a profound lack of judgment and integrity. This is precisely the kind of conduct that irreparably damages the trust relationship. As held in Autozone v Dispute Resolution Centre of Motor Industry and Others[[2019] ZALAC 46; [2019] 6 BLLR 551 (LAC).] that:

‘where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee.’”

Disciplinary hearing

appeal

JA87/24

Education Training and Development Practices Sector Education and Training Authority v NEHAWU obo Sader (JA87/24) [2026] ZALAC 5; [2026] 5 BLLR 429 (LAC) (29 January 2026)

[25] The appellant relied on the decision in Nchabeleng v University of Venda and others[[2002] ZALC 167.], which held that lodging an internal appeal does not suspend the employee’s dismissal. The circumstances in this matter are distinguishable based on the fact that after the decision to dismiss the respondent, the appellant made an offer not to implement the decision. It is so that an employer’s decision to dismiss an employee terminates the employment relationship.

Disciplinary hearing

procedural unfairness does not affect substantive unfairness

JA31/25

Universal Product Network (Pty) Ltd (UPN) v Mbatsana N.O. (JA31/25) [2026] ZALAC 14 (31 March 2026)

Disciplinary hearing

consistency or parity principle

JR2539/21

Buthelezi and Others v Rand Water – Zuikerbosch Water and Others (JR2539/21) [2026] ZALCJHB 27 (3 February 2026)

“[24] It is well-established that consistency is merely an element of fairness, and ought not to be implemented in such a way as to permit employees who commit serious misconduct to escape the consequences thereof. This principle was expressed as follows by the Labour Appeal Court (LAC) in ABSA Bank Ltd v Naidu and others:[(2015) 36 ILJ 602 (LAC) at paras 36 to 42. ]

“[36] However, it ought to be realised, in my view, that the parity principle may not just be applied willy-nilly without any measure of caution. In this regard, I am inclined to agree with Professor Grogan when he remarks as follows:

‘[T]he parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty.”

[37] In SACCAWU and Others v Irvin and Johnson (Pty) Ltd, this Court (per Conradie JA) stated:

‘In my view too great an emphasis is quite frequently sought to be placed on the principle of disciplinary consistency, also called the ‘parity principle’ … There is really no separate principle involved. Consistency must be measured by the same standards … Discipline must not be capricious. It really is the perception of bias inherent in selective discipline that makes it unfair. Where, however, one is faced with a large number of offending employees, the best one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness to the other employees. It would mean no more than his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or worse, by a discriminating management policy … Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. … If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not … necessarily mean that the other miscreants should escape. Fairness is a value judgment.’”

…

[42] Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer on the belief that they would not be dismissed. It is well accepted in civilised society that two wrongs can never make a right. The parity principle was never intended to promote or encourage anarchy in the workplace. As stated earlier, I reiterate, there are varying degrees of dishonesty and, therefore, each case will be treated on the basis of its own facts and circumstances…”

(Own emphasis added)

“

“[25] The LAC in Nyathikazi v Public Health and Social Development Sectorial Bargaining Council,[(2021) 42 ILJ 1686 (GJ) (26 May 2021) at para 26.] amplified on the above decision as follows:

“[26] In short, the parity principle may well mean that in the previous case which is invoked in support of the application of an argument concerning discriminatory discipline, then the gravity of the initial disciplinary offence had not been properly appreciated. In such circumstances, it may be unjustified to invoke the parity principle, where an employee has committed a serious offence against the employer and the only defence raised is that in a previous case a wrong decision had been arrived and so that the employee’s misconduct in the subsequent case can be overlooked. In the present case, the egregious misconduct of the appellant in two cases, justifies the application of the caution adopted by Ndlovu JA in the Absa case. However, as no cross-appeal was lodged by the third respondent against this part of the finding of the second respondent which, in turn, was confirmed on review by the court a quo, the appellant can therefore count herself fortunate in this regard. In Assmang (Pty) Ltd t/a Khumani Mine v Commission for Mediation, Arbitration and Conciliation and Others the Labour Court criticized the Commissioner’s findings on inconsistency as follows:

‘The arbitrator in this case clearly did consider the issue of consistency to be dispositive of the issue of substantive fairness. It is perhaps this underlying misconception coupled with his single-minded focus on the failure to initiate disciplinary action against the members of the third respondent’s team which resulted in the arbitrator failing to address important factors which did distinguish why it was justified in dismissing the third respondent, even if it should not have simply failed to make an effort to also charge his subordinates.”

(Own emphasis added)”

“[26] In Nedbank Ltd v Commission for Conciliation Mediation and Arbitration and Others,[(JR 3166/10) [2013] ZALCJHB 226 para 12.] the Labour Court noted that:

“[12] The purpose of requiring employers to enforce discipline consistently is mainly to protect employees against discrimination. The parity principle does not require employers to mete out the same treatment to employees who have committed the same misconduct. In Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others the court adopted the following approach in applying the parity principle:

“When deciding the issue of parity, the gravity of the misconduct of the employee who seeks to rely on that principle should receive serious attention’. Where the employee’s actions breached the trust relationship the parity principle cannot rescue an employee.”

[Own emphasis added]”

Disciplinary hearing

when is the date that the hearing commences

2025/140150

Monyepao v Metropolitan Municipality and Others (Reasons) (2025/140150) [2026] ZALCJHB 75 (10 February 2026)

“[34] Regulation 6(6)(a) provides that a hearing must commence within three months of the date of suspension. Regulation 10(1)(a) provides that a hearing must commence within three months of a council resolution instituting the hearing. These are separate events.

[35] On a purposive interpretation of regulation 10, in line with jurisprudence,[12] the hearing commences when the presiding officer takes charge of the proceedings. In the words of regulation 10(2), the presiding officer conducts the hearing and determines the procedures to be followed. This is what the presiding officer did in the present application – the presiding officer commenced the proceedings, took charge and made a determination that the hearing is postponed after hearing both parties.”

“33] The respondents stated that the applicant misconstrues the meaning of the word “commence” in regulations (6) and (10). The LAC in Tshabalala v Moqhaka Municipality and Another[(2025) 46 ILJ 590 (LAC).] (Tshabalala) with reference to this Court’s decision in Mengo v Lekwa-Teemane Local Municipality[J452/20) [2020] ZALCJHB 255 (11 June 2020).] (Mengo) and Moloto and Another v Kagisano Molopo Local Municipality and Others[(J4415/18 [2019] ZALCJHB (21 February 2019).] (Moloto) authoratively and unambiguously pronounced that a disciplinary hearing “commences” when the chairperson of the hearing takes control of the proceedings and clarified that the proceedings do not commence when the evidence leader reads the charges to an employee as contemplated in regulation 10(3).

“

Disciplinary hearing

employer have an external initiator who is a legal practitioner, while the applicant employees can only be represented by a fellow employee or a trade union representative – Their argument was that the Disciplinary Code, incorporated into employment contracts, did not permit an external chairperson or initiator.

2026/014787

National Union of Metalworkers of South Africa and Another v Denel Soc Ltd (2026/014787) [2026] ZALCJHB 33 (16 February 2026)

Challenge to appointments – Whether appointing external parties constituted a breach of contract – Disciplinary Code’s silence could not amount to a restriction – Silence does not create a contractual restriction – Failed to show any contractual term prohibiting employer from appointing external persons to conduct disciplinary proceedings – No clear right

Disciplinary hearing

waiver, unreasonable delay of 9 years to take disciplinary action

JR1721/22

Public Protector of South Africa v Samuel and Others (JR1721/22) [2026] ZALCJHB 45 (18 February 2026)

[10] The applicant contends that the commissioner erred by finding that it was impermissible to discipline the first respondent for the incident between himself and Mr Seabi, which had occurred almost nine years earlier. The commissioner found that the applicant waived its right to discipline the first respondent because the delay was unreasonable, there was no reasonable explanation for the delay, and first respondent suffered prejudice as a result. The applicant contends that, because the first respondent did not testify, there was no evidence of any prejudice that he had suffered because of the delay.

20] The applicant contends that the commissioner’s finding that the applicant had waived its right to discipline was irregular primarily because the first respondent failed to testify about the prejudice he suffered because of the delay.

“[21] In Moroenyane v Station Commander of the SAPS – Vanderbijlpark (“Moroenyane”) [2016] ZALCJHB 330 (26 August 2016) Snyman AJ stated:

“[38] In deciding whether a delay could possibly serve to render the institution or continuation of disciplinary proceedings unreasonable and unfair, guidance in be found in referring to the issue of a stay in criminal proceedings due to an undue delay in such proceedings. In Bothma v Els and Others the Court considered the question of a permanent stay of a private prosecution due to a delay in the bringing of the prosecution. Sachs J said: ‘…. the delay in the present matter must be evaluated not as the foundation of a right to be tried without unreasonable delay, but as an element in determining whether, in all the circumstances, the delay would inevitably and irremediably taint the overall substantive fairness of the trial if it were to commence.’

[39] In then considering whether a delay would taint overall substantive fairness, Sachs J referred with approval to the following dictum from the judgment in Sanderson v Attorney-General, Eastern Cape:

‘…. The critical question is how we determine whether a particular lapse of time is reasonable. The seminal answer in Barker v Wingo is that there is a `balancing test’ in which the conduct of both the prosecution and the accused are weighed and the following considerations examined: the length of the delay; the reason the government assigns to justify the delay; the accused’s assertion of his right to a speedy trial; and prejudice to the accused.’

Sachs J then added the following:

‘A word of caution: these four factors should not be dealt with as though they constitute a definitive check list. A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis….’

(own emphasis)

“

[22] In Moroenyane the court highlighted the factors to be considered in relation to waiver of the right to discipline: the length of the delay (which must be unreasonable), the explanation for the delay (which must be poor or non-existent), whether the employee took steps to ensure a speedy process, whether there was material prejudice to the employee, and the nature of the offence. These factors are to be considered and balanced holistically. It is of course important not to lose sight of the fact that employees have a right to a speedy disciplinary process, and employers have a duty to take speedy disciplinary action.

“[23] In Stokwe v Member of the Executive Council, Department of Education, Eastern Cape & others[(2019) 40 ILJ 773 (CC) at para [67]] the Constitutional Court accepted that there may well be instances where an employer has waived its right to take disciplinary action. Each case must be assessed on their own merits. The Constitutional Court noted that: “The requirement of promptness not only extends to the institution of disciplinary proceedings, but also to their expeditious completion. If an employee is retained in employment for an extended period after the institution of disciplinary action, it may indicate that the employment relationship has not broken down.” (own emphasis)

“

“[24] In National Union of Metalworkers of SA v Intervalve (Pty) Ltd & others[(2015) 36 ILJ 363 (CC)] Cameron J held as follows:

“[60] … Waiver is the legal act of abandoning a right on which one is otherwise entitled to rely. It is not easily inferred or established. The onus to prove it lies with the party asserting waiver. That party is required to establish that the right-holder, with full knowledge of the right, decided to abandon it.

[61] So waiver depends on the intention of the right-holder. That can be proved either through express actions or by conduct plainly inconsistent with an intention to enforce the right. It may be inferred from the outward manifestations of the right-holder’s intention: ‘The outward manifestations can consist of words; of some other form of conduct from which the intention to waive is inferred; or even of inaction or silence where a duty to speak exists’.

(own emphasis)

“

[25]…With a delay of approximately nine years, the overall substantive fairness of the disciplinary process is inevitably and irremediably tainted. It is inescapable that, with a delay of approximately nine years, necessary witnesses are no longer available, or their memories would have faded.[In Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC) Didcott J stated: “Inordinate delays in litigating damage (sic) the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it. They thus serve a purpose to which no exception in principle can cogently be taken.” (own emphasis)]

Disciplinary hearing

external legal representation: Addressed the issue of legal representation in disciplinary hearings under the PSCBC Resolution.

JR2129/23; JR1595/23; JR160/24; JR1879/23; JR1544/23

Department of Agriculture, Land Reform, and Rural Development v Pretorius and Others (JR2129/23; JR1595/23; JR160/24; JR1879/23; JR1544/23) [2026] ZALCJHB 64 (5 March 2026)

[50] In summary, and where it comes to the issue of legal representation of any of the parties before an internal disciplinary hearing convened under the 2003 Resolution, the default position is that external legal representation is not allowed, however the chairperson of the disciplinary hearing will always retain the discretion to allow legal representation where exceptional circumstances may justify the same. Importantly, a party does not have the right to such legal representation. The chairperson has a wide discretion to allow it.

[53] As a matter of law and fairness, the only requirements for a chairperson of a disciplinary hearing is that such chairperson must be neutral, impartial, unbiased, and have no ex parte knowledge of the events giving rise to the disciplinary proceedings, which is in any event presumed to be case where it comes to a legally qualified external chairperson.[Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC) at para 41, it was said: ‘There is a presumption in our law that judicial officers are impartial when adjudicating disputes and, as it was noted by this court in Irvin & Johnson, the threshold a litigant would have to meet to establish a reasonable apprehension of bias is high …’..] In particular, there is no right on the part of employees to insist on an external chairperson, and this remains a decision entirely up to the employer.[Compare RCL Foods Consumer (Pty) Ltd v National Union of Food Beverage Wine Spirits and Allied Workers and Others (2018) 39 ILJ 2318 (LC) at para 22; Mkhize v Antrobus NO and Another (2013) 34 ILJ 2893 (LC) at para 9.] In this respect, appointing an external chairperson would therefore be better than what the requirements of fairness under the LRA dictates. That being the case, I find it difficult to comprehend how the appointment of an external chairperson can even be said to be unfair or prejudicial toward the employee party. That is why I say the attack on such appointment can only be based on fairness, for example that the chairperson is not neutral, because that chairperson gave advice to the employer on the merits of the matter beforehand. But absent these kinds of anomalies, there can be no cause or prejudice to an employee to object to such an appointment. So, and at least, let’s call what happens in these cases a prima facie appointment of the external chairperson by the employer, acting unilaterally, as being justified and permitted. But as I will discuss further below, there is a check and balance that can be applied to ensure the requirements of exceptionality is satisfied.

“[54]…If this is not done, unfairness may result. It must be remembered that fairness applies to both employer and employee.[n Anglo American Platinum (Rustenburg Platinum Mines) v Beyers and Others (2021) 42 ILJ 2149 (LAC) at para 25, it was pertinently said that: ‘The concept of fairness applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer on the one hand and the employee on the other hand. The weight to be attached to those respective interests depends largely on the overall circumstances of each case …’. And in National Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others (1996) 17 ILJ 455 (A) at 593G-H, albeit in the context of the LRA, 1956; it was held: ‘… The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either. In the eyes of the LRA of 1956, contrary to what counsel for the appellant suggested, there are no underdogs …’. See also Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC) at para 116.] In particular circumstances, such as where a case might be extremely complex, any internal employee may not have the ability to decide the case. It would be unfair to expect the employer under such circumstances to push through with a chairperson that may not be competent, nonetheless. And in any event, the residual discretion to ensure fairness in the process, as discussed above, always remains. The following dictum in Khula Enterprise Finance Ltd v Madinane and Others[(2004) 25 ILJ 535 (LC) at para 11. Also compare Public Servants Association of South Africa obo Dodo v Minister of Home Affairs and Others [2024] JOL 64748 (LC) at paras 42 – 43.] is apposite:

‘The arbitrator does not appear to have considered at all the reasons why an independent advocate was appointed to chair the enquiry. There were sound reasons for doing so, in particular that the most senior levels of management were personally involved in the complaints and allegations against Dr Madinane and it was simply unrealistic to appoint anybody within management. None was available or able to handle a disciplinary enquiry with any level of detachment and objectivity in the circumstances. The code serving merely as a guideline, the employer was entitled to look outside the organization for somebody with appropriate expertise and objectively to chair the enquiry. This served the interests of both sides receiving a fair hearing. There is no basis for Dr Madinane’s objection in this regard. His reliance on the provision of the code was misplaced. It did not provide that an employee had to approve the appointment of any person to chair the disciplinary enquiry. It merely provided that enquiries would ordinarily be chaired by a member of management, the level of which ‘would be acceptable to both parties’. In this case no level H of manager was acceptable to management, for sound reasons as discussed above. There could be no reasonable objection to appointing an outsider in these circumstances. …’ “

[57] In summary therefore, I find that where it comes to the appointment of a chairperson under clause 7.3(b) of the 2003 Resolution, the default position is that such chairperson to be appointed must be a fellow employee, of a rank higher than the initiator of the disciplinary hearing. However, this default position is always subject to the entitlement of the employer to appoint an external chairperson, provided that exceptional circumstances justify such appointment. It is the employer that makes such a decision to appoint such chairperson, pursuant to what it believes to be exceptional circumstances. ..

Disciplinary hearing

precautionary suspension on full pay is generally permissible where there is a rational basis for it

JR1413/23

Office of Health Standards Compliance v Commission for Conciliation, Mediation and Arbitration and Others (JR1413/23) [2026] ZALCJHB 149 (11 May 2026)

“[12] The Labour Appeal Court in Member of the Executive Council for Education, North West Provincial Government v Gradwell[MEC for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC) at para 44.] made it clear that:

‘‘Therefore, an opportunity to make written representations showing cause why a precautionary suspension should not be implemented will ordinarily be acceptable and adequate compliance with the requirements of procedural fairness.’

[13] The Constitutional Court in Long v South African Breweries (Pty) Ltd[(2019) 40 ILJ 965 (CC) at para 25.] confirmed that the fairness of a suspension is context-dependent and stated 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.’

[14] The Court held further that:

‘there is no requirement that an employee be given an opportunity to make representations. Instead, the suspension must be linked to a pending investigation and serve to protect the integrity of that ongoing process. There is an additional consideration of prejudice, though this can be ameliorated by a salary being paid during the period of suspension.’ []

[15] The Court further emphasised that a precautionary suspension on full pay is generally permissible where there is a rational basis for it.[7]”

“AI summary of case law referred to: 3.

Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC):

Held that an opportunity to make written representations before a precautionary suspension is ordinarily adequate for procedural fairness, but a prior hearing is not always required.

Long v South African Breweries (Pty) Ltd (2019) 40 ILJ 965 (CC):

Confirmed that the fairness of a suspension is context-dependent, focusing on whether there is a fair reason for suspension and whether it prejudices the employee. It also held that a prior hearing is not a strict requirement for precautionary suspensions on full pay.”

Disciplinary hearing

audi alteram partem required that the affected persons be afforded reasonable prior notice and opportunity to state the cases

JA14B/25

Mpanza and Othersv Minister of Justice Constitutional Development and Others (JA14B/25) [2026] ZALAC 25 (12 May 2026)

“[19] The appellants when they argued the appeal in this court have submitted that the court a quo did not give them an opportunity to address it on the process it was about to follow of entertaining the condonation application despite the first respondent having failed to file it. In Road Accident Fund v Taylor and other matters[[2023] ZASCA 64 (8 May 2023) at para 33] Van der Merwe JA said:

“In circumstances, the age-old principle of audi alteram partem required that the affected persons be afforded reasonable prior notice and opportunity to state the cases. In Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association intervening) [2001] ZACC 9; 2002 (1) SA 429 (CC) para 11, the following was said with particular reference to s 34 of the Constitution:

‘This s 34 fair hearing right affirms the rule of law which is the founding value of our Constitution. The right to a fair hearing before a court lies at the heart of the rule of law. A fair hearing before a court as a prerequisite to an order being made against anyone is fundamental to a just and credible legal order. Courts in our country are obliged to ensure that the proceedings before them are always fair. Since procedures that would render the hearing unfair are inconsistent with the Constitution courts must interpret legislation and rules of court, where reasonably possible to do so, in a way that would render the proceedings fair. It is a crucial aspect of our law that court orders should not be made without affording the other side a reasonable opportunity to state their case…’””

17.10.1

Dismissal

misconduct

DA22/2023

Machi and Chep SA (Pty) Ltd and Others (DA22/2023) [2026] ZALAC 3; [2026] 4 BLLR 344 (LAC) (19 January 2026)

“he charges included gross negligence, dishonesty, and gross misconduct related to her actions on July 6, 2017, when she claimed illness to avoid a company event but instead chaired a disciplinary hearing for another company, Zala Corporates, during company hours.

“

Dismissal

misconduct, Dismissal – Insubordination – Partaking in riotous behaviour – Instructions to return to work reinforced by written ultimatums – Refusal constituted insubordination

JA99/2024

Dladla and Others v Motor Industries Bargaining Council and Others (JA99/2024) [2026] ZALAC 4; [2026] 4 BLLR 318 (LAC) (26 January 2026)

“AI summary: EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Another [2008] ZALC 40; 2008 7 BLLR 651 (LC), (2008) 29 ILJ 2588 (LC):

Emphasizes that courts and arbitrators should not adopt overly formalistic approaches to disciplinary charges, focusing instead on whether the employee had adequate notice of the alleged misconduct.

Exxaro Coal Mpumalanga Ltd v CCMA and Others (Unreported case JR269/11):

Holds that employees are expected to comply with lawful instructions, even if the instruction does not directly relate to their job description.

Independent Risk Distributors SA (Pty) Ltd v CCMA and Others (JR 1906/19) [2022] ZALCJHB 282 (11 October 2022):

Defines gross insubordination as serious, persistent, and deliberate defiance, which can justify dismissal.”

Dismissal

misconduct, Work stoppage – Proportionality assessment – Short and non-violent work stoppage triggered by management’s conflicting communications regarding payment delays – No production loss was quantified – No evidence of lasting operational harm – Employees continued working for months without incident – Trust relation had not broken down – Dismissal was substantively unfair

PA25/24

Benteler South Africa (Pty) Ltd v National Union of Metal Workers of South Africa (NUMSA) and Others (PA25/24) [2026] ZALAC 6; [2026] 5 BLLR 417 (LAC) (30 January 2026)

[27] In determining that the NUMSA members be summarily dismissed, the chairperson of the disciplinary enquiry, Mr Botes, concluded the employees “committed conduct that is disruptive” to the operations of the company. There is nothing in the record or on the evidence to substantiate how the work stoppage had wider ramifications. Once the employees returned to work on 30 September 2020, there were no further disruptions of any nature.

“AI summary: South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Limited (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC):

Discusses the standard for neutrality and independence in disciplinary hearings.

Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration and Others [2006] ZALC 44; (2006) 27 ILJ 1644 (LC):

Advocates for a pragmatic approach to disciplinary hearings, emphasizing fairness over strict formalism.”

Dismissal

misconduct: difference between insolence and insubordination

JA32/2025

Association of Mineworkers and Constructions Workers Union (AMCU) obo Kgotlang v Commission for Conciliation, Mediation and Arbitration and Others (JA32/2025) [2026] ZALAC 12 (13 March 2026)

“[33] In Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and

Others (P99/14) [2016] ZALCPE 23 (15 November 2016) at paras 15 to 17.] the court considered the conceptual difference between insolence and insubordination and said the following:

‘[15] It is accepted that the offence of mere insolence is not in itself sufficient to result in a dismissal. What is defined as ‘mere insolence’ will obviously depend on the circumstances and the conduct in question, and its effects. However, for insolence to justify a dismissal, it must by all accounts be wilful and serious, with the result that the employment relationship irretrievably breaks down. Examples of gross insolence include some as already indicated above, and may extend to inter alia, verbal abuse and/or tirades which may be laced with crass profanities, making personal or crude insults or gestures toward a superior, coupled with violent conduct in some instances, or even making physical or other threats.

[16] Insolence as directed towards persons in managerial or supervisory positions, especially in the presence of other junior employees, invariably results in the manager’s or supervisor’s authority being undermined, and has the effect of either belittling or humiliating that manager or supervisor. As a general rule therefore, employees are expected to show professionalism, courtesy and respect towards their managers and supervisors. If junior employees fall short of that expectation, ill-discipline and other unintended consequences may be the order of the day, which may have a negative effect on productivity and general harmony in the workplace.

[17] In Palluci Home Depot (Pty) Ltd, the Labour Appeal Court, also held that the sanction of dismissal should be reserved for instances of gross insolence and gross insubordination. To this end, the LAC accepted that respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employer’s lawful authority over him or her…’”

[34]…Mr Kgotlang could not point to anything unreasonable or unlawful in the instructions. As submitted by Mr Kgotlang his explanations for not complying vacillated from one excuse to another. Ultimately, he was solely responsible for events leading to his dismissal.

Dismissal

misconduct: WhatsApp message using phrase “no balls”

DA09/2025

Bakhresa SA (Pty) Ltd v Jaipal and Others (DA09/2025) [2026] ZALAC 13; [2026] 2 All SA 376 (LAC) (24 March 2026)

language inappropriate but not dismissal worthy

[31]…A sanction of dismissal is appropriate only in respect of serious offences. If the appellant’s internal code does not consider the use of abusive language to be serious enough to attract the ultimate sanction of dismissal, the finding that the dismissal of Ms Jaipal is substantively unfair remains reasonable notwithstanding the process-related error mentioned earlier. One of the issues to be determined by a commissioner is the appropriateness of the sanction of dismissal. If the sanction is not appropriate, then a dismissal that ensued is substantively unfair. Accordingly, there was no legal basis for the Labour Court to have interfered. Thus, the Labour Court did not err.

[25] Regarding charge two, the contention is that Ms Jaipal displayed a disorderly behaviour that involved the usage of untrue and abusive language. The nub of these allegations is the usage of the word balls. The literal meaning of the word is spherical or rounded objects, typically used in sports, games and in a slang context it refers to testicles. In any interpretation exercise, the text, context and purpose of any item to be interpreted are to be considered unitarily. That notwithstanding, it is clear that the appellant viewed the usage of the word in a slang context. It is common cause that Ms Jaipal, with the benefit of the better sight of hindsight, regretted the usage of the word. Mr Itzkin submitted before us that the regret by Ms Jaipal should have led to a finding of guilt in relation to charge two.

Dismissal

misconduct: Employee dismissed for calling supervisor “white racist” , whether a single comment constitutes discrimination, Appeal court held commissioner failed to apply objective test for racist utterances, reversed onus, and Labour Court compounded error – Utterance, viewed in context, expression of anger not racist conduct – Dismissal substantively unfair, sanction disproportionate – Employer’s disciplinary code did not prescribe dismissal – Appeal upheld, dismissal set aside, employee reinstated retrospectively

CA18/2024

Commercial Stevedoring Agricultural Allied Workers Union obo Qomoyi v Commission for Conciliation, Mediation and Arbitration and Others (CA18/2024) [2026] ZALAC 15 (8 April 2026)

“[22] With considerable regret, this Court does not agree that mere labelling, is in of itself racist or constitutes a display of racist behaviour. In reaching that conclusion, as it shall be demonstrated in due course, the Labour Court unfortunately erred. After considering a number of case authorities, where different utterances were made under different circumstances and context, the Labour Court reached the following conclusion:

‘[60] In sum, and based on the authorities discussed, it is my view that accusing a manager of being a ‘white racist’ would prima facie constitute racist conduct and is an utterance that is undoubtedly racially charged. Meyer testified that he found the utterances to be hurtful and prejudicial to him, and undoubtedly, such utterances would objectively be perceived, by all the employees who witnessed it and/ or in whose earshot it happened, to be racist in nature.’

(Own emphasis)”

“[24] Given the history of this country, matters involving allegations of racism require careful consideration. They are not an open and shut cases simply because words like racist are uttered. They are not necessarily easy matters to navigate through. In this matter, it is true that Mr Qomoyi uttered the words white racist and directed them to Mr Meyer. The key question that required careful consideration was whether calling Mr Meyer a white racist is in of itself a racist behaviour. Put differently, does the name calling make Mr Qomoyi a racist himself? Although racial slurs are inappropriate conduct and can be hurtful and upsetting, it does not axiomatically follow that the utterer of the slurs is necessarily a racist or displays racist behaviour. The Constitutional Court in Bester provided the following useful guideline in matters of this nature, it said:

‘[38] … the use of the words “swart man” per se, is not racist and that the context within which the words were used would dictate whether they were used in a racist or derogatory manner. It was also accepted that the test to determine whether the use of the words is racist is objective – whether a reasonable, objective, and informed person on hearing the words would perceive them to be racist or derogatory. This is in accordance with the test for whether a statement is defamatory, as enunciated in Sindani:

“The test to be applied is an objective one, namely what meaning the reasonable reader of ordinary intelligence would attribute to the words read in a context of the article as a whole. In applying this test, it must be accepted that the reasonable reader will not take account only of what words expressly say but also what they imply.’[Rustenburg Platinum Mine v SAEWA obo Bester and others[2018] 8 BLLR 735 (CC).]

(Own emphasis)”

[20]…What the Labour Court did, as evident above was to determine the dispute without first setting the arbitration award aside. The Labour Court is simply not permitted to do so. Similar to the commissioner, the Labour Court placed much store on the judgment of the Labour Court in SA Chemical Workers Union and Another v NCP Chlorchem (Pty) Ltd and others[(2007) 28 ILJ 1308 (LC). The commissioner had cited the judgment as that of the Labour Appeal Court in his award.]. In essence, the Chlorchem judgment concluded amongst others that ‘if an employee, without reasonable cause therefor, accuses a fellow employee of being racist or of displaying a racist attitude, it will constitute a very serious form of misconduct’[4]. This was said before Bester and is clearly inconsistent with the approved test.

[23] The conclusion of prima facie, reached by the Labour Court implies that the utterances would, without more, constitute a racist behaviour. I am unable to agree. It is also clear that the Labour Court applied the subjective test when considering how Mr Meyer felt about the utterance. In an attempt to apply the objective test, the Labour Court, as it should, did not use a reasonable person test. It confined itself to the persons who allegedly heard Mr Qomoyi, without any objective evidence whether the alleged people perceived what they allegedly heard as a racist behaviour. In Bester, witnesses who heard what Mr Bester said, testified and made their perception clear. In this matter, Mr Meyer was the only person who testified about his own perception and feelings. With considerable regret, that is not how the reasonableness test is to be applied.

[25] The test demands that one must consider the words first and determine whether the words objectively viewed were used by the utterer in a racist manner. In that exercise, the utterer is not necessarily considered but the words uttered or used are considered. In order to apply the test correctly, in this particular instance, it ought to be accepted that referring Mr Meyer as a white person cannot per se be racist or derogatory. As stated before, in this instance, the sting is the use of the word racist. The Court in Bester approved what the LAC stated, when it said that: “the test is not based on how the employer understood the words nor on the subjective feelings of the person/s to whom the remark was made, but whether a reasonable, objective and informed person would on the correct facts perceive it to be so.”[6]

[25]…Hypothetically, an employer who would dismiss a black employee without any hearing may be perceived to be practising racist tendencies. The correct facts suggests that when Mr Qomoyi called Mr Meyer a white racist, it was after a black worker was dismissed in a manner perceived by Mr Qomoyi to be unfair. Certainly, Mr Qomoyi under those circumstances was entitled to express his opinion of who Mr Meyer was to him. It may well be so that Mr Meyer was not a racist, however, what Mr Qomoyi observed on that day, after being invited to witness it by the self-same Mr Meyer, was an unfair treatment of a black person by a white person.

[28] Similarly, the inquiry into the usage of the words must not begin from the context that the usage of the word racist is presumed to be a racist behaviour. As stated before, within the context of the history and societal context, the usage of the word racist does not imply that the user used it in a racially charged atmosphere. The fact that the utterance was accompanied by the phrase, who fires black workers without a hearing, gives the utterance a specific context. It may well be that Mr Qomoyi considered Mr Meyer as a cruel or unfair white person, who ill-treats black workers. Given the power relations between Mr Qomoyi – a black general worker, and Mr Meyer – a white bottling manager, it is inconceivable that Mr Qomoyi was aiming at devaluing Mr Meyer as a member of the white race. It seems oxymoronic to contemplate such. History of this country does not bear that out. Mr Meyer is not a member of the previously disadvantaged group.

[29] It must follow that had Mr Qomoyi not witnessed what Mr Meyer called him to witness – dismissal of a black employee – he would not have, unexpectedly, called Mr Meyer a white racist. In truth, it is not far-fetched to surmise that by calling Mr Qomoyi to witness what he ultimately witnessed, Mr Meyer was provoking Mr Qomoyi. Actually, given his testimony at arbitration as to why he called Mr Qomoyi, he was being grandiloquent to Mr Qomoyi -to see how I (ek) treat your people (black employees). If Mr Qomoyi aimed at displaying racist behaviour, he could have used the words against Mr Meyer, when he first called him. It is clear on the correct facts of this matter that Mr Qomoyi was angered by what he witnessed few minutes later after being summoned to the HR Office. On the correct facts, no reasonable, objective, and informed person would have perceived Mr Qomoyi to be displaying racist behaviour towards Mr Meyer. A reasonable, objective, and informed person, would have perceived Mr Qomoyi as a person expressing his opinion about Mr Meyer on the strength of what he had just observed.

“[31] As found in Bester, the commissioner failed to approach the dispute in an impartial manner taking into account the totality of the circumstances. He observably failed to apply the test proposed by this Court and approved by the Constitutional Court. The touchstone in applying the test must be the usual limits of social interaction in the circumstances. In Pardo v School District, No 43[2003 BCHRT 71.

], the British Columbia Human Rights Tribunal had the following to say:

‘In my view, all the circumstances must be taken into account when considering whether a single comment constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.’”

“[32] This approach was approved in Campbell and Abraham v Krizmanich[8]. I am in full agreement with the above approach. Being called out as a racist may be embarrassing if one is such, however, if one is not, as Mr Meyer professed not to be, the comment is incapable of being pathogenic or virulence. In this matter, as stated, the recipient of the comment, Mr Meyer is not a member of a group that was historically discriminated against. As stated before, historically, a white race was considered to be a superior race. It could well be that in certain quarters of South Africa; some white persons still consider themselves to be a superior race. This point was underscored by the Court in Bester. The Constitutional Court expressed a useful distinction on the usage of racial epithets. It said:

‘[53] Gratuitous references to race can be seen in everyday life, and although such references may indicate a disproportionate focus on race, it may be that not every reference to race is a product of manifestation of racism or evidence of racist intent that should attract a legal sanction…’

(Own emphasis)

[33] In Chlorchem, the Labour Court expressed itself in the following terms:

‘[12] I have no hesitation to conclude that to accuse a person of being a racist or to say a person that he is displaying a racist attitude is racially offensive…. I am also satisfied that such language could be described as “racial”…

(Own emphasis)”

[36] Based on the evidence he tendered at the arbitration, it can never be said that Mr Qomoyi intended to be racist. Instead, he was venting his frustration in the manner which black employees are being dismissed. Putting It otherwise, it was his response to what offended his own sense of justice and fairness. It cannot be objectively stated that he used those words seeking to display racist behaviour to Mr Meyer. He was hurt by what was happening to his fellow black employee and he as the shop steward appeared to have been unhelpful to their plight.

[38] A different approach, other than charging and dismissing Mr Qomoyi, which may have revealed proper evidence of what actually was taking centre stage at Namaqua, may have fostered exchange of apologies. Perspicuously, allegations of racism at Namaqua are not just smokes and mirrors. They seem not to be illusionary and deceptive. The fact that Mr Meyer professed to not be racist may not be sufficient as an answer. Racism as an epidemic is not transparent. No racist person may readily admit to being one. Nevertheless, this Court, on application of the Bester test concludes that Mr Qomoyi did not display a racist behaviour. Thus, his dismissal for reason of displaying a racist behaviour was not for a fair reason. A reasonable decision maker, taking into account all the circumstances of this case, would have reached a finding that Mr Qomoyi was unfairly dismissed. The arbitration award of the commissioner must be set aside.

Dismissal

poor performance vs misconduct: he true nature of the dispute was related to poor performance rather than misconduct

JR2481/23

Propay Proprietary Limited v Stengel and Others (JR2481/23) [2026] ZALCJHB 67 (10 February 2026)

23] In my view, this is precisely what the second respondent finds in his arbitration award after analysing the evidence. In paragraph 79 of his award,[14] the second respondent canvasses the guidelines in determining whether a misconduct is unfair and he finds in the dispute before him, that the issue concerned the first respondent failing to perform his duties to the satisfaction of the applicant and he states that there was no evidence to suggest any form of misconduct. Thus, he finds in paragraph 80 of his award that the applicant failed to discharge its onus to prove substantive and procedural fairness.

[25]…Mr Stoltz could not produce any evidence of any instruction, other than stating that instructions of a general nature were given in meetings and the first respondent was expected to perform to the required standards. What is clear from the record is that the first respondent failed to perform to the required expectations or standards. An unmet undertaking was made by Mr Stoltz to assist the first respondent to achieve the required performance outputs. This is different from conduct, which is fault based, such as gross negligence, dereliction of duty and insubordination. According to Mr Stoltz, a demotion and micromanaging the first respondent’s work would result in the required standard being met as Mr Stoltz was concerned with outputs. On these facts and on the evidence before the second respondent, the true nature of the dispute is not misconduct.

“[15] It is trite that incapacity proceedings are no fault based and misconduct proceedings are fault based. In Midas Group Komatipoort v NUMSA and others[(JR1585/14) [2018] ZALCJHB 83 (14 February 2018) at paras 39 – 41] this Court per Snyman AJ held that incapacity proceedings and misconduct proceedings entail different concepts and different procedures. Where the employer fails to follow a fair procedure in dealing with poor performance, dismissal as a result of that poor performance is unfair. The Court went on to hold:

‘[43] The applicant’s approach in this matter was thus fundamentally flawed. It could not ‘charge’ the second and third respondents with poor performance, and then also insubordination (misconduct) based on the exact same set of facts and causes of complaint. It is either the one or the other. So, either the second and third respondent received instructions which they in a culpable and blameworthy fashion failed or refused to carry out, or they were not capable or unable to perform the work they were instructed to do. It cannot be both.’[12]”

Dismissal

misconduct

JR2661/21

Smit v Commission for Conciliation, Mediation Arbitration and Others (JR2661/21) [2026] ZALCJHB 60 (2 March 2026)

Email misconduct – Employee sent work related email to Gmail account – Email later used by dismissed employee at CCMA to settle his dispute

“[48] The conclusion that the applicant’s email sent to her Gmail account was used by Mr Brown to induce the third respondent to settle his CCMA case lacks evidentiary basis, as no proof regarding the terms or grounds for settling Mr Brown’s CCMA matter was presented.

“

Dismissal

misconduct: gross negligence

JR1937/23

Lewis Stores (Pty) Ltd v Mlangenii and Others (JR1937/23) [2026] ZALCJHB 73 (11 March 2026)

“[44] The third respondent needed to consider what misconduct, on all of the facts, the first respondent had actually perpetrated, as compared to what is contained in the two charges preferred against him. To unduly limit the enquiry to only certain facts that support a particular narrative is manifestly irregular. Considering that the charges related to gross negligence, the facts as a whole needed to be applied to the relevant legal principles in order to establish whether the misconduct of gross negligence existed in casu. In Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another[2003 (2) SA 473 (SCA) at para 7.] the Court described gross negligence as follows:

‘… It follows, I think, that to qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care …’”

“[45] Appositely, the Court in National Union of Metalworkers of SA and Another v Commission for Conciliation, Mediation and Arbitration and Others[(2023) 44 ILJ 1575 (LC) at para 32.] gave the following exposition of what would be expected from an employee in the particular position of the first respondent:

‘Negligence, in short, is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person and in the employment context, the employee’s conduct is compared with the standard of skill and care that would have been expected of a reasonable employee in the same circumstances. The reasonable employee with whom the employee is compared must have experience and skill comparable with that of the employee charged. In labour law, negligence is not applied ‘in vacuo’ or against the general standard of a ‘reasonable person’, but it is applied in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. Negligence is usually established with reference to workplace rules or procedures applicable in the workplace …’”

“[45]…The Court in National Union of Metalworkers added:[Id at para 40. In Sibanye Gold Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2024) 45 ILJ 2376 (LC) at para 45, the Court said that: ‘… Gross negligence inter alia means a total failure to take care …’.]

‘The test to be applied and with whom the employee is compared, is that of a reasonable employee, having experience and skill comparable with that of the employee charged, in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. …’”

“[49]…It is the kind of misconduct which competently attracts dismissal as a being justified and fair, as it can without much hesitation be described as ‘gross’. For example, in Nampak Corrugated Wadeville v Khoza[(1999) 20 ILJ 578 (LAC) at para 35.] the employee party was charged and dismissed for gross negligence in that he had failed to take proper care of equipment for which he was responsible. The Industrial Court found that the employee was negligent but could not find gross negligence to exist which justified dismissal. The erstwhile LAC disagreed and held:

‘…The probable explanation for his conduct, in these circumstances, is simply that he deliberately neglected to perform his duties. Consequently, I do not share the view of the Industrial Court that the evidence against Khoza was so circumstantial that it could not be used to explain his conduct. It was Khoza who had to furnish that explanation. In the absence of any credible explanation, the inference that he deliberately neglected to perform his duty is irresistible. This finding by the employer cannot be faulted.’”

“[50] Another example can be found in Standard Bank Insurance Brokers v Dlamini and Others[(JR15/24) [2025] ZALCJHB 147 (7 April 2025).]. In that case, the employee concerned failed to attend to the renewal of client policies, despite this being a core part of her duties and that the employer’s system in fact altered her that the renewals were due. The Court held as follows in finding gross negligence to exist:[26]

‘… This departure from the norm is extreme, considering what actually happened in this case, and the very nature of the financial services industry. Surely, how hard can it be to process a renewal especially if one is reminded of it beforehand? In simple terms, the first respondent would be warned by the System two months in advance, and all she needs to do is to come into contact with the client to explain the renewal and then, with the client, process the renewal. But she did not do any of this, where it came to the clients referred to in the charge. And then to put matters beyond doubt, she explains her failure on the basis, effectively, that she does not think it is a problem, because the System automatically renews, despite the fact that the one-on-one client renewal is to specifically avoid automatic system renewals which would violate the Code. All considered, there was a complete failure to take care by the first respondent. …’”

“Case Law AI:

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC):

Established the reasonableness standard for reviewing arbitration awards under Section 145 of the LRA.

Test: “”Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?””

Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA):

Clarified that material errors of fact or law are only relevant if they render the outcome unreasonable.

Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (2014) 35 ILJ 943 (LAC):

Reinforced the principle that the reasonableness of an award must be tested against all the facts before the arbitrator.

Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another (2003) 2 SA 473 (SCA):

Defined gross negligence as a departure from the standard of a reasonable person to an extreme degree.

National Union of Metalworkers of SA and Another v CCMA and Others (2023) 44 ILJ 1575 (LC):

Explained negligence in the employment context as a failure to meet the standard of care expected of a reasonable employee in the same circumstances.

Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC):

Found gross negligence in a case where an employee failed to take proper care of equipment under their responsibility.

Standard Bank Insurance Brokers v Dlamini and Others (JR15/24) [2025] ZALCJHB 147:

Established that gross negligence involves a complete failure to take care, especially when the employee is aware of the risks and consequences.

EOH Abantu (Pty) Ltd v CCMA and Others (2019) 40 ILJ 2477 (LAC):

Highlighted that an employee’s lack of appreciation for the harm caused by their negligence can justify dismissal.

Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC):

Emphasized the importance of assessing the credibility and reliability of witnesses in arbitration proceedings.

SFW Group Ltd and Another v Martell et Cie and Others (2003) 1 SA 11 (SCA):

Discussed the process of inferential reasoning and the importance of evaluating all evidence to determine the most plausible outcome.

SA Post Office v De Lacy and Another (2009) 5 SA 255 (SCA):

Highlighted the importance of considering all evidence and drawing inferences consistent with the proved facts.”

Dismissal

Misconduct CFO accountability, Dismissed for misconduct relating to financial statements, record keeping and safeguarding of assets

JR1736/23

Department of Roads and Transport Gauteng Provincial Government v Govender and Others (JR1736/23) [2026] ZALCJHB 83 (20 March 2026)

AI summary Reasoning and Approach. Significance: The judgment reinforces the accountability of CFOs for financial management and asset safeguarding under South African law. It clarifies that contracts and records are considered assets and that failure to safeguard them can justify dismissal. The case highlights the importance of arbitrators grounding their decisions in evidence and statutory duties.

Dismissal

Misconduct: Alcohol test – Employee dismissed after positive breathalyser readings under zero tolerance policy – Arbitration upheld dismissal, excluding expert evidence challenging reliability of tests – On review, Court held exclusion of expert evidence a material irregularity, depriving employee of fair opportunity to contest central misconduct charge

JR2232/23

Lehmann v Sylvania Metals (Pty) Ltd and Others (JR2232/23) [2026] ZALCJHB 196 (8 June 2026)

[3] It is common cause that Sylvania employees, as contractors for Samancor Chrome Mines working on Samancor Plants, including the Lesedi Plant, are subject to Samancor’s Drug and Alcohol Procedure (Policy). The stated purpose of the Policy is, inter alia, to ensure workplace safety by enforcing a zero-tolerance policy.

[45] It was further submitted that a notice to call an expert can be served at any time, even when the arbitration proceedings are part-heard, provided it is served at least 7 days before the next sitting.

[48] The applicant relied on Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others[(2023) 44 ILJ 2013 (LC) at para 17.] (Samancor Chrome), which held that breathalyser tests are prone to false positive results, and takes issue with Sylvania’s failure to adduce evidence that the person who conducted the test was trained, as required by the Policy. It is also said that the person or persons who conducted the tests were ‘unspecified’.

[53] The applicant also submits that the Policy distinguishes between ‘reporting for work under the influence of alcohol’ and ‘testing positive for alcohol’. Sylvania’s witness clarified that the applicant was charged with being under the influence of alcohol, and that the applicable stringent test was whether an employee was capable of performing her work-related tasks, as held in Transnet Freight Rail v Transnet Bargaining Council and Others[[2011] 6 BLLR 594 (LC); (2011) 32 ILJ 1766 (LC) para 24], and Tosca Labs v CCMA[(2012) 33 ILJ 1738 (LC) at para 11.] (Tosca). It was submitted that, in this case, the applicant entered the workplace and performed all her work without any reported incidents, therefore, her competency to work was never impaired.

“[66] The third decision relied upon is Shoprite Checkers v Tokiso Dispute Settlement[[2015] 9 BLLR 887 (LAC) at para 17.] (Shoprite Checkers), which held that a commissioner will accept zero tolerance where the circumstances of the case warrant the employer adopting such an approach. In this case, the applicant did not challenge the reasonableness of the zero-tolerance policy, and safety in the mining industry is important, as recognised in the Mine Health and Safety Act.[Act 29 of 1996, as amended.]

[67] Yet another decision relied upon is KWS Carries v National Council for the Road Freight and Logistics Industry and Others[(JR1261/16) [2019] ZALCJHB 295 (17 October 2019) at para 14.] (KWS Carries), in which the court held that the zero-tolerance alcohol policy was reasonable for safety reasons and that the dismissal of an employee was for a fair reason.”

Doctrine of common purpose

17.2.1

Employee

Where the parties are in a relatively equal bargaining position and consciously elect one contract or relationship over another, the legal effect should be given to their choice.

JR434/2021

Municipal Infrastructure Support Agent v Sambo N.O and Others (JR434/2021) [2026] ZALCJHB 94 (25 March 2026)

“35] The applicant submits in this regard that the fourth respondent was not an employee. The applicant contends that the fourth respondent is excluded from section 200A of the LRA. It is further submitted that the parties should refer to the contracts concluded since they set out their intentions.

[36] In 2012, the applicant and the fourth respondent concluded a specialist consultancy agreement.[13] Clause 7 of the agreement set out the relationship between the parties. It is expressly stated that the agreement shall not create an employment contract or an employer -employee relationship. Clause 7.2 of the agreement expressly states that the relationship between the parties is that of independent contracting parties.

[37] The contract should be read as a whole, and the context and intention of the parties must be understood. It is clear in my view that the parties’ intention was not to create an employer-employee relationship. All the activities that the fourth respondent executed were agreed to in terms of the contract on the understanding that he was not an employee. In this regard, I am guided by the LAC judgment in the matter of Vermooten v Department of Public Enterprises (Vermooten)[[2017] 6 BLLR 606 (LAC) at para 26.], the Court stated the following:

‘The consultancy agreement was not a sham. Therefore, in the absence of any overriding policy considerations, neither a tribunal nor a court may ignore its terms. Where the parties are in a relatively equal bargaining position and consciously elect one contract or relationship over another, the legal effect should be given to their choice. To allow one of these parties to change or contend that the legal relationship between them is something else holds important implications for the integrity of the legal framework of departments of State. The appellant seeks to be defined as an employee and so, it seems to me, to achieve what could not be achieved when negotiations began ie to be the Director: Aviation at a remuneration level exceeding double the prescribed remuneration and with the inclusion of all the benefits which were previously excluded by reason of the consultancy agreement. In other words, he wishes to become part of an organisation which could not and still cannot, accommodate him at his desired remuneration level.’ (own emphasis)”

[44] On the totality of the evidence, the fourth respondent was not an employee of the applicant. The fourth respondent was an independent contractor. The Bargaining Council had no jurisdiction to hear the matter.

Employee

section 198B (5), the appellants’ contracts were deemed in law to be of indefinite duration,

A2025/132542

Maphosa and Others v New Model Private College and Others (A2025/132542) [2026] ZALAC 22 (28 May 2026)

“[22] On 1 March 2021, the earnings threshold referred to in section 198 was R211 596.30. It is common cause, from the terms of the main award and the variation issued by the commissioner, that the appellants’ earnings were below that threshold. It was also common cause that the appellants had been engaged on fixed-term contracts for a protracted period, each concluded for a year at a time. There was no evidence adduced at the arbitration hearing to establish any justifiable reason for employing the appellants on fixed-term contracts limited to a period of 12 months at a time.

“

17.2.1

Employment

17.9.1

Essential service

Designation ruling – ArcelorMittal sought designation of blast furnace and coke battery operations as essential services –

JA34/25

Arcelormittal South Africa Limited v National Union of Metalworkers of South Africa (NUMSA) and Others (JA34/25) [2026] ZALAC 11 (16 March 2026)

Court held risks are occupational hazards, not public safety – Essential services must be interpreted restrictively – Ruling was correct and appeal dismissed with costs

“[20] But this case can be decided without detailed recourse to the technical evidence regarding the shutting down of the plant. In Police and Prison Civil Rights Union v South African Police Services and others[2011 (6) SA 1 (CC) at para 30.], the Constitutional Court said:

‘In order to ascertain the meaning of essential service, regard must be had to the purpose of the legislation … An important purpose of the LRA is to give effect to the right to strike entrenched in s 23 (2)(c) of the Constitution… For this reason a restrictive interpretation of essential service must, if possible, be adopted so as to avoid impermissibly limiting the right to strike. Were legislation to define essential service too broadly this would permissibly limit the right to strike.’

[21] The task of this Court therefore is to give content to the concept of essential service without unjustifiably trenching upon the scope of the right to strike as entrenched in section 23 of the Constitution.”

[24] Significantly, the ILO sets out the following which it considers to be essential services, the hospital sector, the electricity services, water supply services, the telephone service, the police and the armed forces, the firefighting services, public or private prison services, the provision of food to pupils of school age and the cleaning of schools and air traffic control.[International Labour Organisation, Freedom of Association: Digest Decisions of Principles of the Freedom of Association Committee of the Governing Body of the ILO (5th ed 206) at paras 583 and 585.] This list indicates the very purpose of “essential services” affecting, at the least part of the population, are services which are essentially required by the general population as part thereof.

[29] Appellant’s case requires of this Court to extend the concept of essential services far further than a purposive interpretation permits. It would strike an improper balance between the right to strike and section 213 of the LRA.

17.7.1

Estoppel

17.7.1

Evidence

hearsay evidence, [44] The reason why the evidence could not be given by the persons upon whose credibility the probative value of such evidence depended was the alleged fear for reprisals.

JA02/25; JA09/25

Goldplat Recovery (Pty) Ltd v AMCU obo Maluleke and Others (JA02/25; JA09/25) [2026] ZALAC 18 (29 April 2026)

“The probative value of the evidence

[43] I can do no better than to refer to the Supreme Court of Appeal in Ndhlovu[S v Ndhlovu and Others (above) para 18 and S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC) paras 38-42.] where probative value was defined in the following terms:

“Probative value’ means value for purposes of proof. This means not only, ‘what will the hearsay evidence prove if admitted?’, but ‘will it do so reliably?’

There are many factors relevant to the reliability question, namely: (a) any interest in the outcome of the proceedings by the witness; (b) the degree to which it is corroborated or contradicted by other evidence; (c) the contemporaneity and spontaneity of the hearsay statement; and (d) the degree of hearsay.[21] In Savoi, the Constitutional Court explained that courts’ aversion to hearsay evidence stems from its general unreliability as it is not subject to the reliability checks applicable to other evidence – such as cross-examination – and as its nature makes it difficult for a party to effectively counter inferences drawn from it.[22] Factors mentioned in Ndlovu’s case were present in this matter. Evidence of Mr Soldatos was contradicted, he had an interest in the outcome of the matter, he was a witness, Non-Executive Director and an attorney of the appellant at the same. There were no sworn statements taken from the complainants.”

“The interests of justice:

[47] A court must be of the opinion that it is in the interests of justice for the hearsay evidence to be admitted. The provisions of section 3(1)(c) each require consideration in order to limit prejudice to the party against whom such evidence is admitted, and all the factors must be considered cumulatively.

The submission that the Labour Court erred by not hearing the evidence of Mr Soldatos (the only witness for the appellant) in order to allow him to lay the basis for receiving such hearsay evidence cannot be sustained. The appellant cannot approbate and reprobate. It was content with making submissions from the bar instead of calling the evidence of Mr Soldatos in this regard. The suggestion by the Labour Court to lead evidence in camera was not even considered. It does not lie in its mouth to now argue that the Labour Court erred in not hearing the evidence of Mr Soldatos before making its ruling. The appellant made its bed with its eyes open, it is not unfair that it must lie on it.

“

Evidence

suspicion

JR798/24

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR798/24) [2026] ZALCJHB 50 (23 February 2026)

[51] In determining this issue, one takes into consideration that suspicion, however strong, cannot substitute proof of misconduct. The employer bears the onus to establish, on a balance of probabilities, that the employee committed a misconduct. Mere suspicion or inference, unsupported by cogent evidence, does not meet the threshold required to sustain a charge of gross misconduct.

“[53] In addressing this issue, the second respondent correctly relied on the authority of Mbanjwa v Shoprite Checkers (Pty) Ltd and others[(DA 4/11) [2013] ZALAC 29 (7 November 2013) at para 26.] wherein the Labour Appeal Court held that:

‘[26] It is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. Where the employer is suspicious that the employee, through the latter’s movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however, strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question.’”

“[55] The fourth respondent was alleged to have concealed an item in the stockroom. However, the applicant has not indicated with any degree of certainty what the item was said to be, nor does the video footage reveal any object being concealed.

[56] The Labour Appeal Court in Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others,[(JA 30/10) [2011] ZALAC 12 (26 July 2011) at para 31.] in deciding the appeal before it, the meaning of concealment was looked into. It was held that:

‘according to the dictionary, the meaning of to “conceal” is “to prevent someone or something from being seen; keep something secret”; (or) “refrain from disclosing or divulging. Put, remove, or keep out of sight or notice.”

“

“[79] The applicant submits that the delivery of multiple versions of fact by the fourth respondent demonstrates dishonesty. In support of this contention, reliance was placed on Maepe v Commission for Conciliation, Mediation and Arbitration and Another,[(2008) 29 ILJ 2189 (LAC).] where Zondo JP (as he then was) held that the giving of false evidence under oath rendered reinstatement incompetent, as the employee would not be able to perform his duties effectively.

[80] This Court is mindful of the distinction between the Maepe matter and the present case. In Maepe, the commissioner was confronted with deliberate falsehoods under oath, which went to the heart of the employee’s integrity and competence. In the present matter, however, it is not clear what exactly the applicant considers as false on the versions provided by the fourth respondent. The applicant cannot rely on falsehood in the absence of a contradictory version by the applicant.”

Evidence

rule 29 of CCMA Court urgent application

2026/049354

Mthini v Commission for Conciliation Mediation and Arbitration and Others (2026/049354) [2026] ZALCJHB 87 (19 March 2026)

At the commencement of the arbitration, the applicant applied in terms of rule 29 of the CCMA rules for disclosure of the investigation and associated material, which was allegedly relevant to the dispute.[3] The applicant submitted that the report was central to the deliberations leading to her being charged and that it contained further material, including audio recordings and witness statements.

“[9] Dissatisfied, the applicant now challenges that ruling on an urgent basis under section

158(1B) of the LRA, which provides that:

‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’”

“[20] In Moolman, the LAC reaffirmed the well-established test for relevance adopted from the English jurisprudence. It held that:

‘The test to apply in determining whether a document called upon to be disclosed or discovered is relevant to any matter under consideration was set out in the English case of Compagnie v Finance et Commerciale du Pacifique v Peruvian Guano Co (1882), which was subsequently adopted and accepted as part of the South Africa law.

The test to apply in determining the relevancy of a document called upon to be disclosed is set out in Peruvian Guano as follows:

“It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit (the document) either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”

The process underlying the discovery and disclosure of relevant documents is underpinned by the consideration of ensuring a fair trial…’[Moolman [2024] ZALAC 339.]”

Evidence

without oral evidence, unless such a stated case has been agreed, and on which they may draw legal conclusion

JR1747/16

Majaki v General Public Services Sectoral Bargaining Council and Others (JR1747/16) [2026] ZALCJHB 103 (30 March 2026)

“””[14] In SA Social Security Agency v National Education Health & Allied Workers Union on behalf of Punzi & Others[(2015) 36 ILJ 2345 (LC) at para 8.], addressing the very same argument, the Court held;

‘In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed.’

“””

“[15] Confirming this standpoint, the LAC in Arends & others v SA Local Government Bargaining Council & others[ (2015) 36 ILJ 1200 (LAC) at para 15.]:

‘When parties desire to proceed without oral evidence in the form of a special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. Alternatively, without such a statement, the question put is in danger of being abstract or academic. Courts of law and arbitration tribunals dealing with disputes of right exist for the settlement of concrete controversies and not to pronounce upon abstract questions or to give advice upon differing contentions about the meaning of an agreement. Where a question of legal interpretation is submitted to an arbitrator, the parties must set out in the stated case a factual substratum which shows what has arisen and how it has arisen. The stated case must set out agreed facts, not assumptions. The purpose of the rule is to enable a case to be determined without the necessity of hearing the evidence.’”

“[16] It is common cause that the arbitrator in casu determined the dispute on the written submissions only and in the absence of a stated case. The parties did not place before the arbitrator a signed pre-trial minute, which could have served the purpose of a stated case. From her award, it is clear that the arbitrator had regard to documents included in the Department’s bundle as well as documents Mojaki attached to his written submission, without first questioning the status of the parties’ respective documents. Were the documents admitted into evidence, or were they in dispute? These are questions the arbitrator ought to have asked the parties.

“

17.12.1

Execution

17.12.1

High Court

17.10.1

Incapacity

17.1.1

Information

17.12.1

Interdict

17.1.1

Interest dispute

17.12.1

Joinder

17.12.1

Jurisdiction

Damages suffered during protected strike, High Court has jurisdiction, Court held section 68 jurisdiction confined to unprotected action

CCT 145/24

South African Commercial Catering and Allied Workers Union v Massmart Holdings Ltd and Others (CCT 145/24) [2026] ZACC 11 (25 March 2026)

“[82] It is therefore wrong to invoke section 69(12) as an aid to interpreting section 68(2). It bears repetition that an unlawful picket conducted in support of a protected strike does not fall within the scope of section 68, but it may give rise to relief under section 69(12). In these circumstances, section 69(12) provides no answer to the central issue in this case.

“

“[15] Against this background, the Labour Court and Labour Appeal Court were established as specialist superior courts to determine labour disputes arising from the relationship between employees, employers and trade unions. These courts are steeped in workplace issues and specially designed to deal with complaints relating to labour practices and collective bargaining. As this Court held in Chirwa in relation to the primary objectives of the LRA—

“[t]he first is to establish a comprehensive framework of law governing the labour and employment relations between employers and employees in all sectors. The other is the objective to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the LRA.”[Chirwa v Transnet Limited [2007] ZACC 23; [2008] 2 BLLR 97 (CC); 2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC) at para 123.]”

[32] Consequently, section 68, in its own terms, renders a person who engages in conduct that is not in compliance with the provisions of the Chapter liable to a claim for just and equitable compensation for said conduct. It does so by providing specific statutory remedies, including just and equitable compensation, in respect of breaches of the provisions of Chapter IV, that are distinct from delictual damages. In this regard, Massmart’s cause of action is discussed in greater detail in the paragraphs that follow.[23] Similarly, liability for just and equitable relief may be triggered under section 69 as discussed in the paragraphs below.

[36] A litigant who seeks relief for breach of picketing rules, as Massmart does in this case, must prove the breach. The interpretation of the picketing rules and the determination of whether, indeed, there was such a breach, are issues in respect of which the Labour Court has exclusive jurisdiction. The relief sought is consequential upon proof of breach and interpretation of the provisions of the LRA, not the common law. Were Massmart to seek the statutory just and equitable relief for breach of picketing rules in the High Court, a special plea that the determination of such a claim is a matter within the exclusive jurisdiction of the Labour Court would be valid. On the interpretation advanced by SACCAWU, the High Court would have to determine issues in respect of which the Labour Court has exclusive jurisdiction. This is not permissible.

Jurisdiction

lawfulness, Labour Court had no jurisdiction to entertain a claim based on the unlawfulness of a dismissal.

JA56/24

Kgomotso v South African Police Service and Others (JA56/24) [2026] ZALAC 7; [2026] 5 BLLR 438 (LAC) (5 February 2026)

[25]…The point of law was pertinently raised in the review papers, but was not dealt with by the Labour Court. The point is whether it was lawful for the Minister of Police to suspend the appellant, who was the Acting National Commissioner at the time, and whether the National Commissioner was empowered to charge and dismiss him since he was never removed by the President as the Acting National Commissioner. I may mention at this stage that the point of suspension has become moot in view of the dismissal.

[98] In light of the conclusion I reach on the point in limine, albeit for different reasons to my colleague Tokota AJA, I proceed to consider the merits of the appellant’s dismissal which was dealt with extensively in the heads. The first judgment adopts the view that it is not necessary to consider the merits as the Labour Court had no jurisdiction to entertain a claim based on the unlawfulness of a dismissal. It reasons that “anyone, not being the President, purporting to act in terms of s.207 of the Constitution acts unlawfully and such act is a nullity.’ I disagree in as much as neither the arbitrator nor the Labour Court were called upon to pronounce on the issue of the lawfulness of the dismissal. They approached the matter on the basis of an unfair dismissal. It was only in this Court that the unlawfulness and legality challenge evolved.

Jurisdiction

defamation claim

2026/002899

Redpath Mining South Africa (Pty) Ltd v Nkuna and Others (2026/002899) [2026] ZALCJHB 18 (23 January 2026)

“48] The jurisdictional difficulty in this instance has a further nuance. The first respondent was finally dismissed as far back as July 2025. When the statements and video postings were made at the end of December 2025, she was therefore not an employee, as set out above. It follows that the relief sought against her would face similar jurisdictional issues, because of the absence of the employment relationship. As held in Norodien v Ajax Cape Town Football Club (Pty) Ltd t/a Ajax Cape Town Football Club and Others[(2015) 36 ILJ 472 (LC) at para 18.]:

‘The applicant may therefore not rely on s 157(2) and allege that the present dispute arises from employment and labour relations because his case is that when he approached this court he was not an employee. There was, therefore, no employment as envisaged in s 157(2)(a). The dispute does not even arise from labour relations. The term ‘labour relations’ does not have a wide interpretation as the applicant argues that it has. The jurisdiction of this court referred to in s 157(2) as enunciated in Gcaba does not extend to every dispute arising out of employment relations. It is limited to those disputes for which the LRA creates a remedy. The LRA has not created a remedy for an applicant who approaches this court in the applicant’s circumstances alleging that he or she is not an employee. …’”

“[37] The applicant further argued that the Labour Court has general and inherent jurisdiction, just like the High Court, and on this basis can entertain the application, in the form of ensuring the integrity of the CCMA proceedings, conducted under the LRA. But this contention is simply not correct, as I have already indicated above. The Labour Court only has jurisdiction in respect of matters specifically allocated to it by statute to decide. The same has been said specifically in the context of section 157(2)(a) as well. In Mphahlele v Ephraim Mogale Municipality[22] the Court held as follows:

‘In other words, s 157(2) does not confer a general jurisdiction on this court to entertain a claim simply because a party asserts that the claim is one that concerns a violation of a fundamental right. Further, where there is legislation that gives expression to fundamental rights, any claim must be brought in terms of that legislation; an applicant is not entitled to seek the direct enforcement of the fundamental right concerned. In any event, and to the extent that the applicant’s counsel relies on the enforcement of a fundamental right to found jurisdiction, the statement of claim makes no reference to the Constitution let alone any particular fundamental right.’ “

[52] The above being said, the incontrovertible point remains that it is not for this Court to decide in this case whether the sub judice rule has been violated in this case. This is task left up to the High Court, as it is not an issue that involves employment and labour relations. Obviously, and between the actual parties to any dispute resolution process under the LRA itself, the Labour Court would have jurisdiction to decide whether one of the parties to the dispute has violated this rule. But, as said, the second and third respondents are not such parties.

[54] It should not be for the Labour Court to decide such a defamation case involving a third party outside the employment relationship, as a basis for relief sought. It is simply not a labour relations issue, and has nothing to do with employment.[Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) [2007] ZASCA 56; 2007 (5) SA 540 ] This cannot be what was intended with section 157(2)(a), just because the dispute may be pending before the CCMA as dispute resolution forum. As the second and third respondents in fact correctly say in the answering affidavit ‘Were it otherwise, the Labour Court would become a general forum for regulating public discourse whenever a labour dispute exists – a proposition plainly inconsistent with the statutory scheme’ (sic). The applicant should have approached the High Court, being the Court tasked with deciding defamation issues between parties not in an employment relationship. This Court simply has no jurisdiction to come to its aid.

Jurisdiction

“AI text: However, the Labour Court erred by not considering the timely review of the arbitrator’s jurisdictional ruling (Part B).

The arbitrator was wrong to decline jurisdiction, as the dispute was clearly about unfair dismissal—a matter within the bargaining council’s authority.”

A2025/117691

Solidarity obo Roberts v Ngwenya N.O. and Others (A2025/117691) [2026] ZALAC 23 (21 May 2026)

Jurisdiction

Business rescue

PA11/24

South African Post Office Soc Limited v Jamieson (PA11/24) [2026] ZALAC 27 (5 June 2026)

Business rescue moratorium – Employee sought urgent interdict and enforcement of voluntary severance package during employer’s business rescue – Labour Court granted relief – On appeal, Court held proceedings constituted “legal proceedings” against company, falling within section 133(1) moratorium – No consent from Business Rescue Practitioners or leave of High Court obtained – Labour Court lacked jurisdiction, proceedings a nullity – Appeal upheld, Labour Court order set aside – Companies Act 71 of 2008, s 133(1).

3] The appellant contended that the Labour Court lacked jurisdiction to grant such relief because the appellant was in business rescue at the time, and the proceedings were instituted without the consent of the Business Rescue Practitioners (“BRPs”) or leave of the High Court, as required by section 133(1) of the Companies Act.

[38] Third, the respondent did not apply to the High Court for leave to proceed under section 133(1). The Labour Court is not the “court” contemplated in that section and could not grant such leave.

[39] Fourth, the relief sought by the respondent, an order declaring the disciplinary hearing unlawful, an order releasing her from employment, and an order compelling the processing and payment of the VSP, constitutes a “legal proceeding against the company”. Each of these orders would require the appellant, under the management of the BRPs, to take action or refrain from action affecting its affairs.

17.2.1

Labour Broker

17.12.1

Labour Court

[11] However, the Labour Court is a Court of law and not an administrative body like the CCMA or Bargaining Council.

DA09/2025

Bakhresa SA (Pty) Ltd v Jaipal and Others (DA09/2025) [2026] ZALAC 13; [2026] 2 All SA 376 (LAC) (24 March 2026)

[11] However, the Labour Court is a Court of law and not an administrative body like the CCMA or Bargaining Council. In terms of section 151(2) of the Labour Relations Act[1] (LRA), the Labour Court is a superior court and has standing equal to that of a court of a Division of the High Court of South Africa. In terms of section 165(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution), the judicial authority of the Republic is vested in the courts. In terms of section 165(5) an order or decision issued by a court binds all persons to whom and organs of state to which it applies. Additionally, section 34 of the Constitution affords everyone the right to have any dispute decided in a fair public hearing before a court. Given these constitutional imperatives, a court of law is under a duty to provide orders and decisions that are properly reasoned.

Labour Court

Statement of Case requirements

JS83/2024

South African Municipal Workers Union and Others v City of Johannesburg Metropolitan Municipality (JS83/2024) [2026] ZALCJHB 54 (24 February 2026)

“[3] In Candy and others v Coca Cola Fortune (Pty) Ltd,[(2015) 36 ILJ 677 (LC) at para 38.] the Court considered the purpose of a statement of claim and held that:

‘In its simplest terms, the statement of case must at least inform the Respondent party what the pertinent facts are on which the Applicant will rely in the case, and further, what the cause of action is that the Applicant will pursue as founded on these facts. That must be done in sufficient particularity so as to enable the Respondent to provide a proper answer to these facts and the related cause of action. The statement of claim and the answering statement thereto are not just for the benefit of the parties. They also serve the court, in that the issues in dispute are properly determined and other possible alternative causes of action are eliminated from having to be considered by the court. A proper statement of claim and answering statement are imperative to the fundamental requirement of expeditious resolution of employment disputes in terms of the LRA. As the court said in Harmse v City of Cape Town (Harmse):

“[6] The statement of claim serves a dual purpose. The one purpose is to bring a Respondent before the court to respond to the claims made of and against it and the second purpose of a statement of claim is to inform the Respondent of the material facts and the legal issues arising from those facts upon which Applicant will rely to succeed in its claims.

[7] The material facts and the legal issues must be sufficiently detailed to enable the Respondent to respond, that is, that the Respondent must be informed of the nature or essence of the dispute with sufficient factual and legal particularity so that it knows what it is that the Applicant is relying upon to succeed in its claim.”’”

“[4] In SA Breweries (Pty) Ltd v Louw[(2018) 39 ILJ 189 (LAC).] (Louw), the Labour Appeal Court (LAC) was required to, inter alia, determine a complaint by the appellant that the court a quo decided the case on factual issues not properly put before it on the pleadings, nor as refined in the pre-trial conference minute. The LAC held that:[6]

‘[4] To state the obvious, litigation is complex. Among the duties of legal practitioners is to conduct cases in a manner that is coherent, free from ambiguity and free from prolixity. True enough, the holy grail of translating what is complex into simplicity is not always attainable, but the ground rules are irrefrangible: say what you mean, mean what you say and never hide a part of the case by a resort to linguistic obscurities. The norm of a fair trial means each side being given unambiguous warning of the case they are to meet. Moreover, these requirements are not mere civilities as between adversaries; the court too, is dependent upon the fruits of clarity and certainty to know what question is to be decided and to be presented only with admissible evidence that is relevant to that question. Making up one’s case as you go along is an anathema to orderly litigation and cannot be tolerated by a court. Counsel’s duty of diligence demands an approach to litigation which best assists a court to decide questions and no compromise is appropriate.”

[6] In summary, a statement of claim must inform the defendant of the material facts and the legal issues arising from those facts upon which the plaintiff will rely to succeed in its claims. Those must be sufficiently detailed to enable the defendant to respond and to be informed of the nature or essence of the dispute. Each side must be given an unambiguous warning of the case they are to meet.

Labour Court

Directive 1 of 2025, Checklist referring to 12 months, not in terms of rules

2025/238394

Umshwathi Local Municipality v Lunga and Others (2025/238394) [2026] ZALCJHB 89 (19 March 2026)

AI Summary of the Judgment: The case centres on whether a review application in the Labour Court automatically lapses if a hearing date is not requested within 12 months, and the enforceability of certain directives and checklists versus the official court rules. Background: If a party is facing an argument that their review application has lapsed due to not requesting a hearing date within 12 months, they can rely on this judgment to argue that: There is no such lapsing provision in the current Rules. Any directive or checklist suggesting otherwise is not legally binding. The court can condone delays and allow the matter to proceed.

“AI summary Applicable Law and Case Law Referred To Reasoning and Approach:

This answer identifies the statutes, rules, and case law cited in the judgment of Umshwathi Local Municipality v Lunga and Others ([2026] ZALCJHB 89), as well as their relevance to the issues decided. The summary is based on direct references from the judgment text. Applicable Law Labour Relations Act (LRA):Section 159: Establishes the Rules Board for the Labour Court, which is responsible for making and repealing rules. Section 145(5): Refers to the obligation to apply for a hearing date within six months after lodging a review application, but this is subject to the Labour Court Rules. Labour Court Rules (as amended July 2024):Rule 37(25): After pleadings close in a review application, the applicant must apply for a hearing date within 10 days. If the applicant fails, the respondent may apply for a date. There is no provision for automatic lapsing after 12 months. Rule 69(2): Deals with archiving files where no steps have been taken for six months, but does not provide for automatic lapsing. Rule 37(13): A review application will lapse if the full record is not filed within 60 days of notification from the Registrar. Practice Manual of the Labour Court (repealed):Clause 11.2.7: Previously provided for automatic lapsing of review applications after 12 months if not set down. This provision was not carried over into the new Rules. Court Directives and Checklists: Directive 01 of 2025: Implementation of Court Online Electronic Platform. The court found that directives and checklists cannot override the Rules. Case Law Referred To Cheou v Department of Justice and Constitutional Development Limpopo and Others[2025] 4 BLLR 419 (LAC)Cited regarding the lapsing of review applications. Sidas Security v Commission for Conciliation, Mediation and Arbitration and Others(2022) 43 ILJ 934 (LC)Cited regarding review application procedures. Department of Higher Education v Ramoshowana NO and Others[2026] ZALCJHB 46 (15 February 2026)Discusses the application of section 145(5) of the LRA and the interplay with the Rules. City of Tshwane Metropolitan Municipality v South African Local Government Bargaining Council and Others[2025] 11 BLLR 1145 (LAC); (2025) 46 ILJ 2840 (LAC)Cited in relation to lapsing and procedural requirements. National Director of Public Prosecutions (Ex Parte Application)[2021] ZASCA 142; 2022 (1) SACR 1 (SCA)Authority for the principle that practice directives cannot override rules of court. Mthembu v Unique Air, Parnis Airport Maintenance Services (Pty) Limited v CCMA and Others[2001] 11 BLLR 1246 (LC)On the status of court rules as subordinate legislation. Inxuba Yethemba Municipality v South African Local Government Bargaining Council and Others(PR41/2020) [2022] ZALCPE 1 (31 January 2022)Cited for the same principle as above. Gololo v Limpopo Department Economic Development Environment and Tourism and Others(2025) 46 ILJ 1985 (LAC); [2025] 9 BLLR 925 (LAC)On the application of Rule 69(2) and the requirement for notification before lapsing. South African Police Services v Coericius and Others[2023] 1 BLLR 28 (LAC)On the requirement for filing the full record in review applications. Young v Coega Development Corporation (Pty) Ltd2009 (6) SA 118 (ECP); (2009) 30 ILJ 1776 (ECP)On costs in interdicts granted pending litigation.”

Labour Court

absolution from the instance

JS755/22

Masango v Road Traffic Management Corporation (JS755/22) [2026] ZALCJHB 153 (18 May 2026)

“[2] The plaintiff testified on 7 May 2026 and concluded her evidence on 8 May 2026, after which she closed her case. The defendant then applied for absolution from the instance. The question that arises, therefore, is whether the plaintiff has met the low threshold required at the close of her case, namely, whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might find in her favour. This approach was set out in Gordon Lloyd Page & Associates v Rivera & another[Gordon Lloyd Page & Associates v Rivera and another 2001 (1) SA 88 (SCA) at para 2, quoting the test as formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G – H.] as follows:

‘The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms:

“… (W)hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T)).”

This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no Court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van de Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-2). … The test has from time to time been formulated in different terms, especially it has been said that the Court must consider whether there is “evidence upon which a reasonable man might find for the plaintiff” (Gascoyne (loc cit)) — a test which had its origin in jury trials when the “reasonable man” was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The Court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another “reasonable” person or Court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly, but when the occasion arises, a Court should order it in the interest of justice.’ (Emphasis added)”

[3] The Court must first decide whether the plaintiff has, on the face of the evidence presented, established a prima facie case covering all the elements of the claim. If she has, absolution must be refused. If she has not, the Court must then consider whether it is in the interest of justice to end the litigation at that stage or to continue regardless and require the defendant to present evidence. Ultimately, the Court exercises a discretion to grant or refuse absolution. Although the discretion should be exercised cautiously, when the occasion arises, and justice so demands, absolution should be granted.[See also Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC) at para 79.]

Labour Court

Vexatious litigant , Vexatious Proceedings Act 3 of 1956, s 2(1)(b).

CCT 34/26

Motjamela v George Local Municipality (CCT 34/26) [2026] ZACC 31 (7 July 2026)

Indigent self-represented litigant pursued persistent meritless litigation arising from expired employment contracts – Municipality obtained broad vexatious order and mental health assessment directive – Constitutional Court held pattern of abuse justified vexatious order but scope was overbroad, required tailoring to employment dispute only – Mental health assessment order unconstitutional, imposed without evidentiary basis or statutory procedure, violated rights to dignity and privacy – Order set aside, tailored vexatious order substituted, each party to bear own costs

7] The Local Municipality approached the High Court seeking an order that Mr Motjamela be declared a vexatious litigant, as well as an interdict preventing him from making defamatory public accusations of fraud and discrimination against it. On 20 October 2025, the High Court granted an order barring Mr Motjamela from instituting legal proceedings against any person in any court or inferior court without the leave of that court.[1] The order also permitted the Local Municipality to seek additional relief to the effect that, if Mr Motjamela continued to make defamatory statements about the Local Municipality, it could seek further relief, including a court ordered inquiry into Mr Motjamela’s mental health.[2]

[20] A court may declare a person to be a vexatious litigant where the interests of justice require, in particular where such an order is necessary for the effective functioning of the courts or where such an order is necessary to protect innocent parties from the costs, harassment and embarrassment of meritless litigation.[9] In doing so, courts must consider the litigation history of the matter at hand, and may consider related matters involving the same litigant if such matters are placed before them or come to their attention. They may consider the number of cases lodged by the litigant, the merits and outcomes of such cases and the relationship between these cases and the other parties involved in the matter at hand. What is central are indications that litigation is being abusively employed to achieve a desired outcome through persistence, rather than merit.

“23] Section 2(1)(b) of the Vexatious Proceedings Act[14] (VPA) provides:

“If, on application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without leave of the court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.” (Emphasis added.)”

17.2.1

Legal persona

17.9.1

Lock-out

17.1.1

Mutual interest vs rights issue

17.1.1

Nature of dispute

17.12.1

100

Order

17.1.1

101

Parity principle

17.12.1

102

Plea

plaintiff’s failure to give notice in terms of section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act No. 40 of 2002 as amended (“the ILPA”).

J2375/2019

Mongale v Mangaung Metropolitan Municipality (J2375/2019) [2026] ZALCJHB 125 (22 April 2026)

103

Plea

Special plea ~ failure to give notice in terms of Institution of Legal Proceedings Against Certain Organs of State Act. Special plea upheld.

J2375/2019

Mongale v Mangaung Metropolitan Municipality (J2375/2019) [2026] ZALCJHB 142 (11 May 2026)

“AI summary: Special Plea:

•

The defendant (Municipality) raised three special pleas. The court focused only on the first: the plaintiff’s failure to give notice as required by section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act No. 40 of 2002 (ILPA).

Court Proceedings:

•

The plaintiff’s attorney did not appear at the hearing, despite being notified. The court decided to proceed in the plaintiff’s absence, citing the need for expeditious resolution and lack of prejudice to the plaintiff.

Legal Analysis:

•

The court found that the plaintiff had not given the required notice to the defendant under the ILPA, nor had the defendant consented to the failure to give notice.

•

The plaintiff argued that notice was not required because he was not seeking damages, but the court rejected this, clarifying that back pay for breach of contract constitutes damages under the ILPA.

•

The court cited relevant case law to support the distinction between damages and compensation, and confirmed that the ILPA applies to contractual damages claims against organs of state.

Conclusion and Order:

•

The special plea was upheld: the plaintiff’s claim was not allowed to proceed due to failure to comply with the ILPA notice requirement.

•

No order as to costs was made.

Key Takeaway:

•

When claiming damages (including back pay) from an organ of state, strict compliance with the ILPA’s notice requirements is essential. Failure to do so will result in the claim being dismissed, regardless of the merits.”

17.10.1

104

Poor performance

poor performance vs misconduct: he true nature of the dispute was related to poor performance rather than misconduct

JR2481/23

Propay Proprietary Limited v Stengel and Others (JR2481/23) [2026] ZALCJHB 67 (10 February 2026)

17.12.1

105

Prescription

17.5.1

106

Private arbitration

17.6.1

107

Procedure

17.1.1

108

Protected disclosure act

AI summary of authority, Sought internal resolution first but was ignored – Disciplinary charges closely tied to disclosure, occurring immediately afterward, indicating retaliation – Protected disclosure was dominant, main and proximate reason for the disciplinary action – Respondent’s reasoning that disclosure to CCMA was impermissible lacked merit – Respondent ordered to pay compensation of eight months’ remuneration

JS467/24

Kunene v Akani Egoli (Pty) Ltd ta Gold Reef City (JS467/24) [2026] ZALCJHB 56 (27 February 2026)

“[62] In Baxter v Minister of Justice and Correctional Service and others[[2020] 10 BLLR 968 (LAC) at para 64.] (Baxter) the Labour Appeal Court (LAC) was instructive as setting out the test that must be satisfied in order for an applicant to succeed in a claim of an automatically unfair dismissal premised on a protected disclosure. The first leg is to prove that a protected disclosure as defined in the PDA was made to the employee’s employer in good faith. The second leg is to prove that the disclosure was the main, proximate or most likely cause of the dismissal. The LAC stated as follows in this regard:

‘[64] In order to succeed in his claim for automatically unfair dismissal, the appellant was therefore required at trial to establish the following disclosed information regarding the conduct of an employee… of the department to his employer; ii) he had reason to believe the information showed or tended to show the failure or potential failure to comply with any legal obligation to which that employee was subject; iii) the disclosure was made in good faith; and iv) he was disciplined, suspended and dismissed on account or partly on account of having made the disclosure.’”

“AI summary: Case Law:

Baxter v Minister of Justice and Correctional Service and Others [2020] 10 BLLR 968 (LAC):

Sets out the test for proving automatically unfair dismissal based on a protected disclosure.

Nxumalo v Minister of Correctional Services and Others (2016) 37 ILJ 177 (LC):

Establishes the four-stage process for determining protected disclosures under the PDA.

SA Municipal Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC):

Clarifies that the requirement of “”reasonable belief”” does not require proving the accuracy of the disclosed information.

Chowan v Associated Motor Holdings (Pty) Ltd and Others (2018) 4 SA 145 (GJ):

Confirms that an employee’s reasonable belief in the truth of disclosed information is sufficient for a protected disclosure.

John v Afrox Oxygen Limited (2018) 39 ILJ 1278 (LAC):

Reaffirms that employees do not need to prove the accuracy of their disclosures, only that their belief in the information was reasonable.

Tshishonga v Minister of Justice and Constitutional Development and Another (2007) 28 ILJ 195 (LC):

Discusses compensation for occupational detriment, emphasizing that the severity and duration of the detriment should influence the amount awarded.

Le Monde Luggage CC t/a Pakwells Petje v Dunn NO and Others (2007) 28 ILJ 2238 (LAC):

States that compensation should offset the financial loss caused by the employer’s wrongful act and not serve as punishment.”

109

Protected disclosure act

Section 188A(11) of LRA

2026/049347

Nxele v Chairperson of Disciplinary Hearing Mudau N.O. and Others (2026/049347) [2026] ZALCJHB 98; [2026] 6 BLLR 628 (LC) (24 March 2026)

“[42] Section 188A(11) provides:

‘Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.’”

“43] This Court’s earlier decision in Nxele I clarified the effect of such a request or invocation of section 188A(11). There, Nkutha-Nkontwana J (as she then was), held that:

‘In my view, the only proper construction to be accorded to s 188A(11) is that, where an employee or employer requires a pre-dismissal arbitration in terms of s 188A, that request is imperious. This construction gives effect to the purpose of the legislature which is to provide a degree of protection to employees who make protected disclosures and to avoid parallel litigation, typified in the present case.

Basically, following a s 188A(11) request by the employee, the employer is enjoined to institute a pre-dismissal arbitration in terms of s 188A. The internal disciplinary enquiry that would have commenced and is pending must terminate. It must be emphasised that, since it is the employer’s managerial prerogative to exercise discipline that gets delegated in terms of a s 188A process, the employer remains responsible for referring the request to the relevant dispute-resolution institution and attending to the payment for the services of that institution.’[Nxele v National Commissioner: Department of Correctional Services [2025] ZALCJHB 571; [2026] 3 BLLR 262 (LC) (Nxele V).]”

“[44] The issue was again examined by this Court in Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited[[2024] ZALCJHB 17.] (Mtweta), where Tlhohlalemaje J, having referred to Nxele I above and the judgment of Moshoana J in Mamodupi v Property Practitioners Regulatory Authority and Another[17], held that:

‘… it was posited that once a section 188A(11) request was made, the employer was enjoined to institute a pre-dismissal in terms of 188A, and that the ongoing internal disciplinary enquiry must be halted…

It is however my view that the position in Nxele was properly qualified in Mamodupi v Property Practitioners Regulatory Authority and Another [2023] ZALCJHB 19 (13 February 2023). The Court as in Nxele, correctly identified the purpose of section 188A(11) as being a buffer to a continuation of an occupational detriment equivalent to an interdict necessitating a halt of the internal proceedings. The Court’s proposition however was that from a reading of section 188A(11), a mere allegation that a protected disclosure was made was not on its own sufficient. I agree with this proposition that a contravention must not only be alleged, but that it must prima facie factually exist. Furthermore, I agree that an employee relying on section 188A(11), must have demonstrated that the contravention occurred, that a protected disclosure as defined in the PDA was made, and further demonstrate as to when, where, and to whom the disclosure was made. Equally so, and as submitted on behalf of Transnet, a causal link between the occupational detriment and the disclosure must have been established.

A further question however that arises is whether it is for the Chairperson at the enquiry to make a finding that there is a prima facie case of a protected disclosure, or whether that determination must be made by the CCMA or the Bargaining Council when the matter is referred. In other words, the question is whether the Chairperson can simply halt the proceedings upon the allegation being made without more.

The answer is to be found in section 4(1)(a) of the PDA as already pointed out elsewhere in this judgment. This therefore implies that a chairperson of a disciplinary enquiry, is not required to enquire into the merits of the alleged protected disclosure, or whether the employee is subjected to an occupational detriment. The Chairperson is indeed obliged to halt the proceedings, but on condition that the employee has made the allegation before the CCMA or Bargaining Council or has already approached the Court for relief as contemplated in section 4(1)(a) or section 4(2)(b) of the PDA.’[18] (Emphasis added)”

45] On what the employee’s duty is in invoking section 188A(11), the LAC has now provided authoritative clarification in Nxele IV, confirming that an employee invoking section 188A(11) bears no duty to prove that the internal process contravenes the PDA; it is sufficient that the allegation is made in good faith. The threshold is therefore a lower one than suggested in Mtweta. The employee must demonstrate only that the allegation is bona fide, not that the occupational detriment has in fact occurred.

[49] In summary, a request made in terms of section 188A(11) operates to halt or pause any internal disciplinary proceedings, at least temporarily, pending the determination by the CCMA or the relevant bargaining council. Should that body accept and enrol the matter, the internal process falls away and the dispute proceeds as an inquiry by an arbitrator in terms of section 188A(11). The administrative decision by the administrative body (per the binding authority of Modika and not the appointed arbitrator as per Matlala) to accept (or reject) the referral constitutes a jurisdictional ruling by the CCMA or bargaining council, which may be reviewed on objectively justifiable grounds. For these reasons, this Court should not interfere with or anticipate the administrative body’s decision on the employee’s request or referral.

“[51] Against this backdrop, the applicant seeks orders directing the second respondent to convert the disciplinary hearing into section 188A(11) inquiry, compelling him to convene the inquiry and to allow and facilitate the applicant’s participation in the inquiry. This relief is misconceived because that is a matter within the competence of the GPSSBC, not this Court. This Court is not empowered to issue this relief.

[52] The applicant further seeks to interdict the disciplinary hearing scheduled for 26 March 2026. In light of the principles outlined above, that relief is unnecessary. As already stated, once a section 188A(11) referral is placed before the CCMA or bargaining council, the internal process is, at minimum, paused pending the CCMA or bargaining council’s decision. If the matter is enrolled, the internal process falls away in favour of the inquiry by arbitrator. If it is not enrolled, the applicant would have a choice whether to challenge that decision or to subject himself to what he considers an occupational detriment. The application for a final interdictory relief is therefore premature, unsustainable and falls to be dismissed. There is no application for interim interdictory relief.”

“AI summary Case Law:

Nxele v National Commissioner: Department of Correctional Services & Others [2019] JOL 43840 (LC); (2018) 39 ILJ 1799 (LC) (Nxele I):

Established that a section 188A(11) request is peremptory and requires the employer to terminate the internal disciplinary hearing and refer the matter to the relevant dispute-resolution body.

Department of Correctional Services v Nxele & Others [2022] ZALCJHB 37; (2022) 43 ILJ 1668 (LC) (Nxele II):

Confirmed the applicant’s lawful entitlement to return to work after a section 188A(11) inquiry.

Nxele v National Commissioner: Department of Correctional Services and Another [2022] ZALCD 32 (Nxele III):

Confirmed that the DCS must pursue charges through a section 188A process.

National Commissioner Department of Correctional Services v Nxele and Another [2025] ZALAC 9; [2015] 5 BLLR 472 (LAC) (Nxele IV):

Clarified that an employee invoking section 188A(11) need only allege in good faith that the internal process contravenes the PDA, without proving the contravention.

Nxele v National Commissioner: Department of Correctional Services [2025] ZALCJHB 571; [2026] 3 BLLR 262 (LC) (Nxele V):

Addressed the applicant’s unsuccessful attempt to declare his suspension lapsed under clause 2.7.2(c) of the SMS Handbook.

Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited [2024] ZALCJHB 17 (Mtweta):

Discussed the requirements for invoking section 188A(11) and the role of the CCMA or bargaining council in determining jurisdiction.

Mamodupi v Property Practitioners Regulatory Authority and Another [2023] ZALCJHB 19:

Clarified that a mere allegation of a protected disclosure is insufficient; a prima facie case must exist.

Matlala v Foskor Proprietary Limited and Others [2025] ZALCJHB 478 (Matlala):

Held that the CCMA or bargaining council must determine whether the jurisdictional requirements for a section 188A(11) inquiry have been met.

Industrial Development Corporation of South Africa v Modika Case No. A2026-037072 dated March 16, 2026 (Modika):

Affirmed that the administrative body (CCMA or bargaining council) makes the initial jurisdictional determination for section 188A(11) referrals.

Additional Case Law References:

Baloyi v Public Protector & Others [2020] ZACC 27; (2021) 42 ILJ 961 (CC).

Passenger Rail Agency of South Africa & Others v Ngoye & Others [2024] ZALAC 18; (2024) 45 ILJ 1228 (LAC).

Cibane & Another v Premier, Province of KwaZulu-Natal & Another [2025] ZALAC 44; (2025) 46 ILJ 2587 (LAC).”

110

Protected disclosure act

Occupational detriment, The test to be applied

JS490/23

Paul v Shree Pretoria Hindu Seva Samaj (JS490/23) [2026] ZALCJHB 124 (28 April 2026)

“[101] In SA Chemical Workers Union and others v Afrox Ltd[(1999) 20 ILJ 1718 (LAC)] (Afrox), the court determined that the enquiry into the reason for the dismissal is an objective enquiry where the employer’s motives for the dismissal will be one of many factors to be considered. The court held that:

‘[32] … This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual twofold approach to causation, applied in other fields of law, should not also be utilized here. The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the ‘main’ or ‘dominant’, or ‘proximate’, or ‘most likely’ cause of the dismissal. There are no hard and fast rules to determine the question of legal causation… I would respectfully venture to suggest that the most practical way of approaching the issue would be to determine what the most probable inference is that may be drawn from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn from circumstantial evidence in civil cases. It is important to remember that at this stage the fairness of the dismissal is not yet an issue… Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s 187(1)(a). …..’

“

“[103] In Legal Aid SA v Jansen[(2020) 41 ILJ 2580 (LAC) , [2020] 11 BLLR 1103 (LAC), 2021 (1) SA 245 (LAC).](Jansen) the LAC considered an appeal relating to an automatic unfair dismissal in terms of the provisions of section 187(1)(f) of the LRA. The Court held that:

[35] An applicant seeking to establish that a dismissal is automatically unfair on any of the grounds listed in section 187(1) of the LRA must meet the requirements of causation as articulated in SA Chemical Workers Union & others v Afrox Limited as follows:

‘The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the ‘main’ or ‘dominant’, or ‘proximate’, or ‘most likely’ cause of the dismissal. … It is important to remember that at this stage the fairness of the dismissal is not yet an issue… Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s 187(1)(a).’

[36] The evidentiary burdens regarding the issues arising in an alleged automatically unfair dismissal were defined in Kroukam v SA Airlink (Pty) Ltd as follows:

‘In my view, section 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.’

“

“[105] If an employer relies on a fair reason as the true reason for dismissal, the court must apply the two-stage test of factual and legal causation to determine whether the true reason for dismissal was one that falls within the ambit of section 187 of the LRA or whether it was the reason relied upon by the employer.

[106] The test for factual causation is a “but for” test – would the dismissal have taken place but for the disclosure? If the answer is in the affirmative, the dismissal is not automatically unfair.

[107] The test for legal causation entails a consideration of whether the disclosure made was the main, dominant, proximate or most likely cause of the dismissal in an objective sense?”

“[110] As the LAC confirmed in Jansen, the criteria of legal causation, are based upon normative value judgments. One must ask what was the most immediate, proximate, decisive or substantial cause of the dismissal. What brought about the dismissal?

[111] In casu I am not satisfied that the Plaintiff discharged the evidentiary burden, as set out in Van der Velde, in that he was not able to adduce some evidence to show that his dismissal was causally connected to the disclosure he had made to Dr Ramjee.”

111

Protected disclosure act

section 188(11) CCMA or Bargaining Council jurisdiction to hold and enquiry regarding protected disclosure.

2026/084057

Jonker v Department of Public Works and Roads North West and Others (2026/084057) [2026] ZALCJHB 175 (27 June 2026)

“[94] I say prima facie intentionally because it is for the Bargaining Council to determine whether Jonker’s request for a section 188A(11) LRA inquiry was made in good faith. In Modika LAC, the court held that the court a quo usurped the CCMA’s powers by finding that the jurisdictional requirements for accepting a section 188A(11) LRA referral were met, as the power to make such a determination rested with the CCMA. In that regard, the court referred to this court’s decision in Matlala v Foskor Proprietary Limited and others[27] (Matlala) which reached the same finding that it is for the CCMA or the Bargaining Council to determine whether the jurisdictional requirement is met. Obviously, that decision can be reviewed by this Court, as the Bargaining Council and the CCMA make jurisdictional findings for convenience.

[95] If the CCMA or the Bargaining Council finds that to be the case, it will conduct the section 188A(11) LRA inquiry. It cannot be said that Jonker is attempting to evade answering the allegations against him, as this is precisely what the section 188A(11) LRA inquiry will be concerned with. “

“Believing the charges were brought against him because he had made protected disclosures, Jonker invoked section 188A(11) of the Labour Relations Act[1] (LRA), which provides as follows:

‘188A Inquiry by arbitrator

(11) Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.’”

[4] The General Public Service Sector Bargaining Council (Bargaining Council) was cited as a party because a request had been made to it to convene a section 188A(11) LRA inquiry into allegations of misconduct against Jonker. The Bargaining Council issued the Department an invoice for a section 188A(11) inquiry on 13 March 2026.

“Order: 1. The matter is heard as an urgent application, in terms of Rule 38 of the Rules for the Conduct of Proceedings in the Labour Court, and that the prescribed forms and procedures are dispensed with insofar as is necessary.

2. The internal disciplinary inquiry at the first respondent into the charges of misconduct against the applicant, following the disciplinary notice dated 26 January 2026, is interdicted and suspended pending a decision by an arbitrator to be appointed by the fifth Respondent whether the disciplinary inquiry should be conducted within the contemplation of Section 188A(11) of the Labour Relations Act 66 of 1995.

3. If the arbitrator decides that the disciplinary inquiry shall be conducted in accordance with Section 188A(11) of the LRA, under the auspices of the fifth respondent, the internal disciplinary inquiry shall be considered and regarded as finally terminated.

4. If the arbitrator decides that the internal disciplinary inquiry shall not be conducted in accordance with section 188A(11) of the LRA, the internal disciplinary inquiry may reconvene, and the interim interdict of paragraph 2 shall automatically lapse.”

“AI summary of case law: Fisher v Ngcuka NO and Others [2025] ZALCJHB 514

Held that invoking section 188A(11) of the LRA and awaiting a decision from the CCMA makes it inappropriate for the employer to proceed with a disciplinary hearing.

Nxele v National Commissioner: Department of Correctional Services and Others (2018) 39 ILJ 1799 (LC); National Commissioner: Department of Correctional Services v Nxele and Another [2025] 5 BLLR 472 (LAC)

Clarified that an employee need only allege in good faith that disciplinary action is linked to protected disclosures to trigger section 188A(11); proof is not required at this stage.

Tsibani v Estate Agency Affairs Board and Others [2021] JOL 51625 (LC)

Stated that section 188A(11) is not designed to determine whether the facts constitute a protected disclosure, but to provide for an inquiry into the employee’s conduct or capacity.

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

Confirmed that the CCMA or Bargaining Council, not the court, must determine if the jurisdictional requirements for a section 188A(11) inquiry are met.

Industrial Development Corporation of South Africa v Modika and Others [2026] ZALAC 21 (Modika LAC)

Overturned a previous judgement

17.1.1

112

Public Holidays Act 1994

17.12.1

113

Reinstatement

Practical to reinstate

JA104/24

Edge Line Engineering (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) (JA104/24) [2025] ZALAC 65; [2026] 4 BLLR 327 (LAC) (29 December 2025)

[50] In light of the dismissals being found to be substantively unfair, the legislative framework of s 193 provides that reinstatement is the primary remedy unless one of the exceptional circumstances in s 193(2)(a)-(d) is found to exist, in which case compensation may be awarded.[In Booi v Amathole District Municipality and others [2022] 1 BLLR 1 (CC) paras 39-40 and 42, the Constitutional Court noted the primacy of the remedy of reinstatement in the LRA as a deliberate policy choice adopted by the legislature. It recognised that this choice, reflected in section 193(2)(b), which aims inter alia to protect the rights of the individual worker and achieve industrial peace, dictates ‘that the bar of intolerability is a high one. The term “intolerable” implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour’. A finding of intolerability is not to be easily reached, and ‘the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability’.] The appellant contends that reinstatement is ‘impracticable’. Whether it is reasonably impracticable to reinstate an employee will depend on the circumstances, where ‘in many cases the impracticability of resuming the relationship of employment will increase with the passage of time’.[Republican Press v CEPPWAWU [2007] 11 BLLR 1001 (SCA) at para 20 where the Court noted in paragraph 22 that a passage of six years elapsed from the time when the workers were dismissed, and in light of the union not pursuing their claim expeditiously, it was found that reinstatement would not be reasonably practicable.] Section 193(2) requires that ‘[a] court or commissioner must order the appellant to reinstate or re-employ the respondent unless one or more of the circumstances specified in section 193(2)(a)-(d) exist, in which case compensation may be ordered depending on the nature of the dismissal.’

[51] In Afgen (Pty) Ltd v Ziqubu,[[2019] 10 BLLR 977 (LAC) at para 25.] Waglay JP noted that where the employee’s dismissal is found to be substantively unfair, such an employee is entitled to reinstatement. The Court noted that ‘there has to be extraordinary reason to deviate from such relief’ if the relief in section 193(2) is resorted to. In that case, the Court observed that the conduct of the employee plays a crucial role in determining whether the relief of reinstatement or re-employment should be departed from. The Court endorsed the decision of the commissioner who held that reinstatement was not appropriate and substituted that order with a decision which directed that 12 months’ salary be paid. As noted, the decision to deviate from the award of reinstatement is a decision which has to be judicially exercised, taking into account considerations of fairness to both parties.[Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others 2009 (2) BCLR 111 (CC) at para 48.]

52] The respondents, in opposing the application for leave to appeal, submitted that to permit the appellant to avoid reinstatement would be tantamount to condoning the employer’s flagrant disregard for fairness and the cynical manipulation of its business structure.[Amalgamated Pharmaceuticals Limited v Grobler NO and others [2004] 6 BLLR 537 (LC).] The undisputed evidence of the appellant however, following its amendment to its defence in December 2022, is that subsequent to the dismissal of the affected employees it took an operational decision not to employ any workers. This evidence was not shown to be contrived or fabricated. In the absence of any finding to the contrary, the Labour Court was enjoined by s 193(2)(c) to consider whether reinstatement was impracticable. The judgment of the court a quo reveals no such assessment. In the result, such failure constitutes a misdirection which permits this Court to vary the order of the court a quo and grant appropriate relief.

“AI summary: Republican Press v CEPPWAWU [2007] 11 BLLR 1001 (SCA):

Discussed the impracticability of reinstatement due to the passage of time and other factors.

Afgen (Pty) Ltd v Ziqubu [2019] 10 BLLR 977 (LAC):

Highlighted that reinstatement is the primary remedy for substantively unfair dismissals unless extraordinary reasons justify deviation.

Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2009) 2 BCLR 111 (CC):

Stressed that reinstatement is the preferred remedy for unfair dismissals unless the relationship is intolerable or impracticable.

Amalgamated Pharmaceuticals Limited v Grobler NO and Others [2004] 6 BLLR 537 (LC):

Addressed the employer’s manipulation of business structures to avoid reinstatement.

Booi v Amathole District Municipality and Others [2022] 1 BLLR 1 (CC):

Reaffirmed the primacy of reinstatement as a remedy under the LRA and emphasized the high bar for proving intolerability.

Tecmed Africa v Minister of Health and Another [2012] 4 All SA 149 (SCA):

Clarified that appeals are against substantive orders, not the reasons for judgment.”

114

Reinstatement

Reinstatement must be ordered when a dismissal is found to be substantively unfair unless one of the exceptions set out in section 193(2) applies…”

DA09/2025

Bakhresa SA (Pty) Ltd v Jaipal and Others (DA09/2025) [2026] ZALAC 13; [2026] 2 All SA 376 (LAC) (24 March 2026)

“[35] The Constitutional Court in SACCAWU and others v Woolworths[[2019] 4 BLLR 323 (CC) at paras 44 to 46.] sagaciously dispensed with the following guidance:

‘[43] It is by now axiomatic that reinstatement is the primary remedy that the LRA affords employees whose dismissals are found to be substantively unfair. In Equity Aviation this Court held that the ordinary meaning of the word “reinstate” is:

“to put the employee back into the same job or position [that] he or she occupied before dismissal, on the same terms and conditions.”

[44] Accordingly, an employee that is reinstated will consequently resume their employment on the same terms and conditions which prevailed at the time of dismissal.

[45] Reinstatement is thus aimed at placing the employee in the position that they would have been in or that they would have occupied, but for the unfair dismissal. Furthermore, reinstatement is intended to safeguard employment by restoring the employment contract.

[46] Reinstatement must be ordered when a dismissal is found to be substantively unfair unless one of the exceptions set out in section 193(2) applies…”

[50] An employer must lead evidence as to why reinstatement is not reasonably practicable and the onus is on that employer to demonstrate to the court that reinstatement is not reasonably practicable…’

(Own emphasis)”

“[36] In echoing similar sentiments expressed in para 50 of SACCAWU, this Court in Faeroes[] expressed itself in the following clear and lucid terms:

‘[43] Whether reinstatement or re-employment “is not reasonably practicable” under section 193(2)(c) requires a determination of whether it is feasible or not. Where it is said not to be reasonably practicable, compelling evidence must be adduced that it is futile or impossible.’

(Own emphasis)

“

“[37] A compelling evidence is one that is convincing and cogent. The Labour Court in New Clicks SA (Pty) Ltd v CCMA[12], whilst dealing with section 193(2)(b) of the LRA remarked as follows:

‘[17] All in all, I am saying for section 193(2)(b) to defeat the primary remedy, there must be convincing reasons for such…

[19] On the contrary, a decision to refuse the primary remedy is reviewable if no cogent reason supported by evidence is given for it. Such in my view would be an unreasonable award.’”

“[45] It cannot be correct that the job of Ms Jaipal no longer existed. It existed but the “management” of the appellant merrily decided to, during the absence of Ms Jaipal, disentangle her functions and distributed that across the workforce. The situation created by the appellant is no different from one where an employer risks by replacing a dismissed employee whilst the dismissed employee is challenging the fairness of his or her dismissal. In Mashaba v SA Football Association[(2017) 38 ILJ 1668 (LC) at paras 10 – 13.], the erudite Lagrange J correctly expressed himself as follows:

’10. An employer may not thwart a dismissed employee’s bid for reinstatement by replacing him and then argue that it cannot reinstate the dismissed employee because there is someone occupying his former position. That is an eventuality the employer must take into account when it replaces a dismissed employee who is challenging their dismissal. In other words, if the employer does not take suitable steps in its contract with the replacement, it ought to realise it runs the risk that it will be faced with the possibility of terminating that relationship or of trying to renegotiate the replacement’s contract if the former incumbent is reinstated.

13. The right which the LRA provides by virtue of section 193(2) is the right of an employee to be reinstated if their dismissal is found to be substantively unfair and provided none of the subsections are applicable. As discussed above, an order of reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement, that is of no concern to the arbitrator or the court and the employer is left to its own devices to sort out the mess it finds itself in having employed someone and then being ordered to re-engage someone in the same position.’”

“[51] Last but not least, the Constitutional Court after confirming reinstatement suggested to the parties that they may revive consultation around the flexi-time. Accordingly, there is nothing that will prevent the appellant from engaging in a section 189 process in order to fairly deal with the alleged redundancy of Ms Jaipal. Such a situation obtained in Oosthuizen v Telkom SA Ltd[18] where this Court stated the following:

‘[25] The appellant can be reinstated – not in the position which he occupied before he was put in the redeployment pool – but to the position that he was in when he was in the redeployment pool. … Upon reinstatement the appellant can be dealt with in the same way that was or could have been dealt with when he was in the redeployment pool. That means the appellant can be put in a certain position and if he is happy with such position that would be the end of the matter.’

“

[52] One last aspect to mention on this topic is that the word ‘reinstate’ employed in section 193(1) does not necessarily mean reinstatement to a position but it means revival of an employment contract. Should it happen that upon revival, the position held before dismissal was rendered truly redundant, that is not necessarily a bar to a reinstatement order – revival of a contract of employment. A similar situation obtained in Pillay v Santam Limited and Another[(2020) 41 ILJ 2695 (LC).].

“[63] Despite the fact that section 193(2)(b) situation was not pleaded, no compelling evidence was led at arbitration to support that situation. In New Clicks, the Labour Court quoted with approval what Pillay J stated. It said:

‘[20] Such similar argument was rejected by this court in Amalgamated Pharmaceuticals supra. At para 13 of the judgment the following was said:

“The mere fact that the applicant does not trust the individual respondents cannot without more be a basis for holding that employment relationship has broken down. To punish the individual respondents with unemployment, even if this is accompanied with some compensation, without finding them guilty of any wrongdoing is grossly unfair.”[27]

(Own emphasis)”

“[64] This Court in Afgen (Pty) Ltd v Ziqubu[(2019) 40 ILJ 2276 (LAC).], relying on its earlier decision expressly stated the following:

‘[26] The other relevant matter is that of Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others (Glencore) where the Court properly accepted that an employee’s behaviour can be taken into account to determine if reinstatement or re-employment must be awarded, more particularly where an employee behaved offensively against the employer. Whether the bad behaviour was pre- or post-dismissal is irrelevant. This Court in Glencore stated that an employee’s behaviour no matter how abominable, cannot automatically deny him/her an award of reinstatement or re-employment. Consideration should be given to the degree of relationship contact between the employee and his superior. The lack of “functional role” performed by the employee in Glencore including the lack of “functional rapport with superiors” meant that they could be no real obstacle in the continued employment of the employee by Glencore notwithstanding the employee’s abominable behaviour.’

(Own emphasis)”

17.12.1

115

Remedies

compensation award, Chief of Staff suspended on full pay for eight months due to misinterpretation of SMS Handbook – Six months found unlawful and punitive

A2025/092122

Banda v General Public Service Sector Bargaining Council and Others (A2025/092122) [2026] ZALAC 17 (15 April 2026)

[14] At heart in this appeal is whether the arbitrator misdirected himself in exercising his discretion to withhold compensation and whether the Court a quo was correct in refusing to interfere. The legal position regarding the exercise of discretion in awarding or not awarding compensation in terms of section 194 is now crystallised as the Constitutional Court (CC) settled this polemic in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others,[(2021) 42 ILJ 1643 (CC)[2008] ZALC 45; ; [2021] 9 BLLR 861 (CC) at paras 25-27.] quoted generously by the Court a quo, which aptly dealt with the circumstances in which an appeal court may interfere with a decision reached by the Labour Court or arbitrator in the exercise of its discretion.

“[17] The Department defends the arbitrator’s findings and, in turn, the impugned judgment. It contends, on the strength of McGregor, that compensatory relief is never guaranteed and, accordingly, it is not injudicious for the arbitrator to have declined to award compensation. I disagree. The arbitrator clearly misconstrued the difference between patrimonial damages and solatium, as explained by this Court in Johnson & Johnson (Pty) Ltd v CWIU,[[1998] 12 BLLR 1209 (LAC) at para 41, referred with approval in Le Grange v Dr Visser t/a Skukuza Medical Practice and Another [2025] 2 BLLR 152 (LAC); (2025) 46 ILJ 947 (LAC) at para 23.] 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.’ (Emphasis added)”

“[18] The factors to be considered when determining the amount of compensation are well accepted, and as reiterated in Edumbe Municipality v Putini and Others,[(2020) 41 ILJ 891 (LAC); [2020] 5 BLLR 496 (LAC) at paras 56-57.] include the following:

“…the nature and seriousness of the iniuria, the circumstances in which the infringement took place, the behaviour of the defendant (especially whether the motive was honourable or malicious), the extent of the plaintiff’s humiliation or distress, the abuse of the relationship between the parties, and the attitude of the defendant after the iniuria had taken place…””

“AI Case Law:

McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021):

Differentiates between broad and narrow discretion in awarding compensation under sections 193 and 194 of the Labour Relations Act.

Establishes the threshold for interference by review courts in cases involving narrow discretion.

Johnson & Johnson (Pty) Ltd v CWIU (1998):

Clarifies the concept of solatium as compensation for the infringement of rights, not based on patrimonial or actual loss.

Edumbe Municipality v Putini and Others (2020):

Lists factors to consider when determining compensation, including the nature of the infringement, the behaviour of the defendant, and the extent of the plaintiff’s distress.

DB v CB (2024):

Discusses the limits of appellate courts in addressing issues not properly ventilated in the lower court. South African Post Office Limited v Jansen van Vuuren NO and Others (2008):

Discusses the importance of providing redress for unfair labour practices and deterring future contraventions.”

116

Remedies

compensation for unfair labour practice

JR679/21

Department of Health, North West v Public Health and Social Development Service Sectoral Bargaining Council and Others (JR679/21) [2026] ZALCJHB 36 (13 February 2026)

[1] This is an application to review and set aside the award of the Second Respondent, in which she found that the suspension of the Third Respondent constituted an unfair labour practice. The Second Respondent ordered that the Third Respondent’s suspension be uplifted and that she be compensated three months’ salary.

[24] The sixth ground of review, that this constitutes a double-payment, is absurd. The amount awarded to the Third Respondent was not contractual or retrospective pay, it was solatium for her being subjected to an unfair labour practice. This is precisely what S 194(4) permits.

[17]…20. The Court in Magotlhe’s case quoted with approval what this Court had said in SAPO Ltd v Jansen van Vuuren [2008] ZALC 33; [2008] 8 BLLR 798 (LC). The Court in that case was dealing with the abuse of power by the employers through the use of suspensions.

17.12.1

117

Representation

17.6.1

118

Res judicata

17.4.1

119

Retirement age

120

Retrenchment/ Misconduct

17.13.1

121

Retrenchment

adopt the business model of outsourcing

JA104/24

Edge Line Engineering (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) (JA104/24) [2025] ZALAC 65; [2026] 4 BLLR 327 (LAC) (29 December 2025)

[47]…The explanation that it simply closed down the entire powder coating unit and retrenched all of the employees in that department was rejected in the Labour Court. The appellant was unable to justify why it retained 11 of the employees from the powder coating department but chose to retrench the affected employees. Neither the evidence of Mr Shear nor Mr Chauke was found to be convincing in this regard, with Mr Shear simply stating that he could not remember. A further stumbling block for the appellant is that it tendered no evidence that it compared the length of service and experience of the affected employees to any of those who were retained. Any purported reliance on the application of LIFO (last in, first out) as a fair and objective criterion was without any foundation and was correctly jettisoned by the Labour Court. As noted by Le Roux in Retrenchment Law in South Africa,[‘Retrenchment Law in South Africa’, LexisNexis (2016) at p 125.] the absence of fair and objective criteria could give rise to abuse, ‘where [criteria] are used to get rid of employees that the employer may view as unwanted but against whom it is unable to produce acceptable proof of unacceptable conduct. That is why the Act contemplates the use of subjective selection criteria only where the parties have reached agreement thereupon.’[Chemical Workers Industrial Union & Others v Latex Surgical Products (Pty) Ltd (2006) F27 ILJ 292 (LAC) at para 88.] I am of the view that the decision of the Labour Court of substantive unfairness as a result of flawed selection criteria cannot be faulted on a fair assessment of the evidence. This ground of appeal falls to be rejected.

[54] In summary, the finding of the Labour Court that the employer did not have a sound commercial rationale for adopting a business model in terms of which it decided to outsource its manufacturing and production streams to subcontractors cannot be sustained. That said, in order for a dismissal for operational reasons to be fair, employees must be selected according to fair and objective criteria, in the absence of criteria that may have been agreed upon. The finding in the court a quo in this regard cannot be assailed, even if regard were had only to the evidence of the appellant’s witnesses. As regards an appropriate remedy, the Labour Court, in our view, failed to consider at all the evidence presented by the appellant that it no longer employed any employees in the manufacturing and production lines, where the affected employees had been stationed. This evidence was not seriously challenged in the court a quo, yet it was rejected without any assessment. Save for this latter aspect, the appeal must fail.

“AI summary: SACTWU and Others v Discreto (A Division of Trump and Springbok Holdings) [1998] 12 BLLR 1228 (LAC):

Emphasized the employer’s competence to make final decisions on retrenchments, provided they are preceded by fair consultation and justified by operational requirements.

Chemical Workers Industrial Union and Others v Algorax (Pty) Ltd (2003) 24 ILJ 1917 (LAC):

Highlighted that courts should assess the fairness of retrenchments, not defer to the employer’s decision, and ensure the decision is rational and not a sham.

BMD Knitting Mills (Pty) Ltd v SA Clothing and Textile Workers Union (2001) 22 ILJ 2264 (LAC):

Established that courts can scrutinize the commercial rationale for retrenchments to ensure fairness to employees. South African Transport and Allied Workers Union v Old Mutual Life Assurance Company South Africa Limited (2005) 26 ILJ 293 (LC):

Endorsed the principle of deference to managerial prerogative in retrenchments, provided the decision is commercially rational.”

122

Retrenchment

consulting direct with employees due to trade union’s refusal

2025/019585

Moloi v Industry Development Corporation of South Africa Ltd and Another (2025/019585) [2026] ZALCJHB 30 (2 February 2026)

[7] It is common cause that respondent disclosed in the section 189(3) notice that should consensus not be reached during consultation on the withdrawal or implementation of adjustments to certain benefits and terms and conditions of employment, the affected employees may be included in the pool of employees contemplated for retrenchment. Those employees were in annexure B of the notice. The applicant submitted that the individual applicants fell in the category of annexure B employees. As the applicant took a decision to refuse to consult further it must accept the consequences of its decision. It may not reasonably claim to have been side-lined. The respondent’s conduct of consulting with its members is a direct consequence of its refusal. Section 189(1) provides no alternative consulting party in circumstances where the trade union withdraws its participation. The refusal therefore requires a purposive interpretation of section 189(1) which should prevent a consulting party from unreasonably obstructing the consultation process. By consulting with MISA members directly, the respondent did not conduct a parallel consultation process because MISA’s refusal to continue with the consultation brought the consultation to a halt. When the respondent consulted with MISA members directly, MISA, by its refusal, had left the consultation process. MISA therefore failed to prove, in the circumstances of this case that the respondent is precluded from consulting directly with its members. The Constitutional Court in AMCU v Royal Bafokeng (2020 ILJ 555 CC at para [101].) did not create a right for trade unions to unreasonably obstruct the consultation process.

123

Retrenchment

[1]…Section 189A(13)(c) of the Labour Relations Act No. 66 of 1995 (the LRA). The Union seeks an order, inter alia, compelling the First Respondent (the Company), which opposed the application, to reinstate 19 of its members (the Employees) and a mandamus requiring it to comply with section 189(3) of the LRA.

2025/236301

National Union of Beverage Wine Spirits and Allied Workers obo Members v Coca-Cola Beverages of South Africa Ltd and Another (2025/236301) [2026] ZALCJHB 90 (19 March 2026)

“AI summary Applicable Law and Case Law Referred To Reasoning and Approach:

This summary identifies the key statutory provisions and case law cited in the Labour Court judgment regarding the retrenchment dispute between the National Union of Beverage Wine Spirits and Allied Workers and Coca-Cola Beverages South Africa. The summary is based on direct references from the judgment, ensuring accuracy and relevance. Applicable Law Labour Relations Act No. 66 of 1995 (LRA):Section 189A(13)(c): The urgent application was brought under this section, which allows employees or unions to approach the Labour Court for relief if an employer does not comply with a fair procedure during retrenchment. Section 189(3): The Union sought a mandamus requiring the employer to comply with this section, which sets out the employer’s obligations to consult and provide information during retrenchment. Section 34 of the Constitution: Right of access to courts. Case Law Referred To Fischer Tube Technik SA v Bayene & Anor [2024] 9 BLLR 917 (LAC):Cited by the union in its papers, relevant to substantive fairness in retrenchment. Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620:Referenced regarding the approach to factual disputes in affidavits. Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC):Constitutional Court decision on jurisdiction and the importance of pleadings. Tshivhulana Royal Family v Netshivhulana 2017 (6) BCLR 800 (CC):On the court’s duty to ascertain the real nature of a dispute. Nimrod Llewellyn Mortimer v Municipality of Stellenbosch (Unreported, WCD Case No 18243/2008):On the genuine formulation of claims and jurisdiction. Booysen v the SAPS [2011] 1 BLLR 83 (LAC):Approved the approach in Mortimer regarding substance over form. Motloung v Department of Health: Free State (JS 309 / 21) [2022] ZALCJHB 343:On determining the true nature of a dispute from pleadings. Ekurhuleni Metropolitan Municipality v South African Municipal Workers’ Union [2015] 1 BLLR 34 (LAC); (2015) 36 ILJ 624 (LAC): On jurisdiction and the analysis of facts over party characterisation. Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA):On the limits of characterising claims through language. SACTWU and Others v Discreto (a division of Trump & Springbok Holdings) (1998) 19 ILJ 1451 (LAC):On the relationship between procedural and substantive fairness. Maughan v Zuma and Others (12770/22P;13062/22P) [2023] ZAKZPHC 59; [2023] 3 All SA 484 (KZP); 2023 (5) SA 467 (KZP); 2023 (2) SACR 435 (KZP):On abuse of court process. Lawyers for Human Rights v Minister in the Presidency and Others: Quoted for the definition of abuse of process. Hudson v Hudson and Another 1927 AD 259:On the court’s inherent power to prevent abuse of process. Trustees for the time being of Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 (SCA):On the merits and volume of litigation. Example Implementation:

“

124

Retrenchment

Requiring affected employees to apply for their own positions

JS53/23

Mojalefa and Others v Right To Care NPC (JS53/23) [2026] ZALCJHB 108 (1 April 2026)

“[63] Requiring affected employees to apply for their own positions, or for positions for which they met the minimum requirements, does not constitute a selection criterion, nor does it amount to the offer of alternative employment, as envisaged by section 189. Even if the re competition process were to be characterised as a form of a selection criterion, it was neither fair nor objectively and fairly applied.

[64] Further, the re-competition criterion was implemented as early as 25 July 2022 when the defendant started advertising the positions. Notwithstanding repeated requests from employees to suspend the re-competition process, the defendant remained resolute and unequivocal in its decision to proceed. This conduct justified the plaintiffs’ argument that the decision to retrench had already been taken.”

“[61] In Umicore Catalyst SA (Pty) Ltd v National Union of Metalworkers of SA on behalf of Members[[2024] ZALAC 37; (2024) 45 ILJ 2545 (LAC).], the LAC reaffirmed that the onus rests on the employer to establish that the selection of employees for dismissal was fair. While criteria such as length of service, skills and qualifications are generally accepted as fair, deviations from commonly accepted standards such as LIFO must be justified and supported by evidence demonstrating their necessity for the effective operation of the business.[13]

[62] Notwithstanding Mukwevho’s assertion that LIFO was applied together with the “re-competition”, the evidence demonstrates that LIFO was in fact not applied. It is immaterial to speculate who would have been dismissed first or last had LIFO been applied. The only selection criterion applied by the defendant is the so-called “re-competition”.”

“AI Case Law:

BMD Knitting Mills (Pty) Ltd v SA Clothing & Textile Workers Union [2001] 8 BLLR 705 (LAC); (2001) 22 ILJ 2264 (LAC):

The court is entitled to examine whether a reasonable basis exists for the decision to dismiss for operational requirements and whether the decision was taken fairly.

Kotze v Rebel Discount Liquor Group (Pty) Ltd [1999] ZALAC 25; (2000) 21 ILJ 129 (LAC):

Failure to consult employees on known alternatives to retrenchment can render the dismissal both procedurally and substantively unfair.

Super Group Supply Chain Partners v Dlamini and Another [2012] ZALAC 25; (2013) 34 ILJ 108 (LAC):

Section 189 imposes a positive duty on employers to actively engage with employees and take measures to avoid dismissals or mitigate their effects.

Chemical Workers Industrial Union and others v Latex Surgical Products (Pty) Ltd [2006] 2 BLLR 142 (LAC); (2006) 27 ILJ 292 (LAC):

Employers must apply fair and objective selection criteria when selecting employees for retrenchment.

Umicore Catalyst SA (Pty) Ltd v National Union of Metalworkers of SA on behalf of Members [2024] ZALAC 37; (2024) 45 ILJ 2545 (LAC):

The onus is on the employer to establish that the selection of employees for dismissal was fair, and deviations from commonly accepted standards like LIFO must be justified.”

125

Retrenchment

Section 189A facilitation

2026/072667; 2026/074757

SASBO Finance Union obo Members v Access Bank (South Africa) Limited (2026/072667; 2026/074757) [2026] ZALCJHB 157 (9 May 2026)

“AI summary: Regulations for Conduct of Facilitations in Terms of Section 189AReasoning and Approach:

This answer draws directly from the Labour Court judgment, which references the statutory and regulatory framework governing facilitation in large-scale retrenchments under section 189A of the Labour Relations Act (LRA), as well as the specific regulations issued by the Minister. Key Regulations and Requirements Appointment of Facilitator Under section 189A(3) and (4) of the LRA, a facilitator must be appointed by the CCMA if requested by the employer or by consulting parties representing the majority of affected employees within 15 days of the section 189(3) notice. Facilitation must be conducted in accordance with regulations made by the Minister (see Regulation 6(1)).Number of Facilitation Meetings Regulation 6(1): A facilitator must conduct up to four facilitation meetings with the parties, unless:

The dispute is settled in fewer meetings, or the parties agree to a lesser number of meetings. If the dispute is not settled and there is no agreement to reduce the number of meetings, all four meetings should be held.60-Day Facilitation Period Section 189A(7) of the LRA provides that if a facilitator is appointed, the employer may only issue notices of termination after 60 days have elapsed from the date of the section 189(3) notice. This period is intended to allow for meaningful consultation and the full facilitation process. Consultation Topics The facilitation process must cover all topics required by section 189(2) and (3) of the LRA, including:

Alternatives to dismissal Selection criteria Severance pay Measures to avoid or minimize dismissals Disclosure of relevant information Role of the Facilitator The facilitator manages the consultation process but the duty to consult remains with the employer. Unfacilitated meetings between the parties can be recognized as part of the facilitation process if agreed. Abandonment and Procedural Defects If fewer than four meetings are held without agreement or settlement, and the process is not properly concluded, this may constitute a procedural defect. Issuing termination notices before the expiry of the 60-day period or before the required meetings are completed is a breach of the regulations and section 189A(7).Example Implementation: When conducting a large-scale retrenchment, an employer should:

Request facilitation within 15 days if required. Ensure up to four facilitation meetings are held unless the dispute is settled or parties agree otherwise. Not issue termination notices until the 60-day facilitation period has expired. Keep records of all meetings and ensure all required topics are discussed. Conclusion:

The regulations for conduct of facilitations under section 189A require up to four meetings (unless otherwise agreed), a 60-day consultation period before terminations, and meaningful engagement on all statutory topics. Failure to comply with these requirements can result in procedural unfairness and liability for compensation.”

126

Retrenchment

waver, dispute was settled when the Plaintiffs signed and accepted voluntary termination notices which included the severance packages

JS112/2021

Merafi and Others v Ithuba Holdings (Rf) (Pty) Ltd (JS112/2021) [2026] ZALCJHB 170 (26 May 2026)

“[10] In Lufuno Mphaphuli and Associates v Andrews and Another[2] Kroon AJ held as follows:

“AI summary of case law referred to: Retrenchments. 2.

Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others

Citation: (2024) 45 ILJ 1723 (CC)

Principle: Clarifies the Labour Court’s jurisdiction to adjudicate procedural fairness in retrenchment disputes, especially regarding section 189A(18) of the LRA.

Application: The court relied on this case to reject the defendant’s argument that it lacked jurisdiction to hear the procedural fairness aspect of the dismissal.

Super Group Supply Chain Partners v Dlamini and Another

Citation: [2012] ZALAC 25; (2013) 34 ILJ 108 (LAC) at para 24

Principle: Section 189 imposes a positive duty on employers to actively seek alternatives to retrenchment and to consult meaningfully.

Application: Used to emphasize the employer’s obligation to engage in genuine consultation and consider alternatives.

Kotze v Rebel Discount Liquor Group (Pty) Ltd

Citation: [1999] ZALAC 25; (2000) 21 ILJ 129 (LAC) at para 37

Principle: Failure to consult on known alternatives affects both procedural and substantive fairness of retrenchment.

Application: Cited to show that lack of consultation on alternatives can render a dismissal both procedurally and substantively unfair.

Chemical Workers Industrial Union and others v Latex Surgical Products (Pty) Ltd

Citation: (2006) 27 ILJ 292 (LAC) at para 84

Principle: Where no agreement on selection criteria exists, the employer must use fair and objective criteria.

Application: Used to critique the defendant’s failure to disclose or apply fair selection criteria in the retrenchment process.

Umicore Catalyst SA (Pty) Ltd v National Union of Metalworkers of SA on behalf of Members

Citation: (2024) 45 ILJ 2545 (LAC) at para 19

Principle: The employer bears the onus to prove that selection for retrenchment was fair; deviations from standard criteria must be justified.

Application: Reinforces the need for transparent and fair selection criteria in retrenchments.”

127

Retrenchment

Substantive fairness requirements

JS949/2021

South African Commercial Catering and Allied Workers Union obo Tshokodo and Others v Mass Discounters (Pty) Ltd t/a Game and Dion Wired Stores (JS949/2021) [2026] ZALCJHB 168 (29 May 2026)

“AI case law summary: 1.

SA Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC)

Emphasizes that courts and parties are bound by pleadings and pre-trial agreements.

National Union of Food Beverage Wine Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd (2024) 45 ILJ 1813 (LAC)

Sets out the test for substantive fairness in retrenchments: the court must determine whether the retrenchment was a rational and reasonable response to operational requirements, not whether it was the best possible decision.

HeroTel (Pty) Ltd v Moses and Others (2025) 46 ILJ 2850 (LAC)

Confirms that the employer’s decision must be rational and reasonable, and that courts do not simply accept the employer’s rationale at face value.

BMD Knitting Mills (Pty) Ltd v SA Clothing & Textile Workers Union (2001) 22 ILJ 2264 (LAC)

Courts may examine whether the retrenchment decision is fair to employees and whether a reasonable basis exists for the decision.

Edge Line Engineering (Pty) Ltd v Association of Mineworkers and Construction Union and Others (2026) 4 BLLR 327 (LAC)

The court does not second-guess the business efficacy of the employer’s decision but checks for genuineness and fairness.”

128

Retrenchment

And if the correct interpretation is that after a failed facilitation it is necessary to resort to conciliation over a dismissal dispute before such dispute can be referred to the Labour Court

CCT 367/24

National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026)

129

Retrenchment

189A, The Court found that, in this context, a fait accompli constitutes substantive unfairness, not procedural unfairness.

2026/050046

General Workers Union of South Africa (GIWUSA) obo Members v Kellogg Company of South Africa (Pty) Ltd t/a Kellanova and Another (2026/050046) [2026] ZALCJHB 200 (11 June 2026)

“[33] In determining whether the applicant has made out a case that the dismissal of the applicants was procedurally unfair, the main issue to be decided first is whether the alleged fait accompli constitutes procedural unfairness in this case. Put differently, if it is established that the first respondent decided to dismiss the applicants before the consultation process started, does that render the dismissal procedurally unfair, as submitted by the applicant, or substantively unfair, as submitted by the first respondent? If fait accompli does constitute procedural unfairness in this case, the next question to be determined would be whether fait accompli has been established on the facts of this case having regard to the Plascon-Evans rule[Plascon-Evans Paints (Ltd) v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A)]. If fait accompli does not constitute procedural unfairness, this application cannot succeed because section 189A (13) concerns itself with procedural unfairness only.

“

“[40] In Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others[(2024) 45 ILJ 1723 (CC)] (Regenesys) the Constitutional Court confirmed that competent orders (a) to (c) in section 189A (13) serve the primary purpose of section 189A (13), which is to compel the employer to comply with a fair procedure before finally dismissing the employees, whereas the compensation order (d) serves the secondary purpose, which is to compensate the dismissed employees for failing to comply with a fair procedure. Compensation is appropriate for procedural unfairness in circumstances where the fair process can no longer be restored. The orders contemplated in (a) to (c) are the preferred orders as they fulfil the primary purpose of section 189A (13)[16].

[41] In elucidating the role played by this Court’s intervention in terms of section 189A(13), the Constitutional Court in Steenkamp and others v Edcon Ltd[(2019) 40 ILJ 1731 (CC) at para 54.] (Steenkamp II) put it thus:

‘In exercising its powers in terms of s 189A(13) of the LRA, the Labour Court thus acts “as the guardian of the process” and exercises a “degree of judicial” management or oversight over the process. The aim is to proactively foster the consultation process by allowing parties to seek the intervention of the Labour Court on an expedited basis to ensure that procedural irregularities do not undermine or derail the consultation process before it ends.’

[42] Regarding the concept of ‘meaningful joint-consensus seeking process’ envisaged in section 189 (2), in Atlantis Diesel Engines (Pty) Ltd v National Union of Metal Workers of South Africa[(1994) 15 ILJ 1247 (A) at 1252G – 1253A. This passage was referred to with approval by the Constitutional Court in Barloworld.], the following was stated:

‘The latter approach requires consultation once the possible need for retrenchment is identified and before a final decision to retrench is reached. It proceeds on the premise that consultation requires more than merely affording an employee an opportunity to comment or express an opinion on a decision already made. It envisages a final decision being taken by management only after there has been consultation in good faith. . . .” (My emphasis)”

[50] Section 189A (13) is designed to deal with genuine and clear cut procedural flaws which are capable of being corrected by compelling the employer to reset the process and comply with a fair procedure. In a fait accompli scenario it is not possible to achieve the primary purpose of section 189A (13). Once an employer has decided to dismiss the employees even before the commencement of the consultation process, it is no longer possible to embark on a genuine and meaningful joint-consensus seeking process with a view to reach consensus on alternatives to avoid dismissal.

“[52] In conclusion, this Court finds that this application cannot succeed because the pleaded case of fait accompli constitutes substantive unfairness which falls outside of the scope of section 189A (13) of the LRA.

“

130

Retrenchment

17.6.1

131

Review

constructive dismissal, correct test on review in this matter is correctness

CCT 175/23

Maleka v Boyce N.O. and Others (CCT 175/23) [2026] ZACC 7; (2026) 47 ILJ 839 (CC); 2026 (5) BCLR 453 (CC) (24 February 2026)

“[57] As I have stated above, the test that is to be applied will be determined by the nature of the dispute. In other words, is it a dispute about the factual findings or a dispute about the legal or jurisdictional findings of the Commissioner. I am of the view that the dispute in the present matter is about the Commissioner’s jurisdictional findings, that is, whether Mr Maleka was constructively dismissed. If he was not dismissed, the CCMA would not have had jurisdiction to hear the dispute and the award would stand to be reviewed and set aside on the grounds that the CCMA lacked jurisdiction.

[58] Notwithstanding the fact that the correct test on review in this matter is correctness, this is not the end of the enquiry. The usual Sidumo reasonableness test must apply once a court is satisfied that an employee was dismissed, that is, when it moves to the enquiry on whether the dismissal was unfair. This two-staged approach is consistent with what the Labour Appeal Court said in Jonsson that there will be cases “where the legal issues are inextricably linked to the facts so that the reasonable decision-maker standard could be applied”.[37]”

“[59] In Westcor [Westcor SA (Pty) Ltd v Mey (2023) 44 ILJ 397 (LC). See also Aquarian Lifestyle Trading (Pty) Ltd t/a Vespa South Africa v CCMA [2024] ZALCJHB 73 (LC) at para 9 and Ukweza Holdings (Pty) Ltd v Nyondo N.O. [2020] ZALAC 7; [2020] 6 BLLR 544 (LAC); (2020) 41 ILJ 1354 (LAC) at para 12.] the Labour Court said:

“It is firmly established (despite some criticism) that the review test on the first question – whether a resignation amounted to a constructive dismissal – is correctness, not reasonableness.

If the court is satisfied that the employee was dismissed, it must apply the usual Sidumo reasonableness test on review of the decision as to fairness. This test focuses on the outcome: is the arbitrator’s decision capable of reasonable justification on all the material that was before the arbitrator (including for reasons not considered by her)?”[39]

“

[61] Therefore, when the Labour Court was confronted with Mr Maleka’s application for review, the two questions that Court had to ask itself were, firstly, whether Mr Maleka was constructively dismissed (a jurisdictional issue) and second, if he was, whether the constructive dismissal was unfair (a merits issue). On the first question, the test is for all purposes, objective correctness. On the second question, the test is whether the commissioner’s decision was one which a reasonable commissioner could reach. In other words, whether the decision is capable of reasonable justification on all the material that was before the commissioner at the time.

132

Review

redesign process to justify introducing the tertiary qualification requirements, employee’s refusal to apply for the lower-level Buyer position as justification for his dismissal.

JS466/2023

Botha v Petra Diamonds South Africa (Pty) Ltd (JS466/2023) [2026] ZALCJHB 158 (15 May 2026)

[56] The employer relied on a Paterson grading and organisational redesign process to justify introducing the tertiary qualification requirements. However, the evidence did not establish why such qualifications had become necessary for a role whose functions substantially overlapped with those the employee already performed. Furthermore, the employer shortlisted and interviewed the employee despite his acknowledged lack of qualifications, but then relied on that lack as the reason for not appointing him. That materially undermines the employer’s contention that the qualifications constituted a genuine operational prerequisite for the role.

[57] Nor does South African Breweries (Pty) Ltd v Louw[16] assist the employer. While a ‘dislocated’ employee may fairly be required to compete for positions within a new structure, no fair basis existed in the present matter for treating the employee as dislocated in the first place, or for excluding him from the Manager: Procurement role merely because other candidates performed better against revised criteria.

“[58] The employer cited the employee’s refusal to apply for the lower-level Buyer position as justification for his dismissal. The Court accepts the employee’s explanation that the Buyer position entailed materially reduced status and remuneration and effectively required him to start again at the lowest level. In circumstances where the employer had not established a fair basis for excluding him from the Manager: Procurement role, his refusal to apply for the Buyer position does not render the dismissal substantively fair.

[59] In the circumstances, the employer did not establish that the employee’s dismissal was for a fair reason connected to the restructuring process. The dismissal was substantively unfair.”

133

Review

may not review any decision or ruling made during conciliation or arbitration proceedings which had not been finally determined, legal representation disallowed

2026/096502

Maluleke v National Health Laboratory Services and Others (2026/096502) [2026] ZALCJHB 174 (5 June 2026)

“[24] The primary question is whether this application should be entertained at all. In 2014 a new provision was added to s 145 of the Labour Relations Act, 66 of 1995, expressly restricting the power of the court to review rulings in part-heard arbitration proceedings, viz:

‘(1B) The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’”

“[25] Thus, only if it is just and equitable may the court review an interlocutory decision. In interpreting the scope for intervention on such grounds under section 145(1B), in South African Cabin Crew Association obo Members and another v South African Airways (SOC) Ltd and others[[2025] 10 BLLR 1048 (LAC)] the Labour Appeal Court affirmed the dictum in South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others [(2020) 41 ILJ 493 (LC)], namely 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.’

(emphasis added)

Accordingly, Maluleka must establish a right to the relief he seeks, on the basis that his case is truly one of those exceptional ones warranting intervention, and that the arbitrator, in the exercise of his discretion, ought to have allowed him legal representation on the medical grounds he advanced.”

“[26] The LAC went on to describe the type of truly exceptional cases, which warrant intervention in media res by way of such a review:

‘[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.

[28] Judicial intervention is all the more justified where a review is instituted in medias res to challenge and set aside a ruling premised on a material error of law.’”

[27] It is noteworthy that the characterisation of the type of interlocutory ruling or decision that might warrant intervention is when the effect of the ruling has a fundamental and decisive impact on the possible outcomes of a case, which can be corrected before the matter proceeds further.

28] A ruling by an arbitrator on whether to allow legal representation, while important, concerns a procedural question which lies entirely within the arbitrator’s discretion. The type of discretion exercised in making such a ruling is what is known as a ‘true’ discretion. The arbitrator must weigh competing considerations and make a value judgment based on fairness. A range of permissible outcomes is possible, and the decision only stands to be reviewed if the arbitrator acted capriciously, based the decision on a wrong principle, was influenced by irrelevant considerations or failed to consider relevant factors. It is a decision that a court of review will not readily interfere with. A ruling on legal representation by its nature concerns the conduct of the proceedings and is not in the nature of a ruling which improperly prevents the substantive merits of the case being addressed or causes the arbitrator to determine a dispute which should not be before them.

17.6.1

134

Rule Nisi

17.13.1

135

Severance Pay

17.6.1

136

Special Plea

17.9.1

137

Strike

Damages suffered during protected strike, High Court has jurisdiction, Court held section 68 jurisdiction confined to unprotected action

CCT 145/24

South African Commercial Catering and Allied Workers Union v Massmart Holdings Ltd and Others (CCT 145/24) [2026] ZACC 11 (25 March 2026)

“

138

Strike

Interdict 48 hours’ notice required

2026/062610

Fadel Logistics South Africa (Pty) Ltd v Revolutionary Union Of South Africa and Others (2026/062610) [2026] ZALCJHB 86 (18 March 2026)

AI Applicable Law Labour Relations Act (LRA), Section 68:Section 68(1): Grants the Labour Court exclusive jurisdiction to grant orders restraining persons from participating in a strike or conduct in furtherance of a strike. Section 68(2): The court may not grant an order restraining a strike unless at least 48 hours’ notice of the application has been given to the respondents. A shorter period may be permitted only if written notice is given, the respondent has a reasonable opportunity to be heard, and good cause is shown for a shorter period. The section is described as peremptory (mandatory).The judgment emphasizes that this notice requirement applies to both actual and contemplated (anticipated) strike action, and to both interim and final relief. Case Law Referred To: No specific prior case law is cited by name in the judgment. The judgment is based on the interpretation and application of section 68 of the LRA, with the judge analysing the statutory requirements and rejecting the applicant’s arguments based on the text and purpose of the Act. Example Implementation. The court refused to grant an urgent, ex parte interdict because the applicant did not comply with the 48-hour notice requirement under section 68(2) of the LRA, nor did it show good cause for a shorter notice period or provide respondents a reasonable opportunity to be heard

139

Strike

Overtime omitted in employees’ payslips – work stoppage – probabilities of instruction by employer to not work – no right to withhold labour as a collective – unprotected strike – considerations of substantive fairness – sanction unduly harsh in circumstances

JS491/23

Association of Mineworkers and Construction Union and Others v Northern Coal (JS491/23) [2026] ZALCJHB 139 (30 April 2026)

Work stoppage – Employees downed tools after payroll error omitted overtime, causing shortfall in earnings – Employer dismissed workers for unprotected strike, union challenged substantive and procedural fairness – Court held stoppage met statutory definition of strike, common law remedies displaced, but dismissal disproportionate – Stoppage short, peaceful, spontaneous, triggered by employer’s error, no violence or breakdown of trust – Dismissal substantively unfair, reinstatement

140

Strike

exceptio non adimpleti contractus

JS491/23

Association of Mineworkers and Construction Union and Others v Northern Coal (JS491/23) [2026] ZALCJHB 139 (30 April 2026)

“[61] The workers are essentially relying on the common law remedy of the exceptio non adempliti contractus.

[62] I do not believe that this claim or defence is available to the workers:”

141

Strike

2 notices before dismissal and strike

CCT 367/24

National Union of Metalworkers of South Africa and Others v Industrial Oleo Chemical Products (CCT 367/24) [2026] ZACC 22 (29 May 2026)

[47] In the context of strike action for example, section 189A(8)(b) allows employees to strike only “once the periods mentioned in section 64(1)(a) have elapsed”.[43] There are two periods of 30 days envisaged in sections 189A(8) and 64(1)(a). First, in terms of section 189A(8)(a), there is a 30-day period for consultation following the employer’s notice in terms of section 189(3) inviting affected employees to consult. Second, and upon the expiry of the first 30-day period, in terms of section 189A(8)(b) read with section 64(1)(a), a further 30 days must be allowed for conciliation following a referral of the retrenchment dispute to the CCMA or a Council. Only then may the employer issue notices of dismissal, and only then may the dismissed employees have recourse to strike action or a referral to the Labour Court over the dismissals. The cumulative 60 days for consultation and conciliation match the 60 days contemplated in section 189A(7).

142

Strike

Employees dismissed for carrying weapons during protected strike picket in breach of rules – arbitrator weighed mitigating factors including peaceful strike, compliance, long service and remorse

DA25/24

Mondi South Africa (Pty) Ltd v National Bargaining Council for Wood and Paper Sector and Others (DA25/24) [2026] ZALAC 20 (6 May 2026)

17.6.1

143

Subpoena

17.3.1

144

Suspension

17.1.1

145

Trade Union

consulting direct with employees due to trade union’s refusal

2025/019585

Moloi v Industry Development Corporation of South Africa Ltd and Another (2025/019585) [2026] ZALCJHB 30 (2 February 2026)

146

Trade Union

“representation at arbitration, The employer challenged the union’s right to represent the employee, arguing that the employee was not a member in “”good standing”” due to non-payment of union subscriptions.

“

JR1055/21

National Union of Metalworkers of South Africa and Another v Universal Tissue (Pty) Ltd and Others (JR1055/21) [2026] ZALCJHB 47 (9 February 2026)

“[27] What right, if any, does the employer have to challenge and enforce the rights created by the trade union and its member? The LAC took a critical view of the employer’s involvement in matters pertaining to the employee’s union membership status. It held that:

‘Bluntly, what business is it of an employer, in such circumstances, to concern itself with whether membership dues are up to date or any other aspect of the relationship between individual employees and their union? In my view, there is no basis at all.

On the facts of this case, the individuals claimed to be members and the union claimed them as members. Assuming that the employer’s challenge that the individuals were not in good standing were to be true, surely the choice of the union to elect not to cancel the membership or enforce specific performance is one which it can make without regard to any third party? No creditor is by law obliged to cancel a contract because the debtor fails to comply with the terms of the contract. Moreover, it has been held by Basson J in Transport & General Workers Union & others v Coin Security Group (Pty) Ltd (2001) 22 ILJ 968 (LC) at paras 160-161 that an employee who appears before the Labour Court represented by a union pursuant to s 161(1)(c) of the LRA, need not have been a member at the time of that employee’s dismissal. If that be so, the relationship between union and a purported member in such proceedings is not dependent, in the least, on a history of membership, a point also latent in the decision in County Fair above.

Moreover, except as regards the need for a union to prove membership for collective bargaining purposes, the relationship between a union and its members is a private matter. To interfere with the private contractual relationship of other persons, a stranger would have to demonstrate some sort of delictual harm. None exists to justify the appellant seeking to pierce the veil of AMCU’s internal affairs in relation to the dismissal dispute. If regard be had, for example, to the requirements for an interdict, the appellant, on these facts, can demonstrate neither a right nor a harm. The appellant’s legitimate interest in the validity of membership for another purpose, relating to it incurring an obligation to accord AMCU a representative status, is quite distinct from any legitimate concerns it might conceivably have in relation to arbitration proceedings about misconduct.’[MacDonald, at paras 40 – 42.] (Emphasis added)

“

[28] In this matter, the union’s constitution did not preclude it from representing the employee. The employee and the union contended that the employee was a member of the union, notwithstanding the non-payment of subscription fees. The first respondent had no business involving itself in the internal affairs of the union, as the issue of membership did not affect its right to prove the fairness of the employee’s dismissal. The fact that both the union and the employee appeared before the commissioner, ready to proceed with the matter, could only signify that the union regarded the employee as its member and accepted representation on that basis.

17.1.1

147

Transfer of Employment

Case law sited

2026/027343

Siyabonga (Pty) Ltd v Ariston South Africa (Pty) Ltd (2026/027343) [2026] ZALCJHB 51 (24 February 2026)

“AI summary: Case Law:

Foodgro v Kriel [1999] 9 BLLR 875 (LAC):

Emphasized that Section 197 aims to protect employees during business transfers and that the transfer of contracts of employment follows automatically upon the transfer of a business as a going concern.

NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC):

Confirmed the interpretation of Section 197 and its purpose to protect employees during business transfers.

Kgethe and others v LMK Manufacturing (Pty) Ltd and another [1998] 3 BLLR 248 (LAC):

Established that the Labour Court has the power to order the disclosure of information regarding the existence of employees’ rights under Section 197.

Spikers v Gebroeders Benedik Abattoir v Alfred Benedik en Zonet [1086] CMLR 296:

Defined the test for determining whether a business is transferred as a going concern, focusing on whether the business retains its identity and continues operations.

Schutte and others v Powerplus Performance (Pty) Ltd and another [1999] 2 BLLR 169 (LC):

Found that factors such as the continuation of activities, use of the same premises, and employment of the majority of employees indicate a transfer of a business as a going concern.

Imvula Quality Protection and others v University of South Africa [2017] 11 BLLR 1139 (LC):

Clarified the concept of “”business”” under Section 197, emphasizing the existence of a discrete economic entity comprising assets, workforce, management, and operational resources.

AUSA and another v SAA (Pty) Ltd and others [2012] 3 BLLR 211 (CC):

Highlighted that the test for a transfer of a business as a going concern focuses on the identity of the old and new employers, regardless of whether the transaction is first-generation or otherwise.

Harsco Metals SA (Pty) Ltd and another v Arcelormittal SA Ltd and others [2012] 4 BLLR 385 (LC):

Held that the cancellation of service agreements and replacement of service providers can trigger Section 197.

FAWU v The Cold Chain (Pty) Ltd and another [2010] 1 BLLR 49 (LC):

Expanded the definition of “”business”” under Section 197 to include services such as security and gardening.

Maloba v Minaco Stone Germiston (Pty) Ltd and another [2000] 10 BLLR 1191 (LC):

Defined “”going concern”” as a business that continues operations seamlessly after a transfer.

Maluti-A-Phofong Local Municipality v Rural Maintenance (Pty) Ltd and another [2016] 1 BLLR 13 (LAC):

Reiterated that a business is transferred as a going concern if the new employer can continue operations seamlessly after the transfer.”

17.4.1

148

Unfair Discrimination

‘arbitrary ground’

JS755/22

Masango v Road Traffic Management Corporation (JS755/22) [2026] ZALCJHB 153 (18 May 2026)

[17] The plaintiff further claimed that due to her medical condition and mental state, she was incapable of performing the duties of minute-taking. She had “requested to be moved back to her old unit or any unit that does not require of her to take meeting minutes” but the defendant “discriminated against [her] arbitrarily and failed and or refuse to move [her]” and that despite her providing “medical certificates and letters/reports confirming that she should have a reduction of her duties … due to her health”, the defendant “arbitrarily discriminated against [her]” by failing or refusing to move her without any reasonable explanation.

“[18] The Labour Appeal Court in Association of Mineworkers & Construction Union on behalf of Members v Aberdare Cables (Pty) Ltd & others[[2025] ZALAC 26; [2025] 7 BLLR 698 (LAC).] (Aberdare Cables) revisited the test for unfair discrimination. Relying on its earlier decision in Naidoo & others v Parliament of the Republic of SA[[2020] 10 BLLR 1009 (LAC); (2020) 41 ILJ 1931 (LAC).] (Naidoo), the LAC affirmed that:

‘… the narrow interpretation of an ‘arbitrary ground’ is correct, and that a claimant seeking to establish discrimination on that basis must necessarily identify an arbitrary ground of discrimination, as opposed to making a general allegation of mere arbitrariness or capriciousness. The Court said the following about section 6(1):

‘The injunction in s 6(1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair discrimination that is rooted in “another” arbitrary ground (the syntax of “any other…” cannot be understood as otherwise than looking back at what has been stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a “ground” must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the Grund norm of Human Dignity…’.[6]”

“[19] The LAC in Naidoo endorsed the following passage in the judgment of Prinsloo J in Ndudula & others v Metrorail – Prasa (Western Cape):[[2017] 7 BLLR 706 (LC); (2017) 38 ILJ 2565 (LC).]

‘The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparably similar manner, not the classification of the ground as listed or unlisted as is evident from the quotation from Harksen. The constitutional distinction between listed and unlisted grounds affects only the burden of proof and nothing else. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect in a similar serious consequence.’[8]

“

149

Unfair Discrimination

Discrimination – Gender – Male chartered accountant ranked first for CFO post but excluded solely on basis of gender – Institute appointed female candidate lacking advertised qualifications to address representivity without equity plan – Court held reliance on affirmative action unlawful, ad hoc and not pleaded – Appointment created absolute barrier against male candidates, constituting unfair discrimination – Damages claim failed for lack of proof of patrimonial loss – Appeal dismissed on discrimination, damages award set aside

DA18/2023

Moses Kotane Institute v Mzimele and Others (DA18/2023) [2026] ZALAC 24 (26 May 2026)

[7] The Institute admits, through its pre-trial admissions, that the first respondent was not appointed because he is a male. Both parties, therefore, converge on the central factual premise that the respondent was the top-scoring, fully qualified candidate, but was not considered for appointment because the Institute opted to appoint a woman to address gender imbalance on its executive. It is this decision, and the manner in which it was implemented, that gave rise to the first respondent’s claim of unfair discrimination and the ensuing litigation.

[76] In this appeal, the record shows that the Institute’s executive structure consisted entirely of men, that shareholders exerted pressure to appoint a woman, and that the selection panel regarded gender balance as decisive. To repeat, there was no employment equity plan, no consultation, no demographic analysis, and no structured criteria to show that the appointment formed part of a consciously designed measure to advance equality. The successful candidate did not meet the advertised educational requirements, and the Institute failed to perform the inquiry required by section 20(4) to determine whether she was suitably qualified. The decision accordingly falls within the category of ad hoc preference condemned in Gordon’s case.

“Conclusion

[95] It is clear from the above that the Institute unfairly discriminates against Mr Mzimele in contravention of the provisions of the EEA. This constitutes a breach of Mr Mzimele’s right to equal treatment and non-discrimination in employment.”

[96] It is further clear that the claim as pleaded by Mr Mzimele was confined to patrimonial damages in terms of section 50(2) (b) of the EEA. He, in this regard, failed to discharge his onus of proving actual patrimonial loss. He did not claim non-patrimonial loss.

3. The appeal against the finding of the Labour Court that the appellant (the Institute) unfairly discriminated against the first respondent (Mr Mzimele) is dismissed.

[81] In the end, there was no plan, no analysis of the economically active population, no section 20(4) records for any candidate, and a post-interview gender rule adopted under shareholder pressure in an all-male executive environment. These circumstances fail every de facto design safeguard, trigger multiple quota-inference indicators, and cannot be cured by reliance on broad-based black economic empowerment. Even if properly raised, the affirmative action defence would fail under Gordon and Barnard’s cases, including the principles set out above. The onus rested on the employer to prove that, on the same date and the same record, a lawful basis existed that would probably have defeated the claim. The minutes identify Ellenson only within the very framework found to be ad hoc, namely, a gender-determinative decision coupled with a KwaZulu-Natal filter, with no plan and no section 20(4) record. The Institute pointed to no contemporaneous design instrument that could lawfully have sustained an alternative appointment at the time. The Labour Court’s finding, therefore, remains intact, namely that but for the unlawful sex-based exclusion, the top-ranked candidate would probably have been appointed.

150

Unfair Discrimination

Arbitrary grounds for discrimination: Defendant explained that the plaintiff alleges she was discriminated against based on qualifications. The defendant referred the court to paragraph [20] of the statement of claim: “On or about 14 February 2014 the applicant then contacted Mrs Bhoonpershad and was advised that she had not been appointed as the applicant was overqualified for this particular position.”

JS629/14

Nkhwatshirema v Transnet Freight Rail (JS629/14) [2026] ZALCJHB 186 (8 June 2026)

“[10] Qualifications are not identified as a ground of discrimination in section 6(1) of the Employment Equity Act[5] (hereafter the “EEA”). Section 6(1) states:

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.”

(own emphasis)

“

“[11] Given that qualifications are not an identified ground of discrimination, the plaintiff’s case appears to be that she was unfairly discriminated against on an arbitrary ground (qualifications) as contemplated by section 6(1) of the EEA.

[12] Section 11(2) of the EEA provides that, where unfair discrimination is alleged on an arbitrary ground, the complainant must prove that the conduct is not rational, the conduct complained of amounts to discrimination, and the discrimination is unfair.”

“[13] It can hardly be contentious that applicants are scrutinized for their ability to perform the job well. To achieve this, applicants must be suitably qualified and experienced.[However, discrimination may still occur where the criteria (including qualifications or experience) for a job are set in such a manner as to arbitrarily exclude a particular group. See A Van Niekerk “Discrimination in selection and recruitment” Contemporary Labour Law Vol. 4 No. 10 (May 1995)]

[14] It is clear that the Legislature does not intend, through section 6(1) of the EEA, to comprehensively regulate hiring practices. An employer may legitimately scrutinize job applicants, using their performance in an interview, taking into consideration factors such as suitability and compatibility. It may also consider factors such as presentation, drive, loyalty, talent retention, and talent acquisition. In addition, it is no secret that employers are less inclined to appoint candidates who are overqualified for the position, given the possibility that the candidate will use the opportunity as a stepping stone.”

“[15] In Kadiaka v Amalgamated Beverage Industries[[1998] JOL 4069 (LC)] Landman J (as he then was) held:

“What then are arbitrary grounds? An arbitrary ground is a ground which is capricious or proceeding merely from the will and not based on reason or principle. See L Baxter Administrative Law at 521-2 relying on Beckingham v Boksburg Licensing Court 1931 TPD 280 at 282). In my view, without attempting to be exhaustive, unfair discrimination on an arbitrary ground takes place where the discrimination is for no reason or is purposeless. But even if there is a reason, the discrimination may be arbitrary if the reason is not a commercial reason of sufficient magnitude that it outweighs the rights of the job-seeker and is not morally offensive. The discrimination must be balanced against societal values, particularly (as emphasised repeatedly by the Constitutional Court) the dignity of the complainant and a society based on equality and the absence of discrimination.”” (own emphasis)”

“[16] In Association of Mineworkers & Construction Union on behalf of Members v Aberdare Cables (Pty) Ltd & others[(2024) 45 ILJ 511 (LC) at para [52]] Prinsloo J held:

“The EEA does not prohibit differentiation, it prohibits unfair discrimination . More specifically, s 6(1) of the EEA does not prohibit differentiation or arbitrariness, it prohibits unfair discrimination on an ‘arbitrary ground’. ‘Arbitrary ground’ as provided for in s 6(1), read in conjunction with s 11(2), makes it clear that the irrationality of differentiation per se will not win a discrimination case based on an arbitrary ground. The conduct complained of must amount to unfair discrimination in that it must cause an injury to human dignity. Irrationality does not win a case, the irrationality of discrimination does.”

(own emphasis)”

[17] In Naidoo and others v Parliament of the Republic of South Africa[9] the LAC held that, to establish an arbitrary ground, the plaintiff must prove that the ground is based on a personal attribute or characteristic, it has the potential to impact human dignity, and it causes or perpetuates a systemic disadvantage.

“18] In this matter, the plaintiff alleges that she was not appointed because she was overqualified for the position, and this constituted unfair discrimination. She bore the onus of proving the discrimination and that it was unfair. To do so, she was required to prove, as a starting point, that the alleged basis for her non-appointment was irrational. This she could not do. Even if the defendant decided not to appoint her on the basis that she was overqualified, which was not proven, this would not have been irrational. On the evidence, the defendant did not appoint the plaintiff because she was not the best candidate. Accordingly, the plaintiff failed to show that the defendant discriminated against her on a basis that caused or could cause an injury to her dignity. The differentiation did not cause or perpetuate a systemic disadvantage.

“

17.11.1 (17.4.1)

151

Unfair Discrimination

17.8.1 (17.11.1)

152

Unfair Labour Practice

compensation award, Chief of Staff suspended on full pay for eight months due to misinterpretation of SMS Handbook – Six months found unlawful and punitive

A2025/092122

Banda v General Public Service Sector Bargaining Council and Others (A2025/092122) [2026] ZALAC 17 (15 April 2026)

“AI Case Law:

McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021):

Differentiates between broad and narrow discretion in awarding compensation under sections 193 and 194 of the Labour Relations Act.

Establishes the threshold for interference by review courts in cases involving narrow discretion.

Johnson & Johnson (Pty) Ltd v CWIU (1998):

Clarifies the concept of solatium as compensation for the infringement of rights, not based on patrimonial or actual loss.

Edumbe Municipality v Putini and Others (2020):

Lists factors to consider when determining compensation, including the nature of the infringement, the behaviour of the defendant, and the extent of the plaintiff’s distress.

DB v CB (2024):

Discusses the limits of appellate courts in addressing issues not properly ventilated in the lower court. South African Post Office Limited v Jansen van Vuuren NO and Others (2008):

Discusses the importance of providing redress for unfair labour practices and deterring future contraventions.”

153

Unfair Labour Practice

reduction in remuneration not an unfair labour practice

JR02/2020

AMCU obo Khoza v National Bargaining Council for Wood and Paper Sector and Others (JR02/2020) [2026] ZALCJHB 9 (19 January 2026)

“[6] Accordingly, the first issue is whether the applicant discharged the onus to prove that the conduct of the employer constituted a demotion. In Ndlela v SA Stevedores Ltd[(1992) 13 ILJ 663 (IC)] (“Ndlela”) the presiding officer of the Industrial Court stated:

“Demotion is not a word which has some special meaning in labour law. It bears its ordinary meaning, namely ‘to reduce to a lower rank or category’. The opposite of demotion is ‘promotion’. The applicant would, after the reorganization, have retained his employment. He would have retained his grading according to the Paterson scale. There would have been no reduction in salary. He would be required to do the work of a foreman. Whilst doing that work his responsibilities would to some extent be less than they would have been as senior foreman but then at times which may have been for as long as five months in the year, he would have been required to act as a superintendent. Whilst so acting, his responsibilities would have been far more onerous and responsible than they would have been as a senior foreman. He could not have thought that what the employer was doing was to make it clear to him and to all and sundry that they thought that he was not capable of fulfilling his former functions. It was clear to him and to all others that the respondent regarded him as so capable that he would be the most senior in the hierarchy of foremen and the one who would do the most difficult work when such work was required. That being so, the mere change in title and the fact that at times he may be required to perform work of lesser importance than he previously performed is not, in my opinion, demotion. It was argued that there would eventually be a reduction in salary because his increments in future would be slightly less so that he is brought on a par with the other foremen. That may have happened. It is also possible that it would not have happened. That his real income would have dropped is most unlikely because when acting as a superintendent he would receive the salary and the other benefits attached to that position including provision of transport or making available means of transport. Financially he would have been no worse off. As far as status is concerned he was in my opinion clearly no worse off. He was the most senior of the foremen and demonstrated to be capable of being a superintendent. But even if I am I wrong and even if that position would amount to a demotion, he was offered a transfer to the clean cargo division as a foreman.” (own emphasis)”

[7] As is apparent from what is set out above, Ndlela did not find that changes to remuneration, or remuneration structure, by itself will constitute a demotion. The presiding officer considered all the factors including the employee’s status, responsibilities, as well as remuneration.

“[9] In Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & others[(2008) 29 ILJ 2708 (LAC) at para 88] (“Nxele”) the Labour Appeal Court held:

“… the mere fact that the appellant’s rank and remuneration were not going to change does not mean that the transfer to Pollsmoor could not or did not constitute a demotion. I agree, too, that the status, prestige and responsibilities of the position are relevant to the determination of whether or not a transfer in a particular case constitutes a demotion.”

(own emphasis)

[10] Nxele is not authority for the submission that changes to remuneration, or remuneration structure, by itself, will constitute a demotion. The abovementioned quotation must be understood in context – diminution of position, rank, status or responsibilities normally result in the reduction of remuneration.”

[11] It is trite that the “unfair labour practice” in section 186(2) of the Labour Relations Act[8] is a closed list and does not include every conceivable unfair act by employers. For instance, the definition (of unfair labour practices) includes unfair conduct by an employer in relation to “benefits” but does not do so in relation to remuneration. Although, depending on the circumstances, benefits may be part of an employee’s remuneration, ‘remuneration’ remains a separate, and broader, concept. I cannot ignore the fact that the drafters of the LRA made a deliberate decision to include unfair conduct by an employer in relation to benefits but not in relation to remuneration.

“[12] What is set out above does not suggest that an employer is free to conduct itself unlawfully in relation to an employee’s remuneration or remuneration structure. Remuneration, and remuneration structure, are issues that are ordinarily embedded in the employment contract, and any breach of such contract may be challenged in either the Labour Court or civil courts.

“

154

Unfair Labour Practice

Demotion and impaired dignity

JR1141/23

Sol Plaatjie University v Oliphant N.O. and Others (JR1141/23) [2026] ZALCJHB 151 (24 April 2026)

“[20] It is commonly known that the duties and responsibilities of an employee are usually attached to their position within the organization and this in turn elevates their social standing, prestige and dignity. As such, demotion of an employee, even if it is by consent, impairs his or her dignity, Recently, the Constitutional Court in Maleka v Boyce N.O. and Others[[2026] ZACC 7 at para 51.] dealt with a case of constructive dismissal which originated from a demotion of a senior manager and held that:

‘An employee who is allegedly unfairly demoted or has his or her status and responsibilities reduced and then resigns as a result of the unilateral changes to his or her conditions of employment because the employer has made continued employment intolerable, substantially suffers an impairment to his or her dignity. It is trite that recognising and protecting the right to one’s dignity is an “acknowledgement of the intrinsic worth of human beings [and their entitlement] to be treated as being worthy of respect and concern” Thus, the protection of the right to dignity is foundational to the right to fair labour practices. While Mr Maleka did not pertinently raise the issue of an infringement to his dignity either before the Commissioner or the Labour Courts, I nonetheless consider that given the nature of the complaints made by him as set out above, nothing precludes this Court from taking it into account in the overall assessment of his case, in the interests of justice.’”

“AI Case Law:

Nxele v Deputy Commissioner, Department of Correctional Services [2008] 12 BLLR 1179 (LAC):

Established that demotion without consent is unlawful under common law and unfair under the LRA.

Highlighted that status, prestige, and responsibilities are relevant in determining whether a transfer constitutes a demotion.

Builders Warehouse v Benade (PA 1/14) [2015] ZALAC 77:

Clarified that consent to demotion does not necessarily imply fairness, as the implementation of such an agreement may still constitute an unfair labour practice.”

“[12] It is well established that consultation, or negotiation, is required before a decision to demote an individual can be fairly taken. In Builders Warehouse v Benade[(PA 1/14) [2015] ZALAC 77 (5 MAY 2015) at para 14.] the Labour Appeal Court (LAC) stated that:

“The court a quo is correct that a dispute about an alleged unfair labour practice extends to “unfair conduct relating to demotion”. The fact that the parties have agreed that the aggrieved employee accepts demotion is not a complete defence because the ambit of this unfair labour practice is wider than this. The implementation of an agreement to accept demotion, may constitute an unfair labour practice.” Relying on this authority, this court held that consent itself did not imply waiver of the right to challenge the fairness of the demotion. Accordingly, it is settled that consent on its own does not establish that the demotion was fair.

[13] In Nxele[[2008] 12 BLLR 1179 (LAC).], the LAC held as follows:

“[88] I agree with counsel for the appellant that the mere fact that the appellant’s rank and remuneration were not going to change does not mean that the transfer to Pollsmoor could not or did not constitute a demotion. I agree, too, that the status, prestige, and responsibilities of the position are relevant to the determination of whether or not a transfer in a particular case constitutes a demotion…

[89] The appellant also did not consent to such demotion. In terms of the common law a demotion without the employee’s consent is unlawful. In terms of the Labour Relations Act the demotion of an employee without his consent would be unfair…””

[14] Based on the above authorities, the defence of the Applicant that Merahe had actively participated in strategic planning meetings and gave consent to some of his tasks being taken away is not a defence for a claim of unfair labour practice relating to a demotion. Furthermore, the Applicant’s contention that the Commissioner committed an error of law by relying on the Nxele decision is without merit and stands to be dismissed.

155

Unreasonable Delay Rule

17.8.1

156

Urgent Interdict

Disciplinary action: AI case summary:

2025/232887

Ramaboea and Others v Oppelt and Others (2025/232887) [2026] ZALCJHB 21 (27 January 2026)

“Case Law:

Minya v SA Post Office Ltd and Others (2021) 42 ILJ 141 (LC):

The court emphasized that it does not have the power to micro-manage internal disciplinary proceedings.

Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC):

Established that the Labour Court has jurisdiction to interdict unfair conduct, including disciplinary action, but only in exceptional cases.

Cibane and Another v Premier of Province of Kwazulu-Natal [2025] 10 BLLR 1004 (LAC):

Clarified that the Labour Court does not have general jurisdiction to intervene in incomplete disciplinary proceedings unless explicitly provided by statute.

Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC):

Defined jurisdiction as the power of the court to hear and determine an issue, emphasizing that the Labour Court’s jurisdiction is limited to matters specifically provided for in the LRA.

Chirwa v Transnet (2008) 29 ILJ 73 (CC):

Stated that Section 157(2) of the LRA must be narrowly construed in light of the primary objectives of the LRA.

Public Allied Workers Union of SA on Behalf of Netshikhudini v CCMA and Others (2022) 43 ILJ 2812 (LC):

Highlighted the lack of competence of the Labour Court to intervene in internal disciplinary proceedings.

National Union of Metalworkers of SA on behalf of Members v BMW (SA) (Pty) Ltd (2025) 46 ILJ 2712 (LC):

Reiterated the principle that the Labour Court should not interfere in workplace discipline.

February v Envirochem CC and Another (2013) 34 ILJ 135 (LC):

The court dismissed a matter where urgency was not established.

Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others (2021) 42 ILJ 2371 (CC):

Discussed costs orders in employment disputes, emphasizing that costs may be awarded if litigation is meritless or an abuse of process.

Mokoena v Merafong Municipality and Others (2020) 41 ILJ 234 (LC):

Highlighted that meritless applications should not burden the court or respondents and may warrant costs orders.

Leshabane v Minister of Human Settlements and Others (2024) 45 ILJ 833 (LC):

Stressed that unfounded litigation is an abuse of process and deserving of costs orders.”

157

Urgent Interdict

Seeking interdict: Disciplinary action:

2026/000760

Mashabane v Madima and Others (2026/000760) [2026] ZALCJHB 20; [2026] 4 BLLR 373 (LC) (28 January 2026)

“[1] Where it comes to disciplinary proceedings against senior officials in the public service, it is clear to me that Stalingrad tactics are the appropriate means of defence and often the order of the day. This tactic involves either obstructing the proceedings as far as possible, or even seeking to prevent the same from taking place per se. I believe that there is simple reason for this, being a reluctance to answer the misconduct charges raised, for ulterior reasons. The judgments of this Court are replete with applications by Municipal Managers, Heads of Department and other senior officials in the public service seeking to interdict disciplinary proceedings against them. Most of these applications are unsuccessful, and often result in a costs award, with some costs awards even being on a punitive basis. Yet the message still does not sink in. Just for example, and in the week I spent in the urgent Court when this matter was heard, I was seized with three such applications seeking to interdict disciplinary hearings in the public service. This conduct is pursued despite all that had been said in this Court about the lack of competence of such conduct.[See for example Public Allied Workers Union of SA on Behalf of Netshikhudini v Commission for Conciliation, Mediation and Arbitration and Others (2022) 43 ILJ 2812 (LC) at paras 1 – 2; National Union of Metalworkers of SA on behalf of Members v BMW (SA) (Pty) Ltd (2025) 46 ILJ 2712 (LC) at para 1; Choko-Choko and Others v Tharisa Minerals (Pty) Ltd (2025) 46 ILJ 2618 (LC) at paras 38 – 39.] As made pertinently clear in George v Nyoka and Others[2], which I consider can be hardly better said, where it comes to the aforesaid undesirable state of affairs:

‘The Court deems it necessary to outline all of the above for the simple reason that these antiquated shenanigans, exhausting as they are, in the end come back to bite the employees when claiming urgency in this Court. This Court has consistently rebuked such truant like antics, which are in most instances aided and encouraged by legal representatives. My colleague Van Niekerk J recently delivered a trio of judgments1 that concerned attempts at halting internal disciplinary hearings, and in all instances, costs were awarded against recalcitrant applicants. These judgments are amongst numerous others delivered in this Court from the urgent roll, which have consistently set out the law and the difficulties the applicants face when approaching the court on an urgent basis with applications to stay internal proceedings. These frivolous applications have caused strain on the limited judicial resources of this Court. This message has clearly not filtered through to employees or their legal representatives.

These antics are truly exhausting, not only to the court’s resources but also because in the end, they turn out to be financially draining for the already financially depleted municipalities or government departments and its entities. This is particularly so since in most internal disciplinary enquiries held in all spheres of government, legal practitioners are engaged to act as initiators or chairpersons in those enquiries. I am not even taking into account all the other officials who are taken away from their real work, in order to attend to these stop-start disciplinary enquiries. These antics are an antithesis of the primary purpose and objectives of the Labour Relations Act (“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.’

[2] The basis of the applicant’s case, as discussed later in this judgment, is nothing else but asserting that the disciplinary proceedings instituted against him is unlawful and null and void, due to, in essence, an alleged lack of authority to institute the same, and must thus be finally interdicted. This is exactly what the aforesaid authorities are critical about.”

158

Urgent Interdict

disciplinary process: interdict is not a remedy for the past invasion of rights: Interdicts are prospective and cannot undo completed procedural steps – Legally incompetent – Targeted past events and posited no ongoing or repeatable harm

2025/205156

Tshabalala v Mutenga and Another (2025/205156) [2026] ZALCJHB 28 (2 February 2026)

“[75] So, and as matters stand, the applicant seeks to interdict what has already happened. As the respondents say, the proverbial ship has sailed. This renders the entire interdict sought by the applicant to be incompetent. This was specifically recognised in Philip Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another[1991 (2) SA 720 (A) at 735B.] where the Court said: ‘… An interdict, however, is not a remedy for the past invasion of rights …’. This approach was adopted by the Constitutional Court in United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others[2023 (1) SA 353 (CC) at para 48. See also Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC) at para 12; Fibre Stream Proprietary Limited v York Cheese Factory Proprietary Limited 2024 JDR 1921 (GJ) at para 11; Salamousas v South Side Restaurant (Pty) Ltd

2023 JDR 3090 (GJ) at para 25; Ethekwini Municipality v Msizi Security CC and Others 2024 JDR 2538 (KZD) at para 45; Tau v Mashaba and Others 2020 (5) SA 135 (SCA) at para 26.] where the Court held:

‘In granting an interdict, the court must exercise its discretion judicially upon a consideration of all the facts and circumstances. An interdict is ‘not a remedy for the past invasion of rights: it is concerned with the present and future’. The past invasion should be addressed by an action for damages. An interdict is appropriate only when future injury is feared.’ (emphasis added)”

159

Urgent Relief

Workplace – Accommodation measures – Risk of serious harm – Diagnosed with autism and major depressive disorder – Professional recommendations concerning reasonable accommodation furnished to employer – Not meaningfully engaged with or implemented – Undisputed diagnoses – Medical evidence of imminent psychological risk – Performance management posed a risk of exacerbating harm without an established accommodation framework – Interim relief appropriate and granted.

202744/2025

Solidarity obo Nel v National Metrology Institute of South Africa (202744/2025) [2026] ZALCJHB 6 (5 January 2026)

“AI summary: A rule nisi was issued, granting interim relief, including:

Maintaining reasonable interim working arrangements consistent with medical recommendations.

Restricting further medical assessments unless properly justified.

Restraining performance management processes related to Mr. Nel’s disability.

Prohibiting harassment, coercion, or victimization linked to his disability.”

160

Urgent Relief

AI summary of authority, urgent relief while suspended pending disciplinary action

2025-250203

Mthumkhulu v Standard Bank of South Africa Limited (2025-250203) [2026] ZALCJHB 5 (9 January 2026)

“Applicable Laws:

Employment Equity Act (EEA), Act 55 of 1998:

Section 6: Prohibition of unfair discrimination and harassment.

Section 60: Liability of employers for contraventions of the Act.

Section 50: Powers of the Labour Court.

Labour Relations Act (LRA), Act 66 of 1995:

Section 157: Jurisdiction of the Labour Court.

Section 158: Powers of the Labour Court.

Section 186(2)(b): Definition of unfair labour practices.

Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, 2022:

Provides the framework for determining what constitutes harassment under Section 6(3) of the EEA.

Labour Court Rules:

Rule 38: Requirements for urgent applications.

Case Law:

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

Established that the Labour Court does not have jurisdiction to intervene in incomplete disciplinary proceedings unless explicitly provided by statute.

Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC):

Discussed the requirements for urgent relief under Rule 38 of the Labour Court Rules.

Tshwaedi v Greater Louis Trichardt Transitional Council ([2000] 4 BLLR 469 (LC)):

Addressed the principle of self-created urgency in urgent applications.

Dynamic Sisters Trading (Pty) Limited and Another v Nedbank Limited ([2023] ZAGPPHC 709):

Highlighted the importance of not creating urgency through one’s own actions.

City of Tshwane Metropolitan Municipality v Afriforum and Another (2016 (6) SA 279 (CC)):

Discussed the consequences of self-created urgency.

Long v South African Breweries (Pty) Ltd and Others ([2019] ZACC 7; (2019) 40 ILJ 965 (CC)):

Confirmed that employers are not required to provide pre-suspension hearings for precautionary suspensions.

SARS v Hawker Air Services (Pty) Ltd ([2006] ZASCA 51; 2006(4) SA 292 (SCA)):

Addressed the principle of substantial redress in due course.

Association of Mineworkers & Construction Union & Others v Northam Platinum Ltd & Another (2016) 37 ILJ 2840 (LC):

Discussed urgency and the absence of substantial redress in due course.

Baloyi v Public Protector ([2014] ZACC 23):

Explained the purpose of costs orders in litigation.

Member of the Executive Council for Finance, KwaZulu Natal v Dorkin NO (2008 (29) ILJ 1707 (CC)):

Discussed balancing the discouragement of frivolous cases with ensuring access to the Labour Court for legitimate disputes.

“

161

Urgent Relief

Urgency case law by AI:

2026/023985

Barry v Department of International Relations and Co-Operation and Others (2026/023985) [2026] ZALCJHB 80 (10 March 2026)

“Case Law:

Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC); [2014] ZALCJHB 433:

Established that applicants must explicitly state the reasons for urgency and why substantial redress cannot be obtained in due course.

Soobedar and Another v Minister of International Relations and Cooperation and Another (2021) 42 ILJ 1761 (LC):

Highlighted that urgency must not be self-created and that applicants must act promptly to prevent harm or prejudice.

National Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC); [2016] ZALCJHB 329:

Emphasized that urgency diminishes the longer an applicant delays taking action after the event giving rise to the proceedings.

Collins t/a Waterkloof Farm v Bernickow NO & Another:

Stated that applicants must approach the court at the first available opportunity to establish urgency.

Sihlali and Others v City of Tshwane Metropolitan Municipality and Another (2017) 38 ILJ 1692 (LC):

Warned against the abuse of the urgent court and emphasized that urgent relief should only be granted when substantial redress cannot be obtained in due course.

These laws and cases were referenced to assess the applicant’s claims and determine whether the matter qualified for urgent relief.”

162

Urgent Relief

Summarily dismissal, an urgent application for specific performance under sections 77(3) and 77A(e) of the Basic Conditions of Employment Act (BCEA), claiming the termination was in breach of her employment contract.

2026/059416

Public Servants Association of South Africa obo Malusha v Department of Military Veterans and Another (2026/059416) [2026] ZALCJHB 100 (30 March 2026)

“[19] In Mahonono v National Heritage Council and another [Mahonono v National Heritage Council and another (note 6 above) at [24] as well as Ngubeni v National Youth Development Agency and another (2014) 35 ILJ 1356 (LC) and Letsholonyane v Minister of Human Settlements and Another (J616/23) [2023] ZALCJHB 147; [2023] 8 BLLR 796 (LC); (2023) 44 ILJ 1740 (LC).] Lagrange J dealt with urgency in the context of claim for specific performance where there was an alleged breach of contract and held as follows:

“

163

Urgent Relief

contractual claims, whether an applicant would not be afforded substantial redress in due course,

2026/090955

Noyingana v Ethekwini Municipality and Others (2026/090955) [2026] ZALCJHB 160 (22 May 2026)

“[17] When considering whether urgency has been established, an important consideration, which is of particular application in casu, would be whether an applicant would not be afforded substantial redress in due course, and the applicant must provide proper reasons in support of a case that this would not be possible.[Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC) at para 17; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ) at para 6; Vanguard of Organised Labour v Mahlangu and Another (2026) 47 ILJ 619 (LC) at para 7.] As succinctly described by the Court in Maqubela v SA Graduates Development Association and Others[(2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.]:

‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’”

“AI summary: Key Case Law Cited

On Urgency and Procedure:

•

Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC):

Sets out requirements for urgency and the principle that self-created urgency is not acceptable.

•

Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC):

Explains that urgency requires both reasons for urgency and proof that substantial redress is not available in the ordinary course.

•

Madonsela v Legal Practice Council and Others (2025) 46 ILJ 2664 (LC):

Clarifies that substantial redress in the ordinary course negates urgency.

•

Tshwaedi v Greater Louis Trichardt Transitional Council [2000] 4 BLLR 469 (LC):

Final relief on an urgent basis requires a higher threshold for urgency.

•

Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC):

Considers prejudice to respondents in urgent applications.

•

O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC):

Discusses self-created urgency and the need for immediate action.”

164

Urgent Relief

S 18(3) Superior Courts Act – irreparable harm to applicant

2026/048139

Shumba v Sidmedia and Others (2026/048139) [2026] ZALCJHB 204 (29 June 2026)

Case of applicant primarily founded on financial considerations – such considerations do not establish irreparable harm for purposes of s 18(3) – applicant no different from all other litigants not receiving salary due to termination of employment – applicant able to obtain substantial redress in ordinary course if successful – no irreparable harm shown

[1] The current matter for determination concerns an urgent application brought by the applicant in terms of section 18(3) of the Superior Courts Act[1], in terms of which the applicant seeks relief to the effect that orders granted by Prior AJ in a judgment handed down on 24 March 2026 not be stayed by the pending appeal and application for leave to appeal brought by the respondents against such orders, and that these respondents be ordered to immediately implement such orders. The application was opposed by the respondents.

AI summary: case of applicant primarily founded on financial considerations – such considerations do not establish irreparable harm for purposes of s 18(3) – applicant no different from all other litigants not receiving salary due to termination of employment – applicant able to obtain substantial redress in ordinary course if successful – no irreparable harm shown

“AI summary of case law sited: Key Case Law Cited and Applied

•

University of the Free State v Afriforum and Another 2018 (3) SA 428 (SCA):

Interprets section 18(3) as imposing a higher threshold than the common law for interim enforcement pending appeal.

•

Tyte Security Services CC v Western Cape Provincial Government and Others 2024 (6) SA 175 (SCA):

Clarifies that the requirements of section 18(3) (exceptional circumstances, irreparable harm to applicant, no irreparable harm to respondent) are not compartmentalized but should be considered holistically.

•

Incubeta Holdings (Pty) Ltd and Another v Ellis and Another 2014 (3) SA 189 (GJ):

Defines ‘exceptional circumstances’ as something out of the ordinary, uncommon, or rare.

•

Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA):

Discusses the factual nature of determining exceptional circumstances.

•

Road Accident Fund v Newnet Properties (Pty) Ltd t/a Sunshine Hospital and Another 2023 (5) SA 289 (GP):

On the relevance of prospects of success on appeal in section 18(3) applications.

•

Minister of Social Development, Western Cape and Others v Justice Alliance of SA and Another [2016] JOL 35612 (WCC):

Prospects of success on appeal as a factor in exceptional circumstances.

•

Road Traffic Management Corporation v Tasima (Pty) Ltd (2020) 41 ILJ 2349 (CC):

Non-payment of salary pending appeal is not, by itself, exceptional for section 18(3) purposes.

•

CCI SA (Umhlanga) (Pty) Ltd and Others v Mobile Telephone Networks (Pty) Ltd and Others (2023) 44 ILJ 1055 (LC):

Applies Tasima and discusses financial loss and exceptional circumstances.

•

Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC):

Sets out requirements for urgency in Labour Court applications.

•

Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA):

On the importance of courts deciding only the issues pleaded and argued.

•

Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC):

Pleadings define the issues for the court; relief must be based on the case made out in the papers.

•

Other Cases Cited:

Letsholonyane v Minister of Human Settlements and Another (2023) 44 ILJ 2757 (LC)

National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA)

Betlane v Shelly Court CC 2011 (1) SA 388 (CC)

Brayton Carlswald (Pty) Ltd and Another v Brews 2017 (5) SA 498 (SCA)

De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association intervening) 2002 (1) SA 429 (CC)

Zungu v Premier of the Province of Kwa-Zulu Natal and Others (2018) 39 ILJ 523 (CC)

Example Implementation

•

When bringing or opposing a section 18(3) application, parties must:

Reference the Superior Courts Act and relevant case law to frame arguments on exceptional circumstances and irreparable harm.

Use cited precedents to argue whether financial loss is sufficient for interim relief.”

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