Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 12 2025 [Copyright: Marius Scheepers /16.1.1])
Varied topics: Administrative action, Administrative law, Collective agreement, Common law, Constitutional Law, Definition, Information, Interest dispute, Mutual interest vs rights issue, Nature of dispute, Parity principle, Protected disclosure act, Public Holidays Act 1994, Trade Union, Transfer of Employment, Unreasonable Delay Rule.
Administrative action
Employment Equity Plan
J879/12
Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15; (2016) 37 ILJ 1012 (LC); [2016] 5 BLLR 484 (LC) (26 January 2016)
Equity plan not implemented contrary to s 27(2) of SAPS Act Use of national demographics not in breach of s 195(1) of the Constitution
Promotion of Administrative Justice Act, 3 of 2000.
J467/17
Sekano v Tiger Brands Ltd (J467/17) [2017] ZALCJHB 188 (6 March 2017)
Gcaba v Minister of Safety and Security and others(2010) 31ILJ296 (CC)
the law has been settled in favour of a single system of law, i.e. that created by the LRA.
section 14(2) of the Employment of Educators Act[1] (the EEA)
CA10/2018
Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O and Another (CA10/2018) [2019] ZALAC 38; [2019] 10 BLLR 1110 (LAC); (2019) 40 ILJ 2318 (LAC) (13 June 2019)
[32] The respondent sought a review in terms of section 158(1)(h) of the LRA read with section 6 of PAJA. Section 158(1)(h) provides that the Labour Court may review any decision taken or act performed by the State in its capacity as employer, on such grounds that are permissible in law. Section 6 of PAJA permits any person to institute proceedings in a court or tribunal for the judicial review of an administrative action on various grounds if,inter alia, the action was taken irrationally, in bad faith, arbitrarily or capriciously. The respondent relied on various grounds specified in PAJA, but most relevantly: i) section 6(2)(f)(ii) of PAJA on grounds that the action was not rationally connected to the purpose of the empowering provision, the information before the administrator and the reasons given; and ii) sections 6(2)(e)(v) and (vi) of PAJA on grounds that the action was taken in bad faith, arbitrarily and capriciously.
Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA)
the Equality Report suggests that socio-economic needs be considered within designated, vulnerable groups. In other words, affirmative action should continue to be implemented on the basis of race, gender and disability, given the persistence of current patterns of economic inequality. However, special measures should be targeted at vulnerable groups within apartheid-era classifications so as to recognise multiple forms of disadvantage that they continue to experience. In this context, the report recommends that the EEA be amended to target more nuanced groups on the basis of need, taking into account social and economic indicators.
J3092/18
Solidarity v Minister of Labour and Others (J3092/18) [2019] ZALCJHB 277; [2020] 1 BLLR 79 (LC); (2020) 41 ILJ 273 (LC) (8 October 2019)
the South African Human Rights Commission (SAHRC), issued a report entitled Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa (the Equality Report)...The report concludes, amongst other things, that the definition of designated groups in the EEA (broadly, the categories of persons who are beneficiaries of the affirmative action measures established by the EEA) is not in compliance with constitutional or international law obligations, and recommends that the EEA be amended to target more nuanced groups on the basis of need, and taking into account social and economic indicators.
Solidarity seeks only to have the findings and recommendations of the Equality Report given legal recognition and effect, at least until any reviewing court sets them aside. That being so, the court is not concerned with a direct challenge to the constitutionality of s 42 of the EEA
[27] In summary: There is no statutory or other regulatory provision that renders the Equality Report binding on government or any other party. The SAHRC itself does not intend the Report to be binding; it is a research report intended to contribute to the public discourse and to provide advice and guidance to government in fulfilling its constitutional obligations. Since the Equality Report is not binding on government or any other party, it follows that there is no basis on which this court is empowered to confirm or otherwise enforce the reports findings and recommendations for the purpose sought by Solidarity, or for any other purpose.
jurisdition ito section 1 of PAJA
JR496/17
Department of Education: Gauteng v Education Labour Relations Council and Others (JR496/17) [2021] ZALCJHB 392 (19 October 2021)
[24] It is apparent from the above authority that section 6 of EEA does not only provide for the powers the employer has in relation to the appointments, promotion and transfers of educators but also for the procedure to be followed in doing so. It is further apparent that the appointments made by the Head of Department of Education were plainly the result of an 'administrative action' as defined in section 1 of PAJA.
[25] The law is clear that the administrative decisions may only be subjected to judicial review in a Court or tribunal.[6] The Court is defined in section 1(iv) of PAJA as:(a) the Constitutional Court acting in terms of section 167(6)(a) of the 30 Constitution; or(b) (i) a High Court or another court of similar status; or(ii) a Magistrates Court, either generally or in respect of a specified class of administrative actions, designated by the Minister by notice in the Gazette and presided over by a magistrate designated in writing by the Minister after consultation with the Magistrates Commission.[26] Section 1(xiii) of PAJA defines the tribunal as any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action in terms of PAJA.[27] In the current matter, although the dispute was referred in terms of 186(2) of the LRA and the arbitrator described it as such, it is apparent from the reading of his award that what the arbitrator did was to review, set aside and substitute the decision of the applicant. This, is confirmed by the portion where the arbitrator states as follows:the arbitration is not the review of the process or the hearing de novo but a review of the employers decision[7][28] To an extent that the applicants decision sought to be challenged by the third respondent at the arbitration was the result of an administrative action as defined in s 1 of PAJA and further that the first respondent is not a Court or a tribunal as defined in PAJA, it follows that the arbitrator had no jurisdiction to review the applicants decision. As such, his award falls to be set-aside only on this ground.
[21] The first ground on which the arbitrators award was challenged was that he failed to give due consideration to sections 6(3) and 7(1) of the EEA. It is appropriate, at this point to set out the provisions in question.
labour disputes do not amount to administrative actions
JR1157/20
NTEU obo Moeketsi v The CCMA and Others (JR1157/20) [2022] ZALCJHB 226 (16 August 2022)
[28] It is by now settled law that labour disputes do not amount to administrative actions[Gcaba v Minister for Safety and Security and others (2010) 31 ILJ 296 (CC) and Chirwa v Transnet Limited and others 2008 (4) SA 367 (CC).]. Therefore, it is entirely inappropriate, in my view, to infuse into the LRA administrative law principles. It ought to be remembered that the dispute resolution bodies envisaged in the LRA do not function like Courts. They are not possessed with judicial review powers like the Courts do. Even section 7 (2) (a) (b) (c) of the Promotion of Administrative Justice Act (PAJA)[Act 3 of 2000.] does not deprive a Court of its review jurisdiction. A Court may direct a party to first exhaust internal remedies before it can review any administrative decision. Section 7 (1) (a) of PAJA expressly provides that the 180 days commence to run after the internal remedies are concluded. The LRA has no similar provisions.
action of dismissal by State does not constitute administrative action
J 1615/21
Leshabane v Minister of Human Settlements and Others (J 1615/21) [2023] ZALCJHB 341 (1 December 2023)
Dismissal – principle of legality – applicant relying on principle of legality to challenge dismissal – action of dismissal by State does not constitute administrative action – employee in public service still obliged to follow dispute resolution processes under LRA – basis for relief sought by applicant not competent
S 158(1)(h) of LRA – requires review application – applicant not seeking to review decision – relief under s 158(1)(h) not competent – section cannot be relied on in absence of review or where dispute resolution process under LRA available
Administrative law
PAJA
JA103/2015
Minister of Labour and Another v Public Services Association of South Africa and Another (JA103/2015) [2017] ZALCJHB 23 (25 January 2017)
Ministers reversal of designation of official as registrar of labour relations appointed in terms of S108(1) of the Labour Relations Act,no.66 of 1996 administrative action and reviewable in terms of thePromotionOf Administrative Justice Act, no.2 of 2000, Alternatively, the principle of legality in the constitutionnot established that registrar had duty to brief minister concerning specific matter registrar was dealing with in exercise of functionsRegistrar nevertheless found to have adequately briefed minister----Reversal of designation In circumstances confirmed to have been irrational and invalidDecision also confirmed to have been procedurally unfairReinstatement to position of registrar appropriate remedy---Appeal of Minister against judgment and order of labour court dismissed with costs.
PAJA
JR2395/14
Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JR2395/14) [2017] ZALCJHB 414 (6 April 2017)
Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 26.
The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis--vis public servants, evaporated when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not 'an administrative act' as defined in PAJA and therefore not capable of judicial review in terms of that Act. Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others. The result is that a public servant is confined to the other remedies available to him or her.
section 17 of the PSA
DA9/16
Gangaram v MEC for the Department of Health, Kwazulu-Natal and Another (DA9/16) [2017] ZALAC 38; (2017) 38 ILJ 2261 (LAC); [2017] 11 BLLR 1082 (LAC) (13 June 2017)
Employee deemed dismissed in terms of section 17 of the PSA employee making representations for her reinstatement employer failed to respond employee implying that the failure to take a decision amount to a decision refusing her reinstatement susceptible to be set aside Held that the point of departure is whether the employee was properly deemed to have been dismissed that employer knew employees whereabouts as employee submitted leave forms as justification for each absence that in the absence of a refusal of the leave forms, employee rightly assuming that leave forms approved that the jurisdictional requirements for the employee to be deemed dismissed because of being absent for a period exceeding one calendar month without permission have not been satisfied, and as such there was no need for her to make representations in terms of s17(3)(b) for her reinstatement. Appeal upheld and Labour Courts judgment set aside employee reinstated retrospectively.
Collective agreement
Strike
Unions members not prohibited from striking if agreement has not yet been extended to them in terms of s 32
31, 32
J1398/08
Bravo Group Sleep Products (Pty) Ltd & Another v CCEPAAWU & Others
Remuneration
Unfair discrimination
increase to non-union members provided not join union
D104/08
SAFDU v Safcor Freight (Pty) Ltd t/a Safcor Panalpina & Others
Bargaining Council Arbitration
Own employment policy
Private Arbitration
Les favorable: no conciliation; cost order ito sect 35 Arbitration act
JA 52/10
National Bargaining Council for the Road Freight Industry and Another v Carlbank Mining Contracts (Pty) Ltd
Was about the fairness of the dispensationand that issue could not be the subject of arbitration proceedings.
C 381/12)
Public Servants Association obo Strauss v Minister of Public Works NO and Others
Bargaining council: ULP referral reduced from 90 to 30 days
J2264/17
Appels v Education Labour Relations and Others (J2264/17) [2017] ZALCJHB 428; (2018) 39 ILJ 816 (LC) (7 November 2017)
the key to a proper interpretation of s 51 (9) of the LRA is an understanding of the role of bargaining councils in the statutory dispute resolution system. Bargaining councils are voluntary bodies and operate according to the principles of self-regulation and autonomy. Having said that, bargaining councils are creatures of statute and may act only within the confines of the empowering legislation. The question to ask is whether s 51 (9), which clearly empowers bargaining councils to establish procedures to resolve any dispute, must be read subject to a condition that any agreed procedure must replicate time periods and any other limitations as they find reflection in the LRA. There is nothing in the LRA that establishes such a condition, or which otherwise places constraints on a bargaining council that agrees to establish dispute resolution procedures. On the contrary, there is at least one authority to support the proposition that bargaining councils may establish procedures that differ from those established by the LRA. [16]...This will ensure that procedures are rational, not arbitrary and free from caprice or ulterior purpose. The reasons proffered by the bargaining council for truncating the periods within which promotion disputes must be referred are obviously rational, intended as they are to serve the legitimate ends of minimising disruptions to learning and the expeditious resolution of disputes.
MIBCO v Osborne & others [2003] 6 BLLR 573 (LC)
However, section 51 (9) permits a bargaining council to exclude the operation of the LRA in the circumstances contemplated in that subsection, by establishing its own procedures by means of a collective agreement, which obviously can be extended to non-parties. The collective agreement, such as those to which I have referred in this judgement, circumvent the operation of the LRA.
Wanenburg v Motor Industry Bargaining Council & others (2001) 22 ILJ 242 (LC)
[20] Bargaining councils may design their own dispute systems in ways that ensure efficient and cost effect (sic) resolution and prevention of disputes. From the DRC terms of reference and procedures, there is nothing inherently prejudicial to nonparties. It provides a procedure for conciliation and arbitration of disputes and for granting combinations. It is consistent with the LRA. There is therefore no reason for the court to interfere by imposing any other procedure.[21] in the circumstances the DRC terms of reference and procedures can be applied to nonparties not as a collective agreement but as a procedure developed by the bargaining council for the industry in order to give effect to its obligations in terms of ss 51 (3) and 191 (2) in order to carry out its functions in terms of s 28 (1) (c) and (d).[23] Firstly, bargaining councils must be allowed the flexibility to design their own dispute systems so that the most inexpensive and effective procedures are adopted. If that means having a condonation application followed by an internal appeal, so be it. Even if the NRA makes no express provision for such an appeal, it would be consistent with the general policy of encouraging maximum use of private and internal dispute resolution mechanisms and the settlement of disputes at the lowest possible level.
collective agreement that regulates organisational rights
JA87/2015
South African Correctional Services Workers Union (SACOSWU) v Police and Prisons Civil Rights Union (POPCRU) and Others (JA87/2015) [2017] ZALAC 30; [2017] 9 BLLR 905 (LAC); (2017) 38 ILJ 2009 (LAC) (31 May 2017)
On appeal: the decision of the Labour Court was set aside on the basis that s 20 provides that nothing in Part A of Chapter III, which must include a s 18(1) threshold agreement, precludes the conclusion of a collective agreement that regulates organisational rights. This accords with the recognition that minority unions are entitled to have access to the workplace so as to challenge the hegemony of majority unions, at least to represent their members. On the same basis, the deduction of trade union subscriptions for a limited period was permissible. The appeal was consequently upheld with costs.
Section 24(1)
DA1/2015
Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)
NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk [2000] 2 BLLR 196 (LC) at paras 8 9
Whether a dispute about the application of a collective agreement, referred to in section 24(1) of the Act, would include the enforcement of a collective agreement when it is breached, is a further question which needs to be decided.Enforcement of an agreement only becomes an issue when there is some form of non-compliance with that agreement. When a party wishes to enforce the agreement it would be, at leastinteralia,because it believes the agreement is applicable to the party who is in breach thereof. Therefore a dispute about the application of a collective agreement (section 24(1) of the Act) applies to the situation where there is non-compliance with a collective agreement and one of the parties wishes to enforce its terms. Consequently, the CCMA, and not the Labour Court, should entertain disputes arising from the non-compliance with collective agreements.
t seems plain that the notion of enforcement articulated by Revelas J was of a step thatfollowed uponthe applicability of the collective agreement being proven, rather than a facet of the notion of application.
There is accordingly no need nor any justification to understandsection 24in a sense so broad that any alleged breach of a term of a collective agreement means the dispute automatically falls withinsection 24.
Different time periods from LRA
JA19/18
Appels v Education Labour Relations Council (ELRC) and Others (JA19/18) [2019] ZALAC 49; [2019] 10 BLLR 985 (LAC); (2019) 40 ILJ 2284 (LAC) (10 July 2019)
[5]...collective agreements concluded in bargaining councils that regulate dispute resolution should be given primacy because section 51 of the LRA empowers bargaining councils to establish procedures to resolve disputes and in doing so, to design their own procedures that address the exigencies of the sector for which they are registered and to ensure efficient and cost-effective dispute resolution, and that these procedures may deviate from those established by the LRA.
freshold imposed by collective agreement
JA40/2018
Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA40/2018) [2019] ZALAC 58; [2019] 11 BLLR 1224 (LAC); (2019) 40 ILJ 2510 (LAC) (20 August 2019)
SACOSWU [2017] 9 BLLR 905 (LAC)
Section 18
[28] In SACOSWU on appeal the majority in the Constitutional Court held that majority trade union parties (and employers) could not, by entering into private threshold agreements contemplated in section 18 of the LRA and which were not laws of general application, limit a trade unions (and accordingly its members) right to engage in collective bargaining.[15] Accordingly, such a private threshold agreement could also not preclude a minority trade union from bargaining with the employer about organisational rights. Section 18 of the LRA does not authorise majority unions and employers from determining which constitutional rights other unions, which were not parties to the threshold agreement, may exercise.
Section 20
Section 20 of the LRA also declares expressly that nothing in part A of Chapter III (being the place in the LRA where section 18 is located) precludes the conclusion of a collective agreement that regulates organisational rights. Thus, not even a threshold agreement concluded between an employer and a majority union, or unions.[17]
section 23
Although section 23 of the LRA is not located in the position of the LRA referred to in section 20, it also does not preclude a collective agreement between an employer and a minority union regulating organisational rights where there is an existing threshold agreement in place between an employer and a majority trade union regulating those rights.[18]
organisational rights in section 12, 13 and 15
First, it may acquire those rights if it meets the threshold set in the collective agreement between the majority union and the employer. In that event, a minority union does not have to bargain before exercising the rights in question. Second, such a union may bargain and conclude a collective agreement with an employer in terms of which it would be permitted to exercise the relevant rights. Third, a minority union may refer the question whether it should exercise those rights to arbitration in terms of section 21 (8C) of the LRA. If the union meets the conditions stipulated in that section, the arbitrator may grant it organisational rights in the relevant provisions.[19]
amendment not rectified
JA11/17
Solidarity obo Members employed in motor industry v Automobile Manufacturers Employers Organisation (AMEO) and Others (JA11/17) [2019] ZALAC 63; [2020] 2 BLLR 142 (LAC); (2020) 41 ILJ 419 (LAC) (16 October 2019)
agency shop agreement is a collective agreement which could be amended and not rectified - Rectification is a remedy designed to correct the failure of a written contract to reflect the true agreement between the parties to the contract.
agency shop
J1338/19
UASA and Others v Western Platinum Limited and Others (J1338/19) [2019] ZALCJHB 158; (2019) 40 ILJ 2405 (LC); [2019] 11 BLLR 1283 (LC) (24 June 2019)
agency shop agreement invalid and unenforceable, agency shop agreement must expressly provide for matters prescribed by s 25(3) of the LRA
Solidarity and Others v Minister of Public Service and Administration (J648/03) [2003] ZALC 122 (21 April 2004).
In my view the agreement substantially complied with statutory requirementsHowever this does not make the agreement valid for reasons that the agency agreement interferes with a persons constitutional right of freedom of association as contained in section 18 of Chapter 2 of the Bill of Rights. It therefore becomes an unfair labour practice to force the employee to join a trade union by making deductions on his salary to make him join the union. The legislature was aware of this and therefore sought to provide that the agreement should make provision for the fact that non-union members are not compelled to become members. This is a fundamental requirement necessary to make the agreement valid.[8]
Solidarity and Others v Minister of Public Service and Administration
jurisdiction: the Metal and Engineering Industries Bargaining Council (MEIBC) or within the jurisdiction of the Motor Industry Bargaining Council (MIBCO).
PA6/19
National Union of Metalworkers of South Africa v Commission for Conciliation Mediation and Arbitration and Others (PA6/19; PR03/18 ; PR50/18) [2020] ZALAC 8; (2020) 41 ILJ 1629 (LAC) (18 February 2020)
Agency fees deductible from employees identified in the collective agreement consonant with the Constitution and ILO recommendations.
CA6/2019
Municipal and Allied Trade Union of South Africa (MATUSA) v Central Karoo District Municipality and Others (CA6/2019) [2020] ZALAC 20; (2020) 41 (ILJ) 1918 (LAC); [2020] 9 BLLR 896 (LAC) (28 May 2020)
interpretation dispute: section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms
JR784/2016
Dioma and Another v Mthukwane N.O and Others (JR784/2016) [2020] ZALCJHB 138 (11 August 2020)
[36] In accordance with the provisions of section 23 of the Labour Relations Act, 1995 (LRA) collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all.[20] The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk & others.[(2014) 35 ILJ 3078 (LAC) at para 22. See also North East Cape Forests v SAAPAWU and others [1997] 6 BLLR 711 (LAC); Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration & o'thers (2007) 28 ILJ 382 (LC), at para 35] These are that:i. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;[22]v. The parol evidence rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.vi. Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.