Legal Practice Act — LPC Practical Vocational Training Guide: LPC Guide for Labour Dispute Resolution (Regulation 6(10)(g)) (source: https://lpc.org.za/wp-content/uploads/2026/03/g-LPC-Guide-for-Labour-Dispute-Resolution-ito-Regulation-610g.pdf)
PRACTICAL VOCATIONAL TRAINING (PVT) STRUCTURED COURSEWORK
PROGRAMME FOR CANDIDATE LEGAL PRACTITIONERS (CANDIDATE
ATTORNEYS)
Labour dispute resolution,
in terms of Regulation
6(10)(g)
Author acknowledgement
Adv. Nicholas J. Tee
2026/2027 PVT Structured Coursework Programme
Publication and Copyright information
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No part of this publication may be reproduced, stored in a retrieval system, or
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not for commercial resale
Acknowledgements
The Legal Practice Council extends its gratitude to the Evaluator for his/her rigorous
review, quality assurance, and contributions to the pedagogical effectiveness of this
study guide:
Reviewer:
Ms., Hajira Bibi Kara (Practising Legal Practitioner)
Published by:
The South African Legal Practice Council
National Office, Building 10, Riverview Office Park
100 River View Park Street,
Halfway Gardens
Midrand, 1686
GUIDE FOR LABOUR DISPUTE RESOLUTION
Regulation 6 (10)(g)
FIFTEEN GUIDES
There are fifteen guides for practical vocational training of candidate attorneys. This guide deals with the
Labour Dispute Resolution module in regulation 6(10)(g).
OVERVIEW
On 20 September 2014 Parliament assented to the Legal Practice Act 28 of 2014 (LPA). In terms of section
4 of the LPA, the Legal Practice Council (LPC) was established on 31 October 2018. The following day, on 1
November 2018 the bulk of the rest of the LPA came into effect.
The Legal Practice Act regulates all legal practitioners whether on the practising roll or the non-practising
roll. There are three forms of legal practice. They are an attorney, an advocate and an advocate with a
Fidelity Fund certificate: see section 34 of the LPA.
Under section 109(1)(a) of the LPA, the LPC published GN R921 in GG 41879 of 31 August 2018, as
amended by GN R3779 in GG 49104 of 11 August 2023. The compulsory course work required in the
regulations for candidate attorneys was standardised by the LPC in terms of the Norms and Standards.
Regulation 6(10) reads:
“(10) The programme of structured course work referred to in sub-regulation (1)(a) and (b) must be
standardised and uniform throughout the Republic and comprise the following modules:
(a) constitutional practice;
(b) professional legal ethics;
(c) personal injury claims;
(d) high court practice;
(e) magistrate’s court practice;
(f) criminal court practice;
(g) labour dispute resolution;
(h) alternative dispute resolution;
(i) attorneys’ bookkeeping;
(j) wills and estates;
(k) matrimonial law;
(l) legal costs;
(m) drafting of contracts;
(n) information and communication technology for practice, and associated aspects of
cyber law; and
(o) introduction to practice management.”
On 11 December 2020 the LPC published the Norms and Standards in Government Gazette 43981 under
section 3 (g)(i) read with section 6(1)(b)(i) and section 95(1)(n) of the LPA.
Regulation 6(10) requires candidate attorneys to be trained in the modules listed above. The similarity
between regulation 6(10) for candidate attorneys and regulation 7(9) for pupils is not an accident. Section 32
of the LPA permits legal practitioners at any time, as determined in the rules and upon payment of the fee
determined by the LPC, to apply to the LPC to convert their enrolment as attorneys to that of advocates and
vice versa. Consequently, the training of candidate legal practitioners must allow for seamless section 32
conversions.
Each guide per module deals with the requirements in regulation 6(10). Examiners set questions derived only
from the latest LPC candidate attorneys’ curriculum and reading list. The combined curriculum and reading
list is referred to as the “syllabus”.
Each of the fifteen guides will assist training supervisors, mentors, busy legal practitioners and candidate
attorneys to navigate the syllabus. The focus is on practical vocational training.
INTRODUCTION TO EACH GUIDE
Each guide per module in Regulation 6(10) is designed to assist candidate attorneys to understand, in real
time, the minimum that is required under practical vocational training to become effective attorneys in
practice. The essence of effective legal practitioners is the ability to read, to assimilate legal principles from
that reading and to apply those principles in practice to the facts of your client’s case and in argument before
courts, tribunals, disciplinary bodies, and any other forms of formal gatherings and meetings.
The guides avoid prolixity.
However each guide requires dedicated concentration.
For the examinations, candidate legal practitioners (candidate attorneys and pupils) must be up to date with
the latest Constitutional Court and Supreme Court of Appeal cases to within one week before the date of
each exam.
The guides do not rehash what you studied at University. Your LLB proves your capability. This guide will
assist you to prepare for the LPC admission examinations. More importantly, this guide will also equip you
to be an effective, competent, calm and (reasonably) confident attorney when you enter the legal profession.
REQUEST TO CANDIDATE ATTORNEYS FOR DUE DILIGENCE
Please read this guide attentively.
Please carry out all recommended court attendances.
Please carry out all the recommended practical exercises.
Please complete reading all the material in the LPC reading list.
Please note the notional hours to complete all 15 guides are 400 hours.
Please note this guide, like the other fourteen guides, is sufficient for self-study.
Please remember, the exams are based on the LPC’s most up to date reading list.
• Currently the most up to date reading list is from 28 March 2025 of Notice 3086 of 2025 published
in Government Gazette 52388.
• Matters omitted from the LPC reading list will not be in the examinations unless the statute, case or
article is included in your exam paper and allows you extra reading time to consider that statute, case
or article.
• Matters mentioned in the LPC reading list will be the subject of exam questions.
• You will be required to answer the exam questions from the perspective of:
o Facts first
o Law later
• The LPC exams, also referred to as assessments, are practical in nature.
• The questions will proceed from the following perspective: –
o What would you, as attorney of record, advise your client to consider?
o What would you, as attorney of record, advise your client to do?
o When and why would you refer a matter to another attorney or to counsel?
o And similar practical questions.
REFERENCES
One of the products of Juta & Co Ltd is Jutastat. Many of the notes to this guide are downloaded from
Jutastat. Please read the notes with care and diligence. This guide also relies on the Southern African Legal
Information Institute (SAFLII).
SAFLII is free and open access on the Internet.
NOTE WELL
The sequence of this guide follows the sequence in the most recent LPC syllabus of 28 March 2025 for
candidate attorneys. The fifteen guides are designed to be updated when the LPC so requires. Bullet points
below are drafted to assist you to grasp the material in the reading list. You must decide whether to accept or
to amend the bullet points to suit your understanding. When there are no bullet points, you need nonetheless
to read the rule or case to prepare for your exams.
LPC SYLLABUS AND THE OFFICIAL SOURCE FOR ALL EXAMINATION QUESTIONS AT
THE LPC ATTORNEYS’ ADMISSION EXAMS
CURRICULUM READING LISTS
AND COURSE CONTENT
This column is sourced from the Norms and PRINCIPAL WORKS
Standards the LPC published on 11 December • Grogan, Workplace Law Juta, 13th Edition 2020
2020 in Government Gazette 43981 • Grogan, Dismissal, Juta, 4th Edition
NOTE WELL: Practice Directives will not be COIDA and domestic workers
examined unless a copy of the relevant directive is Mahlangu and Another v Minister of Labour and
supplied to candidates writing the exams. Others 2021 (2) SA 54 (CC) at paras [71] to [107]
Introduction to the Industrial Relations Framework. Suspension
Limpopo Provincial Council of the South African
Identification of an employee. Legal Practice Council v Chueu Incorporated
Permanent employees. Attorneys and Others [2023] ZASCA 112 at paras
Temporary employees. [31] to [33]
Disciplinary Proceedings and Hearings.
Strikes and lockouts
Unfair labour practices and Dismissals. National Union of Metalworkers of South Africa v
Bargaining Agents, Forums and Collective Trenstar (Pty) Ltd [2023] ZACC 11; (2023) 44 ILJ
Bargaining. 1189 (CC); 2023 (7) BCLR 814 (CC); [2023] 7
Dispute resolution including disputes about BLLR 609 (CC); 2023 (4) SA 449 (CC) at paras [47]
collective agreements and [48]
The process of conciliation. Numsa obo Dhludhlu and Others v Marley Pipe
How to prepare and move an interdict in the labour Systems (SA) (Pty) Ltd 2023 (1) SA 338 (CC)
court.
How to differentiate between a sufficiently Disciplinary proceedings
representative trade union, majority and minority
unions Hamata v Chairperson, Peninsula Technikon Internal
How to determine the validity of an extension of a Disciplinary Committee 2002 (5) SA 449 (SCA)
collective agreement to members not party to the ([2002] ZASCA 44) at para [5] and the important
collective agreement nuances at paras [12] and [20] to [22]
How to ensure a strike is protected Dyantyi v Rhodes University 2023 (1) SA 32 (SCA)
at paras [21] to [23]
Labour Relations Act 66 of 1995 (LRA)
Dismissal
Chapter II Freedom of Association and General Amcu v Royal Bafokeng Platinum Ltd 2020 (3) SA 1
Protections – sections 4 to 10 (CC) at paras [102] to [126]
Employees' right to freedom of association
Protection of employees and persons seeking Collective Bargaining and Organisational rights
employment CCMA rules
Employers' right to freedom of association
Protection of employers' rights NUMSA v Bader Bop (Pty) Ltd & another [2003] 2
Rights of trade unions and employers' organisations BLLR 103 (CC)
Procedure for disputes Solidarity & others v Eskom Holdings Ltd (2012) 33
Burden of proof ILJ 464 (LC)
Growthpoint Properties (Pty) Ltd v SACCAWU
Chapter III Collective Bargaining Part A (2010) 31 ILJ 2539 (KZD).
Organisational rights – sections 11 to 22
The Occupational Health and Safety Act 85 of 1993
Part B Collective agreements – sections 23 to 26 (OHSA) and the Unemployment Insurance Act 63 of
2001 (UIA)
CHAPTER VII DISPUTE RESOLUTION Part A
Commission for Conciliation, Mediation and Gunter v Compensation Commissioner 2009 (30) ILJ
Arbitration – sections 112 to 114 2341 (0).
Twalo v Minister of Safety and Security and Another
Part C Resolution of disputes under auspices of 2009 (30) ILJ 1578 (Ck).
Commission – sections 133 to 135 Mahlangu and Another v Minister of Labour and
Others 2021 (1) BCLR 1 (CC); [2021] 2 BLLR 123
Rules for the Conduct of Proceedings before the (CC).
CCMA: GN R3318 of 2023 IN GG 48445 of 21 Apr
2023 Association of Mineworkers and Construction Union
and Others v Chamber of Mines of South Africa and
Part D Labour Court – sections 151 and 156 to 166 Others 2017 (3) SA 242 (CC)
Part E Labour Appeal Court – sections 172 to 180 Securicor (SA) (Pty) Ltd v Lotter 2005 (5) SA 540
and 182 and 183 (E)
Labour Appeal Court Rules and Labour Court Rules Remember the Guide for Professional Legal
GN 4775 of 2024 GG 50608 of 3 May 2024 Ethics
Principles governing the hopeless case
Chapter VIII Unfair Dismissal And Unfair Labour “The ethics of the hopeless case”, Owen Rogers,
Practice – sections 185 to 197B Advocate December 2017
University of South Africa v Socikwa and Others (J
Basic Conditions of Employment Act 75 of 1997 675/23; J 680/23) [2023] ZALCJHB 172 (7 June
(BCEA) 2023)
Chapters Two, Three, Four and Five
Employment Equity Act 55 of 1998.
Chapters II and III
INDEX FOR LABOUR DISPUTE RESOLUTION
GUIDE OVERVIEW Pages 1 - 3
LPC SYLLABUS Pages 3 - 4
INDEX Page 5
HOW TO USE THE READING LIST Page 6
A. GENERAL Page 6
B. INTRODUCTION Page 7
Introduction to the Industrial Relations Framework Pages 8 - 9
Core institutions concerning labour law Page 9
Collective bargaining & NEDLAC Page 10
Identification of an employee Page 11
COIDA, BCEA, LRA & PDA Tables Pages 12 - 16
C. PRACTICAL MESSAGE FOR CANDIDATES Page 16
D. READING LIST Page 17
COIDA and domestic workers Page 17
Suspension Page 17
Strikes and lockouts Pages 18 - 19
Disciplinary proceedings Page 19
Dismissal Page 20
Collective Bargaining and Organisational rights Pages 20 - 21
CCMA rules
Occupational Health and Safety Act 85 of 1993 (OHSA) Pages 21 - 22
Unemployment Insurance Act 63 of 2001 (UIA) Page 22
COIDA cases Pages 23 - 24
Workplace cases Pages 24 - 25
Ethical duties in labour litigation Pages 25 - 26
Labour Dispute Resolution – HOW TO USE THE READING LIST
A. GENERAL
This module prepares you to understand the basic but essential principles, concepts and procedures
of Labour Dispute Resolution. Candidates must read the sections of the Act, the rules and the case
law indicated in the reading list. Some of the salient issues are set out in bullet points below.
The reason to read the references in the reading list is to prepare for your attorneys’ admission
exams. The examiners draft exam questions from the syllabus. The syllabus includes the column
Curriculum and Course Content and the column Reading List in the table above.
Questions based on matters not in the syllabus are allowed only where the statute, case or article
being examined is added into the examination paper. In that event, you will be given an extra fifteen
minutes to read and consider the question before writing your exam. This principle applies to all the
modules in regulation 6(10) and for all your admission exams.
The reading list is repeated below with bullet points to focus your grasp of the material. You will be
able to download the case law from SAFLII onto your mobile devices at any time, and while in
court.
Remember: the bullet points are designed to help you understand salient issues. The phrase:
Subject to your reading, the following points may be drawn from the case cited above requires you
to check whether the bullet points are indeed an accurate reflection of the case. Be proactive: you
can develop your own bullet points for exam preparation and for use later in practice.
Note well: many candidate attorneys do not have access to the South African Law Reports nor the
All South Africa reports published by LexisNexis. In this guide some references to the URLs of
SAFLII are included. This will assist all candidates to access the relevant document, even when you
are in court – of course – if the court has internet access and accessible WiFi.
Furthermore, many candidates do not have access to text book commentary on the rules. If you
read the rules carefully you may not need the commentary. The rules are remarkably similar in their
effect and application to the rules of the High Court.
The Department of Justice website also has up to date legislation and subordinate legislation.
See the following URLs:
https://www.justice.gov.za/
https://www.justice.gov.za/constitution/index.html
https://www.justice.gov.za/legislation/acts/acts_full.html
https://www.justice.gov.za/legislation/rules/rules.htm
B. INTRODUCTION
The main purpose of the Norms and Standards is to provide a national approach to standardise and
implement practical vocation training of candidate attorneys in terms of regulation 6(10). Five years
of deliberation including two colloquiums and frequent publications of the syllabus have preceded
the gazetting of the LPC syllabus on 28 March 2025. In future, the LPC syllabus will be updated
and amended as required by circumstances in the legal profession.
The topics dealt with below are part of the syllabus for Labour Dispute Resolution. After the topics,
the reading list is dealt with in detail. It is important to understand that the topics underlined below
form part of the syllabus from which examiners may set exam questions.
Legislation and rules
As a candidate attorney you need a working knowledge of the Labour Relations Act 66 of 1995
(LRA), the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the rules of the CCMA.
You need to read the rules of the Labour Court and the Labour Appeal Court so that you can
navigate through those rules as quickly as a competent legal practitioner.
However, you do not need to know the Acts and the rules by heart. In practice you will always read
the legislation and the rules applicable to your case while drafting pleadings and consulting with
your clients.
See SAFLII:
https://www.saflii.org/za/legis/consol_act/lra1995188.pdf
https://www.saflii.org/za/legis/consol_act/bcoea1997309/
For the CCMA rules see below:
https://www.saflii.org/za/legis/consol_reg/rftcopitlc518/
https://www.saflii.org/images/LCRules/Labour%20Appeal%20Court%20Rules.pdf
CCMA rules:
https://legal-leaders.co.za/wp-content/uploads/2023/06/new-CCMA-rules-
1.pdf?srsltid=AfmBOor8GGG-O9Dl9ZDG0ObjNWJiIl4OjG3m8O5l__nJZ9AZcwtFx4Q5
Examiners’ obligations
There will be an emphasis on rules in regular use in practice. In your admission exams any question
posed on the interpretation of an Act of Parliament or a rule requires the examiners to include that
text in the question paper itself.
To reiterate: you do not need to know the legislation and rules by heart.
The following topics may be examined.
In any event, you need to know these topics from the Norms and Standards for practice when you
qualify as an attorney. Only the introduction to the industrial relations framework and the
identification of an employee will be dealt with before the reading list proper. All the other topics
are covered in the reading list below.
Introduction to the Industrial Relations Framework
South Africa has a complex industrial relations framework that attempts to bridge the ideological
divide between capitalist control of markets and productivity and democratic concern for social and
economic rights for workers. In the abstract on Measuring Labor Market Efficiency, Debbie Collier
and Paul Benjamin note that ‘international organizations involved in the transnational shaping of
the legal norms and institutions that regulate the labour market are poles apart in their mandates and
worldviews’.
The authors add: ‘This divergence of views among international organizations undermines the
development and coherence of legal norms and standards for worker security and creates a fractious
transnational legal order that has implications for the domestic debate on labour market regulation’.
[Published online by Cambridge University Press: 05 June 2015]
https://www.cambridge.org/core/books/abs/quiet-power-of-indicators/measuring-labor-market-efficiency-indicators-that-fuel-an-ideological-war-and-
undermine-social-concern-and-trust-in-the-south-african-regulatory-process/F03C1F98BB0C616DF1E05923C3009D15
Currently South Africa’s industrial relations framework can be identified by five pillars, all of
which seek to be a bridge from the colonial and apartheid past into a more egalitarian democratic
present. The five pillars are:
• Our Constitution
• Three key Acts of Parliament
• Our core institutions concerning labour law
• Collective bargaining based on union recognition by majoritarianism
• NEDLAC as a forum for four important role players
o Government
o Labour
o Business and
o Community
Constitution
The Constitution of the Republic of South Africa, 1996 has three key sections in the Bill of Rights
that underpin our industrial relations framework.
• S 23 Labour relations
• S 18 Freedom of association
• S 22 Freedom of trade, occupation and profession
The most important is section 23.
It is quoted in full in the table below.
23 Labour relations
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right-
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right-
(a) to form and join an employers' organisation; and
(b) to participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right-
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to engage in collective
bargaining. National legislation may be enacted to regulate collective bargaining. To the extent
that the legislation may limit a right in this Chapter, the limitation must comply with section 36
(1).
(6) National legislation may recognise union security arrangements contained in collective
agreements. To the extent that the legislation may limit a right in this Chapter the limitation must
comply with section 36 (1).
Three key Acts of Parliament
• Labour Relations Act 66 of 1995 (LRA)
• Basic Conditions of Employment Act 75 of 1997 (BCEA)
• Employment Equity Act 55 of 1998 (EEA)
Note to candidates
You need to be familiar with the three key Acts of Parliament (statutes).
You are not expected to know the statutes by heart.
Any questions in your admission exams which may relate to these statutes will contain an extract
from the statute.
Core institutions concerning labour law
• Bargaining councils – see the LRA Chapter III Collective Bargaining, Part C: Bargaining
councils
• CCMA – see the LRA at Chapter VII Dispute Resolution, Part A: Commission for
Conciliation, Mediation and Arbitration
• Labour Court – see the LRA at Chapter VII Dispute Resolution, Part D: Labour Court
• Labour Appeal Court – see the LRA at Chapter VII Dispute Resolution, Part E: Labour
Appeal Court
Collective bargaining based on union recognition by majoritarianism
• Organisational rights – see the LRA Chapter III Collective Bargaining, Part A
o S 18 deals with the right to establish thresholds of representativeness. Here lies the
principle of the majority union representation with an employer.
o S 17 restricts union representative rights in the domestic sector from entering the
premises of the employer’s home
• Collective agreements – see the LRA Chapter III Collective Bargaining, Part B
NEDLAC as a forum for four important role players
• NEDLAC is the acronym derived from the National Economic, Development and Labour
Council Act 35 of 1994
• NEDLAC is a juristic person with four chambers:
o public finance and monetary policy chamber;
o trade and industry chamber;
o labour market chamber; and
o development chamber.
• The purpose of NEDLAC is set out in section 5 as the objects, powers and functions of
Council. See the table below.
5 Objects, powers and functions of Council
(1) The Council shall-
(a) strive to promote the goals of economic growth, participation in economic decision-
making and social equity;
(b) seek to reach consensus and conclude agreements on matters pertaining to social and
economic policy;
(c) consider all proposed labour legislation relating to labour market policy before it is
introduced in Parliament;
(d) consider all significant changes to social and economic policy before it is implemented or
introduced in Parliament;
(e) encourage and promote the formulation of co-ordinated policy on social and economic
matters.
(2) For the purpose of subsection (1), the Council-
(a) may make such investigations as it may consider necessary;
(b) shall continually survey and analyse social and economic affairs;
(c) shall keep abreast of international developments in social and economic policy;
(d) shall continually evaluate the effectiveness of legislation and policy affecting social and
economic policy;
(e) may conduct research into social and economic policy;
(f) shall work in close co-operation with departments of State, statutory bodies, programmes
and other forums and non-governmental agencies engaged in the formulation and the
implementation of social and economic policy.
(3) Nothing in this section shall preclude the Council from considering any matter pertaining to
social and economic policy.
Identification of an employee
The legislature has dealt with the identification of an employee, permanent employees and
temporary employees in some key statutes.
• The central theme for such identification is the amount of control an employer has in
practice over the work of the employee.
• There is a tension often between employers seeking to designate people as independent
contractors,
o when in fact the so-called independent contractor has the employer as the primary
source of income and
o must abide by the work routine stipulated by the employer.
Consider the following statutory definitions.
• Unemployment Insurance Act 63 of 2001 an: ‘employee’ means any natural person who
receives remuneration or to whom remuneration accrues in respect of services rendered or to be
rendered by that person, but excludes any independent contractor.
• Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)
• Labour Relations Act 66 of 1995 (LRA)
• Basic Conditions of Employment Act 75 of 1997 (BCEA)
• Protected Disclosures Act 26 of 2000 (PDA).
• COIDA introduces three extra categories of employees:
o Apprenticeships
o Learnerships
o casual employees
• Under COIDA all three of these categories are employees – in addition – obviously to the
main definition of an employee.
• The COIDA main definition is a person who has entered into a contract of service. In law, a
contract of service has many permutations. All the permutations can only be understood and
applied after a review of the other crucial statutes.
• See the tables below:
o COIDA
o LRA
o BCEA
o PDA
COIDA
‘employee’ means a person who has entered into or works under a contract of service or of apprenticeship or
learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the
remuneration is calculated by time or by work done, or is in cash or in kind, and includes-
(a) a casual employee employed for the purpose of the employer’s business;
(b) a director or member of a body corporate who has entered into a contract of service or of
apprenticeship or learnership with the body corporate, in so far as he acts within the scope of his
employment in terms of such contract;
(c) a person provided by a labour broker against payment to a client for the rendering of a service or the
performance of work, and for which service or work such person is paid by the labour broker;
(d) in the case of a deceased employee, his dependants, and in the case of an employee who is a person
under disability, a curator acting on behalf of that employee;
but does not include-
(i) a person, including a person in the employ of the State, performing military service or undergoing
training referred to in the Defence Act, 1957 (Act 44 of 1957), and who is not a member of the
Permanent Force of the South African Defence Force;
(ii) a member of the Permanent Force of the South African Defence Force while on 'service in defence of
the Republic' as defined in section 1 of the Defence Act, 1957;
(iii) a member of the South African Police Force while employed in terms of section 7 of the Police Act,
1958 (Act 7 of 1958), on 'service in defence of the Republic' as defined in section 1 of the Defence
Act, 1957;
(iv) a person who contracts for the carrying out of work and himself engages other persons to perform
such work;
(v) a domestic employee employed as such in a private household;
‘employer ’ means any person, including the State, who employs an employee, and includes-
(a) any person controlling the business of an employer;
(b) if the services of an employee are lent or let or temporarily made available to some other person by
his employer, such employer for such period as the employee works for that other person;
(c) a labour broker who against payment provides a person to a client for the rendering of a service or the
performance of work, and for which service or work such person is paid by the labour broker;
LRA
213 Definitions
‘employee’ means-
(a) any person, excluding an independent contractor, who works for another person or for the State and
who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an
employer,
and ‘employed’ and ‘employment’ have meanings corresponding to that of ‘employee’;
‘employment law’ includes this Act, any other Act the administration of which has been assigned to the
Minister, and any of the following Acts:
(a) the Unemployment Insurance Act, 2001 (Act 63 of 2001); [similar definition to (a) above]
(b) the Skills Development Act, 1998 (Act 97 of 1998); [similar definition to the LRA above]
(c) the Employment Equity Act, 1998 (Act 55 of 1998); [similar definition to the LRA above]
(d) the Occupational Health and Safety Act, 1993 (Act 85 of 1993); [similar definition to (a) above]
(e) the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993); and
(f) the Unemployment Insurance Contributions Act, 2002 (Act 4 of 2002) [similar to (a) above]
200A Presumption as to who is employee
(1) Until the contrary is proved, for the purposes of this Act, any employment law and section 98A of the
Insolvency Act, 1936 (Act 24 of 1936), a person who works for, or renders services to, any other person is
presumed, regardless of the form of the contract, to be an employee, if any one or more of the following
factors are present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person forms part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the
last three months;
(e) the person is economically dependent on the other person for whom he or she works or renders
services;
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.
(2) Subsection (1) does not apply to any person who earns in excess of the amount determined by the
Minister in terms of section 6 (3) of the Basic Conditions of Employment Act.
(3) If a proposed or existing work arrangement involves persons who earn amounts equal to or below the
amounts determined by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act,
any of the contracting parties may approach the Commission for an advisory award on whether the persons
involved in the arrangement are employees.
(4) NEDLAC must prepare and issue a Code of Good Practice that sets out guidelines for determining
whether persons, including those who earn in excess of the amount determined in subsection (2) are
employees.
198B Fixed-term contracts with employees earning below earnings threshold
(1) For the purpose of this section, a ‘fixed-term contract’ means a contract of employment that terminates
on-
(a) the occurrence of a specified event;
(b) the completion of a specified task or project; or
(c) a fixed date, other than an employee’s normal or agreed retirement age, subject to subsection (3).
(2) This section does not apply to-
(a) employees earning in excess of the threshold prescribed by the Minister in terms of section 6 (3) of
the Basic Conditions of Employment Act;
(b) an employer that employs less than 10 employees, or that employs less than 50 employees and
whose business has been in operation for less than two years, unless-
(i) the employer conducts more than one business; or
(ii) the business was formed by the division or dissolution for any reason of an existing
business; and
(c) an employee employed in terms of a fixed-term contract which is permitted by any statute, sectoral
determination or collective agreement.
(3) An employer may employ an employee on a fixed-term contract or successive fixed-term contracts for
longer than three months of employment only if-
(a) the nature of the work for which the employee is employed is of a limited or definite duration; or
(b) the employer can demonstrate any other justifiable reason for fixing the term of the contract.
(4) Without limiting the generality of subsection (3), the conclusion of a fixed-term contract will be justified
if the employee-
(a) is replacing another employee who is temporarily absent from work;
(b) is employed on account of a temporary increase in the volume of work which is not expected to
endure beyond 12 months;
(c) is a student or recent graduate who is employed for the purpose of being trained or gaining work
experience in order to enter a job or profession;
(d) is employed to work exclusively on a specific project that has a limited or defined duration;
(e) is a non-citizen who has been granted a work permit for a defined period;
(f) is employed to perform seasonal work;
(g) is employed for the purpose of an official public works scheme or similar public job creation
scheme;
(h) is employed in a position which is funded by an external source for a limited period; or
(i) has reached the normal or agreed retirement age applicable in the employer’s business.
(5) Employment in terms of a fixed-term contract concluded or renewed in contravention of subsection (3) is
deemed to be of indefinite duration.
(6) An offer to employ an employee on a fixed-term contract or to renew or extend a fixed-term contract,
must-
(a) be in writing; and
(b) state the reasons contemplated in subsection (3) (a) or (b).
(7) If it is relevant in any proceedings, an employer must prove that there was a justifiable reason for fixing
the term of the contract as contemplated in subsection (3) and that the term was agreed.
(8) (a) An employee employed in terms of a fixed-term contract for longer than three months must not be
treated less favourably than an employee employed on a permanent basis performing the same or
similar work, unless there is a justifiable reason for different treatment.
(b) Paragraph (a) applies, three months after the commencement of the Labour Relations Amendment
Act, 2014, to fixed-term contracts of employment entered into before the commencement of the
Labour Relations Amendment Act, 2014.
(9) As from the commencement of the Labour Relations Amendment Act, 2014, an employer must provide
an employee employed in terms of a fixed-term contract and an employee employed on a permanent basis
with equal access to opportunities to apply for vacancies.
(10) (a) An employer who employs an employee in terms of a fixed-term contract for a reason
contemplated in subsection (4) (d) for a period exceeding 24 months must, subject to the terms of
any applicable collective agreement, pay the employee on expiry of the contract one week's
remuneration for each completed year of the contract calculated in accordance with section 35 of the
Basic Conditions of Employment Act.
(b) An employee employed in terms of a fixed-term contract, as contemplated in paragraph (a), before
the commencement of the Labour Relations Amendment Act, 2014, is entitled to the remuneration
contemplated in paragraph (a) in respect of any period worked after the commencement of the said
Act.
(11) An employee is not entitled to payment in terms of subsection (10) if, prior to the expiry of the fixed-
term contract, the employer offers the employee employment or procures employment for the employee with
a different employer, which commences at the expiry of the contract and on the same or similar terms.
BCEA
‘employee’ means-
(a) any person, excluding an independent contractor, who works for another person or for the State and
who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an
employer,
and ‘employed’ and ‘employment’ have a corresponding meaning;
82 Temporary employment services
(1) For the purposes of this Act, a person whose services have been procured for, or provided to, a client by a
temporary employment service is the employee of that temporary employment service, and the temporary
employment service is that person’s employer.
(2) Despite subsection (1), a person who is an independent contractor is not an employee of a temporary
employment service, nor is the temporary employment service the employer of that person.
(3) The temporary employment service and the client are jointly and severally liable if the temporary
employment service, in respect of any employee who provides services to that client, does not comply with
this Act or a sectoral determination.
83A Presumption as to who is employee
(1) A person who works for, or renders services to, any other person is presumed, until the contrary is proved,
to be an employee, regardless of the form of the contract, if any one or more of the following factors is
present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person forms part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the last
three months;
(e) the person is economically dependent on the other person for whom he or she works or renders
services;
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.
(2) Subsection (1) does not apply to any person who earns in excess of the amount determined by the
Minister in terms of section 6 (3).
(3) If a proposed or existing work arrangement involves persons who earn amounts equal to or below the
amounts determined by the Minister in terms of section 6 (3), any of the contracting parties may approach the
CCMA for an advisory award about whether the persons involved in the arrangement are employees.
PDA
‘employee’ means-
(a) any person, excluding an independent contractor, who works or worked for another person or for the
State, and who receives or received, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists or assisted in carrying on or conducting or conducted the
business of an employer;
‘employer’ means any person-
(a) who employs or provides work for any other person and who remunerates or expressly or tacitly
undertakes to remunerate that other person; or
(b) who permits any other person in any manner to assist in the carrying on or conducting of his, her or
its business,
including any person acting on behalf of or on the authority of such employer;
Key Comparative Definitions
Across COIDA, the LRA, BCEA and PDA, the core features of an employee include:
• A person who works under a contract of service
• A person who receives or is entitled to remuneration
• The exclusion of independent contractors
• The inclusion of persons who assist in carrying on the business of the employer
Section 200A of the LRA and section 83A of the BCEA create a rebuttable presumption of
employment where control, economic dependence, integration into the business, or provision of
tools is present.
Section 83A of the BCEA mirrors section 200A of the LRA and creates the same rebuttable
presumption of employment for employees earning below the statutory threshold.
• Finally, the phrase “who in any manner assists in carrying on or conducting the business of
an employer” is so broad, our Courts will have little difficulty subsuming contracts relating
to interns under that all-encompassing umbrella.
C. PRACTICAL MESSAGE FOR CANDIDATE LEGAL PRACTITIONERS
To avoid an unnecessary repetition on how you as candidates need to learn the skills to
advise your clients and to take instructions in practice, please read pages 16 to 24 of the
Guide for Constitutional Practice, and apply the necessary changes for matters that are not
only constitutional issues but are labour matters.
As a candidate attorney, you must learn to:
• Take precise instructions
• Identify the dispute correctly
• Distinguish between arbitration and the Labour Court jurisdiction
• Advise clients on urgency and interim relief and
• Assess the prospects before initiating litigation
D. READING LIST
The reading list is to the point. Please read the following:
PRINCIPAL WORKS
• Grogan, Workplace Law Juta, 13th Edition 2020
• Grogan, Dismissal, Juta, 4th Edition
COIDA and domestic workers
Mahlangu and Another v Minister of Labour and Others 2021 (2) SA 54 (CC) at paras [71] to [107]
https://www.saflii.org/za/cases/ZACC/2020/24.html
Subject to your reading, the following points may be drawn from the case cited above.
• Section 1xix(d)(v) of COIDA excluded domestic workers employed in private households
from the definition of ‘employee’, thereby denying them compensation in the event of
injury, disablement or death in the workplace.
o The Court held that the differentiation between domestic workers and other
categories of workers was arbitrary and inconsistent with the right to equal
protection and benefit of the law
o The declaration of constitutional invalidity of s 1xix(d)(v) of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 made by the High Court of
South Africa, Gauteng Division, Pretoria, was confirmed.
• The differentiation between domestic workers and other categories of workers also amounts
to discrimination as domestic workers are predominantly black women.
o This means discrimination against them constitutes indirect discrimination on the
basis of race,
o sex and
o gender.
• Analysing discrimination within the framework of intersectionality proved to be a useful
tool in determining the presence and extent of the discrimination. The [European Court of
Human Rights] considered ways in which gender intersects with other identities and how
these intersections contribute to unique experiences of oppression and privilege.
• The exclusion of domestic workers from the protections under COIDA resulted in a situation
where domestic workers have, for decades into our democracy, had to bear work-related
injuries or death without compensation.
• To conclude on equality, the exclusion of domestic workers and, therefore, their dependants
from deriving benefits under COIDA limits the rights to equality before the law and equal
protection and benefit of the law under s 9(1) and the right not to be discriminated against
unfairly guaranteed in s 9(3).
Suspension
Limpopo Provincial Council of the South African Legal Practice Council v Chueu Incorporated
Attorneys and Others [2023] ZASCA 112 at paras [31] to [33]
https://www.saflii.org/za/cases/ZASCA/2023/112.html
Subject to your reading, the following points may be drawn from the case cited above.
• Interim applications for the suspension of a legal practitioner pending an investigation are
generally undesirable if the suspension sought is for a lengthy period.
• Such applications should be launched only where there is no other means of safeguarding
the public from the alleged malfeasance of a legal practitioner.
• An interim order for suspension has a very grave impact on the professional life of a legal
practitioner, who would be severely prejudiced if exonerated at the end of an investigation.
Note to candidates: This case is relevant to labour dispute resolution because interim suspension
applications may arise in regulatory or professional disciplinary contexts, and the principles of
proportionality and fairness are comparable.
Strikes and lockouts
National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd [2023] ZACC 11; (2023) 44
ILJ 1189 (CC); 2023 (7) BCLR 814 (CC); [2023] 7 BLLR 609 (CC); 2023 (4) SA 449 (CC) at paras
[47] and [48]
https://www.saflii.org/za/cases/ZACC/2023/11.html
Subject to your reading, the following points may be drawn from the case cited above
• s 76(1)(b) and the phrase ‘in response to a strike’, bore two possible interpretations.
o The first was that if there were a strike, an employer could lock out the strikers and
use replacement labour, and
o even were the strike to end, the lock-out with use of replacement labour could
continue
• The second, and preferred, interpretation was that, in a situation of a strike, lock-out
response, and use of replacement labour, the use of replacement labour was confined to the
duration of the strike.
o At the point the strike ended — the lock-out continuing — the employer lost the
right to use replacement labour.
• In this case, the strike triggered the lock-out response, but on Monday,
o when the lock-out began
o there was no longer a strike, and
o so no longer any entitlement to use replacement labour.
Numsa obo Dhludhlu and Others v Marley Pipe Systems (SA) (Pty) Ltd 2023 (1) SA 338 (CC)
https://www.saflii.org/za/cases/ZACC/2022/30.html
Subject to your reading, the following points may be drawn from the case cited above.
• During the course of an unprotected strike at the employer’s premises, striking employees
took part in a serious assault on one of its managers
• While the LAC’s finding that all the employees were at the scene when the manager was
assaulted, would be accepted,
o mere presence and
o watching
o did not satisfy the established requirements for common purpose.
o There must be evidence, direct or circumstantial,
o that individual employees in some form associated themselves with the violence
▪ before it commenced, or
▪ even after it ended; and
▪ the person concerned must have manifested his sharing of a common purpose
with the perpetrators of the assault
▪ by himself performing some act of association with the conduct of the others.
o Merely being present cannot constitute association.
o For liability to attach, there must be proof (on a balance of probabilities)
o of an employee’s complicity in the acts of violence
o including having ‘the necessary intention’ in relation to the complicity.
• In this case, there was no evidence that — as a group — the striking employees ever
associated with the assault.
• The principles applicable to common purpose had not been satisfied.
o There was simply no basis for holding the 41 employees guilty of the assault, and
o the dismissals on the basis of this finding of guilt were substantively unfair.
• Case remitted to the Labour Court for appropriate sanction.
Disciplinary proceedings
Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee 2002 (5) SA 449
(SCA) ([2002] ZASCA 44) at para [5] and the important nuances at paras [12] and [20] to [22]
https://www.saflii.org/za/cases/ZASCA/2002/44.html
Subject to your reading, the following points may be drawn from the case cited above
• Entitlement as of right to legal representation in arenas other than courts of law has long
been a bone of contention
• The appellants laid no claim to any such general and absolute entitlement and declined to
submit that legal representation is a sine qua non of any procedurally fair hearing
• Any rule purporting to compel such an organ of state to refuse legal representation no matter
what the circumstances might be, cannot pass muster in law
• The internal disciplinary committee has a discretion to allow ‘outside’ legal representation
• By refusing to exercise its discretion, the internal disciplinary committee erred
Dyantyi v Rhodes University 2023 (1) SA 32 (SCA) at paras [21] to [23]
https://www.saflii.org/za/cases/ZASCA/2022/32.html
Subject to your reading, the following points may be drawn from the case cited above.
• Procedural fairness is a principle of good administration that requires a sensitive rather than
heavy-handed application.
o Context is all-important:
o the content of fairness is not static but must be tailored to the particular
circumstances of each case.
o There is no room now for the all-or-nothing approach to fairness that characterised
our pre-democratic law,
▪ an approach that tended to produce results that were either overly
burdensome for the administration or
▪ entirely unhelpful to the complainant
• The question whether an affected person is entitled to legal representation in terms of PAJA
requires
o A weighing of considerations of timing and delay
o prejudice to any affected party
o availability of suitable alternative legal representation
o together with all other relevant factors.
• And it has to be said that the answer should seldom be in the affirmative
Dismissal
Amcu v Royal Bafokeng Platinum Ltd 2020 (3) SA 1 (CC) at paras [102] to [126]
https://www.saflii.org/za/cases/ZACC/2020/1.html
Subject to your reading, the following points may be drawn from the case cited above
• S 189(1) of the LRA has been consistently interpreted not to require individual consultation
• S 23(1) of the Constitution, the right to fair labour practices, does not give an individual a
right to be consulted in a retrenchment process
• Nor does s 189(1) of the LRA in dismissals based on operational requirements
o Non-inclusion of an individual’s right in s 189 was rational
o The s 189 process is procedurally fair
o It accords with international practice and standards
• To sum up: there is no procedural unfairness in the consultation process under s 189.
o Dismissal for operational reasons involves complex procedural processes, requiring
consultation, objective selection criteria and payment of severance benefits.
o The process involves a shared attempt at arriving at an agreed outcome that gives
joint consideration to the interests of employer and employees.
o Because it is not dependent on individual conduct and requires objective selection
criteria, it is pre-eminently the kind of process where union assistance to employee
members will be invaluable.
o The choice made for the pre-eminence of collective bargaining in s 189 is:
▪ rational
▪ sound
▪ fair and
▪ based on international practice and standards
Collective Bargaining and Organisational rights
CCMA rules Please read the CCMA rules
https://www.saflii.org/za/legis/consol_reg/rftcopbtcfcmaa887/
NUMSA v Bader Bop (Pty) Ltd & Another 2003 (3) SA 513 (CC); [2003] 2 BLLR 103 (CC)
https://www.saflii.org/za/cases/ZACC/2002/30.html
Subject to your reading, the following points may be drawn from the case cited above
• This case deals with LRA Chapter III, Collective bargaining, Part A on organisational rights
• S 23 of our Constitution deals with labour relations and permits national legislation to
recognise union security arrangements contained in collective agreements subject to the
limitations clause in the Bill of Rights
• In short, the Court allowed minority unions to engage in the ordinary processes of collective
bargaining and industrial action to persuade employers to grant them organisational facilities
such as access to the workplace, stop-order facilities and recognition of shop stewards
Solidarity & Others v Eskom Holdings Ltd (2012) 33 ILJ 464 (LC)
https://www.saflii.org/za/cases/ZALCCT/2011/17.html
Subject to your reading, the following points may be drawn from the case cited above
• In this matter the court found in favour of Solidarity that Eskom be bound to honour an
agreement that reactor operators at Koeberg Nuclear Power Station have the right to early
retirement without the loss of benefits
• The case deals with the niceties of pleadings and the law of evidence: it is a discursive
judgment which may take much effort to read
Growthpoint Properties (Pty) Ltd v SACCAWU (2010) 31 ILJ 2539 (KZD)
https://www.saflii.org/za/cases/ZAKZDHC/2010/38.html
Subject to your reading, the following points may be drawn from the case cited above
• Picketing is lawful in South Africa under s 17 of the Bill of Rights in our Constitution
• Picketing is also permitted under s 69 of the LRA
• Please read section 69
• Note: picketing is described in case law as follows:
“Ingredients common to the act of picketing in all jurisdictions appear to be the physical
presence of persons called pickets, the conveying of information, and the object of persuasion. The
“presence” element may take many forms, from one or two persons, in the vicinity of the entrance of
the premises, comparatively indifferent to the outcome of the dispute, to large numbers calculated
physically to prevent ingress and egress . . . The conveying of information may also take many
forms, from the use of handbills, arm bands, placards and sandwich boards to sound trucks, and from
the recitation of events to the conveying of exhortative messages. The object of persuasion appears
to remain constant, to induce a boycott of the picketed operations by employees, customers,
suppliers and others on whom the employer is dependent for the successful operation of his
enterprise.”
(A.W.R. Carrothers, E.E. Palmer and W.B. Rayner, Collective Bargaining Law in
Canada, 2nd ed. (Toronto: Butterworths, 1986),
• If picketing causes an unreasonable nuisance to parties not involved in the labour dispute,
courts may limit the picketing with appropriate orders on how to conduct the picketing and
what level of noise is allowed during picketing
The Occupational Health and Safety Act 85 of 1993 (OHSA)
• OHSA has 50 sections
• The long title to OHSA reads:
To provide for the health and safety of persons at work and for the health and safety of persons in
connection with the use of plant and machinery; the protection of persons other than persons at work
against hazards to health and safety arising out of or in connection with the activities of persons at
work; to establish an advisory council for occupational health and safety; and to provide for matters
connected therewith.
• There is no preamble to OHSA
• S 1 defines inter alia an employee, an employer and a ‘workplace’ as any premises or place
where a person performs work in the course of his employment.
• Ss 8 to 12 contain general duties on employers to maintain safety for their employees
• S 13 places a duty on employers to inform employees of safety measures
• S 14 places general duties of employees at work to maintain safety
• S 17 requires the establishment of a health and safety committee where an employer has
more than 20 employees
• S 24 requires reporting incidents at work where an employee gets injured
• S 26 forbids victimisation of any whistle-blower
• S 39 contains a presumption of what an employee is
Note to candidates: In examinations, questions may focus on employer duties, reporting
obligations, and statutory liability for failure to comply with workplace safety obligations.
Unemployment Insurance Act 63 of 2001 (UIA)
• UIA has 80 sections in total: some are A, B and Cs to ordinary section numbers
• The long title to UIA reads:
To establish the Unemployment Insurance Fund; to provide for the payment from the Fund of
unemployment benefits to certain employees, and for the payment of illness, maternity, parental,
adoption, commissioning parental and dependant's benefits related to the unemployment of such
employees; to provide for the establishment of the Unemployment Insurance Board, the functions of
the Board and the designation of the Unemployment Insurance Commissioner; and to provide for
matters connected therewith.
• There is no preamble to UIA
• A more popular acronym for the UIA is UIF for the Unemployment Insurance Fund
• The purpose of the Act is to establish an unemployment insurance fund to which employers
and employees contribute and from which employees who become unemployed or their
beneficiaries, as the case may be, are entitled to benefits and in so doing to alleviate the
harmful economic and social effects of unemployment
• S 3 provides that the Act applies to all employers and employees, other than employees
employed for less than 24 hours a month with a particular employer, and their employers.
• Chapter 3 on claiming benefits starts with section 12 which deals with the rights to benefits
• S 16 deals with the rights to unemployment benefits
• The benefits in of UIF are extensive: it is well worth your time to read those sections
• Under section 42 an employer must ensure that every statement or other information which
must be kept and submitted in terms of the Act is correct.
MOST IMPORTANT: the employer’s liability to pay for the benefits of the UIF is legislated under
Chapter 2 of the Unemployment Insurance Contributions Act 4 of 2002 (Contributions Act)
• Chapter 2 of the Contributions Act deals with the duty to contribute to the UIF and the
determination of contributions required
• The Contributions Act is also well worth your time to read
Note to candidates: In examinations, emphasis may fall on employer contribution duties and
employee entitlement to benefits.
Gunter v Compensation Commissioner 2009 (30) ILJ 2341 (O)
https://www.saflii.org/za/cases/ZAFSHC/2009/144.html
Subject to your reading, the following points may be drawn from the case cited above.
• Gunter was the farm foreman and a passenger in a vehicle when he sustained head injuries
in a collision
• His claim for compensation succeeded on appeal since it was found his journey was in the
course and scope of his employment at the farm
• He was en route to purchase spare parts for a combine for harvesting sunflowers
Twalo v Minister of Safety and Security and Another 2009 (30) ILJ 1578 (Ck)
https://www.saflii.org/za/cases/ZAECHC/2009/1.html
Subject to your reading, the following points may be drawn from the case cited above.
• COIDA permits claims by employees for injuries at work caused by accident or negligence
• COIDA does not cover claims where an employee is intentionally killed (murdered) by
someone
• Private disputes between people resulting in the intentional killing of an employee do not
expand the scope of COIDA’s compensation
• Quaere: surely this would be different if an employer killed an employee?
• The position differs where the employer is the intentional wrongdoer. This would require
separate legal analysis
Mahlangu and Another v Minister of Labour and Others 2021 (2) SA 54 (CC)
https://www.saflii.org/za/cases/ZACC/2020/24.html
Subject to your reading, the following points may be drawn from the case cited above.
• Section 1xix(d)(v) of COIDA excluded domestic workers employed in private households
from the definition of ‘employee’, thereby denying them compensation in the event of
injury, disablement or death in the workplace.
o The Court held that the differentiation between domestic workers and other
categories of workers was arbitrary and inconsistent with the right to equal
protection and benefit of the law
o The declaration of constitutional invalidity of s 1xix(d)(v) of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 made by the High Court of
South Africa, Gauteng Division, Pretoria, was confirmed.
• The differentiation between domestic workers and other categories of workers also amounts
to discrimination as domestic workers are predominantly black women.
o This means discrimination against them constitutes indirect discrimination on the
basis of race,
o sex and
o gender.
• Analysing discrimination within the framework of intersectionality proved to be a useful
tool in determining the presence and extent of the discrimination. The [European Court of
Human Rights] considered ways in which gender intersects with other identities and how
these intersections contribute to unique experiences of oppression and privilege.
• The exclusion of domestic workers from the protections under COIDA resulted in a situation
where domestic workers have, for decades into our democracy, had to bear work-related
injuries or death without compensation.
• To conclude on equality, the exclusion of domestic workers and, therefore, their dependants
from deriving benefits under COIDA limits the rights to equality before the law and equal
protection and benefit of the law under s 9(1) and the right not to be discriminated against
unfairly guaranteed in s 9(3).
Association of Mineworkers and Construction Union and Others v Chamber of Mines of South
Africa and Others 2017 (3) SA 242 (CC)
https://www.saflii.org/za/cases/ZACC/2017/3.html
Subject to your reading, the following points may be drawn from the case cited above
• The LRA gave ‘workplace’ a special meaning distinct from its ordinary, geographical, one.
In the LRA’s definition a workplace was where the employees of an employer, collectively,
worked: the functional organisation — not geographical location — was primary
• The lower courts’ finding that each mining house operated integrally as a single workplace,
and that the Amcu-majority mines were not independent operations, is correct on
constitutional principles, legal analysis and factual assessment
• Orderly and productive collective bargaining required some form of majority rule,
o and s 23(1)(d) legitimately gave it enhanced power within a workplace,
o thereby improving employees’ bargaining power.
o Amcu could not object to the provision on the basis that it enforced a form of
majoritarianism when it itself sought to enforce a form of majoritarianism
• It is true the codification of majoritarianism in s 23(1)(d) limited the right to strike, but the
limitation is reasonable, given the importance of its purpose: orderly collective bargaining
Securicor (SA) (Pty) Ltd v Lotter 2005 (5) SA 540 (E)
https://www.saflii.org/za/cases/ZAECHC/2005/2.html
Subject to your reading, the following points may be drawn from the case cited above
• Section 197 of the Labour Relations Act makes inroads on the common-law principle that a
contract of employment may not be transferred without the consent of the employee
• But s 197 does not confer any greater or lesser reciprocal rights and obligations upon either
the employee or new employer than that which existed between the employee and the old
employer.
• In order to determine whether a restraint of trade agreement survives the transfer of a
business under s 197,
o one needs to examine as a matter of fact whether the restraint formed part of the
goodwill of the business and
o whether that goodwill formed part of the business being transferred as a going
concern in terms of the section.
o This is an objective factual enquiry which depends on the circumstances of each
case.
• If the factual enquiry establishes that the restraint formed part of the transfer of the business
the employee’s obligations under the restraint are owed to the new employer and the new
employer is entitled to enforce the restraint against the employee.
Note for candidates: in paragraph [11] the Securicor judgment deals with the word assignment. Please
check whether you agree with the terminology used in the judgment after reading the following explanation
of contract law terms.
• A right bound to its corresponding duty is an obligation
o R+D=O
• A right is transferred by cession: cession is the noun
o The verb to transfer a right is to cede
• A duty is transferred by delegation: delegation is the noun
o The verb to transfer a duty is to delegate
• An obligation is transferred by assignment: assignment is the noun
o The verb to transfer an obligation is to assign
The distinction between cession, delegation and assignment becomes particularly important in section 197 of
the LRA on transfers of contracts of employment when businesses are sold.
When you apply the correct terminology to drafting contracts, you will understand the nature of contracts
better. You will also notice that many contracts and statutes like the LRA confuse those terms by treating
duties and obligations as synonyms. They do overlap: but they are not synonyms.
Remember:
o The cedent cedes a right to the cessionary
o The delegator delegates a duty to the delegate
o The assignor assigns an obligation to the assignee
Ethical duties in labour litigation
Remember: the Guide for Professional Legal Ethics
Principles governing the hopeless case
“The ethics of the hopeless case”, Owen Rogers, Advocate December 2017
University of South Africa v Socikwa and Others (J 675/23; J 680/23) [2023] ZALCJHB 172
https://www.saflii.org/za/cases/ZALCJHB/2023/172.html
Subject to your reading, the following points may be drawn from the case cited above
• Courts are constitutional constructs designed to serve justice and enhance the rule of law.
• Courts are not theatres of amusement to elevate hedonism.
• Courts must be respected
o by their officers and
o those privileged to have the right of audience.
• Legal practitioners bringing hopeless cases to court must be prepared for consequences that
flow.
• Legal practitioners must not align themselves with cases that are absolutely hopeless for
pecuniary reasons and thereby frustrate bona fide litigants with worthy cases for courts to
adjudicate.
Finally, section 162 0f the LRA deals with costs as follows:
162 Costs
(1) The Labour Court may make an order for the payment of costs, according to the requirements of the
law and fairness.
(2) When deciding whether or not to order the payment of costs, the Labour Court may take into
account-
(a) whether the matter referred to the Court ought to have been referred to arbitration in terms of
this Act and, if so, the extra costs incurred in referring the matter to the Court; and
(b) the conduct of the parties-
(i) in proceeding with or defending the matter before the Court; and
(ii) during the proceedings before the Court.
(3) The Labour Court may order costs against a party to the dispute or against any person who
represented that party in those proceedings before the Court.
Nicholas J. Tee
January/February 2026
Trespass Act, 1959
