2024 SALLR Seminar Workbook - Pages 464-513

freely participate in a society with dignity is to deny him his constitutional right as a person

87. Our criminal justice system is premised on the idea that, once a criminal has paid their debt to society, that person must be allowed back into society. To deny that person their right to freely participate in society with dignity, is to deny them their constitutional rights as a person.

defence: s6(2)(b) of EEA: it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of the inherent requirements of the job

88. But the Constitution also set limits on that person’s future participation in society. This limitation finds expression in s6(2)(b) of the EEA, which states that it is not unfair discrimination to ‘distinguish, exclude or prefer any person on the basis of an inherent requirement of a job’.

was it an inherent requirement of the job in casu that applicant had to have a clear criminal check? – would applicant’s criminal history in any way affect his ability to do his job?

89. So the question before the labour court was whether it was an inherent requirement of the job for the respondent’s senior data discovery and enrichment expert to be able to demonstrate a clear criminal check. Or, more particularly, would the applicant’s criminal history have in any way affected his ability to do his job?

90. On the papers before the labour court, there was very little evidence regarding the nature of the applicant’s prior convictions. The applicant had not denied that some 20 years before he had been convicted of six counts of theft, one count of fraud and two counts of defeating the course of justice, but that was the only information that was before the labour court.

LC: criminal record may be relevant and preclude an applicant from taking up positions that require trust and honesty; no indication that the job applicant applied for required significant amount of trust and honesty

91. The labour court was prepared to assume, for the sake of argument, that, despite the two decades past and the expungement of his record, convictions of this nature might preclude the applicant from taking up positions that require trust and honesty (although the labour court made no such finding). However, on the papers, there was no indication that the position of senior data discovery and enrichment expert required any significant amount of trust and honesty, and certainly not so much that the possibility of the applicant’s rehabilitation should be completed disregarded.

92. The applicant would conduct his work from his home in Komani (previously Queenstown), whereas the respondent’s main offices were in Durban. The applicant would do his job over the internet using his own resources. It stretched credulity to imagine that the applicant would sit at home and maliciously miscategorise legal information for his own benefit.

93. The labour court, therefore, found that the applicant’s criminal history was not relevant to the job which the respondent had denied him.

LC: respondent’s decision to deny applicant the job he applied for, solely on the basis of his criminal history, constituted unfair discrimination on an arbitrary ground, within the meaning of s6 of the EEA

94. In light of all of the above, the respondent’s decision to deny the applicant the job of senior data discovery and enrichment expert, on the sole basis of his criminal history, constituted unfair discrimination within the meaning of s6 of the EEA.

order

95. The respondent was ordered to employ the applicant, within 10 court days of the date of this judgment, as a senior data discovery and enrichment expert on the terms and condition set out in the written contract of employment concluded between the parties on 30 January 2024, save that the contract should endure for a period of nine months from the date of employment specified in the order.

96. There was no order as to costs.

11.2 EQUAL PAY FOR EQUAL WORK DISPUTES

11.2.1 DIFFERENT

RATES FOR OLD AND NEW EMPLOYEES NOT CONSTITUTING A GROUND OF UNFAIR DISCRIMINATION

Association of Mineworkers and Construction Union obo Members v Aberdare Cables (Pty) Ltd and Others Unreported case no P135/2021 (2024) 45 ILJ 511 (LC) [2024] 3 BLLR 276 (LC) (2024) 35 SALLR 122 (LC)

(a) The labour court recently had to deal with the scenario as to the potential applicability of unfair discrimination in terms of s6(1) of the EEA where employees employed prior to a specific date (old employees) are remunerated at a higher rate than employees employed after such specific date (new employees). In dealing with such scenario, the labour court considered the following issues:

(i) ‘arbitrary ground’ as provided for in s6(1) read with s11(2) of the EEA makes it clear that irrationality of differentiation per se will not win a discrimination case based upon an arbitrary ground. With reference to Harksen v Lane NO and Others 1998 (1) SA 300 (CC), what is the test reaffirmed by the labour court to determine whether or not an arbitrary ground complies with the test of discrimination?

(ii) s6(4) of the EEA does not impose a blanket prohibition on wage differentiation. What is the extent of the onus of an applicant pursuing a claim in terms of s6(4) of the EEA to demonstrate more than mere differentiation?

(iii) does the Harksen test entail that, if differentiation is not rational, the enquiry ends there and the conduct constitutes unfair discrimination?

(iv) with reference to Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v Food and Allied Workers Union obo Members and Others (2022) 43 ILJ 2584 (LAC), does differential remuneration, based on length of service, amount to unfair discrimination on an arbitrary ground?

(v) with reference to Pioneer Foods (Pty) Ltd v Workers Against Regression and Others (2016) 37 ILJ 2872 (LC), when an employer employs a new employee on a rate lower than existing long-serving employees, to what extent does it amount to unfair discrimination when the newly-appointed employee had previous substantial experience with the employer concerned or with some other employer?

(vi) what are the requirements to be met, in terms of s11(2)(b) of the EEA, for a complainant to prove that the conduct complained of amounts to discrimination, with reference to Ntai and Others v SA Breweries Ltd (2001) 22 ILJ 214 (LC)?

INTRODUCTION

AMCU, obo its members, approached CCMA ito s10(2) of EEA, alleging unfair discrimination ito s6(4), read with s6(1) of the EEA regarding a dispute concerning differentiation in remuneration; arbitrator held that AMCU had failed to prove the difference in terms and conditions of employment of employees performing same or substantially the same work of equal value amounted to unfair discrimination – appeal to LC ito s10(8) of EEA

1. The appellant (AMCU), acting on behalf of its members, approached the second respondent (the CCMA) in terms of the provisions of s10(2) of the EEA on a matter of unfair discrimination, with the contemplation of s6(4), read with s6(1) of the EEA. The discrimination was alleged to be on an arbitrary ground and the dispute stemmed from a differentiation in remuneration.

2. An arbitration award was issued on 19 December 2021, wherein the third respondent (the arbitrator) found that AMCU had failed to prove that the difference in terms and conditions of employment between its members and other employees, performing the same or substantially the same work of equal value, amounted to unfair discrimination and the appellant’s case was dismissed.

3. The appellant filed a notice of appeal in terms of the provisions of s10(8) of the EEA against the arbitration award.

PERTINENT FACTS OF THE CASE

4. The parties concluded a pre-arbitration minute and, per the agreement between the parties, the material facts set out herein were common cause.

employer falls within the registered scope of the Metal and Engineering Industries Bargaining Council (MEIBC) – collective bargaining takes place at a centralised level and results in the conclusion of collective agreements at such level; ito collective agreement, all employees employed on a specific level receive the same minimum wage, regardless of job description; when the employer faced a decline in business and contemplated a reduction in its workforce, it and the majority union at the time (NUMSA) agreed that, as an alternative, the employer would engage all new employees on the MEIBC rate of pay (and not the plant higher level) and rely on natural attrition to ensure that, over a period of time, all employees be engaged at the same rate of pay, resulting in the new employees earning the minimum wage rate as stipulated in the MEIBC collective agreement and the old employees were remunerated at a higher rate (the Aberdare rate): thus resulting in a different pay structure for old employees and new employees doing the same job, or a job of equal value

5. The first respondent (the respondent) is a private company and it employed the employees. The respondent falls within the registered scope of the Metal and Engineering Industries Bargaining Council (the MEIBC), where collective bargaining takes place at a centralised level and results in the conclusion of collective agreements at central level.

6. A collective agreement, which was implemented in the MEIBC and which bound the respondent, inter alia, implemented a uniform four level grading structure and stipulated minimum wages and hourly rates per applicable level or grade. The collective agreement provided for the following wage levels: level 1, 2, 3, 4 and 4B and a minimum wage was stipulated per level only and there were no increments or grades within a level which attracted differing minimum wages. This meant that all the employees employed on a specific level received the same minimum wage and, regardless of job description, a higher salary level attracted a higher minimum wage. All level 1 employees performed the same work or substantially the same or similar work of equal value. The same applied to employees at levels 2, 3, 4 and 4B. The nature, complexity, difficulty and, as such, the ‘value’ of work performed increased with each level and, as such, the wage associated with each level increased as the levels increased.

7. It was common cause that, in March 2013, the respondent had initiated a process in terms of s189 and s189A of the LRA, which had resulted in a reduction of its workforce. During the latter part of 2013, the respondent was confronted with a decline in business and, on 5 December 2013, the respondent and the National Union of Metal Workers of South Africa (NUMSA), the majority union at the time, had attended a meeting regarding the circumstances being faced by the respondent. Three possible alternatives were proposed to address the concerns:

7.1. applying to the MEIBC for a wage exemption to freeze wage increases until such time as the rates paid by the respondent, aligned with the MEIBC rates;

7.2. commencing with a further s189 retrenchment process; and

7.3. engaging all new employees on the MEIBC rate of pay and rely on natural attrition to ensure that, over a period of time, all employees would be engaged on the same rates of pay.

8. The respondent and NUMSA agreed to the third option and the agreement was implemented with effect from January 2014. As a result, all those employed on or after 1 January 2014 (the new employees) earned the minimum wage rate, as stipulated in the collective agreement. The employees employed prior to 1 July 2014 (the old employees) were remunerated at a higher rate (the Aberdare rate) and the new employees were remunerated at a lower rate (the MEIBC rate). After January 2014, all new employees were appointed at the prescribed MEIBC minimum wage, and the old employees retained their higher Aberdare rate salaries.

FINDINGS OF THE LABOUR COURT

Prinsloo J

general principles

9. Before dealing with the merits of the appeal, the labour court considered it prudent to set out the general principles applicable to a claim for equal pay for equal work, where it is alleged to be unfair discrimination based on an arbitrary ground.

s6(1), read with s11(2): irrationality of differentiation per se does not win an unfair discrimination case based on an arbitrary ground; the conduct must amount to unfair discrimination in that it must cause an injury to human dignity

10. The EEA does not prohibit differentiation but prohibits unfair discrimination. More specifically, s6(1) of the EEA does not prohibit differentiation or arbitrariness but prohibits unfair discrimination on an ‘arbitrary ground’. ‘Arbitrary ground’, as provided for in s6(1), read in conjunction with s11(2), makes it clear that the irrationality of differentiation per se will not win a discrimination case based on an arbitrary ground. The conduct complained of must amount to unfair discrimination in that it must cause an injury to human dignity. Irrationality does not win a case, the irrationality of discrimination does.

Differentiation based on a listed ground is presumed to constitute unfair discrimination, which presumption is rebuttable; seeing that an arbitrary ground is synonymous with a non-listed ground, the test for discrimination, as set out in Harksen v Lane is applicable: whether or not there is discrimination will depend on whether or not the ground is based on attributes or characteristics which have the potential to impair the fundamental of persons as human beings or affect them adversely in a comparably serious manner (Naidoo (LC))

11. Differentiation per se does not constitute discrimination. Differentiation on a specified ground of discrimination is presumed to constitute unfair discrimination, which presumption is rebuttable. Given that an arbitrary ground is synonymous with an unlisted/unspecified ground, the test for whether discrimination is established is that set

out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (Harksen), namely, if there is differentiation based on an unspecified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner (Naidoo and Others v Parliament of the Republic of South Africa (2019) 40 ILJ 864 (LC) (Naidoo (LC)).

s6(4) of EEA does not impose a blanket prohibition on wage differentiation: it prohibits differentiation where it is directly or indirectly based on any of the grounds listed in s6(1); an applicant must clearly identify and plead an identifiable ground of discrimination that qualifies as an arbitrary ground within s6(1), but must also prove that the differentiation is based on such arbitrary ground

12. Section 6(4) of the EEA does not impose a blanket prohibition on wage differentiation. It prohibits such differentiation where it is directly or indirectly based on any one or more of the grounds listed in s6(1). An applicant pursuing a claim in terms of s6(4) of the EEA must demonstrate more than mere differentiation. Such an applicant must not only clearly identify and plead an identifiable ground of discrimination that qualifies as an arbitrary ground, within the contemplation of s6(1), but must also prove that the differentiation is based on such an arbitrary ground.

Naidoo (LAC): applying the test in Harksen v Lane – an arbitrary ground is a ground based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner to a listed ground

13. In Naidoo (LC), which was upheld by the labour appeal court in Naidoo and Others v Parliament of the Republic of South Africa [2020] ZALAC 38; (2020) 41 ILJ 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (Naidoo (LAC)), the labour court considered the interpretation of the phrase ‘any arbitrary ground’ and held that:

‘[36] … Given that an arbitrary ground is synonymous with an unlisted/ unspecified ground, the test for whether discrimination is established, is that set in Harksen, namely, if there is differentiation based on an unspecified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner.

[37] Although the constitutional court did not provide a comprehensive description of what ‘attributes and characteristics’ would comprise, it held that:

“What the specified grounds have in common is that they have been used (or misused) in the past (both in South Africa and elsewhere) to categorise, marginalise and often oppress persons who have had, or who have been associated with, these attributes or characteristics. These grounds have the potential, when manipulated, to demean persons in their inherent humanity and dignity. There is often a complex relationship between these grounds. In some cases they relate to immutable biological attributes or characteristics, in some to the associational life of humans, in some to the intellectual, expressive and religious dimensions of humanity and in some cases to a combination of one or more of these features.”

[38] The test set out in Harksen v Lane NO and Others will apply and, in order for the alleged grounds of arbitrary discrimination to qualify as such, they must, objectively, constitute grounds based on attributes and

characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner to a listed ground. In short: the unequal treatment must be based on attributes and characteristics attaching to a person before it will fall within the meaning of “discrimination”’ (Harksen, at paragraph [50]).

14. In Naidoo (LAC), the labour appeal court endorsed the narrow compass interpretation of the phrase ‘any other arbitrary ground’ in s6(1) of the EEA.

Naidoo (LAC): to determine whether applicants have pleaded a case entailing the above requirements: the ground must offend human dignity

15. The labour appeal court, in Naidoo (LAC), considered whether there was a cognisable case pleaded on the narrow compass interpretation and held that:

‘[29] The next step is to consider whether, upon the narrow compass construction of s6(1), the appellants have pleaded a cognisable case. What exactly is averred by the appellants? Allusions are made to nepotism, differences in years of service and recruitment of the chamber support officers from the ranks of persons who were members of the SAPS at that moment of recruitment. The responsibility for this grievance is alleged to be the brainchild of their manager, Van der Spuy. A fair reading of these averments reveals that the critical allegation is that a group of persons have been given preferential treatment based on their affinity with Van der Spuy who is a fan of the SAPS: in a word, this is nepotism.

[30] Do these averments that the protection officers are the victims of nepotism meet the test in Harksen v Lane NO? in my view they do not. Nepotism, in any case, cannot be countenanced, even more so in the case of parliament. However, this court is required to determine this dispute in terms of the EEA and nepotism is not a necessary affront to human dignity, in neither the sense contemplated by s9 of the Constitution, nor in s6(1) of the EEA. To be neglected because of nepotism implies no characteristic of a person so victimised nor does it invoke any pejorative perspective of such person, whether inherent or adopted. Nepotism differs from, for example racism, where the bearer of authority or of power rejects X because of X’s race and prefers Y because of Y’s race. If what Van der Spuy has done is indeed to prefer his chums to the appellants, i e behaved nepotistically, that conduct, however wrongful, is not unfair discrimination within the purview of s6(1).’

LC: it is not sufficient to simply allege discrimination, or that the discrimination is arbitrary, or that the employee’s dignity has been impaired; applicant must (i) allege a specific ground of discrimination; (ii) prove that the pleaded ground of discrimination is the basis for differentiation; (iii) that such discrimination is unfair

16. In short: it is not sufficient to simply allege differentiation, or that the differentiation is arbitrary, or that an employee’s dignity has been impaired. An applicant must allege a specific ground of discrimination, must prove that the pleaded ground of discrimination is the basis for differentiation and that it is unfair. There is a distinction to be drawn between differentiation and discrimination and differentiation per se does not constitute discrimination on an arbitrary ground, which must be clearly identified and pleaded.

the difficulty with the appellant’s case

the appellant’s pleaded case was that the arbitrary ground is that the respondent had elected to apply a higher rate of remuneration iro the comparator employees and has irrationally and arbitrarily elected to do so

17. The appellant’s pleaded case was that the arbitrary ground was that the respondent had elected to apply a higher rate of remuneration only in respect of the comparator employees. In a pre-arbitration minute signed by the parties, the following was specifically recorded in respect of the arbitrary ground:

‘The appellants allege that the arbitrary ground upon which the differentiation in remuneration is based is solely that the respondent has elected to apply a higher rate of remuneration than the minimum wage provided for in the CA but has, inter alia, irrationally and arbitrarily elected to do so only with respect to the comparator employees.

In amplification of the above, the appellants allege that the respondent has arbitrarily elected to apply the higher Aberdare rate to the employees employed before 1 July 2014 (that being the comparator employees) and the lower MEIBC rate to employees employed after such date.

The respondent alleges that the arbitraryground identified bythe appellants does not qualify as an arbitrary ground within the meaning to be ascribed to that concept for purposes of s6 of the EEA.’

applying Harksen v Lane: appellant had to plead an identifiable ground of arbitrary discrimination – to qualify for such a ground, such ground must objectively be based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or affect them adversely in a comparably serious manner to a listed ground – appellant did not identify nor plead an specific arbitrary ground of discrimination; it would be too simplistic to accept, as a matter of fact, that the lower rate of earning equates to a lower level of dignity

18. The labour court had already alluded to the fact that the Harksen test would apply in a case such as the present one and that the appellant had to plead an identifiable ground of arbitrary discrimination.

19. Not every differentiation is discrimination and, to qualify as such, the ground(s) for discrimination relied upon must, objectively, constitute a ground(s) based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner to a listed ground. The unequal treatment must be based on attributes and characteristics attaching to a person before it will fall within the meaning of ‘discrimination’, as contemplated in the EEA.

20. The difficulty in the appellant’s case was that the arbitrary ground of discrimination was not identified or pleaded. It was not sufficient to simply allege differentiation, or that the differentiation was arbitrary, or that an employee’s dignity had been impaired. An applicant must allege a specific ground of discrimination, which the appellant had failed to do.

21. Added to the difficulty that the arbitrary ground for discrimination was not identified or pleaded, the witnesses called by the appellant during the arbitration process did not rescue the deficiencies in their pleaded case. The witnesses did not give evidence to prove that the basis for their being paid less than the comparator employees, who had been employed prior to 2014, was because of discrimination by the respondent, based on any specific arbitrary ground of discrimination.

22. The appellant had an incorrect understanding of the applicable principles and the Harksen test, which is best illustrated by the submissions made in argument before the

labour court. The appellant submitted that the Harksen test requires that differentiation must be proved and ‘if the differentiation is not rational, the enquiry ends here and the conduct constitutes unfair discrimination’.

23. Irrational differentiation does not automatically constitute unfair discrimination, just as rational differentiation might nevertheless amount to discrimination.

24. The appellant’s case, in the main, was that there was differentiation, that the employees were adversely affected by the wage differentiation, that their dignity had suffered because of it and that, therefore, there was unfair discrimination on an arbitrary ground.

25. It would be too radical to accept that, once there is differentiation and prejudice or an impairment of some sort as a result thereof, it follows that an arbitrary ground of discrimination exists, without identifying what the arbitrary ground is. It would also be too simplistic to accept, as a matter of fact, that a lower rate of earning equates to a lower level of dignity.

the appeal

to succeed in its case, the appellant had to prove all 3 of the elements set out in s11(2) of the EEA, namely, conduct must be irrational, conduct must amount to discrimination and the discrimination must be unfair

26. To succeed with its case, the appellant had to prove all three of the elements set out in s11(2) of the EEA.

the applicable test

Harksen v Lane test

27. The appellant correctly submitted that the applicable test is as per Harksen, where it was held as follows:

Stage 1

‘(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of s8(1). Even If it does bear a rational connection, it might nevertheless amount to discrimination.

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

Stage 2

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

Stage 3

(ii) If the differentiation amounts to “discrimination”, does it amount to “unfair discrimination”? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact

of the discrimination on the complainant and others in his or her situation.

If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of s8(2).

Stage 4

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s33 of the interim Constitution).’

application of test per Harksen v Lane in casu: stage 1 – (i) differentiation was established in casu – new employees earned less than old employees (para 8 in casu); (ii) to determine whether the differentiation bears a rational connection to a legitimate purpose, i e whether the conduct complained of was rational; in casu the differentiation was rational, seeing that it was found, on the employer’s business motive to save operations, seniority and length of service is a justifiable reason for salary differentiation; (iii) even if it is rational, it might still be discrimination

28. Differentiation must be established in the first place. In the present matter, differentiation was common cause.

29. As differentiation is established, the second question is whether the differentiation bears a rational connection to a legitimate purpose, or, put differently, whether the conduct complained of is rational. Even if it is rational, it might still amount to discrimination.

30. In the present matter, the arbitrator found that the differentiation was rational and the rationality was founded on the respondent’s business motive to save operations and seniority and length of service was a justifiable reason for salary differentiation.

31. In the labour court’s view, the appellant was losing sight of the two-stage analysis. Even if the differentiation was not rational, it did not automatically amount to unfair discrimination.

stage 2 – determine whether the differentiation amounts to discrimination: (i) if it is on a listed ground, discrimination is presumed; (ii) if it is on a non-listed ground (arbitrary ground) the test is (a) whether the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or (b) to affect them adversely in a comparably serious manner; length of service, etc, is not a ground similar to a listed ground that affects human dignity

32. To determine whether the differentiation amounts to unfair discrimination, a two-stage analysis must be followed. The first stage is to determine whether the differentiation amounts to discrimination and, if it does, the second stage is to determine whether the discrimination is unfair.

stage 3 – if the differentiation amounts to discrimination, does this amount to unfair discrimination?: (i) if it is on a listed ground, unfairness is presumed; (ii) if it is on an arbitrary ground, unfairness will have to be established by the complainant – the test primarily focuses on the impact of the discrimination on the complainant and others in his/her situation

33. The appellant further submitted that the ground of ‘length of service’ was biased against a group of employees based on an analogous ground and/or was not applied proportionally. The differentiation was, therefore, not rational and fair and, as such, unfair discrimination could not be justified. The appellant submitted that the arbitrator had erred in not coming to this conclusion.

stage 4 – If the discrimination is unfair, is there a justifiable limitation: e g s6(2) of the EEA – it is not unfair discrimination if it is based on the inherent requirements of a job

Blue Ribbon Bakery (LC): with reference to EEA regulations dealing with the criteria and methodology for assessing work of equal value contemplated in s6(4) of the EEA: seniority or length of service is a fair basis for differential remuneration of people doing the same work or work of equal value

34. The appellant’s submissions in this regard flew in the face of Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU obo Members and Others (2022) 43 ILJ 2584 (LC) (Blue Ribbon Bakery), where the labour court found that the differential remuneration complained of, based on service, did not amount to unfair discrimination on an ‘arbitrary ground’ in the sense that the term must be interpreted in s6(1) of the EEA and held that:

‘[22] It is difficult to see how length of service can be likened to an attribute akin to an immutable human characteristic, sexual or social identity, cultural or organisational association, or deeply held moral, political or religious conviction. Consonant with this principle, the EEA Regulations, which were applicable at the time and were “published to prescribe the criteria and methodology for assessing work of equal value contemplated in section 6(4) of the Act” specifically stated that length of service is a fair basis for differential remuneration of individuals performing work of equal value:

“7

Factors justifying differentiation in terms and conditions of employment

(1) If employees perform work that is of equal value, a difference in terms and conditions of employment, including remuneration, is not unfair discrimination if the difference is fair and rational and is based on any one or a combination of the following grounds:

(a) the individuals' respective seniority or length of service;…”’

WAR (LC): (i) differentiation on the basis of paying newly-appointed employees less than old employees is not an unlisted arbitrary ground of discrimination; (ii) it has a rational basis; (iii) it applies irrespective of whether the newly-appointed employees had previous substantial experience, whether with the employer concerned or some other employer – the appellant’s submissions in casu flew against the approach adopted in Blue Ribbon Bakery (LC) and WAR (LC)

35. In Pioneer Foods (Pty) Ltd v Workers Against Regression and Others [2016] 9 BLLR 942 (LC) (WAR), it was confirmed that nothing in the EEA precludes an employer from adopting and applying a rule in terms of which newly-appointed employees start at a rate lower than existing long serving employees. This applies whether or not the newly appointed employee had previous substantial experience, whether with the employer concerned or some other employer. Differentiation on the basis of ‘being newer employees’ is not an unlisted arbitraryground of discrimination; and a practice of paying newer employees at a lower rate is in any event neither irrational nor unfair.

Ntai (LC): complainant must identify the listed or unlisted arbitrary ground in order for s11(1) and s11(2) of EEA to be applied

36. It is trite that, in order to prove that the conduct complained of ‘amounts to discrimination’ in terms of s11(2)(b) of the EEA, the complainant must identify the listed or unlisted arbitrary ground of discrimination relied upon, establish that that ground is an ‘other arbitrary ground’ and prove that that ground is the reason for the disparate treatment complained of.

37. As the labour court observed, in Ntai and Others v SA Breweries Ltd (2001) 22 ILJ 214 (LC), at paragraph [73]:

‘Litigants who bring discrimination cases to the labour court and simply allege that there was “discrimination” on some or other “arbitrary” ground, without identifying such ground, would be well advised to take note that the mere “arbitrary” actions of an employer do not, as such, amount to “discrimination” within the accepted legal definition of the concept.’

LC conclusion in casu: (i) appellant failed to identify the arbitrary ground; (ii) no case had been made out that the alleged but undisclosed ground of discrimination had anything to do with attributes or characteristics which impaired the human dignity of the employees concerned or affected them adversely in a comparably serious manner to a listed ground

38. The appellant could not succeed as it could not show that the ground of arbitrary discrimination, as per the pleaded case, was analogous to the listed ground. Firstly, the arbitrary ground had not been identified and, secondly, no case had been made out that the alleged, but undisclosed, ground of discrimination had anything to do with attributes or characteristics which make the employees who they are, and that it had impaired their human dignity in a comparable manner to a listed ground.

conclusion

Naidoo (LAC): the prohibited grounds are designed to protect the dignity of an affected person – that is the starting point of an enquiry regarding discrimination; an arbitrary ground is not a self-standing ground, but rather one that refers back to the listed grounds; so it is required that it must be of a similar kind as the listed grounds to fall within s6 of the EEA by affecting the dignity of the person concerned

39. In Naidoo (LAC), at paragraph [25], the labour appeal court confirmed that:

‘...s6 of the EEA which is predicated, as already noted, on the basis that the prohibited grounds are all designed to protect the dignity of an affected person. That is the starting point of any enquiry regarding discrimination. This conclusion is reinforced by the words “any other arbitrary ground”. The insertion of the word “other” supports the conclusion that the phrase “any other arbitrary ground” was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s 6.’

Harksen v Lane test applied

40. The Harksen test applied and for the appellant to show that its pleaded ground of arbitrary discrimination qualified as such, it had to show that the ground(s) it relied on, constituted grounds based on attributes and characteristics which had the potential to impair its members’ fundamental human dignity or to affect them adversely in a comparably serious manner to a listed ground.

the difficulty with appellant’s case is that it did not identify an arbitrary ground of discrimination – an arbitrary ground analysis to a listed ground must have been identified to succeed

41. The appellant failed to allege that the reason for differentiation was some characteristic that impacted upon its members’ human dignity. The appellant’s case was that there was differentiation, that it impacted on its members’ dignity and, therefore, it was unfair discrimination. The difficulty remained that the appellant had not identified the arbitrary ground of discrimination.

42. In short, arbitrary conduct is not, per se, a ground of discrimination, only conduct based on a ground of discrimination that is arbitrary is actionable and, to be actionable, the ground must be analogous to a listed ground.

43. The respondent’s conduct in paying different wages for the same or similar work, however unfair it might be, was not unfair discrimination within the purview of s6(1) of the EEA. More than mere differentiation or unfairness is required in terms of the provisions of the EEA.

arbitrator did not err when she made her findings and the appeal had to fail

44. The arbitrator had not erred when she made the findings, as fully dealt with above, and the appeal had to fail.

order

45. The appeal was dismissed and there was no order as to costs.

12. NATIONAL MINIMUM WAGE ACT 9 OF 2018 (NMWA)

12.1 s5(1)(c): CALCULATION OF WAGES

12.1.1 CONTRACTUAL BONUS TO BE INCLUDED IN CALCULATION OF EMPLOYEE’S HOURLY RATE; PROVIDENT FUND CONTRIBUTIONS PAID BY EMPLOYER ON BEHALF OF EMPLOYEE INCLUDED IN CALCULATION OF EMPLOYEE’S HOURLY RATE

Quantum Foods (Pty) Ltd v Jacobs NO and Others Unreported case no JA85/2022 (2024) 45 ILJ 71 (LAC) [2024] 1 BLLR 32 (LAC) (2024) 35 SALLR 118 (LAC)

(a) When calculating a wage for the purposes of the National Minimum Wage Act 9 of 2018 (NMWA), in terms of s5(1)(c), the following is to be excluded: ‘gratuities, including bonuses, tips or gifts’. On what basis did the labour appeal court determine that a bonus to which an employee is contractually entitled is not to be excluded in terms of s5(1)(c) of the NMWA but, indeed, is to be taken into account in the calculation of wages for the purposes of such Act?

(b) Having determined the meaning of gratuity in terms of s5(1)(c) of the NMWA, the labour appeal court applied the eiusdem generis rule. On the basis of the application of such rule, how did the labour appeal court determine the content of bonuses, tips or gifts?

(c) ‘Provident fund contributions’ is not an item specifically mentioned in s5(1) of the NMWA. On what basis did the labour appeal court determine that such provident fund contributions do not fall under any of the exclusions listed in s5(1) of the NMWA and are to be taken into account when calculating wages for the purposes of such Act?

INTRODUCTION

1. The enactment of the National Minimum Wage Act 9 of 2018 (the Act) heralded a new era in the ongoing pursuit of social and economic justice for the most vulnerable and economically exploited sectors of society. Seeking to protect the lowest-paid workers from exploitation and to improve their wages, the Act prescribes minimum wages effective from the date of its commencement, which was 1 January 2019.

Quantum Foods restructured its payslips to include a contractual bonus, as well as the contributions it paid to a provident fund obo its employees – once it made these changes, it complied with the minimum threshold in the Act

2. In an attempt to bring its employees’ wages in line with the prescripts of the Act, the appellant (Quantum Foods) restructured its payslips to include a contractual bonus, as well as the contributions it paid to a provident fund on behalf of its employees. The bonus could, at an employee’s election, either be paid annually or in equal monthly payments. Once those amounts were factored in, the wages met the minimum threshold prescribed by the Act.

PERTINENT FACTS OF THE CASE

ito the employees’ signed contracts of employment, they were contractually entitled to a bonus – equal to one month’s of an employee’s ‘basic amount’, to be taken monthly, or on an annual basis; if the employee leaves the service of the employer, for whatever reason, he/she will qualify for such bonus on a pro rata basis

3. All of Quantum Food’s employees, including the union members, had signed contracts of employment, which included the following terms:

‘Annual/Monthly – The employee will qualify for an annual bonus equal to one month’s employee basic amount, calculated from January to December and payable in December of each year.

Employees joining the Company in the course of a year will be paid a pro rata bonus. The employee may also elect to take his/her bonus monthly.

The bonus will commence accruing on the day that the employee commences working and the employees who do not start on the first day of the month will qualify for a prorated bonus for that month. Employees who leave Pioneer’s service during the month, will similarly qualifyfor a prorated bonus for that month.

Should the employee leave the service of the Company for whatever reason he/she will qualify for a pro rata bonus if the Employee elected to receive a bonus annually.’

restructuring of payslips by employer: previously bonus had been reflected on payslip when it was paid out; after restructuring the bonus was reflected as a cash amount and monthly pro rata bonus was reflected as a deferred payment

4. Quantum Foods had, both before and after the Act came into operation, followed a ‘total cost of employment’ approach to remuneration. The contractual bonus was usually paid to employees during December, but theycould also elect to receive it by way of monthly instalments.

5. From April 2019, Quantum Foods restructured its payslips to include, in addition to a cash amount of R3 462.55, the monthly pro rata bonus in the sum of R266.35, as a deferred payment. Previously, the bonus had only been reflected on the payslip when it was paid out during December.

employer also structured the payslips to take into account its provident fund contributions

6. Quantum Foods also paid employer contributions to a provident fund on behalf of its employees. The arbitrator’s finding in this regard accordingly appeared to have been a bona fide, albeit material, error.

Smith AJA (Waglay JP and Malindi AJA concurring)

The legal principles and discussion

s5(1) of the Act: despite any contract or law to the contrary, the calculation of a wage for the purposes of this Act is the amount payable in money for ordinary hours of work, excluding (i) any payment made to enable a worker to work, including any transport, equipment, tool, food or accommodation, allowance, unless specified otherwise in a sectoral determination; (ii) any payment in kind, including board or accommodation, unless specified in a sectoral determination; (iii) gratuities, including bonuses, tips or gifts; and (iv) any other prescribed category of payment

7. Central to the determination of the contested issues was the construction of s5(1) of the Act, which prescribes how the minimum wage must be calculated. It reads as follows:

‘(1) Despite any contract or law to the contrary, the calculation of a wage for the purposes of this Act is the amount payable in money for ordinary hours of work excluding –

(a) any payment made to enable a worker to work including any transport, equipment, tool, food or accommodation allowance, unless specified otherwise in a [sectoral] determination;

(b) any payment in kind including board or accommodation, unless specified otherwise in a sectoral determination;

(c) gratuities including bonuses, tips or gifts; and

(d) any other prescribed category of payment.’

8. This provision and the relevant contractual clause must be construed in terms of the accepted canons of construction, which means that regard must be had to the language used, the context in which the provision appears, its apparent purpose and the material known to those who drafted it (University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC))

gratuity: denotes discretion on part of the giver (without creating any legal or contractual entitlement); Estate Welch (SCA) – something given, not in expectation of any quid pro quo and without any obligation to pay

9. The Shorter Oxford Dictionary defines ‘gratuity’ as meaning a gift or money given in return for some service or favour, ‘the amount depending on the inclination of the giver’. It is manifest, therefore, that the term ‘gratuity’ denotes discretion on the part of the giver and, perhaps, in some instances, expectation on the part of the receiver, but without any legal or contractual entitlement to the payment.

10. The term ‘gratuitous’ has also been authoritatively interpreted by the supreme court of appeal in Estate Welch v Commissioner for SARS [2004] 2 All SA 586 (SCA), at paragraph [31], as meaning something ‘motivated by pure liberality and not in expectation of any quid pro quo’ and without any obligation to pay.

eiusdem generis rule application: the other payments in s5(1)(c) (i e bonuses, tips or gifts) must be restricted to the generic meaning of gratuity

11. The other payments, which in terms of s5(1)(c) are included in the concept of a gratuity, must be construed in accordance with the eiusdem generis rule. This means that their meanings must be restricted to the generic meaning of a ‘gratuity’. Another way of putting it is that their meanings must be inferred noscitur a sociis, namely, from those

of the accompanying terms (Moodley v Scottsburgh/Umzinto North Local Transitional Council and Another 2000 (4) SA 524 (D))

12. This approach is in accordance with the established canons of interpretation and in particular the imperative for contextual reading of words and phrases (Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

the meaning of ‘bonus’ in s5(1)(c) of the Act is a gratuitous, voluntary payment – on the other hand, the nature of the bonus that Quantum Foods paid was different: it was contractually obliged to pay this to its workers

13. The New Oxford Dictionary defines ‘bonus’ as ‘a payment or gift added to what is usual or expected, in particular: an amount of money added to a person’s wages, especially as reward for good performance’. There could, thus, be little doubt that the concept of a ‘bonus’ referred to in s5(1)(c) is indeed the type of gratuitous payment that is included, noscitur a socii, in the genus of a ‘gratuity’ mentioned in that subsection.

14. The nature of the bonus that Quantum Foods was contractually obligated to pay its workers did, however, not fit in with that definition. It had no ‘gratuitous’ characteristic and was founded on a covenantal duty instead of on discretional largesse or the inclination of the giver.

provident fund contributions? – s5(1) does not expressly include or exclude such payments; it accordingly had to be factored into the calculation of the employees’ hourly rate

15. As regards the issue of the provident fund contributions, it was instructive that s5(1) does not expressly include or exclude such payments. The question, therefore, arose as to whether it was ‘payable’ to employees ‘in money for ordinary hours of work’ and whether it fell under any one of the exclusions.

16. A reasonable construction of the term ‘payable’, in accordance with the abovementioned canons of interpretation, could only mean ‘that which is required to be paid in money to an employee’. It would accordingly include any payment to be made on his or her behalf. Any other interpretation would simply not make any sense.

17. The provident fund contributions paid by Quantum Foods on behalf of its employees manifestly did not fall under any of the exclusions mentioned in s5(1)(a), (b), or (c). They had, accordingly, to be factored into the calculation of the employees’ hourly rate.

18. As mentioned earlier, it was common cause that if those payments were factored into workers’ hourly rates, the wages Quantum Foods paid to its employees would comply with the provisions of the Act. The appeal had accordingly to succeed. The labour appeal court saw no reason why any of the parties should be ordered to pay costs.

order

19. The order of the labour court was set aside and replaced with the following order:

‘(2) The award is substituted with an award that reads as follows:

“The Employer’s incorporation of the contractual bonus and the Employer’s provident fund contributions in the calculation of its wage is in compliance with the provisions of the National Minimum Wage Act, 9 of 2018.”’

20. There was no order as to costs.

13.1 s71 OF THE LGMSA BANNED ALL MUNICIPAL EMPLOYEES FROM HOLDING POLITICAL OFFICE IN A POLITICAL PARTY

13.1.1 EXTENSION OF PROHIBITION BEYOND MUNICIPAL MANAGERS AND MANAGERS ACCOUNTABLE TO THEM UNCONSTITUTIONAL; SUCH PROHIBITION NOT REQUIRED TO ACHIEVE THE OBJECTIVES OF PROFESSIONAL MUNICIPAL MANAGEMENT AND IMPROVED SERVICE DELIVERY

SA Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs and Another Unreported case no J945/2023 (2024) 45 ILJ 595 (LC) [2024] 2 BLLR 221 (LC) (2024) 35 SALLR 128 (LC)

(a) Section19 of the Constitution guarantees the right of every citizen to make political choices and to participate in the activities of a political party. The Local Government: Municipal Systems Act 32 of 2002 (the Systems Act) places limitations on the rights of municipal employees to hold political office in a political party. Until 2022, that limitation only extended to senior management, comprising municipal managers and managers directly accountable to them. However, in 2022, the Systems Act was amended and, in terms of s71B, the prohibition was extended to all municipal employees, whatever their status. How did the labour court recently deal with the following issues relating to the aforesaid scenario:

(i) in Law Society of SA and Others v Minister for Transport and Another 2011 (1) SA 400 (CC), it was held that the rationality threshold is one established by the rule of law and that it requires the court to determine whether the measure adopted by the legislature is properly related to the public good it seeks to realise. How did the labour court apply this principle when it considered the constitutionality of s71B of the Systems Act?

(ii) what is the approach adopted by the labour court to determine whether the said s71B is a justifiable limitation on the right of municipal employees to make political choices and to participate in the activities of a political party?

(iii) on what basis did the labour court find that the preamble to the Amendment Systems Act, indicating the purpose of s71B to the barring of municipal managers and managers directly accountable to principal managers from holding political office in political parties and making no reference to other municipal employees, is not relevant to the issue of constitutionality but rather that the issue is whether the said statutory provision is linked to the purpose of limitation on the aforesaid constitutional rights raised by the respondents, namely, being to depoliticise and professionalise local government by eradicating political interference in municipal decision making, so as to maintain management stability and thus improve service delivery?

(b) What are the factors identified by the labour court when considering whether or not a statutory provision meets the threshold of justifiability?

(c) With reference to, inter alia, Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others 2014 (1) SACR 327 (CC), what is the type of evidence identified by the labour court to be tendered to demonstrate that the existence and enforcement of the limited constitutional right can reasonably be expected to control the risks identified and to advance the purpose of such limitation?

INTRODUCTION

s19 of Constitution guarantees the right of every citizen to make political choices and to participate in the activities of a political party

1. Section 19 of the Constitution guarantees the right of every citizen to make political choices and to participate in the activities of a political party.

2. Section 19 reads as follows: ‘19. Political rights

(1) Every citizen is free to make political choices, which includes the right –

(a) to form a political party;

(b) to participate in the activities of, or recruit members for, a political party; and

(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

(3) Every adult citizen has the right –

(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and

(b) to stand for public office and, if elected, to hold office.’

3. The Local Government: Municipal Systems Act 32 of 2002 (the Systems Act) places limitations on the rights of municipal employees to hold political office in a political party. Until 2022, that limitation extended only to the echelon of senior management, comprising municipal managers and managers directly accountable to them.

4. In 2022, the Systems Act was amended to provide for the insertion of s71B (Act 3 of 2022, promulgated on 17 August 2022). Section 71B extended the prohibition to all municipal employees, whatever their status. In consequence, technicians, secretaries, receptionists, clerks, gardeners, drivers, cashiers, plumbers and other artisans, librarians and the like, all of whom are far removed from the realm of municipal decisionmaking, may not hold office in a political party.

5. The applicant (the union) is a registered trade union that represents employees in the local government sector. The union did not challenge the constitutionality of s71B insofar as it applied to the band of municipal management previously prohibited from doing so, i e municipal managers and those managers directly accountable to them. The union accepted that municipal employees engaged in that senior echelon wield important decision-making powers and influence over municipal resources and policy, which could potentially result in a conflict of interest between their fiduciary duties as employees and the interests of any political organisation in which they may hold office. In any event, the union had no inherent interest in the senior echelon of municipal management.

PERTINENT FACTS OF THE CASE

applicant contended: prohibition on municipal employees engaged outside the category of senior municipal management and managers directly accountable to them was unconstitutional and invalid

6. In the present proceedings, the union contended that the prohibition on municipal employees engaged outside of the echelon of senior municipal management from holding political office in a political party was unconstitutional and invalid.

applicant submitted that the means chosen by the legislature was not rationally connected to the ends sought to be achieved

7. First, the union submitted that the limitation on the rights of those employees engaged outside of the senior echelon of the municipal management was substantively irrational because it was not connected to any legitimate government purpose. In other words, the union disputed that the means chosen by the legislature were rationally connected to the ends sought to be achieved.

applicant contended that the limitation placed on political rights guaranteed ito s19 of the Constitution was a limitation not justified ito s36(1) of the Constitution

8. Secondly, the union submitted that s71B limits a number of constitutional rights (in particular, the political rights guaranteed by s19 of the Constitution), in circumstances where the limitation could not be justified in terms of s36(1) of the Constitution.

FINDINGS OF THE LABOUR COURT

Van Niekerk J

legislative history and background,

9. In 2022, the legislature corrected the procedural defect (the process followed to pass the Amendment Act did not comply with s76 of the Constitution) which had led to the declaration of invalidity of the Local Government Municipal Systems Amendment Act 7 of 2011 (the Amendment Act).

10. On 17 August 2022, the legislature promulgated the corrected Local Government: Municipal Systems Amendment Act 3 of 2022 (the new Amendment Act), which inserted a new s71B. That section reads as follows:

‘71B Limitation of political rights

(1) A staff member may not hold political office in a political party, whether in a permanent, temporary or acting capacity.

(2) A person who has been appointed as a staff member before subsection (1) takes effect, must comply with subsection (1) within one year of the commencement of subsection (1).’

obvious difference between old s56A and new s71B is that the latter extends the limitation on political rights to all staff members

11. The main and obvious difference between the old s56A and the newly-enacted s71B is that the latter extends the limitation of political rights to all staff members.

12. Section 1 of the Systems Act defines ‘staff’ to mean ‘in relation to a municipality … the employees of the municipality, including the municipal manager’.

13. Section 71B thus bars all municipal employees, regardless of their positions (and not limited to municipal managers and those managers accountable to them), from holding political office in any political party, in any capacity.

except s13, the Act commenced on 1 November 2022; the old s56A is referred to as the ‘narrow limitation’ and the new s71B is referred to as the ‘impugned extension’

14. The new Amendment Act, with the exception of s13, commenced on 1 November 2022. For convenience, the extension of the prohibition on holding political office to all staff members effected by s71B is referred to herein as ‘the impugned extension’ and the previously applicable, more limited prohibition in respect of municipal managers and managers accountable to them, as the ‘narrow limitation’.

15. The legislative history of the impugned extension was not disputed. The relevant Bill that later became the new Amendment Act was introduced to the National Assembly in February 2019. The initial amendments sponsored by the Department provided for the limitation of political rights only in respect of municipal managers and managers directly accountable to them (i e as provided by the previously applicable s56A).

during deliberations on the Bill in the National Assembly, SALGAmade representations to the effect that the limitation on holding political office in a political party should be extended to every staff member employed by the municipality – it found favour with the National Assembly and the amendment was unanimously accepted

16. The Minister recorded that, during deliberations on the Bill in the National Assembly, the South African Local Government Association (SALGA) had made representations to the effect that the limitation on holding political office in a political party should extend to every staff member employed by the municipality. The Minister recorded that those representations had found favour with the National Assembly and that the amendment had been unanimously accepted.

17. The Minister recorded further the Department’s position that the proposed legislation would enable an efficient and effective system of local government administration and governance, but noted that the Department had always recognised that ‘ultimately it would be up to the courts to rule and decide on the constitutionality or otherwise of the final promulgated amendments’.

applicable legal principles

rationality threshold is established ito rule of law; enquiry as to whether the measure adopted by legislature is properly related to public good it seeks to realise

18. The rationality threshold is one established by the rule of law. It requires the court to determine whether the measure adopted by the legislature is properly related to the public good that it seeks to realise (Law Society of South Africa and Others v Minister for Transport and Another 2011 (1) SA 400 (CC) (Law Society of SA), at paragraph [35]).

by contrast, the limitation enquiry ito s36 of Constitution is an enquiry grounded in reasonableness and proportionality (in deciding whether or not there are alternatives or better means that might have been used)

19. In contrast, the limitation enquiry in terms of s36 is an enquiry grounded in reasonableness and proportionality. In other words, the rationality requirement is not aimed at testing the fairness or reasonableness of legislation, nor is it aimed at deciding whether there are alternative or better means that might have been used. The rationality requirement poses the threshold question:

‘…whether the measure the lawgiver has chosen is properly related to the public good it seeks to realise. If the measure fails on this count, that is indeed the end of the enquiry. The measure falls to be struck down as constitutionally bad’ (Law

Society of SA infra; see also South African Diamond Producers Organisation v Minister of Minerals and Energy NO and Others 2017 (6) SA 331 (CC), at paragraph [75]).

constitutional challenge based on justifiability requires a two-stage inquiry: (i) whether the impugned provision limits any right in the Bill of Rights; and (ii) if it does, whether the limitation can be justified ito s36(1)

20. A constitutional challenge based on justifiability requires a two-stage inquiry. The first is whether the impugned provision limits any right in the Bill of Rights, and, if it does, whether that limitation can be justified in terms of s36(1).

21. Section 36 reads as follows:

‘Limitation of rights

(1) The rights in the Bill of Rights maybe limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking account irrelevant factors, including –

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.’

22. Central to the present enquiry was the freedom to make political choices, expressed in s19 to include the right to form a political party and to participate in the activities of a political party. Holding political office in a party is a form of participation in an activity of a political party.

issue in casu: whether the impugned extension met the threshold of justifiability –required, inter alia: (i) assessment of the nature and extent of the limitation; (ii) the relation between the limitation and the statutory purposes; (iii) whether less restrictive means were available to achieve the same purpose

23. Neither of the respondents’ disputed that the impugned extension constituted an infringement of a s19 right. The issue for determination then was whether the impugned extension met the threshold of justifiability. This required, among other things, an assessment of the nature and extent of the limitation, the relation between the limitation and its statutory purpose, and whether less restrictive means were available to achieve the same purpose.

analysis is the impugned extension rationally connected to purpose of the new amendment?

24. The labour court turned, firstly, to what the union submitted was the promulgated purpose of the new Amendment Act and the submission that the impugned extension was not rational in relation to that purpose. Specifically, the union pointed to the preamble to the new Amendment Act, which records that the purpose of s71B is to ‘bar municipal managers and managers directly accountable to principal managers from holding political office in political parties’, and submitted that the stated purpose was limited to a re-enactment of the narrow limitation established by the previously applicable s56A, only barring principal managers and managers accountable to them from holding political office in political parties.

25. As the labour court understood the submission, the union contended that there was, thus, no appropriate relationship between the stated or promulgated purpose of barring only municipal managers and managers directly accountable to them from holding political office in political parties, on the one hand, and the impugned extension barring all staff members from holding political office in political parties, on the other.

26. The labour court was not persuaded that, in the present instance, the wording of the preamble was relevant to an interpretation of s71B. It was more likely than not that the drafter had omitted to align the wording of the preamble with the wording of s71B when that section was finally adopted.

LC: inconsistency between preamble to the amendment and the wording of s71B could be explained as an administrative oversight

27. While the rules of statutory interpretation permit a court to have regard to the stated objects of legislation and to find guidance in the preamble to legislation, there is no dispute that the impugned extension was what SALGA referred to as a ‘last minute change’, and that the inconsistency between the preamble and the wording of s71B could be explained as an administrative oversight. What was at issue, in the present instance, was the relationship between the limitation of a constitutional right (in the form of the impugned extension) and the purpose as articulated by the respondents, that purpose being to depoliticise and professionalise local government by eradicating political interference in municipal decision-making, so as to maintain management stability and thus improve service delivery.

purpose articulated by respondents: to depoliticise and professionalise local government by eradicating political interference in municipal decision-making, so as to maintain management stability and thus improve service delivery

28. That is a matter that is best assessed in the justifiability inquiry, which requires, among other factors, a consideration of the relation between the impugned limitation and its stated purpose.

justifiable limitation inquiry: (i) impugned limitation limits a s19 right; (ii) is such limitation justifiable?

29. Turning then to the limitations analysis, the first stage of a s36(1) inquiry is whether the statutory provision limits any right in the Bill of Rights. In the present instance, there was no dispute that the impugned limitation limits a s19 right. Indeed, s19 is headed ‘Limitation of political rights’ and its express purpose is to do precisely that. The respondents contended, however, that the impugned extension met the justifiability threshold established by s36(1).

30. The nature of the right established by s19 is one that guarantees all citizens full and equal political rights irrespective of race, colour, gender, creed or origin, and ensures that government will be based on the will of the people, reflected in regular, free and fair elections. The right to participate in the activities of a political party is a fundamental component of s19, and the holding of office in a political party is itself participation in the activity of a political party. The nature of the right, giving life as it does to some of the fundamental values of the Constitution and viewed in the context of a history of disenfranchisement, requires compelling justification for any limitation.

31. The nature and extent of the impugned extension is such that it does not directly limit all political rights. As SALGA pointed out, the impugned extension does not impact on political rights other than the holding of political office by staff members of a municipality, who remain free to exercise any other rights in terms of s19. That may be so, but the political rights are interconnected. A prohibition on a municipal employee engaged in the lower echelon of management from holding office in a political party could well dissuade that employee from other forms of participating in political activity.

are there less restrictive means available to achieve the stated purpose?

32. A limitation will not be proportional if other, less restrictive means could have been used to achieve the same legislative ends. Put another way, a provision that limits a fundamental right must be appropriately tailored and narrowly focussed, with a margin of appreciation to be afforded to the state in relation to whether there are less restrictive means available to achieve the stated purpose (S v Makwanyane and Another 1995 (3) SA 391 (CC), at paragraph [104]).

LC: a less restrictive means to achieve the legislative purpose is the narrow limitation (the old s56A)

33. In the present instance, there was a less restrictive means to achieve the legislative purpose, in the form of the narrow limitation, a limitation that has been in existence since 2011 and by which, on the Minister’s undisputed account, resulted in ‘stabilization of the municipal sector which for years has been plagued bypolitical infighting, resulting in instability’. Given what was contended to be the success of the narrow limitation in the form of the previously applicable s56A, the obvious question was why the impugned extension was necessary to achieve a purpose already achieved?

Teddy Bear Clinic (CC): the party seeking to justify the limitation (usually the state) must place material regarding those considerations before the court; if it fails and there are cogent objective factors pointing in the opposite direction, the state would have failed to establish that the limitation was reasonable and justifiable – in casu the minister failed to place any evidence before the court to justify that the impugned extension was constitutionally valid

34. The primary factor that arose for consideration in the present instance was the relationship between the impugned extension and its purpose. As a starting point, the labour court observed that, where a justification analysis rests on factual or policy considerations, the party seeking to justify the impugned law, usually the organ of state responsible for its administration, must place material regarding those considerations before the court. If the state failed to do so, and there were cogent objective factors pointing in the opposite direction, the state would have failed to establish that the limitation was reasonable and justifiable (The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others (2014) (1) SACR 327 (CC), at paragraph [84]).

35. Evidence had to be tendered to demonstrate that the existence and enforcement of the impugned extension could reasonably be expected to control the risks that the respondents had identified and advance the purpose of the extension.

36. The Minister placed no evidence before the court to justify the impugned extension as constitutionally valid. She submitted that the court need not conduct or adopt a purely factual enquiry, but ought rather to ‘apply common sense’ and ‘judicial knowledge’ There was no merit in that appeal.

37. As indicated by the labour court, the applicable principle is one that requires a party relying on justification to place sufficient information before the court as to the policy that was being furthered, the reason for that policy and why it was considered reasonable in pursuit of that policy to limit a constitutional right (Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women’s Legal Centre as amicus curiae) 2001 (4) SA 491; Phillips and Another v Director of Public Prosecutions and Others 2003 (3) SA 345 (CC), at paragraph [18]; Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others 2005 (3) SA 280 (CC), at paragraph [36]).

38. This was not a case where the court could uphold a claim of justification based only on what was contended to be common sense and judicial knowledge.

39. SALGA’s position, as reflected in the presentation to the National Assembly, was that the limitation on senior municipal managers holding political office had resulted in only partial professionalisation of local government management and that the ‘scenario often painted’ by interviewees was that junior officials were able to hold senior managers to account or ‘politically manage’ them, by reason of their political ranking. In the present proceedings, in its answering affidavit, SALGA recorded that it had been collecting evidence on an annual basis, since 2000, and that a spike in service delivery protests in 2017 and the extent of political killings, especially of municipal councillors, had become a cause of grave concern. SALGA commissioned a report from the HSRC into the causes of political killings that was produced in July 2019 and formed the basis of its presentations to parliament.

LC: SALGA failed to show that the impugned extension would result in either enhanced professional municipal management or improved service delivery

40. The evidence on which SALGA relied to justify the impugned extension pointed to a number of reasons for dysfunctional municipalities but failed unequivocally to establish that the extension of the prohibition on holding office in political parties by junior municipal employees would necessarily result in either more professional municipal management, or improved service delivery. But there was no direct evidence to suggest that the solution to curbing the violence, political infighting, political killings, service delivery protests and the like to which SALGA pointed, was the limitation of the holding of political office beyond the limitation that already existed. The HSRC report on which SALGA relied comprised a sample group of whom only 3% were municipal managers, the bulk being councillors. In short, the report, in the main, found that threats of violence came from community members themselves on account of their frustration concerning the lack of municipal service delivery, the root causes of which were not explored in the report.

41. In summary, there was no dispute that many municipalities are dysfunctional, and that the objectives of professionalising municipal management and improving service delivery are legitimate objectives which require urgent implementation. But the intuitive response that the impugned limitation represents, which is to deny all municipal employees regardless of their occupational status the right to hold political office in a political party, is not justifiable in terms of the evidence that was made available to the court. Intuition is not a basis for justifiability. Justification requires evidence.

LC: s71B is unconstitutional to the extent that it denies municipal employees, who are not municipal managers or managers accountable to them, the opportunity to hold any political office in any political party

42. As indicated by the labour court, the Minister proffered no evidence. The evidence that was presented by SALGA referenced more deep-seated causes of conflict in the local government sector, and failed to establish preciselyhow a limitation of the constitutional right to political activity would achieve the objectives identified. The limitation, in the form of the impugned extension, could thus not be justified in terms of s36(1) of the Constitution, and s71B is unconstitutional to the extent that it denies municipal employees, who are not municipal managers or managers accountable to them, from holding any political office in any political party.

order

43. It was declared that the inclusion of the phrase ‘staff member’ in s71B of the Local Government: Municipal Systems Act 32 of 2000 was unconstitutional and invalid.

44. To remedy the defect:

44.1 the phrase ‘staff member’ in s71B of the Local Government: Municipal Systems Act 32 of 2000 was severed; and

44.2 s71B of the Local Government: Municipal Systems Act 32 of 2000 was to be read to provide as follows: ‘

71B Limitation of political rights –

(1) A municipal manager or manager directly accountable to a municipal manager may not hold political office in a political party, whether in a permanent, temporary or acting capacity.

(2) A person who has been appointed as a municipal manager or manager directly accountable to the municipal manager before subsection (1) takes effect, must comply with subsection (1) within one year of the commencement of subsection (1).’

45. It was declared that the orders in paragraphs 28.1 and 28.2 above should operate with retrospective effect to 1 November 2022.

46. The orders in paragraphs 28.1 to 28.3 were referred to the constitutional court for confirmation.

47. The principles formulated in Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC) were applicable – given that the union had succeeded in the application to vindicate the constitutional rights of its members, it was entitled to its costs.

F. LEGISLATIVE SUMMARY 1 JULY 2023 TO 30 JUNE 2024

Compiled by Daphne Colburn, Lexinfo CC

GOVERNMENT GAZETTE NOTICES

A. Basic Conditions of Employment Act 75 of 1977

Determination: Earnings threshold with effect from 1 April 2024. GN4468 GG 50254 p3 05Mar2024

B. Broad-based Black Economic Empowerment Act 53 of 2003

Granting of facilitator status: South African Forestry Company Ltd (SAFCOL).

GenN2577 GG 50833 p9 19Jun2024

Granting of facilitator status: Transnet.

GN4930 GG 50756 p3 05Jun2024

Sector Code for the Events, Technical and Production Services Industry: Development. GenN2408 GG 50464 p3 11Apr2024

C. Compensation for Occupational Injuries and Diseases Act 130 of 1993

Annual increase for medical services providers in respect of services rendered on or after 1 April 2024:

 Ambulance

GN4569 GG 50397 p3 28Mar2024

 Chiropractor

GN4581 GG 50409 p3 28Mar2024

 Dental Services.

GN4573 GG 50401 p3 28Mar2024

 Doctors

GN4580 GG 50408 p3 28Mar2024

(Amendment Gazette for Doctors, Orthotics and Prosthetics and Social Worker

GenN2487 GG 50645 p105 10May2024)

 Occupational Therapy

GN4574 GG 50402 p3 28Mar2024

 Optometry.

GN4582 GG 50410 p3 28Mar2024

 Physiotherapy

GN4576 GG 50404 p3 28Mar2024

 Private Hospital

GN4571 GG 50399 p3 28Mar2024

 Prosthetic and Orthotics.

GN4575 GG 50403 p3 28Mar2024

(Amendment Gazette for Doctors, Orthotics and Prosthetics and Social Worker

GenN2487 GG 50645 p105 10May2024)

(Amendment Gazette for Orthotics & Prosthetics, Doctors and Social Worker 2024-2025

GenN2499 GG 50665 p200 17May2024)

 Radiography & Dietician.

GN4579 GG 50407 p3 28Mar2024

 Renal Care.

GN4578 GG 50406 p3 28Mar2024

 Social Worker & Psychology

GN4570 GG 50398 p3 28Mar2024

(Amendment Gazette for Doctors, Orthotics and Prosthetics and Social Worker

GenN2487 GG 50645 p105 10May2024)

(Amendment Gazette for Orthotics & Prosthetics, Doctors and Social Worker 2024-2025

GenN2499 GG 50665 p200 17May2024)

 Speech, Audiology & Acoustician.

GN4577 GG 50405 p3 28Mar2024

 Wound Care and Blood Services

GN4572 GG 50400 p3 28Mar2024

Assessments of employers: Maximum amount of earnings and minimum assessment on which the assessment of an employer shall be calculated.

GenN2390 GG 50386 p3 27Mar2024

Benefits: Amendment of amounts to increase benefits with effect from 1 April 2024.

GN4894 GG 50723 p3 28May2024

Compensation Fund: Confirmation of life for all foreign pensioners and beneficiaries in the Compensation Fund.

GN3930 GG 49398 p3 02Oct2023

Monthly pensions: Increase to be effected on 1 April 2023.

GenN2079 GG 49458 p23 13Oct2023

Monthly pensions: Increase in monthly pensions intended to be effected on 1 April 2024 – Invitation to comment.

GenN2337 GG 50180 p3 23Feb2024

Monthly pensions: Increase in monthly pensions intended to be effected on 1 April 2024.

GenN2328 GG 50164 p75 23Feb2024

Monthly pensions: Increase in pension benefits with effect from 1 April 2023.

GN4387 GG 50138 p71 16Feb2024

Regulations: Invitation to comment on proposed regulations.

RGN4813 GG 50646 p67 10May2024

Regulations on Irritant-Induced Asthma for the Compensation Fund.

RGN4953 GG 50771 p70 07Jun2024

Regulations relating to prescription; Regulations regarding inspection in terms of Chapter XA; and Regulations relating to third parties contracting with Compensation Fund – Publication for public comments on proposed regulations.

RGN4836 GG 50668 p13 17May2024

Return of earnings: Notice issued by Acting Director-General – 2023 assessment period.

GenN2314 GG 50109 p3 12Feb2024

Return of earnings: Opening of 2022 ROE Season – Final reminder for the submission of 2022 and prior years outstanding return of earnings (ROE's).

GenN2164 GG 49643 p3 09Nov2023

Schedule 3 List of occupational diseases – Update.

GN4054 GG 49655 p3 10Nov2023

GN4091 GG 49722 p3 16Nov2023 (Replaced by: GN4093 GG 49726 p3 16Nov2023)

Schedule 3 List of occupational diseases – Publication for public comments.

GenN2330 GG 50164 p81 23Feb2024

Schedule 4: Manner of calculating compensation – Amendment with effect from 1 April 2023.

GenN2079 GG 49458 p23 13Oct2023

Schedule 4: Manner of calculating compensation – Amendment with effect from 1 April 2024 – Invitation to comment.

GenN2337 GG 50180 p3 23Feb2024

Schedule 4: Manner of calculating compensation – Amendment with effect from 1 April 2024.

GenN2328 GG 50164 p75 23Feb2024

D. Compensation for Occupational Injuries and Diseases Amendment Act 10 of 2022

“To amend the Compensation for Occupational Injuries and Diseases Act, 1993, so as to amend, substitute, insert, delete and repeal certain definitions and sections; to provide for matters pertaining to the Board and its members; to provide for the Commissioner to perform certain functions that were previously performed by the Director-General; to further provide for matters pertaining to the rehabilitation, reintegration and return to work of occupationally injured and diseased employees; to regulate the use of health care services; to provide for the Commissioner to review pension claims or awards; to provide for administrative penalties; to regulate compliance and enforcement and to provide for matters connected therewith.”

Date of commencement to be proclaimed.

GN3294 GG 48431 p1 17Apr2023

E. Employment Equity Act 55 of 1998

2023 Employment Equity Public Register of designated employers that have submitted employment equity reports in terms of section 41.

GN4855 GG 50687 p17 24May2024

Draft Regulations on proposed sectoral numericaltargets – Publication for further public comment

RGN4295 GG 50058 p3 01Feb2024

F. Employment of Educators Act, 1998

Improvement in conditions of service: Annual cost-of-living adjustment for educators employed in terms of the Act with effect from 1 April 2023.

GN3785 GG 49108 p18 11Aug2023

GN4995 GG 50880 p14 28Jun2024

G. Government Employees Pension Law 21 of 1996

Government Employees Pension Fund: Rules – Amendment.

GenN2446 GG 50585 p3 02May2024

H. Immigration Act 13 of 2002

Invitation to corporate employers to submit an expression of interest in the Trusted Employer Scheme (TES).

RGN3958 GG 49461 p3 13Oct2023

List of skills or qualifications in relation to application for critical skills work visa or permanent residence permit.

RGN3934 GG 49402 p3 03Oct2023

I. Independent Commission for the Remuneration of Public Office-Bearers Act 92 of 1997

Annual remuneration recommendations: Explanatory memorandum for annual remuneration recommendations for 2023/2024 and 2024/2025.

GenN2497 GG 50661 p3 16May2024

1. Bargaining Councils

Bargaining Council for the Civil Engineering Industry (BCCEI)

Cancellation of government notice.

RGN3724 GG 49029 p15 28Jul2023

RGN3725 GG 49029 p16 28Jul2023

Construction Industry and Retirement Benefit Fund Collective Agreement –Invitation to make representations.

RGN4779 GG 50609 p72 03May2024

Dispute Resolution Collective Agreement: Extension to non-parties.

RGN3726 GG 49029 p17 28Jul2023

Registration and Administration Expenses Collective Agreement: Extension to non-parties

RGN3729 GG 49029 p92 28Jul2023

Bargaining Council for the Fishing Industry

Main Collective Agreement: Extension of period of operation to non-parties.

RGN3925 GG 49382 p3 29Sep2023

Main Collective Agreement: Extension to non-parties.

RGN3970 GG 49517 p13 20Oct2023

Bargaining Council for the Food Retail, Restaurant, Catering and Allied Trades

Main Collective Agreement: Renewal of period of operation to non-parties.

RGN4398 GG 50163 p13 23Feb2024

Bargaining Council for the Furniture Manufacturing Industry KwaZulu-Natal

Agency Shop Fee Collective Agreement: Extension to non-parties.

RGN3915 GG 49378 p13 29Sep2023

Main Collective Amending Agreement: Extension to non-parties.

RGN3666 GG 48959 p14 14Jul2023

Provident Fund and Mortality Benefit Association Collective Agreement: Cancellation of Government Notice and extension to non-parties.

RGN4537 GG 50317 p15 22Mar2024

Bargaining Council for the Furniture Manufacturing Industry of the Eastern Cape

Cancellation of registration.

RG4853 GG 50686 p27 24May2024

Bargaining Council for the Furniture Manufacturing Industry of the Western Cape

Collective Bargaining Fee Collective Agreement: Extension to non-parties.

RGN4538 GG 50317 p55 22Mar2024

Bargaining Council for the Laundry, Cleaning and Dyeing Industry (Cape)

Cancellation of registration.

RGN3637 GG 48883 p3 04Jul2023

Bargaining Council for the Meat Trade, Gauteng

Main Collective Agreement: Extension of amendment to non-parties.

RGN3910 GG 49346 p3 22Sep2023

RGN4778 GG 50609 p67 03May2024

Bargaining Council for the Restaurant, Catering and Allied Trades

Cancellation of Government Notice.

RGN4777 GG 50609 p66 03May2024

Main Collective Agreement: Extension to non-parties.

RGN4751 GG 50550 p13 26Apr2024

RGN4776 GG 50609 p13 03May2024

Building Industry Bargaining Council, Cape of Good Hope

Cancellation of government notices.

RGN3665 GG 48959 p13 14Jul2023

Main Consolidated Collective Agreement: Extension to non-parties.

RGN3667 GG 48959 p41 14Jul2023

Building Industry Bargaining Council, North and West Boland

Cancellation of government notice.

RGN4189 GG 49862 p13 14Dec2023

Main Amending Collective Agreement: Extension to non-parties.

RGN4190 GG 49862 p14 14Dec2023

Furniture Bargaining Council

Application for variation of registered scope.

RGN4974 GG 50827 p14 14Jun2024

Collective Bargaining Fee Collective Agreement: Renewal of period of operation.

GenN1686 GG 48221 p72 17Mar2023

RGN4951 GG 50771 p20 07Jun2024

Main Collective Amending Agreement: Extension to non-parties.

RGN4026 GG 49596 p13 03Nov2023

RGN4233 GG 49966 p13 05Jan2024

RGN4752 GG 50550 p66 26Apr2024

National Bargaining Council for the Clothing Manufacturing Industry

Main Amending Collective Agreement: Extension to non-parties.

RGN4360 GG 50106 p22 09Feb2024

Main Collective Agreement: Extension of period of operation to non-parties.

RGN4490 GG 50276 p3 08Mar2024

National Bargaining Council for the Hairdressing Cosmetology Beauty and Skincare Industry

Agency Shop Collective Agreement: Extension to non-parties.

RGN4209 GG 49937 p13 22Dec2023

Cancellation of government notices.

RGN4107 GG 49759 p13 24Nov2023

Consolidated Main Collective Agreement: Extension to non-parties.

RGN4108 GG 49759 p14 24Nov2023

National Bargaining Council for the Private Security Sector

Main Collective Agreement: Cancellation of Government Notice.

RGN4302 GG 50065 p28 02Feb2024

National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI)

Main Collective Agreement: Extension of period of operation.

RGN3727 GG 49029 p75 28Jul2023

RGN4988 GG 50841 p13 21Jun2024

Main Collective Amending Agreement: Extension to non-parties.

RGN4988 GG 50841 p13 21Jun2024

National Bargaining Council of the Leather Industry of South Africa

Footwear Sector Amending Collective Agreement: Extension to non-parties.

RGN4040 GG 49618 p33 10Nov2023

General Goods and Handbag Sector Amending Collective Agreement: Extension to non-parties.

RGN4038 GG 49618 p14 10Nov2023

Tanning Section Collective Amending Agreement: Extension to non-parties.

RGN4039 GG 49618 p22 10Nov2023

National Textile Bargaining Council

Application for variation of registered scope.

RGN4812 GG 50646 p26 10May2024

Regional Bargaining Council for the Contract Cleaning Sector (excluding KwaZulu-Natal)

Application for registration.

GenN2303 GG 50103 p3 09Feb2024

South African Road Passenger Bargaining Council (SARPBAC)

Main Collective Agreement: Extension to non-parties.

RGN4952 GG 50771 p21 07Jun2024

2. Commission for Conciliation, Mediation and Arbitration Accreditation

Bargaining councils and statutory councils accredited by CCMA for conciliation and/or arbitration and/or inquiry by arbitrator, with the terms of accreditation attached:

 Period 1 September 2023 to 31 August 2026.

GenN1987 GG 49189 p140 25Aug2023

 Period 1 November 2023 to 31 October 2026.

GenN2211 GG 49791 p73 01Dec2023

 Period 1 February 2024 to 31 January 2027.

GenN2329 GG 50164 p78 23Feb2024

 Period 1 May 2024 to 31 May 2027.

GenN2535 GG 50741 p177 31May2024

Private agencies accredited by CCMA for conciliation and/ or arbitration and/ or inquiry by arbitrator, with the terms of accreditation attached:

 Period 1 August 2023 to 31 July 2026.

GenN1987 GG 49189 p140 25Aug2023

3. Demarcation

Notice in terms of section 62(7): Application for demarcation order: Kazin Trading 5 CC t/a Kazin Sales and Rentals.

GN4215 GG 49938 p16 22Dec2023

Notice in terms of section 62(7): Application for demarcation order: Truworths Ltd.

GN4403 GG 50164 p22 23Feb2024

4. Employers’ Organisations

Cancellation of registration:

 Midland Furniture Manufacturers’ Association. RGN4489 GG 50275 p3 07Mar2024

Notice of intention to cancel registration:

 Information Technology Association of South Africa (ITA).

RGN4005 GG 49557 p40 27Oct2023

 KwaZulu-Natal Engineering Industries Association. RGN4004 GG 49557 p39 27Oct2023

 South African Reinforced Concrete Engineers' Association (SARCEA). RGN3870 GG 49304 p13 15Sep2023

 Surface Coatings Industry Employers Association. RGN4006 GG 49557 p41 27Oct2023

Registration:

Polypropylene Products Manfacturers Employers' Organisation.

RGN3942 GG 49405 p40 06Oct2023

5. Essential Services Committee

Notice published byEssential Services Committee in terms of section 71(1), read with section 70(B)(1)(d)

 Committee is in the process of conducting an investigation as to whether the following services are essential: 1. Services rendered by the State Information Technology Agency (SITA). 2. Bulk Material services for the generation of power.

GenN2287 GG 50041 p20 26Jan2024

 Committee is in the process of conducting an investigation as to whether the following services are essential: 1. The service of lifeguarding beach bathers against sharks/shark attacks. 2. The following Border Management Services: Agricultural Specialized Functions, Environmental Specialized Functions, Immigration Specialized Functions, Law Enforcement and Access Control by the Border Guards and Support Services providing direct support to the above specialized functions. 3. The following Port Services: Marine services; Cargo services; Security services at ports; Fire and emergency services at ports; and Dredging services. 4. Primary healthcare services provided at tertiary institutions.

GenN2604 GG 50880 p234 28Jun2024

Notice published by Essential Services Committee in terms of section 71(8): Designation under section 71(7) of services as essential.

GenN2190 GG 49757 p82 24Nov2023

Notice published by Essential Services Committee in terms of section 71(9): Variation of designation (services provided or supported by the Central Computer Services)

GenN2190 GG 49757 p82 24Nov2023

Notice published by Essential Services Committee in terms of section 71(9) for investigation on possible variation or cancellation of designation rendered by the Committee.

GenN2287 GG 50041 p20 26Jan2024

6. Rules

Extract of the minutes of a meeting of the Rules Board of the Labour and Labour Appeal Courts held at Braamfontein on 20 November 2023 at 10:00 to approve and adopt the Labour Court Rules and the Labour Appeal Court Rules for publication and implementation –Publication of Rules regulating the conduct of proceedings in the Labour Appeal Court and the Labour Court.

GN4775 GG 50608 p82 03May2024

7. Statutory Council

Statutory Council for the Squid and other Fisheries of South Africa: Application for variation of registered scope and invitation for objections.

RGN4438 GG 50203 p49 01Mar2024

8. Trade unions

Cancellation of registration:

 Agricultural National and Allied Workers Union (ANA).

GenN2072 GG 49448 p3 09Oct2023

 Entertainment Catering Commercial and Allied Workers of South Africa (ECCAWUSA).

RGN3988 GG 49544 p3 23Oct2023

 Free State Taxi Drivers' Trade Union.

GenN2073 GG 49449 p3 09Oct2023

 Influential Information and Communication Union of South Africa (IICUOSA).

RProc141 GG 49514 p3 18Oct2023

 Metal, Farming, Entertainment, Retail, Electrical, Building and Allied Workers Union (M.F.E.R.E.B.U)

RProc140 GG 49513 p3 18Oct2023

 National Certificated Fishing and Allied Workers Union (NCFAWU).

GenN1927 GG 49067 p3 02Aug2023

 Transport and Allied Workers Union of South Africa.

RGN4063 GG 49712 p3 14Nov2023

Change of name

 Hospitality Industries and Allied Workers Union (HIAWU).

GenN2279 GG 50016 p3 19Jan2024

 National Union of Call Centres of South Africa (NUCCSA) to change to National Union for All Sectors (NUFAS)

RGN4112 GG 49769 p3 24Nov2023

 South African Cabin Crew Association (SACCA) to change to South African Cabin Crew and Alliances.

GenN2251 GG 49888 p3 13Dec2023

Notice of intention to cancel registration:

 Amalungelo Workers Union (AWU).

RGN4842 GG 50668 p36 17May2024

 BAWSI Agricultural Workers Union of South Africa (BAWUSA).

RGN4816 GG 50646 p85 10May2024

 Democratic Union of Security Workers (DUSWO).

RGN4808 GG 50646 p22 10May2024

 El Shadaai Union of South Africa (ESWUSA).

RGN4780 GG 50609 p74 03May2024

 Free State Taxi Drivers' Trade Union.

RGN3638 GG 48884 p3 04Jul2023

 Hlanganani Multi Purpose Organisation (HAMPO).

RGN4807 GG 50646 p21 10May2024

 Inqaba Transport Industries Mining and Allied Workers Union (ITIMAWU)

RGN4065 GG 49715 p3 14Nov2023

 Labour Equity General Workers Union of South Africa (LEWUSA)

GenN2564 GG 50825 p316 14Jun2024

 Meat and Allied Workers Union.

RGN3969 GG 49512 p3 17Oct2023

 Metal Building & General Workers Union of South Africa (MBGWUSA).

RGN4838 GG 50668 p32 17May2024

 National Associated Municipal Trade Union (NAMTU).

RGN4781 GG 50609 p75 03May2024

 National Union of Civil and Allied Workers (NUCAAW).

GenN2065 GG 49438 p3 05Oct2023

 Noordelike Bouwerkersvakbond (NBV).

RGN4806 GG 50646 p20 10May2024

 Permanent and Insourcing Contract Workers Union (PICWU).

RGN4809 GG 50646 p23 10May2024

 Private Schools and Allied Workers Union (PRISAWU).

RGN4815 GG 50646 p84 10May2024

 Private Sector Workers Trade Union (PSWTU).

RGN4950 GG 50771 p19 07Jun2024

 Progressive Socialist Workers Union of South Africa (PSWUSA).

RGN4811 GG 50646 p25 10May2024

 South African Abet Educators Union (SAAEU).

RGN4805 GG 50646 p19 10May2024

 South African Cleaners Security and Allied Workers Union.

GenN2097 GG 49539 p3 20Oct2023

 South African Democratic Nurses Union (SADNU).

RGN4840 GG 50668 p34 17May2024

 South African Funeral Catering Retail and Allied Workers Union (SAFCRAWU).

RGN4782 GG 50609 p76 03May2024

 South African Furniture & Allied Workers Union (SAFAWU).

RGN4803 GG 50646 p17 10May2024

RGN4814 GG 50646 p83 10May2024 (Cancelled by RGN4852 GG 50686 p25 24May2024)

 South African Horseracing Allied Workers Union (SAHAWU).

RGN4837 GG 50668 p31 17May2024

 South African Legal Union (SALU).

RGN4841 GG 50668 p35 17May2024

 South African State and Allied Workers Union (SASAWU).

RGN4973 GG 50827 p13 14Jun2024

 The United Democratic Food & Combined Workers Union.

RGN4839 GG 50668 p33 17May2024

 United Private Sector Workers Union (UPSWU).

RGN4804 GG 50646 p18 10May2024

 United Workers Front (U.W.F.).

RGN4954 GG 50771 p112 07Jun2024

 Voice of Health Workers Union (VOHWU), RGN4810 GG 50646 p24 10May2024

Registration:



Elgin Democratic Workers Union of South Africa (EDWUSA).

GN3840 GG 49220 p40 01Sep2023

 Independent Policing Union of South Africa (IPUSA).

RGN3728 GG 49029 p91 28Jul2023

 Mzanzi Workers Union (MZAWU).

RGN4509 GG 50296 p13 15Mar2024

 South African Correctional Services Workers Union (SACOSWU).

GenN1936 GG 49058 p3 31Jul2023

(Corrected by GenN1926 GG 49066 p3 02Aug2023)

 South African Economic and Allied Workers Union (SAEAWU).

RGN4037 GG 49618 p13 10Nov2023

 South African Liberated Workers Union Towards Economic Emancipation (SALWUTEE).

RGN3689 GG 49010 p13 21Jul2023

K. Military Pensions Act 84 of 1976

Determination of amounts with effect from 1 April 2023.

RGN4211 GG 49937 p39 22Dec2023

L. Military Veterans Act 18 of 2011

Military Veterans Pension Benefit Regulations, 2023: Publication for implementation.

GN3949 GG 49442 p3 06Oct2023

M. Mine Health and Safety Act 29 of 1996

Guideline for mandatory code of practice for management of medical incapacity due to ill-health and injury.

GN3733 GG 49046 p3 28-07-2023

(Replaced by GN3739 GG 49059 p3 28-07-2023)

Guideline for mandatory code of practice for selection and provision of personal protective equipment for women in the South African mining industry.

GN3734 GG 49046 p32 28Jul2023

(Replaced by GN3740 GG 49059 p32 28Jul2023)

N. National Business Act, 1991

National Business Licensing Policy – Publication of draft for public comment.

GN4467 GG 50250 p3 01Mar2024

O. National Minimum Wage Act 9 of 2018

Investigation into the National Minimum Wage: Invitation for written representations.

RGN3746 GG 49062 p3 01Aug2023

RGN4168 GG 49835 p3 06Dec2023

National minimum wages: Amendment with effect from 1 March 2024.

RGN4331 GG 50073 p3 02Feb2024

P. National Qualifications Framework Act 67 of 2008

Articulation policy within the General and Further Education and Training Qualifications Sub-framework and across the Sub-frameworks of the National Qualifications

Framework – Call for public comments on draft.

GenN2485 GG 50645 p69 10May2024

Determination of phase out date of NATED Report 191 N1–N3 programmes as from 01 January 2024.

GN3973 GG 49518 p16 20Oct2023

Exceptions to determination of sub-frameworks that comprise the National Qualifications Framework.

GN4454 GG 50243 p17 01Mar2024

National Skills Authority (NSA) – Call for nominations of suitable candidates to serve as Chairperson.

GN3802 GG 49140 p69 18Aug2023

National Skills Authority (NSA) – Call for nominations of suitable candidates representing interests of education and skills development Providers to serve as member.

GN4758 GG 50569 p39 26Apr2024

Pre-2009 qualifications: Directive on implementation and transitional arrangements.

GN4920 GG 50742 p3 03Jun2024

Qualifications sub framework for trades and occupations: Call for comments on proposed occupational qualifications for registration.

GN3639 GG 48885 p3 04Jul2023

GenN1996 GG 49197 p3 28Aug2023

GenN2095 GG 49509 p3 17Oct2023

GN4268 GG 50024 p3 25Jan2024

GN4363 GG 50123 p3 14Feb2024

GN4721 GG 50480 p3 12Apr2024

GN4768 GG 50580 p3 30Apr2024

GN4820 GG 50649 p3 14May2024

GN4990 GG 50843 p3 21Jun2024

Recognition of Prior Learning (RPL): Implementation framework in Post-School Education and Training (PSET) System – Invitation for public comment.

GN4883 GG 50700 p3 23May2024

South African Qualifications Authority Board: Filling of vacancy on Board – Invitation for nominations.

GN4488 GG 50274 p3 07Mar2024

Q. National Qualifications Framework Amendment Act 12 of 2019

Date of commencement, with exception of sections 1(h), 3(3) and 32A(1): 13 October 2023.

Proc139 GG 49501 p3 13Oct2023

R. National Small Enterprise Act 102 of 1996

Constitution of Advisory Body, in terms of Chapter 2 – Invitation to comment on draft.

GN4560 GG 50391 p14 28Mar2024

GN4607 GG 50442 p21 05Apr2024

S. Occupational Diseases in Mines and Works Act 78 of 1973

Controlled mine and risk work: Adjustment of levies paid bycontrolled mines and works.

GN4823 GG 50656 p3 15May2024

Controlled mine and risk work: Declaration – Tau Lekoa.

GN4279 GG 50043 p3, 29Jan2024

Controlled mine and risk work: Declaration – Tawana; Kalahari and Booysendal.

GN4893 GG 50722 p3 28May2024

T. Occupational Health and Safety Act 85 of 1993

Code of Practice for Conveyor Systems: Driven Machinery Regulations, 2015 –Invitation for public comments on draft.

GN4718 GG 50460 p13 12Apr2024

Lead Regulation: Invitation to comment on draft.

RGN4437 GG 50203 p29 01Mar2024

Regulations for Hazardous Chemical Agents: Invitation to comment on draft.

RGN4598 GG 50431 p13 05Apr2024

U. Public Service Act, 1994

Amendment of Schedule 2: Western Cape Province.

Proc145 GG 49833 p264 08Dec2023

Amendment of Schedule 3: Judicial Inspectorate for Correctional Services.

Proc159 GG 50273 p76 08Mar2024

Public Service Regulations, 2023.

RGN3971 GG 49517 p47 20Oct2023

RGN4007 GG 49557 p42 27Oct2023

V. Public Service Commission Act 46 of 1997

Public Service Commission Rules on Referral and Investigation of Grievances of Employees in the Public Service Amendment of 2023.

GenN2374 GG 50311 p126 22Mar2024

Public Service Commission Rules on Referral and Investigation of Grievances of Employees in the Public Service Amendment of 2023 – Notice on implementation and coming into force on 1 May 2024.

GenN2436 GG 50569 p82 26Apr2024

GenN2437 GG 50569 p83 26Apr2024

W. Skills Development Act 97 of 1998

Transport Education and Training Authority (TETA) – Call for nominations for appointment of Chairperson for the term effective from the date of approval of the appointment until 31 March 2025.

GN4117 GG 49776 p3 28Nov2023

X. Transnet Pension Fund Act 62 of 1990

Special Rule 10.19 of the Special Rules of the PRASA Sub-Fund – Amendment.

GN3979 GG 49518 p77 20Oct2023

DRAFT LEGISLATION

Pension Funds Amendment Bill

Explanatory summary: “The Bill proposes amendments to the Pension Funds Act, 1956 (Act No. 24 of 1956) to provide for the implementation of the first phase of the “two pot” retirement system.”

Notice of introduction in National Assembly and publication of explanatory summary.

GN4009 GG 49558 p3 26Oct2023

Preferential Procurement Policy Framework Amendment Bill

“To amend the Preferential Procurement PolicyFramework Act, 2000, so as to delete obsolete Roman numberings and to add a definition; to delete the obligation on an organ of state to follow a preferential point system when determining its preferential procurement policy and to replace it with a discretionary power; to delete the references to the maximum amount of points that may be allocated in instances where either a contract has a Rand value above, equal or below a prescribed amount; to provide that the achievement of specific goals may constitute a tiebreaker mechanism or constitute a maximum of 10 or 20 points, depending on the circumstances; to repeal the reference to what the specific goals may include and to replace it with the utilisation of Sustainable Development Goals as a framework for the implementation of the procurement policy contemplated in section 217(2) of the Constitution; to delete the option that specific goals may include the implementation of the Reconstruction and Development Programme; to substitute the Minister’s discretion to make regulations with an obligation to do so, including to clarify the framework of utilising Sustainable Development Goals; to provide that draft regulations must be submitted to the National Assembly; to repeal the BroadBased Black Economic Empowerment Act, 2003 as well as references to that Act wherever it appears in other legislation; to provide for transitional arrangements to deal with the repeal of the Broad-Based Blank Economic Empowerment Act and to provide for matters connected therewith.”

Publication for public comment.

GN3978 GG 49518 p70 20Oct2023

POLICY

Department of Higher Education and Training

2024 National List of Occupations in High Demand.

GenN2414 GG 50510 p3 16Apr2024

Department of Social Development

Policy on Social Development Services to Persons with Disabilities – Invitation to submit comments on proposed policy.

GN3966 GG 49505 p3 16Oct2023

Policy on Social Development Services to Persons with Disabilities – Notice and invitation in Zulu.

GN3965 GG 49504 p3 16Oct2023

White Paper on the Rights of Persons with Disabilities (WPRPD) – Fifth Annual Progress Report on Implementation of White Paper: April 2020 – March 2021.

GN3901 GG 49325 p29 22Sep2023

National School of Government

National Framework towards the Professionalisation of the Public Sector – Publication for public information.

GenN1952 GG 49105 p3 11Aug2023

G. TABLE OF CASES

A

Aarons v University of Stellenbosch [2003] 7 BLLR 704 (LC)

424, 431

AB and Another v Pridwin Preparatory School and Others 2019 (1) SA 327 (SCA)..........314, 318, 319

Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 365

ABSA Bank v Naidu and Others (2015) 36 ILJ 602 (LAC); [2015] 1 BLLR 1 (LAC) 82

Administrator, Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (A).....................262, 265

Africa Online Operations (Mauritius) Ltd v Scanlon and Another (2024) 45 ILJ 790 (LAC), (2024) 35 SALLR 114 (LAC) 307

African Meat Industry & Allied Trade Union and Others v Shave & Gibson Packaging (Pty) Ltd (2024) 45 ILJ 79 (LC); [2024] 1 BLLR 54 (LC) 94, 99

Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (AD) .........................................................................................................................................225, 260

AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others [2021] ZACC 3; 2021 (4) BCLR 349 (CC); 2021 (3) SA 246 (CC) 178

Amalgamated Engineering Union v Minister of Labour 1949 (4) SA 908 (A) 248

Amalungelo Workers’ Union and Others v Philip Morris South Africa (Pty) Limited and Another [2019] ZACC 45, 2020 (2) BCLR 125 (CC); (2020) 41 ILJ 863 (CC) 409, 484

Aminto Precast and Civil Engineering CC v Commission for Conciliation, Mediation and Arbitration and Others (JR790/22), (2023) ZALCJHB55; (2023) 44 ILJ 1491 (LC); [2023] 6 BLLR 521 (LC) 192, 194

Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) 197

Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC); [2015] 4 BLLR 394 (LAC) 277

ARB Electrical Wholesalers (Pty) Ltd v Hibbert [2015] ZALAC 34; (2015) 36 ILJ 2989 (LAC); [2015] 11 BLLR 1081 (LAC).................................................................................................181

Archer v Public School- Pinelands and Others (2020) 41 ILJ 610 (LAC) 20

Arends and Others v SALGBC and Others [2015] 1 BLLR 23 (LAC) 348, 350

Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corp 2020 (1) SA 327 (CC) 365

Association of Mineworkers & Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) 443

Association of Mineworkers and Construction Union and others v Chamber of Mines of SA and Others (2017) 38 ILJ 831 (CC); 2017 (3) SA 242 (CC); [2017] 7 BLLR 641 (CC) 278, 279

Association of Mineworkers and Construction Union v UASA (formerly named United Association of South Africa) and Others (2023) 44 ILJ 2479 (LAC), [2023] 1 BLLR 1134 (LAC), (2023) 34 SALLR 348 (LAC)

252

Atkins v Datacentrix (Pty) Ltd [2010] 4 BLLR 351 (LC) 448

Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others 2012 (1) SA 321 (CC) 301

Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) ........................................................................................195, 198

B

Ball v Bambalela Bolts (Pty) Ltd and Another [2013] ZALAC 14; (2013) 34 ILJ 2821 (LAC) 324

Baloyi v Public Protector and Others [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC); 2022 (3) SA 321 (CC) 11, 13, 15, 19, 20, 21, 22, 23

Bank of South Africa Ltd v Sibanda 2021 (5) SA 276 (GJ) 345

Barkhuizen v Napier 2007 (5) SA 323 (CC) 325, 331, 332, 333

Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) 341

Bayat and Others v Hansa and Another 1955 (3) SA 547 (N)................................................................8 BB Investment Company (Pty) Ltd v Adcock Ingram Holdings (Pty) Ltd [2014] 2 CDLR 451 (CT) 134, 137, 139

Beadicia 231 CC and Others v Trustees for the time being of the Oregon Trust and Others 2020 (5) SA 247 (CC)

319

Beautement v Propnu t/a Properteam Rental and Another [2020] ZAGPJHC 365 (9 October 2020) 191

Beckenstrater v Rottcher and Theunissen 1995 (1) SA 129 (A)...........................................................66

Beedle v Slo-Jo Innovations (Pty) Ltd [2023] ZALAC 17 (17 August 2023)

319

Bell Equipment and National Union of Mineworkers of South Africa v Intervalve (Pty) Limited and Others (2015) 36 ILJ 363 (CC)............................................126, 128, 129, 130, 131, 408

Bell v Voorsitter van die Rasklassifikasieraad 1968 (2) SA 678 (A); [1968] 3 All SA 1 (A) 421

Bellairs v Hodnett 1978 (1) SA 1109 (A) 421

Benefit Cycle Works v Atmore 1927 TPD 524

386

Benwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 (4) SA 113 (CC) 80

Bernstein and Others v Bester NO and Others [1996] ZACC 2; 1996 (4) BCLR 449 (CC); 1996 (2) SA 751 (CC) 178

Bestel v Astral Operations Ltd and others [2011] 2 BLLR 129 (LAC) 86

Betlane v Shelly Court CC [2010] ZACC 23; 2011 (1) SA 388 (CC); 2011 (3) BCLR 264 (CC).....................................................................................................................................................8

Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC) 393

Blyvooruitzicht Gold Mining Co Limited v Pretorius [2000] 7 BLLR 751 (LAC) 248

Bokoni Platinum Mines (Pty) Ltd v Moropane 2020 JDR 2717 (SCA) 347

Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A)

402

Both Roodt Pretoria (Pty) Ltd v Van der Merwe 2006 JDR 0909 (T) 444

BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 52 ALJR 20 260 C

Cabinet of the Transitional Government for the Territory of South West Africa v Eins [1998] 2 All SA 379 (A); 1988 (3) SA 369 (A) 251

Capitec Bank Holdings Limited v Coral Lagoon Investments 194 (Pty) Limited [2021] ZASCA 99; 2022 (1) SA 100 (SCA) 251, 402

Capricorn Beach Home Owners Association v Potgieter t/a Nilands and Another [2013] ZASCA 116; 2014 (1) SA 46 (SCA) ................................................................................................403

Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others [1996] ZACC 7; 1996 (3) SA 617 (CC); 1996 (5) BCLR 608 (CC) 177

Catering Pleasure and Food Workers Union v National Brands Limited (2007) 28 ILJ 1064 (LC) 126, 127, 130

Chabalala v Metal and Engineering Industries Bargaining Council and Others (2014) 35 ILJ 1546 (LC); [2014] 3 BLLR 237 (LC) 342

Chief Lesapo v North West Agricultural Bank and Another [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR 1420 402, 444

Chirwa v Transnet and Others [2007] ZACC 23; [2008] 2 BLLR 97 (CC) 15, 19, 20, 202, 203

Christian v Colliers Properties [2005] 5 BLLR 479 (LC) 448

Chung-Fung (Pty) Ltd and Another v Mayfair Residents Association and Others (2023/080436) [2023] ZAGPJHC 1162 (13 October 2023) 439, 443, 444, 445

City of Cape Town (CMC Administration) v Bourbon-Leftley and Another NNO [2005] ZASCA 75; 2006 (3) SA 488 (SCA) 225

City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2018] ZASCA 176; [2019] 1 All SA 291 (SCA) 258

Coega Development Corporation (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2016) 37 ILJ 923 (LC); [2016] 2 BLLR 151 (LC) 342

Coetzee v Taxing Master, South Gauteng High Court and Another 2013 (1) SA 74 (GSJ)...............358

Coin Security Group v SA National Union for Security Forces 1998 (1) SA 685 (C) 284

Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) 386

Commercial Workers Union of SA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC); (2008) 29 ILJ 2461 (CC); [2009] 1 BLLR 1 (CC) 274, 345

Commissioner for South African Revenue Services, Gauteng West v Levue Investments (Pty) Ltd [2007] ZASCA 22; [2007] 3 All SA 109 (SCA)..................................................................406

Commissioner for the South African Revenue Service v United Manganese of Kalahari (Pty) Ltd [2020] ZASCA 16; 2020 (4) SA 428 (SCA) 33

Concord Insurance Co Ltd v Oelofsen NO 1992 (4) SA 699 (A)........................................................138

Corium (Pty) Ltd v Myburgh Park Langebaan (Pty) Ltd 1995 (3) SA 51 (C)

421

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC)..........................................................................................................................................46, 53

County Fair Foods (Pty) Ltd and Others v CCMA (1999) 20 ILJ 1701 (LAC) 115

Da Cruz v Bernardo 2022 (2) SA 185 (GJ)

268

Dabner v South Africa Railways and Harbours 1920 AD 583 7, 407

Davehill (Pty) Ltd and Others v Community Development Board 1988 (1) SA 290 (A) .....269, 270, 271

Davis v Tipp NO and Others 1996 (1) SA 1152 (W) 63, 67

De Beers Consolidated Mines Ltd v CCMA (2009) BLLR 995 (LAC) 82

De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and others (2000) 21 ILJ 1051 (LAC) 93

Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (AD) 264

Democratic Municipal and Allied Workers Union of SA and Others v City of Johannesburg (2020) 41 ILJ 912 (LC); [2020] 6 BLLR 574 (LC)

204

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] ZASCA 5; [2013] JOL 30158 (SCA); [2013] 2 All SA 251 (SCA) 406

Department of Correctional Services and Another v Police and Prisons Civil Rights Union and Others [2013] ZASCA 40; (2013) 34 ILJ 1375 (SCA); 2013 (4) SA 176 (SCA); [2013] 7 BLLR 639 (SCA); 2013 (7) BCLR 809 (SCA); [2013] 3 All SA 1 (SCA).......................................179

Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC); [2004] 4 BLLR 297 (LAC)

Department of Public Works and another v Vukela and Others (2022) 43 ILJ 2319 (LC)

Dimension Data (Pty) Ltd and others v GWB Technologies CC t/a GWB Technologies and Others (2022) ILJ 1824 (LC)

354

200

302

Director of Hospital Services v Mistry 1979 (1) SA 626 (A) 8

Duma v Minister of Correctional Services and Others [2016] 6 BLLR 601 (LC)

448

Duncanmec (Pty) Ltd v Gaylard NO and Others [2018] ZACC 29; 2018 (11) BCLR 1335 (CC); [2018] 12 BLLR 1137 (CC); 2018 (6) SA 335 (CC); (2018) 39 ILJ 2633 (CC) 87, 93

E

East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ) 443, 444

Eastern Cape Provincial Government and others v Contractprops 25 (Pty) Ltd 2001 (4) SA 142 (SCA) 192

Eke v Parsons 2016 (3) SA 37 (CC), 366, 373, 375

Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union obo members (JA12/13) [2014] ZALAC 61; [2015] BLLR 34 (LAC); (2015) 36 ILJ 624 (LAC) 401

Emetonjor v Kintetsu World Express SA (Pty) Ltd C736/16) [2018] ZALCCT 30 (11 September 2018) 387

EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration and Others (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) 68, 69, 73, 74, 94, 99

Equisec (Pty) Ltd v Rodriques and Another 1999 (3) SA 113 (W) 63

Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2008] ZACC 16; [2008] 12 BLLR 1129 (CC); 2009 (1) SA 390 (CC); 2009 (2) BCLR 111 (CC) 32

Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality [2022] ZACC 41; 2023 (2) SA 31 (CC) 40, 41

Estate Welch v Commissioner for SARS [2004] 2 All SA 586 (SCA).................................................466

F v Minister of Safety and Security 2012 (4) SA 536 (CC) .................................................................330

Fagan v Business Partners Limited [2016] JDR 0317 (GJ) 373

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) 8, 10

Federated Employers Fire & General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A) 406

Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) 15, 18, 19, 22

Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) 420 Feldman (Pty) Ltd v Mall 1945 AD 733 331

Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC) 74, 341

Fidelity Guards Holdings (Pty) Ltd v Epstein NO & Others (2000) 21 ILJ 2382 (LAC) 127

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)...............................................264

Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA) 9

Food and Allied Workers Union v Ferucci t/a Rosendal Poultry Farm (1992) 13 ILJ 1271 (IC) 249

Food and Allied Workers Union v Wilmark (1998) 19 ILJ 928 (CCMA) 249

Fose v Minister of Safety & Security 1997 (7) BCLR 851 (CC)..........................................................448

Fourie v Amatola Water Board (2001) 22 ILJ 694 (LC) 64

G

G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and others (2017) 38 ILJ 881 (LAC) 92

Gama v Transnet SOC Limited [2018] ZALCJHB 348 10

Garlick v Smartt and Another, 1928 AD 82.........................................................................................264

Garment Workers’ Union v Smith 1936 CPD 249 249

Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another [2016] ZACC 33; (2016) 37 ILJ 2723 (CC) 272, 274, 369

Gcaba v Minister of Safety and Security [2009] ZACC 26; [2009] 12 BLLR 1145 (CC) 15, 19, 20, 22, 118, 119, 120, 195, 202, 203, 404, 410

General Industries Workers Union of SA and Others v National Bargaining Council for the Furniture Industry and Others (JR414/14) [2018] ZALCJHB 366 (8 November 2018) 361

Goddard v Metcash Trading Africa (Pty) Ltd (2010) 31 ILJ 104 (LC) 271, 273

Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others [2013] ZALAC 28; [2014] 35 ILJ 943 (LAC); [2014] 1 BLLR 20 (LAC) 71, 85, 86, 97, 114, 340

Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others 1978 (1) 914 (A) 369

Gouda Boerdery Bk v Transnet Ltd [2004] ZASCA 85; 2005 (5) SA 490 (SCA) 35, 40 Government of the RSA & others v Von Abo [2011] ZASCA 65; [2011] 3 All SA 261 (SCA) 407

Gross v Pentz [1996] ZASCA 78; 1996 (4) SA 617 (SCA); [1996] 4 All SA 63 (A) 251 Gründling v Beyers 1967 (2) SA 131 (W) 249 Guardrisk Insurance Co v Café Chameleon CC 2021 (2) SA 323 (SCA) 138

H

Harksen v Lane NO and Others [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) 169, 173, 388, 392, 435, 440, 452, 454, 457, 458, 459, 460, 463

Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) 446

Harsco Metals SA (Pty) Ltd and Another v Arcelormittal SA Ltd and Others (2012) 33 ILJ 901 (LC) 303, 305

Haynes v King Williams Town Municipality 1951 (2) SA 371 (A) 10, 24

Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) 57, 72

Herholdt v Nedbank Ltd and Another [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA) 97, 102, 105, 110, 114, 340

Hlatshwayo v Mare and Deas 1912 AD 242 407

Hoffmann v SA Airways [2000] ZACC 17; 2001 (1) SA 1 (CC) ..................................................435, 448

Humphries and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others (1991) 12 ILJ 1032 (LAC) 81

Hyundai Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO [2000] ZACC 12; 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC) 151

I

IL&B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108 (C)...................................................443, 445 IMATU v Mase and Others (ZALAC, Gqeberha), case number PA11/2022, unreported, 26 October 2023 413

Imerys South Africa (Pty) Ltd v The Competition Commission [2017] ZACAC 1; [2017] 1 CPLR 33 (CAC) 139

Impala Platinum Ltd v Jansen and Others [2017] 4 BLLR 325 (LAC) 92 In re: Several matters on the urgent court roll 2013 (1) SA 549 (GSJ).......................................443, 445

J

Jacobs v Chairman, Governing Body, Rhodes High School and Others 2011 (1) SA 160 (WCC) 35, 42

Jay Engineering Works Ltd v State of West Bengal AIR 1968 Cal 407 295

Jet Demolition (Pty) Ltd v AMCU obo Sehoshe and Others [2022] ZALCJHB 55..............................180

Joh-Air (Pty) Ltd v Rudman 1980 (2) SA 420 (T)

214

Johnson Matheu (Pty) Ltd v National Union of Metalworkers of South Africa and Others (2012) 33 ILJ 2420 (LC) ....................................................................................................................34

Jordaan v CCMA (2010) 31 ILJ 2331 (LAC)

167

Jubi Properties (Pty) Ltd v Boyce [2016] ZAGPJHC 338 (7 December 2016) 191

K

Kalil v Decotex (Pty) Ltd and Another (158/87) [1987] ZASCA 156 [1988] 2 ALL SA 159 (A) 211, 213

Kgoale v Thaba Chweu Local Municipality and Others (JR2863/19) [2021] ZALCJHB 224 (11 August 2021) 350

Khanum v Mid-Glamorgan Area Health Authority 1978 IRLR 215 198

Khumalo v Member of the Executive Council for Education: KwaZulu-Natal [2013] ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC) 79, 379

Kouwenhouven v Minister of Police and Others 2022 (1) SACR 164 (SCA) 79

Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) 287, 290

Kruger and Others v Aciel Geomatics (Pty) Ltd (2016) 37 ILJ 2567 (LAC) 306

Kruger v Coetzee 1966 (2) SA 428 (A) 40, 88

L

La Foy v Department of Justice and Constitutional Development and Others (2023) 44 ILJ 2731 (LC), [2023] 12 BLLR 1275 (LC), (2023) 34 SALLR 360 (LC)

424

La Foy v Department of Justice and Constitutional Development and others [2023] ZALCJHB 127; (2023) 44 ILJ 1733 (LC) 425

Labournet (Pty) Ltd v Jankielshon and Another [2017] ZALAC 7; (2017) 38 ILJ 1302 (LAC)

323

Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D) 46, 52

Land and Agricultural Development Bank of SA v Ryton Estates (Pty) Ltd and Others 2013 (6) SA 319 (SCA) 267, 269, 270, 271

Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51; 2019 (2) SA 30 (CC) 424, 435, 468, 471, 472

Law Society of the Cape of Good Hope v Randell 2013 (3) SA 437 (SCA) 68

Le Car Auto Traders v Degswa 1038 CC and Others 2013 JDR 1651 (GSJ) 345

Lester v Ndlambe Municipality and Another 2015 (6) SA 283 (SCA) 215

Lewarne v Fochem International (Pty) Ltd [2019] ZASCA 114; [2020] 1 BLLR 33 (SCA)..................410

Lomati Mill Barberton (A division of Sappi Timber Industries) v Paper Printing Wood & Allied Workers Union and Others (1997) 18 ILJ 178 (LC) 284

LTA Construction Bpk v Administrateur, Transvaal 1992 (1) SA 473 (A) 265

Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another t/a Makin's Furniture Manufacturers 1977 (4) SA 135 (W) 445

M

Magistrates Commission and Others v Lawrence [2021] ZASCA 165; 2022 (4) SA 107 (SCA) 375

Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) 316, 318

Makate v Vodacom [2016] ZACC 13; 2016 (4) SA 121 (CC) 208

Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA)..........................15, 18, 19, 22, 118, 119, 184, 193, 411

Manamela v Department of Co-Operative Governance, Human Settlements and Traditional Affairs, Limpopo Province and Another [2013] ZALCJHB 225 (5 September 2013) 195, 205

Manong & Associates (Pty) LTD v Minister of Public Works and Another 2010 (2) SA 167 (SCA)

Manyele v Maizecor (Pty) Limited (2002) 23 ILJ 1578 (LC)

Maphalle v National Heritage Council and Others (2023) 44 ILJ 579 (LC)

Maphanga v Department of Justice and Constitutional Development [2023] ZALCJHB 69; [2023] 6 BLLR 530 (LC)

Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A)

215

247

443

429

251

Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (CC) 10

Mashaba and Another v Telkom SA Soc Ltd (2020) 41 ILJ 2437 (LAC) 270

Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC)..................................46, 53

Maswanganyi v Road Accident Fund 2019 (5) SA 407 (SCA) 373, 374

Maye Serobe (Pty) Ltd v Labour Equity General Workers Union of South Africa obo Members and Others [2015] JOL 33143 (LC).................................................................................209

Mbana v Shepstone & Wylie [2015] ZACC 11; 2015 (6) BCLR 693 (CC); (2015) 36 ILJ 1805 (CC) 169, 173, 174

Mbobo v Randfontein Estate Gold Mining Co (1992) 13 ILJ 1485 (IC) 249

McKenzie v Farmer's Co-Operative Meat Industries Ltd 1922 AD 16 365

McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) 380, 386

MEC for Finance, Eastern Cape and Others v Legal Practice Council and Others 2023 (2) SA 266 (ECMk) 362, 365

Mediclinic Southern Africa (Pty) Ltd v Competition Commission [2020] ZACAC 3; [2020] 1 CPLR 66 (CAC)...............................................................................................................................139

Member of the Executive Council for Economic Development, Environment and Tourism v Mogahlane (2019) 40 ILJ 315 (LAC); [2019] 4 BLLR 347 (LAC) 79

Member of the Executive Council for Health, North West Province v SA Medical Association and Another [2021] ZALAC 38; (2022) 43 ILJ 134 (LAC) 436

Meyer v Iscor Pension Fund [2002] ZASCA 148 (SCA); 2003 (2) SA 715 (SCA); [2003] 5 BLLR 439 (SCA)........................................................................................................38, 414, 417, 420

Mghobozi v Naidoo and Others [2006] 3 BLLR 242 (LAC) 110, 116

Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 45 ILJ 775 (SCA), [2024] 3 BLLR 239 (SCA), (2024) 35 SALLR 132 (SCA) 404

Minister for Justice and Constitutional Development and Another v Tshishonga [2009] ZALAC 5; [2009] 9 BLLR 862 (LAC); (2009) 30 ILJ 1799 (LAC) 182

Minister of Defence v South African National Defence Force Union [2012] ZASCA 110 8, 407

Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others 2005 (3) SA 280 (CC) 474

Minister of Justice and Correctional Services and Others v Ramaila and Others [2020] ZALAC 41; (2021) 42 ILJ 339 (LAC) 435

Minister of Land Affairs v Slamdien 1999 (4) BCLR 413 (LCC); [1999] 1 All SA 608 (LCC)..............138

Minister of Safety and Security and Others v Mohamed and Another (2) [2010] 4 All SA 538 (WCC) 439, 449

Minister of Safety and Security v Van Duivenboden [2002] ZASCA 79; 2002 (6) SA 431 (SCA).................................................................................................................................................40

Mlambo v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2427 (LC)

354

Mnyandu v Padayachi [2016] ZAKZPHC 78; [2016] 4 All SA 110 (KZP) 424, 430, 431

Mogalakwena Municipality v Provincial Executive Council, Limpopo and Others 2016 (4) SA 99 (GP) 439, 443, 445

Mogale City Local Municipality v Independent Municipal and Allied Trade Union on behalf of Visagie and Others (R86/15) [2017] ZALCJHB 432 (20 November 2017) 361

Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women’s Legal Centre as amicus curiae) 2001 (4) SA 491; Phillips and Another v Director of Public Prosecutions and Others 2003 (3) SA 345 (CC) 474

Mokoena v Mittal Steel South Africa 2007 ILJ 1391 (BCA) 249

Mondi Paper Co v Dlamini [1996] 9 BLLR 1109 (LAC) 180

Mondi Shanduka Newsprint (Pty) Ltd v Murphy 2018 (6) SA 230 (KZD) ...........................................344

Moodley v Scottsburgh/Umzinto North Local Transitional Council and Another 2000 (4) SA 524 (D) 467

Moos v Makgoba [2022] JOL 54225 (GP) ..................................................................................424, 431

Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2001 (4) SA 159 (SCA) 419, 420, 421

Motor Industry Staff Association v Great South Autobody t/a Great South Panel Beaters (2022) 43 ILJ 2326 (LAC)................................................................................................184, 185, 186

Moyane v Ramaphosa [2018] ZAGPPHC 835; [2019] 1 All SA 718 (GP) 10

Mpane v Passenger Rail Agency of SA and Others (2021) 42 ILJ 546 (LC) 446, 447

Mpanza and Another v Minister of Justice and Constitutional Development and Correctional Services and Others [2017] ZALCJHB 48; (2017) 38 ILJ 1675 (LC); [2017] 10 BLLR 1062 (LC) 402

Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA).......................................................83, 84, 88

Municipal and Allied Trade Union of SA v Central Karoo District Municipality and Others [2020] ZALAC 20; (2020) 41 ILJ 1918 (LAC) 252, 258, 277

495

SALLR 2024

Municipal and Allied Trade Union of SA v Crouse NO and Others (2015) 36 ILJ 3122 (LC)

239

Municipal and Allied Trade Union of SA v Saldanha Bay Municipality and Others (2018) 39 ILJ 1164 (CCMA)........................................................................................................................279

Murray v Minister of Defence [2008] ZASCA 44; 2009 (3) SA 130 (SCA); (2008) 29 ILJ 1369 (SCA) 167

Mystra (Pty) Ltd t/a Silverton Spar and Tops v Thoka NO and Others and Six Similar Cases (2023) 44 ILJ 204 (LC) 341

Mzwakhe v Road Accident Fund 2019 JDR 0417 (GJ) 373

Naidoo and Others v Parliament of the Republic of South Africa (2019) 40 ILJ 864 (LC) 456, 457

Naidoo and Others v Parliament of the Republic of South Africa [2020] ZALAC 38; (2020) 41 ILJ 1931 (LAC); [2020] 10 BLLR 1009 (LAC) 175, 435, 452, 457, 458, 463

Naraindath v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1151 (LC) 342

Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) 26, 31, 32, 33, 69, 74, 131, 218, 223, 258, ............................................................................................................259, 274, 285, 313, 316, 385, 467

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) 5, 10, 404, 408

National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC); [2012] 7 BLLR 688 (LAC) 341

National Director of Public Prosecutions of South Africa v Carolus [1999] ZASCA 101; 2000 (1) SA 1127 (SCA); [2000] 1 All SA 302 (A)...........................................................................423

National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) 5, 8

National Education Health and Allied Workers Union v University of Cape Town and Others [2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC); (2003) 24 ILJ 95 (CC) 120, 147, 246, 301, 311, 416

National Gambling Board v Premier, KwaZulu-Natal and Others 2002 (2) SA 715 (CC) 211, 214

National Health Laboratory Services v Yona & Others [2015] ZALAC 33; (2015) 36 ILJ 2259 (LAC) 167

National Manufactured Fibres Employers Association and Another v Bikwani and Others [1999] ZALC 78; (1999) 20 ILJ 2637 (LC) 252, 257, 258, 259

National Prosecuting Authority v PSA obo Meintjies and 55 Others and Others; The Minister of Justice and Correctional Services and Another v PSA obo Meintjies and 55 Others [2021] ZASCA 160; [2022] 1 All SA 353 (SCA) 410

National Tertiary Retirement Fund v Sithole N.O. [2008] ZAGPHC 62; [2008] 3 BPLR 203 (T).............................................................................................................................................419

National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012 (6) SA 223 (CC) 215

National Union of Metal Workers of South Africa and Others v Driveline Technologies (Pty) Ltd and Another (2000) 21 ILJ 142 (LAC); [2000] 1 BLLR 20 (LAC) 124, 126, 127, 130

National Union of Metal Workers of South Africa obo Cloete v Trentyre (Pty) Ltd and Others [2008] ZALAC 18; [2016] JOL 35706 (LAC) 180

National Union of Metalworkers of SA on behalf of Members and Others v Bell Equipment Co SA (Pty) Ltd (2011) 32 ILJ 382 (LC)..........................................................................................129

National Union of Metalworkers of SA v Lufil Packaging (Isithebe) and Others [2020] ZACC 7; 2020 (6) BCLR 725 (CC); (2020) 41 ILJ 1846 (CC); [2020] 7 BLLR 645 (CC); (2020) 31 SALLR 138 (CC) 218, 222, 244, 246, 249, 250, 251

National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and Another 2003 (3) SA 513 (CC); (2003) 24 ILJ 305 (CC); [2002] 3 BLLR 103 (CC) 275, 279

National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC) 139

National Union of Metalworkers of South Africa v Trenstar (Pty) Limited [2023] ZACC 11; 2023 (4) SA 449 (CC); (2023) 44 ILJ 1189 (CC).............................................................................246

National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) 342

National Union of Textile Workers and Others v Stag Packaging (Pty) Ltd and Another [1982) 4 All SA 566 (T) 24

Nationwide Airlines (Pty) Ltd v Roediger and Another 2008 (1) SA 293 (W) 25

Ndudula and Others v Metrorail PRASA (Western Cape) [2017] ZALCCT 12; [2017] 7

BLLR 706 (LC); (2017) 38 ILJ 2565 (LC) 169, 175, 434

Nel v Oudtshoorn Municipality [2013] ZASCA 37; (2013) 34 ILJ 1737 (SCA) 32

New Justfun Group (Pty) Ltd v Turner and Others (2018) 39 ILJ 2721 (LC)......................................447

Ngubeni v National Youth Development Agency and Another (2014) 35 ILJ 1356 (LC) 446

Ngwathe Local Municipality v SA Local Government Bargaining Council and others (2011) 32 ILJ 2724 (LC) 273

Nino Bonino v De Lange 1906 TS 120 402

NK v Minister of Safety and Security 2005 (6) SA 419 (CC) 330

Norman Tsie Taxis v Pooe NO and Others (2004) 25 ILJ 724 (LC); [2004] 3 BLLR 258 (LC) 354

Northam Platinum Ltd v Fganyago NO and Others (2010) 31 ILJ 713 (LC) 371

Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and Others [2012] 3 All SA 498 (SCA) 209

Ntai and Others v SA Breweries Ltd (2001) 22 ILJ 214 (LC) 454, 462, 463

Ntlokose v National Union of Metalworkers of SA and Others (2022) 43 ILJ 2562 (LC) 219

Ntshangase v MEC: Finance KwaZulu Natal and Another [2010] 2 All SA 150 (SCA); [2009] 12 BLLR 1170 (SCA); (2009) 30 ILJ 2653 (SCA) 80

NUMSA and Others v Industrial Oleo Chemical Products [2022] JOL 56702 (LC) 129, 130

NUMSA and Others v SA Five Engineering and Others [2005] 1 BLLR 53 (LC) 126, 127

NUMSA obo Dhludhlu and 147 Others v Marley Pipe Systems (SA)(Pty) Ltd 2023 (1) SA 338 (CC); (2022) 43 ILJ 2269 (CC); [2022] 12 BLLR 1091 (CC) 103, 107

NUMSA obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd (2019) 40 ILJ 1826 (LC) 287, 290, 295

NUMSA obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (2019) 30 SALLR 2 (CC); (2019) 40 ILJ 1957 (CC) 97, 98, 284 NUMSA v CCMA [2000] 11 BLLR 1330 (LC) 248

Old Mutual Group Schemes v Dreyer and Another [1999] ZALAC 50; (1999) 20 ILJ 2030 (LAC) 169

Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 4 All SA 866 (SCA); [2007] 8 BLLR 699 (SCA); 2007 (5) SA 552 (SCA) 116

Old Mutual Ltd and others v Moyo and Another [2020] ZAGPJHC 1; [2020] 4 BLLR 401 (GJ); [2020] 2 All SA 261 (GJ); (2020) 41 ILJ 1085 (GJ) 9

Oppelt v Head: Department of Health, Western Cape [2015] ZACC 33; 2016 (1) SA 325 (CC) 41

Oudekraal Estates v City of Cape Town 2004 (6) SA 222 (SCA) 76, 80

P

Palaborwa Mining Company Ltd v Cheetham and Others [2007] ZALAC 11; (2008) 29 ILJ 306 (LAC); [2008] 6 BLLR 553 (LAC) 180

Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2014] ZALAC 81; (2015) 36 ILJ 1511 (LAC); [2015] 5 BLLR 484 (LAC) 75

Parkinson v Edcon Ltd [2016] ZALCJHB 540.....................................................................................158

Paulsen and Another v Slip Knot Investments (Pty) Ltd 2015 (3) SA 479 (CC) 262, 265, 266

Phakane v S [2017] ZACC 44; 2018 (1) SACR 300 (CC); 2018 (4) BCLR 438 (CC) 100

Pilane and Another v Pilane and Another [2013] ZACC 3; 2013 (4) BCLR 431 (CC)................214, 215

Pioneer Foods (Pty) Ltd v Workers Against Regression and Others [2016] 9 BLLR 942 (LC) 462

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)....5, 6, 8, 10, 344, 445

Plumblink SA (Pty) Ltd v Legodi and Another (2020) 41 ILJ 1743 (LC) 447

Poort Sugar Planters (Pty) Ltd v Umfolozi Co-Operative Sugar Planters Ltd 1960 (1) SA 531 (D) 386

Postmasburg Motors (Edms) Bpk v Peens en Andere 1970 (2) SA 35 (NC) 264

Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU obo Members and Others (2022) 43 ILJ 2584 (LC)......................................................................................................................454, 462

Premier Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 658 (LC) 341

President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 11; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) 8

President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) 346

President of the Republic of South Africa v Public Protector [2017] ZAGPPHC 747; 2018 (2) SA 100 (GP) 408

Pretorius v Minister van Handel en Nywerheid [2005] JOL 14393 (T) 430

Prince v Beaufort West Local Municipality Unreported case no WCP082116 352

Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another [2012] ZASCA 28; 2014 (5) SA 297 (SCA) 29

Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng and Others [2017] ZACC 45 (CC); (2018) 39 ILJ 337 (CC); 2018 (2) BCLR 184 (CC) ................398, 402, 403, 405

Public Servants Association of SA obo Khan v Tsabadi NO and Others (2012) 33 ILJ 2117 (LC).................................................................................................................................195, 206

Punshon v Wise NO and Others 1948 (1) SA 81 (N) 344

Q

Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA 166; 2013 (3) SA 315 (SCA) 407

Quest Flexible Staffing Solutions (Pty) Ltd v Lebogate (2015) 36 ILJ 968 (LAC) 83, 86, 93, 96, 340

R

R v AMCA Services Ltd and Another 1959 (4) SA 207 (A) 429, 430 Ramiyal v Clinix Selby Park Hospital (Pty) Ltd [2016] ZALCJHB 485 158 Rawlins and Another v Caravantruck (Pty) Ltd 1993 (1) SA 537 (A) 323 Read v Brown (1888) 22 QBD 128 433 Red Dunes of Africa v Masingita Property Investment Holdings [2015] ZASCA 99 215 Reddy v Siemens Telecommunications (Pty) Ltd [2006] ZASCA 135; 2007 (2) SA 486 (SCA)........................................................................................................314, 317, 318, 320, 323

Republic of South Africa v Fibre Spinners & Weavers 1978 (2) SA 794 (A) 335, 336, 337 Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A)..............................386 Road Accident Fund and Others v Taylor and Another 2023 JDR 1387 (SCA) 8, 374, 375

Road Traffic Management Corporation v Tasima (Pty) Ltd; Tasima (Pty) Ltd v Road Traffic Management Corporation (2020) 41 ILJ 2349 (CC) 304, 305, 308, 310, 313 Roazar CC v The Falls Supermarket CC [2017] ZASCA 166; [2018] 1 All SA 438 (SCA); 2018 (3) SA 76 (SCA) 31 Robertson v City of Cape Town; Truman-Baker v City of Cape Town 2004 (5) SA 412 (C); 2004 (9) BCLR 950 (C) 421 Robinson v Randfontein Estate Gold Mining Co 1921 AD 177 76, 81 Royal Sechaba Holdings (Pty) Ltd v Coote and Another [2014] ZASCA 85; [2014] 3 All SA 431 (SCA); 2014 (5) SA 562 (SCA)...................................................................................................29

S

S v Lubaxa 2001 (2) SACR 703 (SCA) 60, 66

S v Makgetle; S v Matlowe and Another 1980 (4) SA 256 (B)

343

S v Makwanyane and Another 1995 (3) SA 391 (CC)........................................................................474

S v Mhlungu [1995] ZACC 4; 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC) 423

S v Suliman 1969 (2) SA 385 (A) 344

S v Vilakazi 2009 (1) SACR 552 (SCA); [2008] 4 All SA 396 (SCA); 2012 (6) SA 353 (SCA) 80

S v Zuma and Another 2023 JDR 0248 (KZP)

SA Broadcasting Corporation Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2009] ZALAC 13; (2010) 31 ILJ 592 (LAC)

SA Express Ltd v Bagport (Pty) Ltd [2020] ZASCA 13; 2020 (5) SA 404 (SCA)

SA Municipal Workers Union and others v City of Johannesburg Metropolitan Municipality (2013) 34 ILJ 1944 (LAC)

346

433

406

369

SA Post Office Ltd v Communication Workers Union on behalf of Permanent Part-Time Employees (2014) 35 ILJ 455 (LAC)...............................................................................................372

SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38; 2017 (1) SA 549 (CC); (2017) 38 ILJ 97 (CC); [2017] 1 BLLR 8 (CC) 7

SACCAWU and Others v Irvin & Johnson (1999) 20 ILJ 2302 (LAC); [1999] 8 BLLR 741 (LAC) 83, 106

SACCAWU obo Mokebe and others v Pick ‘n Pay Retailers (2018) 39 ILJ 201 (LAC)

498

297

SAMWU v Jada (2003) 24 ILJ 1344 (W).............................................................................................249

SAMWU v Umzimkhulu Local Municipality [2019] 3 BPLR 628 (SCA) 31

Sandton Civic Precinct (Pty) Limited v City of JHB [2008] ZASCA 104; 2009 (1) SA 317 (SCA); [2009] 1 All SA 291 (SCA) 251

Santos Professional Football Club (Pty) Ltd v Igesund and Another 2003 (5) SA 73 (C); [2002] 10 BLLR 1017 (C) 9, 447

Sappi Kraft (Pty)Ltd t/a Tugela Mill v Majake NO & Others (1998) 19 ILJ 1240 (LC)

167

SAPPI Novoboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC) 81

Sasol Infrachem v Sefafe and Others (2015) 36 ILJ 655 (LAC) 347

Sasol Mining (Pty) Ltd v Ngqeleni NO and others (2011) 32 ILJ 723 (LC).........................................342

Schierhout v Union Government (Minister of Justice) 1926 AD 286 398, 403

Seapoint Computer Bureau (Pty) Ltd v Mcloughlin and De Wet NNO 1997 (2) SA 636 (W)..............................................................................................................................................63

Secker v Beacon Sweets and Chocolates (Pty) Ltd 2000 21 ILJ 2767 (CCMA) 121, 122, 123

Securitas Specialised Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2021) 42 ILJ 1071 (LAC) 97

Seedat v Tucker’s Shoe Co 1952 (3) SA 513 (T) 386

Semenya and Others v CCMA and Others [2006] 6 BLLR 521 (LAC) 287, 297

September and Others v CMI Business Enterprise CC (2018) 39 ILJ 987 (CC) 440, 451

Sethole and Others v Dr Kenneth Kaunda District Municipality [2017] ZALCJHB 484; [2018] 1 BLLR 74 (LC) 434

Setlogelo v Setlogelo 1914 AD 221 215

Shetu Trading CC v The Chair of the Tender Board for Namibia and Others (APPEAL2010/352) [2011] NAHC 179 (22 June 2011) 446

Shezi v SAPS and Others (2021) 42 ILJ 184 (LC) 195, 202, 203

Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others [2015] ZALAC 23; [2015] 9 BLLR 887 (LAC); (2015) 36 ILJ 2273 (LAC) 179

Shoprite Checkers Ltd v Samka and Others [2017] ZALCCT 64; [2018] 9 BLLR 922 (LC) 424, 431

Sibanye Gold Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2021) 42 ILJ 2467 (LC) ..................................................................................................................122

Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines, the CCMA and Moropa NO [2007] ZACC 22; 2008 (2) SA 24 (CC); (2008) 19 SALLR 35 (CC); 2008 (2) SA 24 (CC) 71, 74, 75, 85, 87, 97, 102, 105, 276, 338, 340, 341

Sihlali and Others v City of Tshwane Metropolitan Municipality and Another (2017) 38 ILJ 1692 (LC) 206

Simon NO v Air Operations of Europe AB and Others 1999 (1) SA 217 (SCA).........................211, 215

Singhala v Ernst & Young Inc and Another (2019) 40 ILJ 1083 (LC) 204

Sithole v Nogwaza NO and Others (1999) 20 ILJ 2710 (LC) 194

Slagment (Pty) Ltd v Building, Construction and Allied Workers’ Union 1995 (1) SA 742 (A)....................................................................................................................................................115

Smith v Porritt and Others [2007] ZASCA 19; 2008 (6) SA 303 (SCA) 29

Social Security Agency v NEHAWU obo Punzi and Others (2015) 36 ILJ 2345 (LC)........................349

Solidarity obo Members v Barloworld Equipment Southern Africa [2022] ZACC 15; (2022) 43 ILJ 1757 (CC); [2022] 9 BLLR 779 (CC); 2023 (1) BCLR 51 (CC) 142, 158, 162, 163

Solidarity on behalf of Van Zyl v KPMG Services (Pty) Ltd and Others (2014) 35 ILJ 1656 (LC) 342

South African Breweries (Pty) Ltd v Louw [2017] ZALAC 63; (2018) 39 ILJ 189 (LAC); [2018] 1 BLLR 26 (LAC) 146, 149

South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) 345

South African Commercial Catering and Allied Workers Union and Others v Makgopela and Others [2023] 6 BLLR 509 (LAC) 109

South African Eagle Insurance Company Ltd v NBS Bank Ltd [2002] 2 All SA 220 (A) 192

South African Equity Union obo Van Wyk and 100 Members v Lodestone Confectionary (Pty) Ltd t/a Candy Tops (unreported judgment handed down on 26 May 2017, under case number PS19/16) 126, 128, 129, 130

South African Hang and Paragliding Association and Another v Bewick [2015] ZASCA 34; 2015 (3) SA 449 (SCA) 45

South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC) .......................................................................................346

South African Maritime Safety Authority v McKenzie [2010] ZASCA 2; 2010 (3) SA 601 (SCA); [2010] 3 All SA 1 (SCA); (2010) 31 ILJ 529 (SCA); [2010] 5 BLLR 488 (SCA) 9, 15, 18, 19, 20, 119

South African National Defence Union v Minister of Defence 2012 ILJ 1061 (GNP).........................249

South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others 2017 (1) SA 549 (CC)

St Paul Insurance Co SA Ltd v Eagle Ink System (Cape) (Pty) Ltd 2010 (3) SA 647 (SCA)

408

345

Staff Association for the Motor and Related Industries v Motor Staff Association and Another (1999) 20 ILJ 2552 (LAC) ..................................................................................................239

Standard Bank of SA Ltd v Chiloane Dec 2020, Mthimkhulu v Standard Bank of South Africa [2021] 1 BLLR 86 (LC) 14

Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (In Liquidation) 1998 (1) SA 811 (SCA)

Standard Bank of South Africa Ltd v Sibanda 2021 (5) SA 276 (GJ)

266

345

Steenkamp and Others v Edcon Limited [2016] ZACC 1, 2016 (3) BCLR 311 (CC) 15, 19, 20, 21, 23, 84, 91, 92, 93, 128, 203, 204

Steenkamp NO v Provincial Tender Board of the Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC); 2007 (3) BCLR 300 (CC) ..........................................................................................416

Steenkamp v Edcon Limited [2019] ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC) 129, 141, 142, 146, 147, 156, 158, 162

Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) 214

Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) 342

Stokwe v MEC: Department of Education, Eastern Cape and Others (2019) 40 ILJ 773 (CC), 2019 (4) BCLR 506 (CC), [2019] 6 BLLR 524 (CC) 195, 200

Stoop and Another v Rand Water (2014) 35 ILJ 1391 (LC) 297

Strategic Liquor Services v Mvumbi NO and Others [2009] ZACC 17; (2009) 30 ILJ 1526 (CC); 2010 (2) SA 92 (CC) 167

Stuttafords Department Stores Ltd v SACTWU (2001) 22 ILJ 414 (LAC)..........................................285

Süzen v Zehnacker GebäuderreInigung GmbH Krankenhausservice [1997] IRLR 255 (ECJ) 302

T

Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC) 180

Tauber v Von Abo 1984 (4) SA 482 (ECD).............................................................................................9

Tek Corporation Provident Fund v Lorentz [1999] ZASCA 54; 1999 (4) SA 884 (SCA); [2000] 3 BPLR 227 (SCA) 417, 420

Telkom (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2004] 8 BLLR 844 (LC)...................................................................................................................122

Templeman LJ in Rank Film Distributors Ltd and Others v Video Information Centre and Others [1982] AC 381........................................................................................................................63

The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Others (2014) (1) SACR 327 (CC) 474

Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma Thing v National Director of Public Prosecutions [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) 8, 10

Thomson v Belco (Pvt) Ltd and Another 1960 (3) SA 809 (D)............................................................264

Tickley & Others v Johannes NO and Others 1963 (2) SA 588 (T) 239

Total South Africa (Pty) Ltd v Bekker NO 1992 (1) SA 917 (A), 50

Tshazibane v Montego Pet Nutrition and Others [2022] ZALCPE 19; (2022) 43 ILJ 2610 (LC); [2022] 12 BLLR 1151 (LC) 176

Tshivhase-Phendla v University of Venda [2017] ZALCJHB 491 (12 October 2017) 287, 290

Tshongweni v Ekurhuleni Metropolitan Municipality (2010) 31 ILJ 3027 (LC)............................195, 200

Tshongweni v Ekurhuleni Metropolitan Municipality (2012) 33 ILJ 2847 (LAC) 32

Twala v ABC Shoe Store (1987) 8 ILJ 714 (IC) 198

Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W) 446

U

Ulster v Standard Bank of SA Ltd (2013) 34 ILJ 2343 (LC) 271, 273

United Technical Equipment Co (Pty) Ltd v Johannesburg City Council 1987 (4) SA 343 (T) 215

University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC) 32, 131, 218, 223, 466

V

Van der Merwe and Another v Taylor NO and Others [2007] ZACC 16; 2008 (1) SA 1 (CC); 2007 (11) BCLR 1167 (CC) 8

Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 (3) SA 532 (SCA) [2014] ZASCA 169 215

Vodacom v Motsa and Another 2016 (3) SA 116 (LC) 14

Vumatel (Pty) Ltd v Majra and Others (2018) 39 ILJ 2771 (LC) 443

W

Walters v Transitional Local Council of Port Elizabeth and Another (2000) 21 ILJ 2723 (LC) 202

Webster v Mitchell 1948 (1) SA 1186 (W) 215

Wereley v Productivity SA and Another (2020) 41 ILJ 997 (LC); Solidarity and Others v SA Broadcasting Corporation (2016) 37 ILJ 2888 (LC) 446

West Rand Estates Ltd v New Zealand Insurance Co. Ltd 1926 AD 173 264

Woerman and Schutte NNO v Masondo 2002 (1) SA 811 (SCA); [2002] 2 All SA 53 (A) 421

Woerman and Schutte NNO); Naude v Heatlie; Naude v Worcester-Oos Hoofbesproeiingsraad en Andere 2001 (2) SA 815 (SCA) 421

Workers Union of SA v Crouse NO and Another (2005) 26 ILJ 1723 (LC) 239

Workerslife Direct (Pty) Ltd v Maloka (2019) 40 ILJ 841 (LAC) 387

Wynberg Municipality v Dreyer 1920 AD 439 215

X

Xako v Nelson Mandela Bay Municipality [2015] 12 BLLR 1276 (LC) 20

XStrata Coal South Africa v Commission for Conciliation Mediation And Arbitration and Others [2014] ZALCJHB 14 170, 180

Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others [2018] ZALCJHB 148 (11 April 2018) 71

Z

Zackey and Another v Magistrate of Benoni and Another 1957 (3) SA 12 (T) 338, 343 Zapop (Pty) Ltd v CCMA and Others (2016) 37 ILJ 1882 (LAC) 387

Ziegler South Africa (Pty) Ltd v South African Express Soc Ltd and Others 2020 (4) SA 626 (GJ) 446

Zietsman and Others v Transnet Ltd (2008) 29 ILJ 779 (LC).............................................................122

Zondi and Others v President, Industrial Court and Others (1991) 12 ILJ 1295 (LAC) 60, 64

Zondi v MEC Traditional and Local Government Affairs and Others 2006 (3) SA 1 (CC) 265, 365

Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) 407

Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] 4 BLLR 323 (CC)............15, 19, 20, 21, 94, 195, 206

Zungu v Premier, Province of KwaZulu-Natal and Another [2017] ZALAC 26; (2017) 38 ILJ 1644 (LAC) 21

H. TABLE OF LITERATURE

A Bellengere, C Theophilopoulos, et al, The Law of Evidence in South Africa, 2nd ed, Oxford University Press Southern Africa

73

Boberg, The Law of Delict.....................................................................................................................88

Burchell, Principles of Criminal Law, revised (3rd ed), 2006

101

D du Toit, ‘Oil on Troubled Waters? The Slippery Interface Between the Contract of Employment and Statutory Labour Law’ (2008) 125 SALJ 95 17

Du Bois, F (ed), ‘Wille’s Principles of South African Law’,9 ed (2007)

403 Du Plessis ‘Interpretation of Statutes and the Constitution’ in Bill of Rights Compendium Service 36 (2002)

422

Hunter et al Commentary on the Pension Funds Act, 1956 A Commentary on the Act, regulations, selected notices, directives and circulars (Hunter Employee Benefits Law, Johannesburg 2010)........................................................................................................................418

J L Kwall, S Duhl, “Backdating”, 63 Bus Law 1153 (2008)

J Omar and D Smythe, Criminal Procedure LAWSA, volume 12, 3rd edition (2020)

190

100 JJ Joubert (ed) Criminal Procedure Handbook, 10th edition (Juta & Co Ltd, Cape Town 2011) 100

K Newaj, ‘The Use of Contractual Recourse in Dismissal Disputes: Settling The Dilemma’ (2022) 43 ILJ 2189 ............................................................................................................................17

Myburgh and Bosch in Reviews in the Labour Courts (LexisNexis) 2016 58 Olivier, Smit and Kalula (eds) Liber Amicorum: Manfred Weiss 243

RH Christie, GB Bradfield, Christie's the Law of Contract in South Africa, 6th ed...............................191 SC Lowe, in “Free Riders, ‘Fair Share,’ and the Principle of Fair Play”, Public Affairs Quarterly vol 10, No 1, January 1996 257

T Ngcukaitobi, ‘Sidestepping the Commission for Conciliation, Mediation & Arbitration: Unfair Dismissal Disputes in the high court (2004) 25 ILJ 1’ 17

Van Niekerk et al Law@work (5th ed, Lexis Nexis, Durban) 14

Wallis Labour and Employment Law (1995 Lexis Nexis)......................................................................14

Although every care is taken in the compilation of the material contained in this book, the author and compiler, publisher and printer do not accept responsibility for any loss or damage that may be occasioned as a result of the reliance by any person on the information contained herein.

This book is copyright under the Berne Convention. In terms of the Copyright Act No 98 of 1978, no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without the permission in writing from the publisher.

www.sallr.co.za

Tel: 041 373 4322 l Email: info@vanzylrudd.co.za South African Labour Law Reports @Brian_VZR Brian van Zyl

Van Zyl Rudd House, 3 Mill Park Road, Mill Park, Gqeberha, 6001 PO Box 12758, Centrahil, Gqeberha, 6006 in t f in association with