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Article 15/2024

LabourEdge

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.  What is the content of the test formulated in Plascon-Evans Paints Ltd v Van Riebeeck Paints 1984 (3) SA 623 (A) and so applied subsequently in Thebe Ya Bophelo Healthcare Administrators v National Bargaining Council for the Road Freight Industry 2009 (3) SA 187 (W) in determining how such disputes are resolved when considering whether the applicant is entitled to the relief claimed in such motion proceedings?

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  • The facts averred in the applicant’s affidavit, admitted by the respondent, with the facts alleged by the respondent, must justify the order, unless:
    • the dispute is not real or genuine (on the basis of a bare denial), or
    • the denials in the respondent’s version are bald and uncreditworthy. or
    • the respondent’s version raises obvious fictitious disputes of fact, or
    • the respondent’s version is palpably implausible or farfetched, or so clearly untenable that the court is justified in rejecting that version

See, further, National Scrap Metal (Cape Town) v Murray and Roberts 2012 (5) SA 300 (SCA); Ndudane v Premier of Eastern Cape (2022) 33 SALLR 6 (ECB); National Director of Public Prosecutions v Zuma 2009 (2) SA 279 (SCA).

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?