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Article 16/2024

LabourEdge

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

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  • Rule 7(7) of the Rules for the Conduct of Proceedings in the Labour Court (‘the labour court’) is not very helpful and appears to suggest that the only avenue open to a court is to refer the entire dispute for the hearing of oral evidence – the rule reads as follows:
    • 7(7) the Court must deal with an application in any manner it deems fit, which may include
      • (a) …
      • (b) referring a dispute for the hearing of oral evidence…’
  • On the other hand, rule 6(5)(g) of the Uniform Rules of Court, so it is submitted, provides the required guidelines and avenues available – rule 6(5)(g) reads as follows:
    • ‘Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as to it seems meet with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.’
  • From the above, it is apparent, when such material disputes of fact exist, leaving aside the issue as to whether or not it was reasonably foreseeable (with reference to footnote 21 to rule 7 of the labour court rules), the court has the following options available:
    • to dismiss the matter
    • to direct that oral evidence may be heard on specified issues with a view to resolving such disputes, or
    • may refer the matter to trial with appropriate directions as to the pleadings or definition of issues or otherwise
  • With reference to Law Society, Northern Provinces v Mogami and Others 2010 (1) SA 186 (SCA), it is apparent that the application for hearing of oral evidence must, as a general rule, be made in limine and once it becomes clear that the applicant is failing to convince the court on the papers – only in exceptional circumstances will a court permit the applicant to apply in the alternative for a matter to be referred to evidence should the main argument fail (see, further, Santino Publishers CC v Waylite Marketing CC 2010 (2) SA 53 (GSJ))
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)?