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Article 17/2023

In the scenario where there is a lawful assembly, demonstration, picket, the presentation of a petition or strike action but unlawful conduct occurs, on what basis can an interdict be obtained to restrain such conduct against bystanders who do not participate in the actual unlawful conduct – simply put, is mere participation in such lawful action, such as strike action, sufficient to establish a link?

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The constitutional court, in Commercial Stevedoring Agriculture and Allied Workers’ Union v Oakvalley Estates (2022) 33 SALLR 49 (CC), adopted the following approach to the aforesaid scenario:

  • the requirements for a final interdict are well established and entails the existence of a clear right, an injury actually committed or reasonably apprehended and the absence of an alternative remedy (Setlogelo v Setlogelo 1914 AD 221)
  • when considering granting an interdict against the aforesaid bystanders, in line with the said requirements, where they have not actually committed the wrong, a reasonable apprehension of injury has to be established – the test is that, if the evidence is insufficient to establish any link between the employee and the actual or threatened injury, the required reasonable apprehension of an injury is not established (Minister of Law and Order v Nordien 1987 (2) SA 894 (A))
  • mere participation in a strike is not sufficient to establish such link – if it was so, innocent bystanders would be caught in the web and it is not good enough to say that they would subsequently escape liability in a negative contempt finding
  • whether or not the required link exists is a factual question and the constitutional court identified the following three scenarios:
    • if the unlawful conduct is ongoing, widespread and manifest, the link would be established if
      the employee does not disassociate himself from same
    • if the strike, assembly, etc, is substantially peaceful and isolated and sporadic unlawful actions occur – the link would be established if association is proved
    • obviously, those actually participating in the unlawful conduct will be covered by an interdict, seeing that the required link has been established
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)?