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Article 19/2024

LabourEdge

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

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  • Section 168(3)(a) of the Constitution of the Republic of South Africa reads as follows:
    • ‘The Supreme Court of Appeal may decide appeals in any matters arising from the High Court of South Africa or a Court of a status similar to the High Court of South Africa, except in respect of labour or competition matters to such an extent as may be determined by an Act of Parliament.’
  • In terms of s173(1)(a) of the LRA, the labour appeal court has, subject to the Constitution, and despite any other law, exclusive jurisdiction to hear all appeals against final judgments and final orders of the labour court.
  • With reference to the George Randell High School judgment (Article 18/2024), it is submitted that, when it comes to ‘labour matters’, the labour appeal court, apart from the constitutional court, is the highest court and, in all other matters dealing with labour issues (i e where the LRA or any other Act of Parliament has not conferred final jurisdiction on the labour appeal court), the supreme court of appeal retains its appeal jurisdiction in respect of such matters.
  • When is a matter a labour matter? – it is submitted that it covers disputes governed by the LRA, such as unfair dismissals and unfair labour practices, as well as causes of action founded in terms of section 23 of the Constitution (i e the right to fair labour practices).
  • In conclusion:
    • where a matter is not a labour matter (i e not a matter in terms of the LRA or s23 of the Constitution), or the matter is a labour matter where the final jurisdiction of the labour appeal court has not been confirmed, the supreme court of appeal retains its appeal jurisdiction – even if the labour appeal court has adjudicated the matter (being a court of similar status in term so s168(3)(a) of the Constitution.
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)?