Article 23/2025

The test for discrimination is well-established and set out in Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (Harksen).

In Mbana v Shepstone & Wylie 2015 (6) BCLR 693 (CC) (Mbana), in considering Harksen, the constitutional court said that ‘[a]part from permitting differentiation on the basis of the internal requirements of a job … the test for unfair discrimination in the context of labour law is comparable to that laid down by the constitutional court in Harksen’.

What does this test entail so applicable to automatically unfair dismissals (ito s187(1)(f) of the LRA) and unfair discrimination (ito s6(1) of the EEA), as more recently applied by the labour appeal court in Enever v Barloworld Equipment South Africa (a division of Barloworld South Africa) (Pty) Ltd (2024) 35 SALLR 115 (LAC)?

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STEP 1

Did the act or omission differentiate between people or categories of people?

  • if there is no differentiation, there is also no discrimination
  • however, if there is differentiation, then the next step entails answering the question as to whether or not such differentiation amounts to discrimination

STEP 2

Does the differentiation amount to discrimination?

  • if the differentiation is on a listed ground, then discrimination has been established
  • if the differentiation is on a non-listed ground, then the claimant must prove that such differentiation is based on attributes and characteristics with the potential to impair human dignity, or affect humans adversely in a comparably serious manner to listed grounds
  • if the claimant cannot prove that the ground of differentiation has the characteristic with the potential to impair human dignity, or adversely affect human beings in a comparably serious manner to the listed grounds, then no discrimination has been established – on the other hand, if the requirements of the impairment of human dignity, or to affect adversely in a comparably serious manner to a listed ground, have been complied with, then what remains to be asked is whether or not such discrimination amounts to unfair discrimination

STEP 3

Is the discrimination unfair?

  • if the discrimination is on a listed ground, the presumption is that it is unfair unless the employer can prove fairness
  • if the discrimination is on a non-listed ground, unfairness must be established by the complainant – the test entails a determination of the impact of the discrimination on the complainant and others in similar positions
  • if there is compliance with the aforesaid test, unfair discrimination has been established – if there is non-compliance with the aforesaid test, the discrimination is fair
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?