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Article 24/2022

With reference to Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and Others (2014) JOL 32103, what were the principles recently endorsed by the labour court in Munthali v PRASA (2021) 32 SALLR 22 (LC) when considering whether or not an applicant has established the required urgency when demanding re-employment on an urgent basis?

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The labour court endorsed the following principles:

  • the labour court enjoys a discretion in according a matter urgency. In the exercise of its discretion, the labour court examined whether the applicant had, in the founding papers, set out circumstances which justified that the application be heard as one of urgency, and the basis upon which it was said that substantial redress would not be obtained at a hearing in due course. Whether an applicant is able to obtain substantial redress in due course is dependent on the facts and particular circumstances of each case (see East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and Others (2012) JOL 28244 (GSJ), at paragraphs [6] and [7] and see also Export Development Canada and Another v Westdawn Investments Proprietary and Others [2018] 2 All SA 783 (GJ), at paragraph [11] and Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and Others (2014) JOL 32103 (GP), at paragraphs [63] to [64])
  • of equal importance is that urgent relief will be denied in circumstances where the applicant has failed to act with the necessary haste in approaching the court, as the primary objective of approaching a court on an urgent basis is to prevent harm or prejudice from occurring (see Golding v HCI Managerial Services (Pty) Ltd and Others [2015] 1 BLLR 91 (LC), at paragraph [24]; Ntozini and Others v African National Congress and Others (18798/2018) [2018] ZAGPJHC 415 (25 June 2018), at paragraph [11])
  • the starting point was whether the applicant had approached the labour court with the necessary haste, which it agreed she had done. The public announcement of the termination had taken place on 30 January 2021, and she had received written confirmation of the termination on 1 February 2021. It is accepted that she had taken a further four days prior to putting PRASA on terms, but that delay, in the light of the circumstances of the case, had been negligible, in view of PRASA’s response of 9 February 2021 to her letter of demand
  • the issue of whether financial hardship is a basis of seeking urgent relief has received attention in the labour and other courts. In other decisions, it has been held that, as a general principle, financial hardship does not establish a basis for urgency (see Hultzer v Standard Bank of South Africa (Pty) Limited (J 469/99) [1999] ZALC 46 (25 March 1999), at paragraph [13]; Jonker v Wireless Payment Systems CC (2010) 31 ILJ 381 (LC), at paragraph [16])
  • it has been held that the mere fact that irreparable financial losses have been suffered or would be suffered by the applicant was not, by itself, sufficient ground to acquire the requisite urgency necessary to justify a departure from the ordinary court rules (Ntefe J Ledimo and Others v Minister of Safety and Security and Others (2242/2003) [2003] ZAFSHC 16 (28 August 2003), at paragraph [32])
  • in Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC), it was held that the general principle may be departed from if exceptional circumstances are established, depending on the merits of each case, and the labour court in casu followed this approach
  • in casu, it was found that the exceptional circumstances were created by the reputational damage and slim prospects of securing alternative employment, seeing that the termination of employment took place publicly, entailed a misrepresentation of facts and had the consequences of potential or actual public humiliation
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)?