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Article 24/2024

LabourEdge

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

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  • In Hobongwana v Benteler SA (Pty) Ltd (2023) 44 ILJ 1125 (ECP); (2023) 34 SALLR 69 (ECP), the high court adopted the following approach in determining that the client was vicariously liable
    • the test to be applied to determine whether the client was negligent in dealing with the labour broker employee was that as set out in Kruger v Coetzee 1966 (2) SA 428 (A), namely,
      • determining whether or not a reasonable person in the position of the client (a) would have foreseen the reasonable possibility of its conduct injuring another person or property and causing patrimonial loss and (b) would have taken reasonable steps to guard against such occurrence; and
      • the client failed to take such steps
    • in applying the aforesaid test, the high court determined that the client had been negligent in allowing the labour broker employee to operate the required machine and also failed to take reasonable steps to preserve and protect the bodily integrity and physical well-being of such employee.
  • After applying the tests for both factual and legal causation in delictual claims, the high court determined that the client is vicariously liable for the injuries sustained by the employee of the labour broker.
  • Kindly note that there is another test for negligence as formulated by the supreme court of appeal in Mukheiber v Raath 1999 (3) SA 1065 (SCA).
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)?