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Article 3/2023

An employee has a pre-existing injury. However, subsequently, he was involved in an accident at work which caused further injury.

Does the pre-existing injury affect compensation claimed by the employee for the latter injury?

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In Department of Labour: Compensation Commissioner v Botha (2022) 3 SALLR 17 (SCA), it is
submitted that the supreme court of appeal adopted the following correct approach:

  • the question to be determined is whether there is a causal connection between the subsequent
    accident and the disability
  • in order to determine whether or not such causal link is established, the approach adopted in
    Basson v Ongevallekommissaris [2000] 1 All SA 67 (C) is to be followed, entailing that a causal
    connection is established if the subsequent accident was a contributing factor, even if a pre-
    existing condition existed, i e the disability was exacerbated by the subsequent accident,
    rendering the employee disabled
  • once such causal link is established, that would entail the end of the ‘first enquiry’ and the
    ‘second enquiry’ is to be proceeded with in order to determine the extent that the pre-existing
    injury contributed to the disablement – in casu, the SCA found that it was impossible to establish
    such extent on the medical records before it and ordered the compensation commissioner to
    obtain such record and also provide the employee with the opportunity to obtain his own medical
    reports in this regard

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)?