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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

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?