Article 30/2023

In Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), the constitutional court specifically dealt with the statutory exceptions to reinstatement or re-employment as a primary remedy.

What are the important principles that practitioners are to be aware of when considering the content of s193(2)(b) of the LRA, namely, that the continued relationship is made intolerable?

_____________________________________

In Booi, the constitutional court indicated, inter alia, the following:

  • even if the statutory exceptions, namely, that the continued relationship is intolerable or that it is
    not reasonably practicable to reinstate or re-employ, were not raised in pleadings or even if no
    specific evidence was led in this regard, such factor must be considered by the labour court or
    the arbitrator

(see, further, Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC))

  • as previously indicated, in article 26/2023, there is no automatic right to a remedy and this is equally applicable to compensation as well as reinstatement

(see, further, Toyota v CCMA 2016 (3) BCLR 374 (CC))

  • the aforesaid statutory defences must be considered, even if the employee is found not guilty of
    the alleged offence
  • also, the aforesaid statutory defences must be considered, even if peremption is raised

(Minister of Defence v SANDFU [2012] ZASCA 110)

  • the level of intolerability required in order to ensure compliance with s193(2)(b) of the LRA entails same to be difficult, fraught or sour
  • this level is not easily reached and weighty reasons are required as well as tangible evidence
  • the requirement of continued employment being made intolerable must not be confused with incompatibility
  • in reviewing an arbitrator’s decision as to whether or not s193(2)(b) of the LRA is or is not applicable, same entails an application of s145 of the LRA (e g a gross irregularity) infused by the reasonable decision-maker test – entailing, in essence, that there is no reasonable objective basis justifying the connection made by the decision-maker in this regard between the evidence before him and the conclusions conclusions reached (so applied also in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC)
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?