Skip to main content

Article 32/2025

What are the principles of set-off applied by the labour appeal court in North West Provincial Legislature and Another v National Education, Health and Allied Workers Union obo Members (2023) 34 SALLR 351 (LAC), with reference to Schierhout v Union Government (Minister of Justice) 1926 AD 286 and Public Servants Association obo Ubogu v Head of Department of Health, Gauteng and Others 2018 (2) SA 365 (CC) and why can such principles not be applied when an employer wishes to deduct from an employee’s remuneration monies erroneously paid to such employee in circumstances where there is a dispute about the amount of money to be deducted and the entitlement to so deduct?

_____________________________________

  1. Set-off operates only where two persons reciprocally owe each other something in their own right (Du Bois, F (ed), ‘Wille’s Principles of South African Law’,9 ed (2007) at p 1834).
  2. It applies, as was stated in Schierhout v Union Government (Minister of Justice) 1926 AD 286, at 289 (see, also, Capricorn Beach Home Owners Association v Potgieter t/a Nilands and Another [2013] ZASCA 116; 2014 (1) SA 46 (SCA)):
    ‘When two parties are mutually indebted to each other, both debts being liquidated and fully due, then the doctrine of set-off comes into operation.
    The one debt extinguishes the other pro tanto [only to the extent of the debt] as effectually as if payment had been made.’
  3. In Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng 2018 (2) SA 365 (CC) (Ubogu), at paragraph [70], the constitutional court made it clear that the doctrine of set-off does not operate ex lege (as a matter of law) and that, where there are no mutual debts but rather an unresolved dispute about deductions made from an employee’s salary, it cannot be applied.
  4. With reference to the aforesaid scenario, the view is held that set-off is not permissible in such scenario because, firstly, there is non-compliance with the requirement that the parties must be mutually indebted to each other and, secondly, set-off is not permissible if there is a dispute.
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)?