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Article 34/2025

With reference to Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Developments Co Ltd and Others [2013] 2 All SA 251 (SCA); [2013] JOL 30158
(SCA), what are the factors recently restated by the supreme court of appeal in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR
132 (SCA) to be taken into account when evaluating applications for condonation?
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  1. It is trite that applications for condonation must contain a proper explanation for the period(s) of delay (SA Express Ltd v Bagport (Pty) Ltd [2020] ZASCA 13; 2020 (5) SA 404 (SCA), at paragraph [34]).
  2. The SCA held, in Dengetenge (supra), that other factors to be considered in determining whether to grant condonation include:
    1. ‘[11] …the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice (per Holmes JA in Federated Employers Fire & General Insurance Co Ltd and Another v McKenzie 1969 (3) SA 360 (A), at 362F-G).’
  3. In casu, the SCA took into account that it would be in the interests of justice to grant condonation as the delay was not excessive and the respondents had not been financially or otherwise prejudiced. It also took into account the prospects of success, which is an important, although not decisive, consideration (Commissioner for South African Revenue Services, Gauteng West v Levue Investments (Pty) Ltd [2007] ZASCA 22; [2007] 3 All SA 109 (SCA), at paragraph [11]).
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)?