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Article 36/2026

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?

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  • The requirements to be met to obtain interdictory relief against unlawful conduct during a lawful assembly, demonstration, picket, strike, etc, where there is indeed unlawful conduct, such as blocking roads, damage to the property of the employer, etc, were dealt with by the constitutional court, in Commercial Stevedoring Agricultural and Allied Workers Union v Oak Valley Estates (2022) 33 SALLR 49 (CC) (Oak Valley).
  • In respect of the requirements of a final interdict, with reference to, inter alia, Setlogelo v Setlogelo 1914 AD 221, the constitutional court identified the following requirements:
    • there must be a clear right
    • an injury must actually have been committed or reasonably apprehended
    • there must be no alternative remedy
  • With reference to, inter alia, Minister of Law and Order v Nordien 1987 (2) SA 894 (A), in respect of the requirement of a reasonable apprehension of injury, the constitutional court, in Oak Valley, stated the following: if evidence is insufficient to establish any link between the employees sought to be covered by the interdict and the actual or threatened injury, a reasonable apprehension of injury is not established.
  • In answering the question as to whether or not the mere participation in a lawful assembly, demonstration, picket, strike, etc, without participation in the lawful conduct, is sufficient to establish the required link, the constitutional court, in Oak Valley, held that, if such conduct is sufficient to establish such link, innocent bystanders will be caught in the web of unlawful conduct and it is not good enough to subsequently escape such web in a negative contempt finding.
  • In order to determine whether or not such sufficient link exists, the following three factual scenarios were identified in Oak Valley:
    • first scenario: where the misconduct is ongoing, widespread and manifest – the link is established if the relevant employee does not disassociate himself/ herself with such unlawful conduct (with reference to the previous two articles (Article 34/2026 and Article 35/2026), note that this principle is not applicable in the common purpose misconduct environment: see, in this regard, NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC))
    • second scenario: the lawful strike is substantially peaceful but there are isolated and sporadic unlawful actions – the required link is only established if, indeed, association has been proven
    • third scenario: the employer is able to identify specific employees who have participated in the unlawful conduct – then, obviously, the required link has been established
  • An analysis of the specific factual matrix will thus determine the applicable test to be complied with during an interdict application evaluation.
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)?