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Article 47/2025

The ordinary rule in motion proceedings is that an applicant must stand or fall by its notice of motion and the averments made in its founding affidavit (President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC); Betlane v Shelly Corp CC 2011 (1) SA 388 (CC) and Van der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC)).

Apart from the above restriction in motion proceedings, another restriction is that, generally, such proceedings cannot be used to resolve factual disputes because they are not designed to determine probabilities.

Under what circumstances can a final order be granted in motion proceedings?
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With reference to Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), the supreme court of appeal, in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA), held that a final order can only be granted in motion proceedings:

  • if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order
  • the above is not applicable if the respondent’s version:
    • consists of bald or uncreditworthy denials, or
    • raises fictitious issues of dispute, or
    • is palpably implausible, or
    • is farfetched, or
    • is so clearly untenable that the court is justified in rejecting them merely on the papers

See, further:

  • Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), para [55]
  • Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC)
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)?