Article 49/2024

LabourEdge

What is the test to be applied to determine whether or not unfair discrimination has been established, where same is alleged on an arbitrary ground?

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  • Pioneer Foods (Pty) Ltd v Workers Against Regression (2016) 37 ILJ 2872 (LAC); (2016) 27 SALLR 125 (LC) identified s11(2) of the EEA as providing the required answer to the aforesaid issue.
  • In terms of such statutory provision, the complainant must prove, on a balance of probabilities that:
    • the conduct is not rational and
    • the conduct amounts to discrimination and
    • the conduct is unfair

(see, further, Prinsloo v Van der Linde 1997 (3) SA 1012 (CC)

  • If the complainant discharged the above onus, then unfair discrimination on an arbitrary ground has been established – on the other hand, if the onus is not discharged, the claim is dismissed for being bad in law.
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?