Article 54/2021

Labour Edge

What is the content of the test ‘substance over form’ when determining the true nature of a dispute?


In National Union of Metalworkers of SA and Others v Edelweiss Glass and Aluminium (Pty) Ltd (2010) 31 ILJ 139 (LC), it was confirmed that it is the duty of a court to ascertain the true nature of the dispute between the parties and, in doing so, the court must look at the substance of the dispute.  It was held that:

‘[60]      The true nature of the dispute may be discerned from the history of the dispute, as reflected in the communications between the parties themselves and between the parties and the CCMA, before and after referral of the dispute. Relevant documents for this purpose may include the referral form, the certificate of outcome, any relevant correspondence, negotiations between the parties, and affidavits filed in court proceedings in which the issue must be determined.

[61]      Although as a general proposition it may be said that the issue in dispute over which a strike may be called must be the issue in dispute that was referred to conciliation, this is not a rule “to be applied in a literal sense”.  This would unduly restrict the process of collective bargaining.  Parties may readily modify or develop their demands in the course of a collective bargaining dispute, whether during or after the conciliation process. But this does not mean that a trade union may call a strike ostensibly in support of one demand when the true demand is one over which no strike is permissible. One of the considerations which the court will take into account is whether the nominal issue in dispute is the true dispute’.

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.

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?

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?