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Article 57/2022

Finally, the constitutional court dealt with the scenario where employees are precluded by a union’s constitution from becoming members and the purported admission of such employees as members of such trade union.  On what basis did the constitutional court recently determine that such employees cannot be taken into account in determining such union’s entitlement to organisational rights?

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The constitutional court, in National Union of Metalworkers of South Africa v Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd and Others (2020) 31 SALLR 138 (CC); (2020) 41 ILJ 1846 (CC), adopted the following approach:

  • NUMSA relied extensively on the right to freedom of association.  However, what it failed to take into consideration was what Woolman calls the ‘capture’ of associations (Woolman: ‘Freedom of Association’ in Woolman et al (eds) Constitutional Law of South Africa Service 6 (2014) at 44-2-3)
  • Woolman explains that it is important for an association to have control over selective membership policies, its internal affairs, exclusionary or discharge procedures.  In this context the constitutional court used ‘capture’ as explained by Woolman to describe the instances in which associations admitting members who do not fall within its object and purpose may have the effect of altering the identity of the organisation.  This in turn violates the association’s existing members’ right to disassociate)
  • a flaw in NUMSA’s argument was its reliance on its own and its members’ right to freedom of association, without having regard to the rights of the employer.  It is important to realise that the LRA confers the right to associate not only on employees, but employers have that right too
  • the Constitution, through s23(4), recognises the creation of both unions and employers’ organisations.  This is provided for in the LRA which makes it peremptory for a union to have a constitution in order to qualify for registration.  The constitution of a union or employers’ organisation must determine a number of substantive matters, including the nature, scope and powers of the organisation.  The constitution, together with any rules and regulations, ‘collectively constitute the agreement which is entered into by its members’
  • in Turner v Jockey Club of SA 1974 (3) SA 633 (A), at 644G–645C, the court held that:

‘[t]he constitution of a voluntary association together with all rules or regulations (if such exist) collectively constitute the agreement entered into by its members.  The constitution not only determines the nature and scope of the association’s existence and activities but also prescribes and demarcates the powers of the association and its office-bearers.’ 

  • when members have formally adopted a constitution, it becomes legally binding on them.  It governs the relationship between the members and, on registration, becomes public and is available for inspection by outsiders.  The labour appeal court was correct in finding that the role of a union’s constitution gives effect to legitimate government policy of orderly collective bargaining at sectoral level
  • the contractual purpose of a union’s constitution and its impact on the right to freedom of association of its current members is founded in its constitution.  A voluntary association, such as NUMSA, is bound by its own constitution.  It has no powers beyond the four corners of that document.  Having elected to define the eligibility for membership in its scope, it manifestly limited its eligibility for membership.  When it comes to organisational rights, NUMSA is bound to the categories of membership set out in its scope
  • NUMSA’s definition of its scope is binding upon it.  It follows that it could amend its scope of membership, without limitation, provided it followed its prescribed amendment procedures
  • paradoxically, NUMSA had refused to amend its constitution to include the paper and packaging industry and, at the same time, had not launched a frontal attack on s4(1)(b) of the LRA.  It rather cavalierly contended that it did not have to comply with that provision.  The submission, that the union and employees were entitled to ignore a provision in the union’s constitution, was logically inconsistent as the members and the union were bound by the contract they entered into
  • Lufil is in the paper and packaging industry, which is not included in annexure B of NUMSA’s constitution as part of its scope.  It followed that NUMSA was not eligible to demand organisational rights.  Lufil’s core challenge did not attack NUMSA’s suitability to represent its employees but focused its argument on its constitution, which does not extend to the paper and packaging industry
  • NUMSA adopted a constitution which is clear in its terms.  It is a voluntary association with rules and annexures that collectively form the agreement entered into with its members.  The constitution must be interpreted in accordance with the ordinary rules of construction applying to contracts in general (Wilken v Brebner 1935 AD 175 at 187).  The classic interpretative principle is that effect must be given to the ordinary language of the document, objectively ascertained within its context (Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA), at paragraph [18]).  It followed, therefore, that, in the course of interpretation, preference should be given to a sensible meaning rather than ‘one that leads to insensible or un-businesslike results or undermines the apparent purpose of the document’
  • additionally, while the constitution of a union is seen to be a contract between the union and its members, it serves more than that purpose.  NUMSA’s argument lost sight of the position of outsiders.  The registration of a union has also been said to promote the public’s access to its constitution.  The constitution of the union thus also serves an important purpose for employers, as they are informed of the different industries within which unions operate.  To allow unions to operate outside their constitutions, at their discretion, would go against core constitutional values, such as accountability, transparency and openness
  • in conclusion, the constitutional court found that the labour appeal court was correct in finding that the eligibility requirement to join a trade union was defined in the union’s own constitution and, when NUMSA wished to admit Lufil employees as its members, its constitution did not permit this and, if it wanted to pursue this avenue, it ought to have amended its constitution
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)?