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Article 60/2021

Labour Edge

What are the requirements to be met for an urgent application to be granted in the labour court?

  1. Urgent applications are governed by the provisions of rule 8 of the labour court rules.
  2. In Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC); [2009] 10 BLLR 989 (LC), at paragraph [18], the labour court applied rule 8 as follows:

‘Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.’

  1. Another important consideration to be applied when deciding whether a matter is urgent, is the determination of whether an applicant would not be afforded substantial redress in due course, and the duty is on the applicant to provide proper reasons in support of such a case (Mojaki v Ngaka Modiri Molema District Municipality and Others (2015) 36 ILJ 1331 (LC), at paragraph [17]; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ), at paragraph [6]).
  2. As succinctly described by the labour court in Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC), at paragraph [32]:

‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’ (see also Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC), at paragraph [11]).

  1. In the case of an applicant seeking final relief on an urgent basis, the labour court must be even more circumspect when deciding whether or not urgency has been established (Ntombela and Others v United National Transport Union and Others (2019) 40 ILJ 874 (LC), at paragraph [28]).
  2. In Tshwaedi v Greater Louis Trichardt Transitional Council [2000] 4 BLLR 469 (LC), at paragraph [11], the labour court said:

‘…An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief…’

  1. The labour court must also further consider the interests of the respondent party, and in particular, the prejudice the respondent may suffer if the matter is urgently disposed of.
  2. In Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC), at paragraph [26], the labour court held as follows:

‘But it is not just about the applicant. Another consideration is possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing’ (see also IL&B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another 1981(4) SA 108 (C) at 113D-114C).

  1. Finally, urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first available opportunity (see Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC), paragraph [24]; National Union of Mineworkers v Lonmin Platinum Comprising Eastern Platinum Ltd and Western Platinum Ltd and Another (2014) 35 ILJ 486 (LC), paragraph [50]).
  2. As the labour court said in Northam Platinum supra:

‘[26]   …the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency.  But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished.  In short, the applicant must come to Court immediately, or risk failing on urgency…’ (see also Sihlali and Others v City of Tshwane Metropolitan Municipality and Another (2017) 38 ILJ 1692 (LC), paragraph [18]).

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)?