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Article 82/2021

Labour Edge

The parol evidence rule prevents a party from contradicting, adding to or modifying an agreement by reference to extrinsic evidence and, in that way, redefining the terms of such contract.  To what extent has this rule survived our new constitutional dispensation?

  1. Even after the advent of the new constitutional dispensation in our law, and more recently, the court, in Dreyer and Another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA), at paragraph [16], applied the parol evidence rule as follows:

‘The general import of the parol evidence rule … is well known. It is to the effect that, where an agreement is embodied in writing, the written document is conclusive as to its terms. No evidence, save the document itself, is admissible to prove them. Nor may the contents of the document be contradicted, altered, added to or varied by oral evidence.’

  1. In KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA), at paragraph [39], the court held:

‘The integration (or parol evidence) rule remains part of our law. However, it is frequently ignored by practitioners and seldom enforced by trial courts. If a document was intended to provide a complete memorial of a jural act, extrinsic evidence may not contradict, add to or modify its meaning’ (see also HNR Properties CC and Another v Standard Bank of SA Ltd 2004 (4) SA 471 (SCA), at paragraph [19].

  1. The parol evidence rule has been applied often in the labour court and in the labour appeal court (see, for example, Blue IQ Investment Holdings (Pty) Ltd v Southgate (2014) 35 ILJ 3326 (LAC), paragraph [18]; LAD Brokers (Pty) Ltd v Mandla (2001) 22 ILJ 1813 (LAC), paragraph [15]; FMW Admin Services CC v Stander and Others (2015) 36 ILJ 1051 (LC), paragraph [41]; Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and Another (2012) 33 ILJ 629 (LC), paragraph [31]; Ebrahim and Others v Sans Fibres (Pty) Ltd (2011) 32 ILJ 304 (LC), paragraphs [26]–[28].

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)?