Reflections on Proposed Law Reforms for Unfair Dismissal

by | Oct 4, 2025 | ILJ, ILJ V46 I4

Reflections on Proposed Law Reforms for Unfair Dismissal

Authors Stefan van Eck, Kamalesh Newaj & Zwivhuya Mashele

ISSN: 2413-9874
Affiliations: Professor of Labour Law, University of Pretoria; Associate Professor of Labour and Social Security Law, University of Pretoria; Lecturer, University of Pretoria
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2257 – 2286

Abstract

The NEDLAC social partners have been engaged in a process of formulating amendments to a number of key pieces of labour legislation and their accompanying codes. In an attempt to foster job creation, policymakers have, among others, published proposals with the view to relaxing the seemingly onerous requirements in respect of unfair dismissal law. Although the negotiating parties have not reached consensus on key aspects of the amendments, significant suggestions have been placed on the table regarding amendments to the Code of Good Practice: Dismissal, as well as important provisions of the Labour Relations Act. The proposed amendments seek to relax unfair dismissal provisions in respect of small employers; they exclude unfair dismissal protection during probation; they recognise incompatibility as a separate ground of dismissal; and they place a cap on the maximum compensation which higher earning employees might be eligible to claim. This contribution analyses these proposed amendments, focusing on their projected effects on the regulatory landscape of unfair dismissal in South Africa.

Advancing Substantive Equality in the Workplace: Recognising Appearance Autonomy through an Intersectional Lens

by | Oct 4, 2025 | ILJ, ILJ V46 I4

Advancing Substantive Equality in the Workplace: Recognising Appearance Autonomy through an Intersectional Lens

Author Aisha Adam

ISSN: 2413-9874
Affiliations: Postdoctoral fellow, Mercantile Law, Stellenbosch University
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2287 – 2309

Abstract

Appearance discrimination in the workplace, though pervasive, remains an under explored issue in South Africa’s legal landscape. While certain aspects of physical appearance such as race, colour and sex are explicitly protected under the Constitution, other traits including weight, dress, hairstyle and body modifications receive no express protection. This article focuses on these unprotected dimensions of appearance and argues for their inclusion as a listed ground in the Employment Equity Act 55 of 1998 thus complementing the existing physical appearance protections relating, for instance, to race, sex and colour. It highlights the intersectional nature of appearance-based prejudice and the compounded harm experienced by individuals when appearance-based prejudice intersects with other listed grounds. Using an intersectional lens, the article examines how systemic biases rooted in appearance perpetuate exclusion and inequality. It also seeks to balance employee autonomy with employer interests, through more inclusive workplace policies.

The Cat and Mouse Game in the Enforcement of Arbitration Awards: The Interface between the Labour Relations Act Amendments and Stalingrad Litigation

by | Oct 4, 2025 | ILJ, ILJ V46 I4

The Cat and Mouse Game in the Enforcement of Arbitration Awards: The Interface between the Labour Relations Act Amendments and Stalingrad Litigation

Author Carlos J Tchawouo Mbiada

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile and Private Law, University of Venda
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2310 – 2332

Abstract

The effective resolution of disputes is a key feature of the South African labour relations framework: it is of critical importance that disputes be resolved speedily and expeditiously. The objective of this article is to analyse the reasons for the delay in resolving disputes notwithstanding legislative provisions designed to achieve this. In particular it focuses on the delay in the enforcement of arbitration awards as far as review applications in the Labour Court are concerned. It is revealed that, notwithstanding the legislative intention to resolve labour disputes in a speedy manner, there is a substantial lapse of time from the moment an award is issued to the time that the award is finally executed, if ever. The delaying tactics, commonly known as Stalingrad litigation, is a phenomenon which hinders the speedy resolution of labour disputes. It is argued that frivolous review applications are the visible face of such tactics. The legislature has, over the years, amended the Labour Relations Act 66 of 1995 to address these delaying tactics. However, despite the legislative effort, the practice is yet to stop. This is partly because labour tribunals operate as courts of law, equity and fairness in the determination of disputes, and thus are prone to extreme leniency which dishonest litigants exploit. This contribution suggests a stricter application of clauses 7(2) and 69(2) of the Labour Court’s new rules to obviate such a delay.

The Relevancy of Expunged Criminal Records in Employment Matters in South Africa: O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC)

by | Oct 4, 2025 | ILJ, ILJ V46 I4

The Relevancy of Expunged Criminal Records in Employment Matters in South Africa: O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC):

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2333 – 2344

Abstract

Sections 271B-271E of the Criminal Procedure Act provide for the expungement of some criminal records but are silent on the effect of such expungement. The drafting history shows that the effect of an expungement is that the person shall be regarded as never having been convicted of the offence for all intents and purposes. However, in O’Connor v LexisNexis (Pty) Ltd, the Labour Court failed to give effect to the intention of the legislature when it held that when a conviction is expunged, it becomes irrelevant for the purpose of sentencing but still relevant for the purpose of employment. The court also held that the refusal by an employer to employ a person simply because of his or her criminal record may amount to unfair discrimination under s 6 of the Employment Equity Act 55 of 1998 if there is no evidence that the record will prevent him or her from doing the job in question. The court’s reasoning in this regard should be applauded and should extend to instances where criminal records have not yet been expunged.

Die stand van Afrikaans in ons regswese in historiese perspektief en ’n vooruitskouing

by | Sep 27, 2025 | TSAR, TSAR 2025 I4

ARTIKEL

Die stand van Afrikaans in ons regswese in historiese perspektief en ’n vooruitskouing

Author: TJ Scott

ISSN: 1996-2207
Affiliations: Professor extraordinarius in Privaatreg, Universiteit van Suid-Afrika
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 4, 2025, p. 649-669
https://doi.org/10.47348/TSAR/2025/i4a1

Abstract

8 May 2025 marks the centenary of the recognition of Afrikaans as an official language. Notwithstanding all the celebrations commemorating this event, the present position of Afrikaans can be regarded as precarious. This tendency is incidental to the political development of our subcontinent and the historical handicap experienced by the majority of the population in South Africa before 1994.
In this historical review an account is provided of the legal language in sway during subsequent periods since the establishment of the first European settlement at the Cape of Good Hope in 1652, up to the present. This survey first touches upon the position regarding the official language and, more specifically, the judicial means of communication in each era, and then covers the status of Afrikaans as a language of tuition. Regarding the first theme, the following periods are subjected to scrutiny: (i) the mainly Dutch East India era: 1652-1806; (ii) the position in the Cape since 1806 and Natal since 1843; (iii) the position in the Boer republics; (iv) the period after the Second Anglo-Boer War: 1902-1910; and (v) the period after Unification: 1910 to the present. Thereafter the emergence of Afrikaans as a language of tuition is evaluated.
In the second part of the article dealing with the continued viability of Afrikaans as an official language and language of record, as well as a medium of tuition, the main reasons for the decline of Afrikaans are addressed and evaluated. The establishment of 11 official languages in our constitution and the decree in terms of which Mogoeng CJ declared English as the only official language of record in 2017 are identified as the main reasons for the decline of Afrikaans as a means of communication in legal practice. The abolition of Afrikaans as language of tuition at all previously Afrikaans tertiary institutions – with concomitant effects such as the reluctance of publishers to continue producing Afrikaans textbooks and academics’ preference for publishing in English in order to gain a good rating from the National Research Foundation (NRF) – is identified as a crucial debilitating factor for Afrikaans as a medium of tuition.
It is suggested that Afrikaans may still survive as a medium of communication in the legal sphere if the method of the Canadian supreme court of writing judgments in two columns (English and French) is followed. This method has recently found favour in judgments of our supreme court of appeal (English and Xhosa) and constitutional court (English and Afrikaans). This strategy is particularly commendable, because it represents a “practical and positive” measure as determined by section 6(2) of the constitution, which recognises the historically diminished use and status of our indigenous languages and mandates the state to take practical and positive measures to elevate their status and advance their use. Although the future of Afrikaans is ultimately dependent on the loyalty of its speakers towards the language in which they were brought up, its continued existence is bolstered by the fact that there are still numerous Afrikaans legal firms conducting their day-to-day business in Afrikaans, while the possibility of financial inputs by Afrikaans capital may present additional support for enhancing the relevance of Afrikaans as a language of record.