Labour Law Treatise 2015 LLM S NAIR 1.12.2015

WORKPLACE RACISM
By
Sarvesh Nair
Submitted in partial fulfilment of the
requirements for the degree of
MAGISTER LEGUM
In the Faculty of Law
At the Nelson Mandela Metropolitan University
Supervisor: Prof JA Van der Walt
September 2015

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Dedicated to Mr Scott Beard and Mr Paul J Harrison. Gentlemen, thank you for
providing me with inspiration.
To my parents, mummy and daddy, thank you for always being there for me
and putting up with me during my studies.
Ivashan, I hope that I have made you proud.
Measure for Measure
go measure the distance from cape town to pretoria
and tell me the prescribed area i can work in
count the number of days in a year
and say how many of them i can be contracted
around
calculate the size of house you think good for me
and ensure the shape suits tribal tastes
measure the amount of light into the window
known to guarantee my traditional ways
count me enough wages to make certain i
grovel in the mud for more food
teach me just so much of the world that i
can fit into certain types of labour
show me only those kinds of love
which will make me aware of my place at all times
and when all that is done
let me tell you this
you’ll never know how far i stand from you
Sipho Sepamla
The Soweto I love
(1977)

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CHAPTER 1.....................................................................................................................5
1 Background and Rationale for the Study .............................................................5
2 Problem Statement...............................................................................................7
3 Research Question...............................................................................................8
4 Aims and Objectives of the study.......................................................................10
5 Research Methodology ......................................................................................10
6 Outline of Research............................................................................................12
CHAPTER 2....................................................................................................................13
1 The development of South African Labour Law ................................................13
2 Common Law and its Deficiencies.....................................................................16
2 1 Addressing deficiencies..............................................................................17
CHAPTER 3....................................................................................................................18
1 Legislative Provisions.........................................................................................18
2 Scope of section 23............................................................................................18
2 1 What do fair labour practices entail?..........................................................19
2 2 Scope of protection from unfair labour practices under the LRA...............20
2 3 Reliance on Constitution rather than LRA..................................................21
3 Equality ...............................................................................................................24
3 1 The Employment Equity Act.......................................................................32
3 2 Amendments to the EEA.............................................................................33
CHAPTER 4……………………………………………………………………………….…..36
1 Introduction.........................................................................................................36
2 What is a delict...................................................................................................36
3 Vicarious Liability................................................................................................37
3 1 The Employer-employee relationship.........................................................40
3 2 The employee must have committed a delict ............................................43
4 In the course of employment..............................................................................43
5 Conclusion..........................................................................................................44
CHAPTER 5....................................................................................................................45
1 Introduction.........................................................................................................45
2 Case Law on Abusive Language and Racist Comments..................................46
3 Analysis trends and conclusions drawn from case law .....................................49
4 Conclusion..........................................................................................................53
CHAPTER 6....................................................................................................................54
1 Introduction.........................................................................................................54
2 Relevant Institutions ...........................................................................................54
3 Disputes involving Racial Comments.................................................................55

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3 1 Jurisdiction of the CCMA in terms of the EEAA.........................................56
3 2 Burden of Proof...........................................................................................56
4 Discipline by Employer .......................................................................................57
4 1 Procedural fairness of a dismissal .............................................................58
4 2 Substantive fairness of a dismissal............................................................59
5 Shortcomings and recommendations ................................................................59
CHAPTER 7....................................................................................................................62
BIBLIOGRAPHY .............................................................................................................67

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CHAPTER 1
1 Background and Rationale for the Study
In this section the reader is introduced to the background and issues of the proposed
research as well as the circumstances and events that brought the topic of racism in the
workplace to the attention of the writer.
“It did not take me long to understand that I knew and spoke more Afrikaans than I cared
to admit … Afrikaans was all around me when I was growing up. It was the language of
power; the language that gave words such as swartes (blacks), [K]leurling ([C]oloured),
net blankes (whites only) and geen ingang (no entry) their menace. Afrikaans was also
the language that gave the world ‘‘apartheid’’: a word that has so seared itself into the
global imagination that it requires no translation. But that is not all there was to Afrikaans.
It was also the grammar for the tsotsitaal1
I heard spoken by older boys on the street;
the syntax at the heart of adult conversation from which children in my house were
excluded. What’s more, Afrikaans was the language of Gerhardus Christiaan Coetzee,
the boxing hero whose very name was as Afrikaans as a name could ever be.”2
Years
later when completing my articles of clerkship, the name of my principal was as South
African as it came: Mr Johannes Theodorus van Ginkel Bekker.
Back in the early 1990s, as a young South African, I strutted down the streets of
Schauderville with my head held high as I was the first member of my family to be
enrolled at the University of Port Elizabeth (now called the Nelson Mandela Metropolitan
University) to complete a bachelors in Law (LLB). My head was filled with lofty ideals
while my bank balance was as empty as a politician’s campaign promise. The feeling of
positivity pulsated through the country and kwaito3
filled my neighborhood as everyone
was free at last. Free to engage in education and in “any” employment of one’s choice.4
1
Tsotsitaals are mixed languages spoken in the townships ofGauteng province, such as Soweto. Tsotsi is
a Sesotho slang word for a "thug" or "robber" (possiblyfrom the verb "ho tsotsa" "to sharpen" — whose
meaning has been modified in modern times to include "to con"; or from the tsetse fly, as the language
was firstknown as Flytaal; "flaai" also means cool or streetsmart) and “taal” is the Afrikaans word for
"language".A tsotsitaal is builtover the grammar ofone or several languages,in which terms from other
languages or specific terms created by the communityof speakers are added.Itis a permanentwork of
language-mix,language-switch,and terms-coining.
2
De Vos “The Pastis Unpredictable:Race,Redress and Remembrance in the South African Constitution”
Lecture presented atthe University of Cape Town on 14 September 2011.
3
Kwaito is a musical genre thatdeveloped in Black townships.
4
The reference to “any” is in italics as the options available to youths of colour in my immediate
neighborhood were limited to the socio-economic environmentthatpreceded independence around 1994.
In short, a rural person ofcolour would nothave the same opportunities as a white South African youth
which was privileged enough to attend a private school of choice.

6
“It’s [now] 1995. South Africa is still on a psychedelic high following the watershed
general elections of April 1994. But the shaky foundation on which the racial honeymoon
is built soon come crashing down when a rising kwaito star gets racially abused in
Pietersburg (now Polokwane) by being called a [K]affir. The horrific incident spurns a
national hit … when he releases the kwaito hit ‘Nee baas, don’t call me kaffir’.”5
Despite the incident mentioned above, and undeterred by general racist remarks that I
had previously encountered outside the employment environment or in the media, I
attended my first interview and thereafter secured my first paying position. The legacy of
apartheid, however, could not release me from its shackles when my supervisor and
team leader thought it funny to ask: “Do you know any Kaffirs Koelie?”6
A study of the law has now taught me that our courts have recognized South Africa’s
general robust workplace by stating the following:
“A modern workplace is not a heavenly garden of smiling buddhas focused on the
welfare of others ... [m]ore often than not it presents the contrary picture of a highly
stressful and robust environment…”7
The question, however, is the extent to which one may express oneself freely and clearly
while delineating robust comments from racist behaviour. In light thereof, the incidents
mentioned above capture the tension in South Africa prior to legislation being adopted
and enforced to prevent discriminatory behaviour. The introduction is thus intended to
provide a backdrop for the study that follows. The writer anticipates that a convincing
and interesting case is made as to why the research that follows will supplement labour
law jurisprudence.
5
Mofokeng “King of Kwaito still on his Throne” (2012-03-16) City Press 23; Kwaito is a musical genre that
developed in Black townships.
6
A coolie (alternatively spelled cooli,cooly,quli,Koelie,and other such variations),during the 19th and
early 20th century, was a term for a locallysourced unskilled labourer hired by a company,mainlyfrom the
Indian subcontinent.It is used varyingly as a legal inoffens ive word (for example,in India for helpers
carrying luggage in railwaystations) and also used as a racial slur in Africa for certain people from Asia,
particularlyin South Africa.
7
Commissioner Marcus in Visser and Amalgamated Roofing Technologies t/a Barloworld (2006) 27 ILJ
1567 (CCMA) 1569.

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2 Problem Statement
South Africa’s legal system is based in Roman-Dutchlaw or, in other words, the common
law. English law, together with court decisions and legislative enactments, also plays a
pivotal role in the legal system.A hybrid or mixed system therefore exists in South Africa
comprising of Roman-Dutch law, amended by customary law and legislation, decisions
of courts as well as English law.8
The Constitution of the Republic of South Africa, 1996
is the highest law of the land with subsequent legislation being passed to give effect to
same. The stare decisis doctrine9
finds application in South African law, as does the law
of delict and the doctrine of vicarious liability. Of particular importance for labour law are
its sources, being the common law, the provisions of the contract of employment,
legislation, collective agreements, international labour-law standards, customs and
practice and, lastly, constitutional provisions.10
The traditional classifications of race groups in South Africa are Black African, Coloured,
White, India/Asian and others. Four legal mechanisms exist to protect employees within
the workplace. These mechanisms exist in the protection against unfair discrimination,
protection against unfair labour practices, the setting of minimum standards11
and the
protection against unfair discrimination.12
South African legislation provides for both
formal equality and substantive equality. Formal equality refers to equality in treatment,
whereby unfair discrimination is prohibited.13
Substantive equality refers to equality in
outcome and is enshrined through the adoption of positive measures,suchas affirmative
action.14
The notion of affirmative action does not form part of this study.15
8
Smit Bullying in the Workplace:Towards a Uniform Approach in South African Labour Law LLD Thesis
University of the Free State (2014).
9
Latin translation meaning "to stand by that which is decided", Stare decisis is a legal principle which
dictates that courts may not disregard the standard which was created:the court mustuphold prior
decisions.In essence,this legal principle dictates thatonce a law has been determined bya court of
higher status (which hears and determines appeals from the decisions ofthe trial courts) to be relevant to
the facts of the case,future cases will follow the same principle oflaw if they involve considerablyidentical
facts.
10
Smit Bullying in the Workplace:Towards a Uniform Approach in South African Labour Law LLD Thesis
University of the Free State (2014).
11
Such as the Basic Conditions ofEmploymentAct 75 of 1997.
12
See in general Basson,Christianson,Dekker,Garbes,Le Roux, Mischke and Strydom Essential Labour
Law (2009) ch 6.
13
See in general Basson etal Essential Labour Law ch 11.
14
Ibid.
15
According to Basson etal South Africa has a history of institutionalized discrimination againstvarious
racial groups,including women and people who are disabled,and the Constitution recognizes thatonly a
combination ofthese two mechanisms can help us approach genuine equality,which includes full and
equal enjoymentof all rights and freedoms;See in general Basson etal Essential Labour Law ch 11.

8
“The prohibition of unfair discrimination is one of various instruments through which the
right to equality may be protected and, ideally, even promoted.”16
The purpose of the
Employment Equity Act 55 of 1998 is to achieve equity in the workplace by promoting
equal opportunity and fair treatment in employment through the elimination of unfair
discrimination.
The court in Brink v Kitshoff17
aptly stated that:
“The policy of apartheid, in law and in fact, systematically discriminated against
black people in all aspects of social life. Black people were prevented from
becoming owners of property or even residing in areas classified as 'white', which
constituted nearly 90% of the landmass of South Africa; senior jobs and access
to established schools and universities were denied to them; civic amenities,
including transport systems, public parks, libraries and many shops were also
closed to black people. Instead, separate and inferior facilities were provided”18
Apartheid has undoubtedly left its mark on society. Racial slurs which are degrading and
dehumanizing were hurled as missiles at anyone deemed “worthy” to be on the receiving
end of such abuse. The answerable question simply put is whether sufficient measures
are in place to protect employees from racial slurs in the workplace and conversely, to
what extent should employers safeguard themselves from falling foul of the law.
3 Research Questions
Since 1948, the South African Government used the legislature to enforce segregation
of different races. Racial discrimination was institutionalized during this period by the
implementation of Acts, such as the Immorality Amendment Act,19
Population
Registrations Act,20
Group Areas Act,21
Suppression of Communism Act22
and the Native
Building Workers Act.23
The political and legal revolution of the 1990s meant the end of an era in South African
society and politics in general.24
Constitutional supremacy, judicial review, a justiciable
16
Dupper and Garbers “The Prohibition of Unfair Discrimination and the PursuitofAffirmative Action in the
South African Workplace” 2012 AJ 244-269.
17
1996 (4) SA 197 (CC) 41.
18
Ibid.
19
21 of 1950.
20
30 of 1950.
21
41 of 1950.
22
44 of 1950.
23
27 of 1951.
24
South Africa held its first one-person,one-vote general election on 27th
April 1994.

9
Bill of Rights, and most importantly, democratic elections in which all adult South
Africans were allowed to vote, meant the end of legally-sanctioned racial segregation
and racism.25
As noted supra, the official end to the sanctioning of racially discriminatory laws and
policies did not, however, mean that racism and racial discrimination died a quiet and
sudden death.26
South Africa’s working environment is generally seen as fairly robust.
At the outset, and from a thorough examination of constitutional provisions, one can
conclude that everyone is equal before the law and enjoys equal protection and benefit
of the law. As a value, equality, together with other constitutional values, has to inform
the application, interpretation and limitation of all rights. The right to equality prohibits
direct and indirect unfair discrimination by the State and individuals on listed and
analogous grounds. A presumption regarding the unfairness of the discrimination arises
where a complainant makes out a prima facie case on the basis of one of the listed
grounds. A respondent may rebut the presumption of unfairness.27
Therefore despite legislation being in place to prevent discrimination within and outside
the workplace, the following questions will be posed and answered:
i. Whether the Labour Relations Act 66 of 1995 contains sufficient mechanisms
to combat racism in the workplace.
ii. Whether the Employment Equity Act 55 of 1998 contains sufficient provisions
to combat racist slurs in the workplace.28
iii. Whether the delictual actions of the wrongdoer are imputed to the employer
and/or employee, and to which extent can an employer reduce the risk of
liability.
25
Kruger Racism and the Law: Implementing the Rightto Equality in Selected South African Equality
Courts PhD Rhodes University2008.
26
Ibid.
27
Bason et al Essential Labour Law 215;see also Kruger Racism and Law:Implementing the Rightto
Equality in Selected South African Equality Courts 106.
28
S 6 (1) of the EmploymentEqualityAct 55 of 1998 (hereafter referred to as the EEA) states that “[n]o
person mayunfairly discriminate,directlyor indirectly, againstan employee,in any employmentpolicyor
practice, on one or more grounds,including race,gender,sex, pregnancy,marital status,family
responsibility,ethnic or social origin,colour,sexual orientation,age,disability,religion,HIV status,
conscience,belief,political opinion,culture,language and birth.”;S 5 of the EEA places a positive duty on
every employer as it states that“[e]very employer musttake steps to promote equal opportunityin the
workplace by eliminating unfair discrimination in any employmentpolicyor practice.”

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4 Aims and Objectives of the Study
In this section the research question will be considered in terms of aims and objectives.
The overall purpose of this study can clearly and concisely be summed up as
determining whether sufficient legislative protective measures exist, and to critically
assess same with reference to the employer’s liability. As mentioned supra, the aim of
the research is not to reinvent the wheel, but rather to add to the body of case law and
academic commentary that precedes this study.
For the sake of brevity, the objective of the study is to critically assess the legislative
provisions, to determine the extent of employer’s vicarious liability and, lastly to make
recommendations on any shortcomings that may exist which may have the benefit of
offering additional protection to employers.
5 Research Methodology
Labour law can be described as a system of rules regulating one aspect of modern
society, namely work or labour. The rules of labour law, like any other rules, are legally
enforceable. The sources of labour law are the Constitution of the Republic of South
Africa, 1996, international labour standards, labour legislation, collective agreements,
the common law and the employment contract.29
The study that follows is the fruit of a combination of approaches and methodologies in
order to present a study30
on racism whichfocuses on inter alia specific aspects of labour
legislative provisions, the law of delict, and the constitution.
In some chapters the methodology resembles a more practical approach which relies on
information sourced from case law and legislative provisions, while in others a doctrinal
or formal methodology is attempted and adopted in consideration of the law.31
In order to obtain a sound knowledge of the current legal position and to critically analyse
same, the full spectrum of theoretical resources referred to immediately above will be
29
See in general Basson etal Essential Labour Law ch 1.
30
Owing to financial and time constraints itis not possible to focus on every minute aspectofthe law
relating to racism in the workplace.I have therefore attempted to focus on the current labour legislative
provisions,the law of delict and substantive and procedural aspects related to the topic.
31
Mixed-methods research is a methodologyfor conducting research thatinvolves collecting,analysing,
and integrating (or mixing) quantitative and qualitative research in a single study;see Tashakkori and
Teddie Foundations of Mixed Methods Research:Integrating Quantitative and Qualitative Approaches in
the Social and Behavioral Sciences (1998) Sage 6-10.

11
drawn upon. The theoretical framework will thus prove vital in understanding the current
position before focus is placed on specific racial slurs which may exist in the workplace.
The body of case law provides a secure starting block for same. The legislature’s
response to such conduct will also be highlighted and showcased.
The study that follows therefore aims to appraise the extent of protection provided by the
legislature on both a procedural and substantive level in relation to racism allegations.
Mixed methodologies are therefore combined in order to identify shortcomings and to
propose workable improvements or changes that are in line with the objectives of the
legislature.32
6 Outline of Research
The study that follows does not claim to be a perfect study model in the employment
arena – rather, it seeks to assistwith the understanding of labour law in South Africa and
to provide a clearer understanding of legislative measures currently in place to prevent
unfair discrimination. It is intended to contribute to labour jurisprudence and not to rewrite
it. This study focuses on three main aspects of law that are intertwined. The areas of
focus will thus be on constitutional provisions, labour-law provisions on unfair
discrimination and delictual liability.
The purpose of the study therefore can be said to highlight constitutional and enacted
legislative provisions in place in order to eliminate unfair discrimination, while reference
is specifically made to the development of statutory provisions in the employment
sphere. Secondly, this study will showcasedelictual liability that stems from positive acts
as well as omissions on behalf of employees and employers. Moreover, focus is placed
on substantive law with a limited focus on procedural or evidentiary issues, as it is felt
by the author that the essence of the issues addressed will otherwise be diluted. An
assessment of current legislation will be assessed and recommendations and
shortcomings will be addressed.
Chapter two traces the development of labour-law jurisprudence and highlights
deficiencies in the commonlaw, which are addressed. Chapter three provides the reader
with an overview of legislative provisions and explores the concept of fair labour
32
The purpose ofmixed-methodologyresearch is thatthis form of research is both qualitative and
quantitative research,which in combination,provide a better understanding ofa research problem or issue
than either research approach alone;see also in general See Tashakkori and Teddie Foundations of
Mixed Methods Research:Integrating Quantitative and Qualitative Approaches in the Social and
Behavioral Sciences 6-10.

12
practices. The issues relating to racism and equality are addressed, together with the
issue of litigants attempting to rely on the Constitution, rather than tailored legislative
provisions which were enacted to give effect to the Constitution. The equality enquiry
handed down by the Constitutional Court is explored as well the history of unfair
discrimination in South Africa. Chapter four addresses delictual liability, including an
employer’s vicarious liability for the delictual actions of an employee as well as the
liability for failure to prevent harm from ensuing to an employee. Chapter five involves
an analysis of case law on abusive language and racist comments in the workplace. A
further analysis is made wherein trends and cautionary notes on unfair discrimination
cases are made. Chapter six explores procedural and substantive fairness in the
dismissalof employees. Lastly, chapter seven draws a conclusion on measures currently
in place to manage workplace racism, and proposes solutions to reduce workplace
racism.

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CHAPTER 2
1 The development of South African labour law
It is imperative to trace the development of South African labour law, as much of the
development mirrors the socio-political history of South African society.33
With the discovery of gold in the late 19th
century, South Africa embarked on a gradual
change from an agrarian and largely rural society to a rapidly developing industrial
society.34
Conflicts between groups in the employment sector were often racially-based
as white workers sought protection from competition by black workers.35
Several pieces
of legislation such as the Hut tax,36
Franchise and Ballot Act ,37
Glen Grey Act,38
the
Natal Legislative Assembly Bill,39
Transvaal Asiatic Registration Act,40
South Africa Act,41
Mines and Works Act,42
Natives Lands Act,43
Natives (Urban Areas) Act,44
Immorality
Act,45
Native Administrative Act,46
Representation of Natives Act,47
Native Trust and
Land Act,48
Native (Urban Areas) Consolidation Act,49
Asiatic Land Tenure Act50
and the
Prohibition of Mixed Marriages Act,51
were developed and implemented during the same
period.
33
Basson Essential Labour Law4.
34
Vettori Alternative Means to Regulate the EmploymentRelationship in the Changing World of Work LLD
thesis Universityof Pretoria (2005) 137.
35
Basson etal Essential Labour Law4.
36
1884.
37
1892.
38
1894.
39
1894.
40
1906.
41
1909.
42
1911.
43
27 of 1913.
44
21 of 1923
45
1927.
46
1927.
47
1936.
48
1936.
49
1945.
50
28 of 1945.
51
55 of 1949.

14
However, one of the first pieces of legislation to be passed following the Rand Revolt of
1922, was the Industrial Conciliation Act 11 of 192452
(hereafter the Conciliation Act).
The Conciliation Act,53
however, excluded employees of African origin.54
The Conciliation Act55
entrenched racial discrimination and categorization in labour
legislation as the primary focus of the enacted legislation was to protect the interests of
skilled white workers, while black workers were excluded from the ambit of labour
legislation protection.56
Furthermore, existence and activities of black trade unions were
actively discouraged and as suchthey did not enjoy any benefits of centralized collective
bargaining in the form of industrial councils.57
The Conciliation Act did, however, introduce principles and structures that laid the
foundation for further development of South African labour law with certain elements
echoed in legislation today.58
Ever increasing numbers of black trade unions resulted in mounting pressures and
conflict. This led to a Commission of Inquiry being appointed.59
The commission, more
commonly known as the Wiehahn Commission, led to the removal of race as a
requirement for access to statutory collective-bargaining structures.60
One of the most
important reforms introduced was the establishment of the Industrial Court which has a
wide discretion to measure the conduct of a party against an even wider concept of
“unfair labour practice”.61
52
Basson etal Essential Labour Law 4; Vettori Alternative Means to Regulate the Employment
Relationship in the Changing World of Work LLD thesis Universityof Pretoria (2005) 3.
53
Industrial Conciliation Act11 of 1924;The Act further established voluntaryand centralized collective
bargaining forums namely,industrial councils.
54 Basson etal Essential Labour Law6; Vettori Alternative Means to Regulate the Employment
55
11 of 1924.
56
Grogan Collective Labour Law(2007) 4.
57
Basson etal Essential Labour Law 5; Vettori Alternative Means to Regulate the Employment
58
Basson etal Essential Labour Law 4: M-S Vettori Alternative Means to Regulate the Employment
59
Grogan Collective Labour Law 4; Basson etal Essential Labour Law 6.
60
Professor Wiehahn recommended sweeping changes byGovernmentthat included legal recognition of
Black trade unions and migrantworkers,abolition ofstatutoryjob reservation,retention of the closed-shop
bargaining system,the creation of a National Manpower Commission and the Industrial Courtto resolve
industrial litigation; M-S Vettori Alternative Means to Regulate the EmploymentRelationship in the
Changing World of Work LLD thesis Universityof Pretoria (2005) 137; the Wiehahn Commission was
appointed in 1977 and completed its reportin 1979.
61
Grogan Collective Labour Law4; Basson etal Essential Labour Law 6; M-S Vettori Alternative Means
to Regulate the EmploymentRelationship in the Changing World of Work LLD thesis Universityof Pretoria
(2005) 3.

15
By 1979 trade unions, representing black employees, gained access to institutions
established by labour legislation, and the Industrial Court was created.62
Even though
black trade unions were given the right to be registered as a result of the
recommendations of the Wiehahn Commission, they were hesitant to join their white
counterparts as they enjoyed tremendous support at plant level, rather than at an
industrial level.63
During the early 1990s the Education Labour Relations Act,64
the Public Service
Relations Act65
and the Agricultural Labour Relations Act66
were passed. What this
meant was that collective labour law and the protection of employees by the Industrial
Court were effectively extended to State and agricultural employees.67
The watershed year of 1994 ushered in a new democratic political dispensation into
South Africa in the form of a constitutional democracy. As a consequence thereof South
Africa regained membership of the International Labour Organization.68
In 1995 the
Labour Relations Act69
(hereafter the LRA) was passed (which became operable on the
11th
of November 1996).70
Although the process of the protection of trade unionism and
statutory collective bargaining was almost complete in 1993, there was nevertheless
increased pressure to rewrite labour legislation. A new political dispensation was
introduced into South Africa and a supreme Constitution containing a Bill of Rights
became the cornerstone of the judicial system.71
As previously mentioned, South Africa
also rejoined the International Labour Organization, and it decided to sever all ties with
the legislation of the past and to promulgate a new Labour Relations Act.72
In the years
62
63
Collective bargaining in South Africa takes a wide variety of forms and can take place at various levels
or forums.It may take place at “plantlevel” or “factory level”, in others words on the level of a single
factory, office or mine.It may take the form of “enterprise-level bargaining” in instances where collective
bargaining occurs in all factories or braches ofa single employer in respectofa specified category of
employees.Collective bargaining mayfinally take place at “industrylevel”. This usuallytakes place
between one or more unions and employers active in a specific industry;Vettori Alternative Means to
Regulate the EmploymentRelationship in the Changing World ofWork LLD thesis Universityof Pretoria
(2005) 137; See also Grogan Collective Labour Law4.
64
146 of 1993.
65
105 of 1994.
66
50 of 1994.
67
The main deficiencyof the 1957 Labour Relations Act 5 of 1957 was that farm workers,public-sector
employees and agricultural workers were excluded from the ambitof the Act.
68
Basson etal Essential Labour Law8; Grogan Collective Labour Law6.
69
66 of 1995.
70
71
Botha Statutory Interpretation:An Introduction for Students (2005) 4.
72
66 of 1995

16
that followed, legislation, such as the Basic Conditions of Employment Act 75 of 199773
(hereafter BCEA) and the Employment Equity Act of 55 of 199874
(hereafter EEA) were
also promulgated.75
The Minister of Labour has recently tabled Parliamentary Bills to
amend the LRA and the BCEA.
2 Common Law and its Deficiencies
Since the relationship between employee and employer is based on a contract of
employment, the regulation, formation and termination thereof are to a large extent left
to the common-law principles of freedom to contract.76
One of the main deficiencies of
this concept is that freedom to contract fails to protect the needs of employees, as the
relationship between employee and employer is inherently unequal.77
Of particular
importance is the common-law rule that an employer may terminate the contract of
employment by merely giving the employee the agreed or prescribed notice.78
The
deficiencies in the common law are further exacerbated by the power relationship
between stakeholders at times being extremely complex. Conversely, under the current
labour-law regime, evidence has shown a shift in power as an employer may be in need
of skilled workers who now stand a stronger chance at negotiating higher salaries or
more favourable terms of employment. 79
Furthermore, certain employees opt out of
long term employment contracts, electing rather to provide services to their employers
through becoming entrepreneurs with their very own start-up businesses.80
73
The BCEA provides for minimum standards ofemploymentwhich maybe changed under certain
circumstances.An employee and employer may agree to more favourable conditions than setout in
BCEA.
74
The EEA provides mechanisms to eliminate discrimination and a means to promote policies of
affirmative action.
75
Grogan Workplace Law(2009) 6.
76
Basson etal Essential Labour Law(2009) 8.
77
Employers are typically owners oflarge businesses,wielding greater power than individual employees.
The relationship between employee and employer is thus unequal.This,in turn, gives weightto the
argumentthatfreedom to contract is a fiction.
78
Govindjee, Vrancken, Holnes,Horsten,Killander,Mpedi,Olivier, Stuart, Stone and Van der Walt
Introduction to Human Rights Law (2009) 146.
79
Basson etal Essential Labour Law 9.
80
Ibid.

17
2 1 Addressing deficiencies
One of the most important ways that the deficiencies are addressed is through the
overriding effect of legislation.81
One of the chief ways that the LRA addresses the
common-law deficiency is through the provisions aimed at job security; the most
important of these aim at protection against unfair dismissals.82
Another example of legislation addressing the common law is in the form of the EEA.
The EEA firstly prohibits unfair discrimination in the workplace and places employers
under a duty to ensure that workplaces are free from unfair discrimination.83
The second
focus of attention in the EEA is on affirmative action.84
The EEA outlines its purpose and
measures required of the employer for the implementation thereof.85
Moreover, the
BCEA makes up for deficiencies by setting minimum conditions for employment.86
Addressing the deficiencies in common law is not limited to enacting and promulgating
legislation, but also the creation of specialist tribunals containing tailor-made procedures
to enforce fundamental principles. It has been contended that ordinary courts are
steeped in common law, whereas labour-law institutions have procedures aimed at
speed and conciliation, rather than being adversarial in nature.87
The LRA thus
established the Commission for Conciliation, Mediation and Arbitration (CCMA), the
Labour Court and the Labour Appeal Court.88
S157 (1) of the LRA89
states that the
Labour Court has exclusive jurisdiction in respect of matters that are to be determined
by the court. However, should a contractual dispute arise, one may either approach the
High Court, on the basis of its inherent powers, or the Labour Court, on the basis of S77
of BCEA,90
in order to resolve disputes.91
81
Basson et al Essential Labour Law 9.
82
While the emphasis seems to be on collective labour law,as opposed to individual labour law,authors
such as Grogan and Vettori suggestthatit is the hope of the legislature to provide a framework that would
resultin employers and trade unions together setting conditions for work and resolving their own disputes,
with the end resultbeing social justice and overall economic development.
83
84
Govindjee et al Introduction to Human Rights Law 156.
85
S2(b) EmploymentEquity Act; Basson etal Essential Labour Law9
86
Basson etal Essential Labour Law 9.
87
Govindjee et al Introduction to Human Rights Law 146; Basson etal Essential Labour Law9.
88
The labour institutions actparallel to ordinary courts,and either the Labour Courtor the High Court may
be approached to resolve disputes.
89
66 of 1995.
90
75 of 1997.
91
Govindjee et al Introduction to Human Rights Law 147; S157(1) LRA.

18
CHAPTER 3
1 Legislative Provisions
Labour rights, such as the right to fair labour practices, freedom of association, the right
to engage in collective bargaining, organizational rights and the right to strike are
enshrined in section 23 of the Constitution of the Republic of South Africa, 1996
(hereafter the Constitution).92
Section 23 of the Constitution entitled “labour relations” states –
1. Everyone has the right to fair labour practices.
2. Every worker has the right
a. to form and join a trade union;
b. to participate in the activities and programmes of a trade union;
and
c. to strike.
3. Every employer has the right
a. to form and join an employers' organisation; and
b. to participate in the activities and programmes of an employers'
organisation.
4. Every trade union and every employers' organisation has the right
a. to determine its own administration, programmes and activities;
b. to organise; and
c. to form and join a federation.
5. Every trade union, employers' organisation and employer has the right to
engage in collective bargaining. National legislation may be enacted to
regulate collective bargaining. To the extent that the legislation may limit a
right in this Chapter, the limitation must comply with section 36(1).
6. National legislation may recognise union security arrangements contained
in collective agreements. To the extent that the legislation may limit a right
in this Chapter, the limitation must comply with section 36(1).
2 Scope of Section 23
Section 23(1)93
states that everyone has the right to fair labour practices, whereas
section 23(2)94
holds that every worker has the right to freedom of association,
organizational rights, the right to strike and the right to engage in collective bargaining.95
It would seem then that the scope of protection regarding fair labour practices is limited
92
Unless otherwise stated,all references in this studyrefer to the final Constitution ofthe Republic of
South Africa, 1996; Govindjee et al Introduction to Human Rights Law 145; Currie and De Waal The Bill
of Rights Handbook (2005) 499.
93
Constitution ofthe Republic of South Africa, 1996.
94
Ibid.
95
Currie and De Waal The Bill of Rights Handbook 499;Govindjee et al Introduction to Human Rights Law
148.

19
to employees who may rely also on provisions in the Labour Relations Act 66 of 1995
(hereafter the LRA), whilst employers rely directly on section 23(1) of the Constitution.96
As will be further discussed, various pieces of legislation have been enacted to give
effect to the rights enshrined in section 23 of the Constitution.97
2 1 What do fair labour practices entail?
Section 186(2) of the LRA defines unfair labour practices as follows –
“Unfair labour practice” means any unfair act or omission that arises
between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason relating to
probation) or training of an employee or relating to the provision of
benefits to an employee;
(b) unfair suspension of an employee or any other unfair disciplinary
action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former
employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of
the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account
of the employee having made a protected disclosure defined in that
Act.
The right to fair labour practices has its origin in the Industrial Court that was established
following the Wiehahn Commission recommendations in the late 1970s.98
The Industrial
Court initially chose not to define precisely what it understood by the concept fair labour
practices.99
The Industrial Court did, however, say that fairness was something more
than lawfulness; this meant that, even though conduct was lawful, it was not necessarily
fair.100
The concept of unfair labour practicewas initially defined as including any conduct
by employers, employees or their organizations which the Industrial Court regarded as
falling within the definition of the term. Prior to 1995 the definition of unfair labour
practices was regarded as open-ended. The 1995 legislation, however, provides for a
definition and moved away from the open-ended notion of unfair labour practice and set
96
Govindjee et al Introduction to Human Rights Law 148; Du Doit, Godfrey, Cooper,Giles,Cohen,
Conradie and Steenkamp Labour Relations Law6ed (2015) 539.
97
Govindjee et al Introduction to Human Rights Law 145; S 1(a) LRA.
98
Currie and De Waal The Bill of Rights Handbook 501; Basson etal Essential Labour Law5; Vettori
Alternative Means to Regulate the EmploymentRelationship in the Changing World ofWork LLD thesis
University of Pretoria (2005) 3.
99
Currie and De Waal The Bill of Rights Handbook 503; Du Doit, et al Labour Relations Law539.
100
Council of Mining Unions v Chamber ofMines of SA (1985) 6 ILJ 293 (IC) 295; Currie and De Waal
The Bill of Rights Handbook 503.

20
out to give effect to the constitutional right to fair labour practices by codifying the main
kinds of unfair labour practices distilled from the body of case law that preceded it. In
2002 a list was incorporated into the LRA as section186 (2). By virtue of the fact that the
word “involving” is used, unfair labour practices are limited to only those mentioned in
the list, and arbitrators or the Labour Court must therefore apply these provisions to
disputes.101
The consequence is that the definition is no longer open-ended or in other
words is now a numerus clausus.102
What constitutes an unfair labour practice is now codified in the LRA103
, and every
employee has the right not to be subjected to an unfair labour practice.104
To succeed in
an action based on an alleged unfair labour practice, an employee must prove that the
conduct or practice of the employer falls within the terms expressly listed in the
definition.105
2 2 Scope of protection from unfair labour practices under the LRA
An unfair labour practice is any unfair act or omission that arises between an employee
and employer.106
The scope of protection from unfair labour practices under the LRA is
limited in two ways.107
Firstly, only employees are protected108
and secondly, unfair
labour practices are limited to conduct that specifically constitutes an unfair labour
practice.109
With regard to the former point, it appears that employees cannot commit
unfair labour practices against their employers.110
To stress the latter point, unless the
conduct falls within the scope of one of the types of conduct listed in section 186(2)111
, it
would simply not amount to an unfair labour practice – even trade unions cannot commit
101 Currie and De Waal The Bill of Rights Handbook 501; Basson etal Essential Labour Law5; Vettori
Alternative Means to Regulate the EmploymentRelationship in the Changing World ofWork LLD thesis
University of Pretoria (2005) 3.
102
Numerus clausus is a Latin term that means "closed number"or closed list.
103
Basson etal Essential Labour Law191; Du Doit, et al Labour Relations Law539.
104
S185(b) LRA.
105
Nawa v DepartmentofTrade and Industry 1998 (7) BLLR 701 (LC) 703;Grogan Workplace Law 73.
106
S186 LRA.
107
Vettori Alternative Means to Regulate the EmploymentRelationship in the Changing World of Work
LLD thesis Universityof Pretoria (2005) 315.
108
Basson etal Essential Labour Law192; S 213 of the LRA defines an employee as “(a) any person,
excluding an independentcontractor,who works for another person or for the State and who receives, or
is entitled to receive, any remuneration;and (b) any other person who in any manner assists in carrying on
or conducting the business ofan employer”.
109
Basson etal Essential Labour Law 193;Currie and De Waal The Bill of Rights Handbook 504.
110
Grogan Workplace Law 75; National Entitled Workers Union v Commission for Conciliation Mediation
and Arbitration and Others (2007) 28 ILJ 1223 (IC)
111
LRA; Du Doit, et al Labour Relations Law539.

21
unfair labour practices against an employer. 112
In this regard it is important to note that
the list of unfair labour practices mentioned in section 186(2)113
is exhaustive and relates
only to disputes of rights and not a dispute of interests.114
Furthermore, section 186(2)115
refers to unfair conduct which is a wider concept than
unfair discrimination.116
Grogan contends that the distinction between unfair conduct and
unfair discrimination is necessary as it ensures that the employee refers the dispute to
the correct forum.117
Employees who allege that they have been the victims of
discrimination, as defined in the Constitution118
and the Employment Equity Act, must
refer their dispute to the Labour Court or the civil courts for adjudication, unless they
agree to arbitration. Employees alleging they are victims of unfair labour practices, as
defined in section 186(2), must refer their disputes for arbitration under the LRA.119
2 3 Reliance on Constitution rather than LRA
According to Smit the Constitution120
is an obvious source to search for the existence of
an obligation on employers to protect employees in the workplace. The rights to dignity
of the person, security and fair labour practices seem like obvious places to start.121
The
Constitution aims to protect all human beings, irrespective of race, creed or sex through
the right to pursue both material well-being and spiritual development in conditions of
freedom and dignity, in economic security and equal opportunity.122
The question often arises whether an employee can rely directly on section 23(1) of the
Constitution if the conduct complained of does not fall within the ambit of section 186(2)
of the LRA. From my limited experience I would assume that litigants would prefer a
112
Basson etal Essential Labour Law193; Nawa v DepartmentofTrade and Industry 1998 (7) BLLR 701
(LC) at 703; Vettori Alternative Means to Regulate the EmploymentRelationship in the Changing World of
Work LLD thesis Universityof Pretoria (2005) 315.
113
LRA; see also Du Doit, et al Labour Relations Law539.
114
Essential Labour Law 193; A dispute ofright refers to already existing rights while a dispute of
interestrefers to the creation of new rights where no such right existed.
115
LRA; see also Du Doit, et al Labour Relations Law539.
116
Grogan Workplace Law10 74.
117
Ibid.
118
Constitution ofthe Republic of South Africa, 1996
119
Grogan Workplace Law74.
120
The Constitution ofthe Republic of South Africa, 1996.
121
D M SmitBullying in the Workplace:Towards a Uniform Approach n South African Labour Law LLD
Thesis Universityof the Free State (2014); Kruger Racism and Law: Implementing the Rightto Equality in
Selected South African Equality Courts PhD Rhodes University(2008) 150.
122
See Basson etal Essential Labour Law 215;Smit Bullying in the Workplace:Towards a Uniform
Approach n South African Labour Law153.

22
litigation path that would follow the path of least resistance. As a point of departure, the
LRA was enacted to give effect to the fundamentally enshrined right to fair labour
practices as contained in section 23 (1) of the Constitution.123
The principle of avoidance states that, where it is possible to decide a case without
reaching a constitutional issue, then that is the course which should be followed.124
It
follows then that one may not directly rely on the Constitution where there is legislation
giving effect to that right,125
unless the constitutionality of the legislation is also
challenged.126
The court in SANDU v Minister of Defence127
held that “a litigant may not
bypass the provisions of the Labour Relations Act, 66 of 1995, and rely directly on the
Constitution without challenging the provisions of the [LRA] on constitutional grounds.”128
Public-sector employees however, successfully placed direct reliance on the
Constitution to challenge practices not covered by the LRA.129
Similarly, courts have
been sympathetic to the plight of employees seeking direct reliance on the Constitution
on the basis that labour legislation affords limited protection.130
For instance, the
applicants in Fredericks v MEC for Education and Training Eastern Cape131
successfully
based a claim on their employer’s decision not to approve a voluntary severance
package on Constitutional provisions, rather than placing reliance on the LRA.132
The
applicants, all teachers in the employ of the Eastern Cape Department of Education,
applied for voluntary retrenchment packages, but had their applications refused.133
They
approached the Eastern Cape High Court for an order setting aside the refusal of their
applications and an order that the respondents approve their applications for voluntary
retrenchment packages.134
A full bench of the High Court took the view that the matter fell within the terms of section
24 of the LRA, in that it concerned the interpretation or application of a collective
123
Govindjee et al Introduction to Human Rights Law 148; Grogan Workplace Law74; Basson etal
Essential Labour Law195.
124
S v Mhlungu and Others 1995 (3) SA 1 (CC) 59; National Coalition for Gay and Lesbian Equality and
Others v Minister of Home Affairs and Others 2002 SA 1 (CC) 21.
125
126
Ibid.
127
2007 (8) BCLR 863 (CC) 53.
128
Ibid.
129
Simela & Others v MEC for Education,Province of the Eastern Cape 2001 (9) BLLR 1085 (LC)
130
Simela & Others v MEC for Education,Province of the Eastern Cape 2001 (9) BLLR 1085 (LC); Piliso v
Old Mutual Life Assurance Co SA Ltd (2007) 28 ILJ 897 (LC).
131
2002 (2) BLLR 119 (CC).
132
The applicants successfullybased their employer’s decision notto approve a voluntary severance
package on s 9 and s 33 of the Constitution rather than on provisions in the LRA.
133
Fredericks and Others v MEC for Education and Training,Eastern Cape and Others 2002(2) SA 693
(CC) at par 1-4 (hereafter Fredericks).
134
Fredericks at par 1-4.

23
agreement, and held that it had no jurisdiction over the dispute, which instead, had to be
dealt with by the Commission for Conciliation, Mediation and Arbitration (the CCMA).135
The applicants sought leave to appeal in the Constitutional Court, arguing that the High
Court did have jurisdiction to determine the dispute which raised a constitutional matter.
In her judgment, O’Regan J, for a unanimous Court held that the claim raised by the
applicants is based on sections 9136
and 33137
of the Constitution and does raise a
constitutional matter.138
She also held that the dispute raised by the applicants is covered
by the provisions of the LRA, although it arose from an agreement concluded in terms
of earlier legislation, the Education Labour Relations Act, 1993.139
The Court ruled that section 24 of the LRA cannot exclude the jurisdiction of the High
Court to determine constitutional matters.140
That jurisdiction is entrenched by section
169 of the Constitution, and may only be ousted in circumstances where Parliament
assigns the determination of the constitutional matter to a court of similar status to a High
Court.141
The Court further held that the CCMA was not a court similar in status to the High
Court.142
There being no other provision in the LRA purporting to assign exclusive
jurisdiction in the matter to the Labour Court, the Constitutional Court concluded that the
High Court did have jurisdiction in this caseand that the High Court had erred in reaching
the opposite conclusion.143
The application for leave to appeal was therefore granted
and the appeal upheld with the matter being referred back to the High Court to be dealt
with in terms of the Constitutional Court’s finding.144
Where a claim merely arises from a dismissal for poor work performance, a matter
routinely dealt with in labour forums,the Constitutional Court in Chirwa v Transnet Ltd145
held that the High Court did not have jurisdiction to entertain sucha matter as alternative
135
Fredericks at par 1.
136
The right to equality in the Constitution.
137
The right to administrative justice in the Constitution.
138
Fredericks at par 4 and 33.
139
Fredericks at par 13 – 34.
140
141
142
143
Ibid.
144
As per the order granted in the Constitution Court, the Constitutional Courtfound that the High Court
did indeed have jurisdiction to hear the matter as the claim infringed the applicant’s rightto dignity and just
administrative action.
145
2008 (2) BLLR 97 (CC).

24
forums had not been exhausted.146
Lastly, the Constitutional Court in Gcaba v Minister
of Safety & Security147
decided whether a decision by an employer not to promote and
appoint an employee could be heard by the High Court. The crisp issue before the Court
was whether provisions in the LRA or Constitution were applicable.148
As the applicant
seemed to lodge his claim in numerous forums, the Court reiterated that forum shopping
by an employee faced with a negative decision was undesirable.149
Where the LRA
structures had been specifically created for dealing with labour matters, the purpose-
built legislative regime should govern the matter.150
Following from the previous points, forum shopping by litigants is not desirable.151
Once
a litigant has chosen a particular cause of action and system of remedies (for example,
the structures provided for by the LRA) he or she should not be allowed to abandon that
cause as soon as a negative decision or event is encountered. One may not want
litigants to “relegate” the LRA dispensation because they do not “trust” its structures to
do justice as muchas the High Court could be trusted. After all, the LRA structures were
created for the very purpose of dealing with labour matters, as stated in the relevant
parts of the two majority judgments in Chirwa, referred to above.152
For legal puritarians,153
the decisions supra are messy: law should not be messy; it is
neat. It is made up of separate branches and sub-branches with each branch or sub-
branch being autonomous. There are no overlaps. It would therefore appear that only
once a cause of action is based on the Constitution or in the event that a specific section
of the LRA is in conflict with the Constitution, may an employee whose rights have been
infringed, rely on the Constitution rather than on the LRA.154
3 Equality
As mentioned supra the Constitution aims to protect all human beings, irrespective of
race, creed or sex through the right to pursue both material well-being and spiritual
146
Ibid.
147
(2010) 31 ILJ 296 (CC).
148
Gcaba v Minister of Safety & Security supra par 19.
149
150
151
See, for example, Chirwa and Gcaba para 52.
152
Gcaba par 57.
153
Puritarianism is regarded as a philosophybased on pure logic and theory.
154
See in general Smit Bullying in the Workplace:Towards a Uniform Approach n South African Labour
Law 153.

25
development in conditions of freedom and dignity, in economic security and equal
opportunity.155
In order to fully understand the concept of equality, a distinction between substantive
and formal equality is made. Substantive equality requires of the law to ensure equality
of outcome and permits the implementation of legislative and other measures to protect
or advance persons, or categories of persons,disadvantaged by unfair discrimination.156
Formal equality requires that all persons are equal bearers of rights and does not take
actual social and economic disparities between groups into account. Inequality is thus
seen as an aberration which can be eliminated by extending the same rights and
entitlements to everyone in accordance with the same neutral norm or standard of
measurement.157
The starting point for equality jurisprudence in South Africa is section
9 of the Constitution.158
Section 9 of the Constitution states as follows –
1. Everyone is equal before the law and has the right to equal protection and
benefit of the law.
2. Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed
to protect or advance persons, or categories of persons, disadvantaged by
unfair discrimination may be taken.
3. The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
4. No person may unfairly discriminate directly or indirectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be
enacted to prevent or prohibit unfair discrimination.
5. Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.
The Constitution secures equal protection and benefit of the law and equality before the
law for everyone, and it prohibits unfair discrimination on a variety of grounds, including
race, ethnicity and colour.159
Generally speaking, all South Africans, irrespective of race,
155
See Basson etal Essential Labour Law 215;Smit Bullying in the Workplace:Towards a Uniform
Approach n South African Labour Law 153.
156
Currie and De Waal The Bill of Rights Handbook 233;s 9 (2) of the Constitution.
157
Currie and De Waal The Bill of Rights Handbook 233.
108
159
S 9 of the Constitution;equalityas a value resonates through the Bill of Rights with s 7, s 36 and s 39
mentioning equality,as well as the values of human dignityand freedom.S 7 of the Constitution reads:
“Rights (1) This Bill of Rights is a cornerstone of democracyin South Africa. It enshrines the rights ofall
people in our country and affirms the democratic values of human dignity,equality and freedom.(2) The
State mustrespect,protect, promote and fulfil the rights in the Bill of Rights.(3) The rights in the Bill of
Rights are subjectto the limitations contained or referred to in section 36, or elsewhere in the Bill;s 36
reads:Limitation ofrights (1) The rights in the Bill of Rights maybe limited onlyin terms oflaw of general
application to the extent that the limitation is reasonable and justifiable in an open and democratic society,

26
ethnicity or colour are considered equal.160
This means that Government, through its
actions and in law, may not infringe upon the rights of individuals on any of the prohibited
grounds provided for in section 9 of the Constitution, and is obliged to promote the
attainment of equality in South African society.161
To achieve this ideal of equality, racism
which manifests itself in various forms in society, numerous institutions and various
workplaces needs to be eradicated.162
The preamble of the Constitution introduces equality into South Africa’s constitutional
framework by referring to “a democratic and open society in which government is based
on the will of the people and every citizen is equally protected by law.”163
Moreover,
section 1 lists the achievement of equality and non-racialism and non-sexism among the
founding values of our constitutional democracy.164
At the outset, and from a thorough
examination of constitutional provisions, one can conclude that everyone is equal before
the law and enjoys equal protection and benefit of the law. As a value, equality, together
with other constitutional values, has to inform the application, interpretation and limitation
of all rights. The right to equality prohibits direct and indirect unfair discrimination by the
State and individuals on listed and analogous grounds. A presumption regarding the
unfairness of the discrimination arises where a complainant makes out a prima facie
case on the basis of one of the listed grounds. A respondent may rebut the presumption
of unfairness.165
based on human dignity,equality and freedom,taking into accountall relevant factors, including-- (a) the
nature of the right; (b) the importance ofthe purpose ofthe limitation; (c) the nature and extent of the
limitation; (d) the relation between the limitation and its purpose;and (e) less restrictive means to achieve
the purpose.(2) Except as provided in subsection (1) or in any other provision of the Constitution,no law
may limitany right entrenched in the Bill of Rights;S 39 reads: Interpretation of Bill of Rights (1) When
interpreting the Bill of Rights,a court, tribunal or forum – (a) mustpromote the values that underlie an
open and democratic societybased on human dignity,equality and freedom; (b) mustconsider
international law;and (c) may consider foreign law.(2) When interpreting any legislation,and when
developing the common law or customarylaw, every court, tribunal or forum must promote the spirit,
purportand objects ofthe Bill of Rights.(3) The Bill of Rights does notdeny the existence of any other
rights or freedoms thatare recognised or conferred by common law,customarylaw or legislation,to the
extent that they are consistentwith the Bill.”
160
Kruger Racism and Law: Implementing the Rightto Equality in Selected South African Equality Courts
150-155.
161
Smit Bullying in the Workplace:Towards a Uniform Approach in South African Labour Law 2; see also
Equality in Selected South African Equality Courts 150-155.
162
Ibid.
163
Smit Bullying in the Workplace:Towards a Uniform Approach n South African Labour Law 151; see
also Bason etal Essential Labour Law 215.
164
S1 of the Constitution reads:“(1) The Republic of South Africa is one, sovereign,democratic state
founded on the following values:(a) Human dignity,the achievementof equality and the advancementof
human rights and freedoms.(b) Non-racialism and non-sexism.(c) Supremacyof the Constitution and the
rule of law.(d) Universal adultsuffrage,a national common voters roll,regular elections and a multi-party
system of democratic government,to ensure accountability,responsiveness and openness.”
165
Equality in Selected South African Equality Courts 106.

27
Early pronouncements on equality in the Constitutional Court focused on equality in
relation to fair-trial procedures and requirements. The “new concept” marked a definite
break with the past.166
For the first time, the Court addressed equal protection and equal
treatment before the law in S v Makwanyane167
albeit in a matter which established that
capital punishment was inconsistent with the commitment to human rights expressed in
the Interim Constitution.168
According to Smit, general remarks about equality and its
place within the constitutional framework was made, however, no pronouncements on
discrimination featured in the judgment.169
The Court in Brink v Kitshoff170
(hereafter Brink) unanimously held that equality and non-
discrimination are highly regarded goals in foreign and international law.171
Despite the
judgment dealing with a challenge against a statutory provision in which policies ceded
by spouses were not subject to the samerestrictions, the judgment is important as it was
the first judgment on unfair discrimination which laid the Courts’ foundation for further
expansion.172
The Constitutional Court in Brink further held that the policy of apartheid
systematically discriminated against black people in all aspects of social life.173
What
was required of legislation was not only formal equality174
but also substantive equality175
as past instances of unfair discrimination have ongoing negative consequences.176
The
Constitutional Court in Ministerof Finance v Van Heerden177
held that the “[c]onstitution’s
goal of creating a non-racial and non-sexist egalitarian society, underpinned by human
166 Currie and De Waal The Bill of Rights Handbook 211;See also in general Govindjee et al Introduction
to Human Rights Law ch 4.
167
S v Makwanyane and Another 1995 (3) SA 391 (CC) was a landmark 1995 judgementofthe
Constitutional CourtofSouth Africa that established thatcapital punishmentwas inconsistentwith the
commitmentto human rights expressed in the Interim Constitution.
168
The interim Constitution ofthe Republic ofSouth Africa 200 of 1993.
169 Smit Bullying in the Workplace:Towards a Uniform Approach in South African Labour Law 151; see
also Bason etal Essential Labour Law 103.
170
Brink v Kitshoff NO 1996 (4) SA 197 (CC); section 44 of the Insurance Act of 1943 deprived married
women,butnot married men,of all or some ofthe benefits of life-insurance policies made in their favour
by their husbands.The Constitutional Courtheld thatsection 44 discriminated againstmarried women on
the basis ofsex and marital status,and was thus a violation of the equality clause.The Court held that,
since the common-law rule prohibiting donations between spouses had been abolished,the argumentthat
the section provided married women with a benefitwas no longer applicable.The Courtalso rejected the
argumentthatthe section was necessaryto prevent collusion between spouses:such collusion could as
easilyoccur where husbands rather than wives were beneficiaries.The Courtruled that sections 44(1) a nd
44(2) were invalid as from 27 April 1994, but exempted payments alreadymade on the strength of those
provisions.
171
Brink v Kitshoff NO par 34.
172
Brink v Kitshoff NO par 39; see also Kruger Racism and Law: Implementing the Rightto Equality in
Selected South African Equality Courts 106.
173
Ibid.
174
Formal equality is sometimes referred to as “equality in treatment” and is protected in section 9(3) and
9(4) of the Constitution through the prohibition ofunfair discrimination.
175
Substantive equality is sometimes referred to as “equalityin outcome”.Substantive equalityin section
9(2) of the Constitution is promoted through the adoption ofpositive measures to empower previously
disadvantaged groups in South Africa.
176
177
2004 (6) SA 121 (CC).

28
dignity, the rule of law, a democratic ethos and human rights informs a conception of
equality that goes beyond mere formal equality and mere non-discrimination which
require identical treatment, whatever the starting point or impact.”178
The following two judgments which were interestingly handed down on the same day
also contributed to equality jurisprudence. According to Kruger, the judgments in
Prinsloo v Van der Linde179
(hereafter Prinsloo) and President of the Republic of South
Africa v Hugo180
(hereafter Hugo) contributed to a uniform approach to equality.181
The
Constitutional Court in Prinsloo for instance focused on context being all important in
determining whether differentiation amounts to unequal treatment or discrimination in
the constitutional sense.182
The majority identified differentiation to be “at the heart of
equality jurisprudence in general and … the section 8 right or rights in particular.”183
The
predecessor to the current equality clause contained in section 9 of the Constitution
distinguished between discrimination that is unfair and discrimination that is not unfair.184
According to Currie and De Waal both section 8 of the Interim Constitution and section
9 of the 1996 formulation grant a right to equal protection and benefit of the law and a
right to non-discrimination.185
The only addition in the latter’s provision are the inclusions
of new grounds for discrimination such as pregnancy, marital status and birth, together
with the horizontal protection against discrimination from fellow individuals.186
178
2004 (6) SA 121 (CC) 29.
179
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC); This case dealtwith the validity of s 84 of the Forest
Act 122 of 1984 which aims to prevent and control veld and forest fires by creating fire-control areas
where schemes ofcompulsoryfire control are established.As such,owners of land outside ofthe fire-
control areas were not obliged to institute fire-control measures,butthey were encouraged to do so by a
number ofmeans.S 84 created a presumption ofnegligence bythe landowner in respectoffires occurring
in non-controlled areas.The ForestAct differentiated between owners in fire-controlled areas and non-fire
controlled areas.The court in essence found thatthe differentiation did notamountto unfair discrimination
as it was a rationallyconnected to the legitimate Governmentpurpose ofpreventing veld fires.
180
Presidentof the Republic ofSouth Africa v Hugo 1997 (4) SA 1 (CC); This case centred on the
Presidentwho had pardoned and granted release to prisoners in certain categories,one of the categories
was certain “mothers with minor children under the age of twelve (12) years.” Hugo,a single father of a
child under twelve, challenged the constitutionalityof the pardon in the court a quo, saying that it unfairly
discriminated againsthim and his son on the ground of sex or gender in violation of s 8 of the interim
Constitution.The court a quo found in favour of Hugo.The Presidentand the Minister of Correctional
Services appealed againstthe judgment.The majority of the Court held that, while the legislature
discriminated againstHugo on the basis ofsex, this discrimination was notunfair.Regarding the impact
upon fathers of young children who were not released,the majorityof the Court held that, although the
pardon may have denied men an opportunity it afforded women,it could not be said that it fundamentally
impaired their sense ofdignity and equal worth. Therefore, the pardon was notunfairly discriminatory.
181
108.
182
Prinsloo v Van der Linde par 17, 20 and 21.
183
Prinsloo v Van der Linde par 23-25.
184
Ibid.
185
Currie and De Waal The Bill of Rights Handbook 215;see also in general Govindjee etal Introduction
to Human Rights Law ch 4.
186
Ibid.

29
The latter is necessary in any modern society and involves classification that is rational,
non-arbitrary and that does not manifest “naked preferences”.187
The Constitutional
Court in Hugo held that in order to determine whether a differentiation is unfair one must
look at that group which had been disadvantaged and the nature of the power in terms
of which the discrimination was effected, as well as the nature of the interests which
have been affected by the discrimination.188
According to Kruger, the Hugo and Prinsloo cases complement each other as the
judiciary took the legislatures prohibition of unfair discrimination as its point of
departure.189
Of crucial importance to the determination of unfairness is a consideration
of the impact of the discrimination on the complainants in the context of the case.190
As Goldstone J, put it:
“Each case, therefore, will require a careful and thorough understanding of the impact of
the discriminatory action upon the particular people concerned to determine whether its
overall impact is one which furthers the constitutional goal of equality or not.”191
Finally the Court in Harksen v Lane192
(hereafter Harksen) determined the substantive
test to determine whether the right to equality had been infringed or threatened by
conduct or legislation.193
The line of enquiry involves the following: one would need to
ascertain whether the challenged law or conduct differentiated between people or
categories of people. If so, does the differentiation bear a rational connection to a
legitimate Government purpose?194
If it does not, then there is a violation of section 9(1)
of the Constitution. Even if it does, it might still amount to discrimination.195
One would
then have to ascertain whether the differentiation amounts to unfair discrimination.196
187 Prinsloo v Van der Linde par 23-25.
188
Presidentof the Republic ofSouth Africa v Hugo par 41.
189
109.
190
Ibid.
191
Presidentof the Republic ofSouth Africa v Hugo par 41.
192
Harksen v Lane 1997 (11) BCLR 1489 (CC); See also Govindjee et al Introduction to Human Rights
Law ch 4.
193
Govindjee et al Introduction to Human Rights Law 74; see also Currie and De Waal The Bill of Rights
Handbook 210-240;see also Kruger Racism and Law:Implementing the Rightto Equality in Selected
South African Equality Courts 109.
194
South African Equality Courts 108-109.
195
Ibid.
196
Put another way, does the differentiation amountto discrimination (ifon a specified ground,then
discrimination will have been established;ifnot, it depends upon attributes and characteristics which have
the potential to impair the fundamental human dignityof persons as human beings.

30
This involves a two-stage analysis.197
Firstly, does the differentiation amount to
“discrimination” on a listed ground or secondly, if the differentiation amounts to
“discrimination”, does it amount to unfair discrimination? If it is based on one of the listed
grounds, then unfairness is presumed. If on an unspecified ground, unfairness will have
to be established by the complainant.198
The test of unfairness focuses primarily on the impact of the discrimination on the
complainant and others in his or her situation. However, if at the end of this enquiry, the
differentiation is found to be fair, then there will be no violation of section 9(3) and (4) of
the Constitution. If the discrimination is found to be unfair then a determination will have
to be made as to whether the provision can be justified under the limitation clause
contained in section 36.199
The first stage concerns the right to equal treatment and equality before the law in
section 9(1) in order to determine if the law or conduct has a rational basis. If there is no
rational link between the differentiation in question and a legitimate governmental
purpose, then the impugned law or conduct violates section 9(1) and it fails at the first
stage. If the differentiation is shown to be rational, then the second stage of the enquiry
is activated in that it may still be shown to amount to unfair discrimination in terms of
section 9(3) or (4).
Govinjee et al have created a flow chart to describe the process detailed above.200
A
similar diagram is created to provide the reader with a visual representation of the line
of enquiry. Diagram 1 below is an adaptation of the diagram found in Govindjee et al of
the equality enquiry as per Harksen. For the sake of clarity and ease of understanding,
the portion relating to the limitation clause has been excluded. It is submitted that this
omission does not detract or alter from the process of the enquiry.
197
South African Equality Courts 109.
198
Ibid.
199
s 36 of the Constitution reads:“Limitation ofrights (1) The rights in the Bill of Rights maybe limited only
in terms oflaw of general application to the extent that the limitation is reasonable and justifiable in an
open and democratic societybased on human dignity,equality and freedom,taking into account all
relevant factors, including-- (a) the nature of the right; (b) the importance ofthe purpose ofthe limitation;
(c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose;and (e)
less restrictive means to achieve the purpose.(2) Except as provided in subsection (1) or in any other
provision of the Constitution,no law may limitany right entrenched in the Bill of Rights.”
200
Govindjee et al Introduction to Human Rights Law 75; See also Currie and De Waal The Bill of Rights
Handbook ch 9.

31
HARKSEN DIAGRAM
HARKSEN DIAGAM

32
3 1 The Employment Equity Act
South Africa ratified the Discrimination (Employment and Occupation) Convention, 1958
(No 111) on 5 March 1997 and developed legislation to enact the convention. The
Employment Equity Act 55 of 1998 (hereafter the EEA) was passed to promote the
constitutional right of equality and to redress the effects of discrimination, giving effect
to South Africa’s international labour obligations.
The purpose of the EEA is to achieve workplace equity.201
The EEA complements the
LRA by refining the prohibition of unfair discrimination.202
As the focus of this study is on
unfair discrimination with reference to name-calling, specifically in respectof racial slurs,
the issue of affirmative action is not addressed.
The EEA203
provides stakeholders with mechanisms to counteract and eliminate
discrimination.204
Mechanisms to protect the individual employee include protection
against unfair discrimination, protection against unfair labour practices and the setting of
minimum standards for employment.
The EEA205
states that “[t]he purpose of [the EEA] is to achieve equity in the workplace
by promoting equal opportunity and fair treatment in employment through the elimination
of unfair discrimination”.206
Chapter 2 of the EEA207
is entitled “Prohibition of Unfair
Discrimination.” Section 5 of the EEA places a positive duty on every employer,208
by
stating that “every employer must take steps to promote equal opportunity in the
workplace by eliminating unfair discrimination in any employment policy or practice”209
Section 6 contains the main thrust of the EEA’s prohibition against unfair
discrimination.210
“No person may unfairly discriminate, directly or indirectly, against an employee, in any
employment policy or practice, on one or more grounds, including race, gender, sex,
pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture,
language and birth.”211
201
Dupper,Bhoola, Garbers, Jordaan, Kalula and Strydom Understanding the EmploymentEquity Act
(2009) 4.
202
Grogan Workplace Law94.
203
55 of 1998.
204
Basson etal Essential Labour Law215; Discrimination in areas other than employmentis addressed
through the Promotion ofEquality and the Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).
205
55 of 1998.
206
Section 2; See also Dupper etal Understanding the EmploymentEquity Act 4.
207
55 of 1998.
208
209
Section 5 EEA Act 55 of 1998.
210
Basson etal Essential Labour Law 216
211
Section 6 (1) EEA Act 55 of 1998.

33
“Harassmentof an employee is a form of unfair discrimination and is prohibited on any one,
or a combination of grounds of unfair discrimination listed [above].”212
The provisions of Chapter 2 of the EEA213
apply to all employers and employees,
irrespective of an employer’s financial turnover or the number of employees in its
employ.214
A positive duty is placed on every employer215
to take steps to promote equal
opportunity in the workplace by eliminating unfair discrimination in any employment
policy or practice.216
3 2 Amendments to the EEA
Parliamentary Bills have previously been tabled by the Minister of Labour217
to amend
the LRA and the BCEA. As previously mentioned, the two statutes, together with the
EEA, form the cornerstoneof our labour legislation. The Employment Equity Amendment
Act (hereafter EEAA) has now come into operation.
In terms of the amendments, the grounds for discrimination are no longer confined to the
listed criteria in section 6. Discriminatory grounds now include “on any other arbitrary
ground.”218
One notices a uniformity in terms as section 187(1)(f) of the LRA also uses
the term on any other arbitrary ground.
Furthermore, the EEAA provides that:
“A difference in terms and conditions of employment between employees of the
same employer performing the same or substantially the same work or work of equal
value that is directly or indirectly based on any one or more of the grounds listed or
on any other arbitrary ground is unfair discrimination.”219
212
Section 6 (3) EEA Act 55 of 1998; Grogan Workplace Law95; Interestinglyin the USA, a male
employer was found not to have discriminated againsta female employee when the employer fired her for
being too attractive. The Iowa Supreme Courtheld that the male employer’s conduct did not amountto
unlawful sexdiscrimination in violation of the Iowa Civil Rights Act as the assistantwas fired due to her
consensual personal relationship with her employer;K Hendersen “Firing 'attractive' assistantis legal –
Iowa court reaffirms” (July2013) http://www.reuters.com/article/2013/07/12/us-usa-dentist-sex-
idUSBRE96B0XA20130712 (accessed 2015-07-29).
213
EEA Act 55 of 1998.
214
Dupper et al Understanding the EmploymentEquity Act 8; Section 5 EEA Act 55 of 1998.
215
216
S 5 EEA Act 55 of 1998.
217
The current Minister of Labour is Mrs Mildred Oliphant.
218
EmploymentEquity AmendmentAct 2012 (hereafter EEAA).
219
S6(4) EEAA.

34
“The Minister, after consulting the Commission, may issue a regulation setting out
the criteria and the methodology for assessing work of equal value.”220
The following scenario may prove helpful in understanding a practical example of unfair
discrimination encountered in the workplace.
Consider a situation whereby the Nelson Mandela Bay Municipal Manager decides that
white female employees should make a larger pension-fund contribution than black
female employees. The decision comes after the newly-appointed manager reads an
article in the Daily Sun newspaper which suggests that white females live longer than
black females.Mrs Terblanche, a white female employee of the municipality, alleges that
the policy by the manager discriminates against white women.
The first issue that needs to be addressed is whether there is in fact differentiation. It is
clear that there are two categories of persons that are treated differently. Black females
are expected to make a standard contribution, while white females are expected to make
a larger contribution. Section 6 of the EEA221
contains a number of listed grounds which
prohibit any unfair discrimination of employees. In casu, there is differentiation on a listed
ground, namely race. If the ground is a listed ground contained in section 6,222
the
differentiation is regarded as discrimination and it is presumed to be unfair. The onus
then shifts to the Municipality to prove that the discriminationis justified. The two grounds
an employer may plead are affirmative action and inherent requirements of the job.223
Clearly neither defence is available to the NMBM and the discrimination is unfair.
In considering the application and impact of the Constitution on similar situations. Let us
now consider a further scenario:
During a staff survey, the Nelson Mandela Bay Municipal Manager realizes that certain
members of staff are HIV positive. Mr Smith is subsequently overlooked for appointment
as a front-desk enquiries assistant due to his HIV status. The manager maintains that
Mr Smith’s HIV status will pose a health risk as an enquiries assistant. The manager
alleges that members of the public would not want to deal with Mr Smith, and confines
him to a single office at the rear of the newly constructed municipal building. The
220
S6(5) EEAA.
221
S 6(1) of the EEA states that no person mayunfairly discriminate,directlyor indirectly, againstan
employee in any employmentpolicyor practice,on one or more grounds including race,gender,
pregnancy, marital status, familyresponsibility,ethnic or social origin,colour,sexual orientation,age,
disability,religion,HIV status,conscience,belief,political opinion,culture,language,and birth.
222
EEA.
223
S6(2) EEA.

35
manager alleges that this is a long-standing policy of the municipality. Mr Smith alleges
that the policy and the decision are unfair and contravenes the provisions of the
Constitution.
As with the previous scenario, one would need to determine whether there is in fact
differentiation. In the second scenario there is clearly differentiation in the manager’s
policy as persons who are HIV positive are treated differently to those that are HIV
negative.
In terms of section 9 of the Constitution, a person’s HIV status is not a listed ground. Mr
Smith has to prove that the differentiation amounts to discrimination and that it is unfair.
As it is not discrimination on a specified ground mentioned in section 9 of the
Constitution, it would need to be established whether, objectively, it has the potential to
impair Mr Smith’s dignity or affect him in a comparably serious manner.224
If his dignity
is affected, then clearly there is discrimination. In terms of the EEA225
HIV is a listed
ground; therefore the policy amounts to discrimination and it is presumed unfair. The
Nelson Mandela Bay Municipality must therefore prove justification. One of the grounds
of justification is for the municipality to claim that members interacting with the public
would have to be HIV negative as it is an inherent requirement of the job.226
However, it
is common cause that front-desk enquiry assistants do not have physical contact with
the public, and they generally sit behind a double-glazed glass screen. The front-desk
assistants therefore do not pose a health risk to members of the public as physical
contact between themselves and the public is limited.
The reader is reminded of the fact that this study focuses mainly on racial slurs in the
workplace, and that the scenarios illustrated above merely highlight practical issues that
one encounters within the employment arena, and the line of enquiry that one would
need to follow in order to determine whether actions of an employer amount to unfair
discrimination.
224
225
S6(1).
226
S6(2)(b) EEA.

36
CHAPTER 4
1 Introduction
The right to dignity is recognized as an independent personality right and embraces the
subjective feelings of a person’s dignity.227
As mentioned in the chapter supra the
Constitutional Court in S v Makwanyane228
stressed that the “twin rights of life and
dignity…are the essential content of all rights under the Constitution.”229
“By committing ourselves to a society founded on the recognition of human rights we
are required to value these two rights above all others.”230
Insulting words, belittling or contemptuous behaviour231
infringes on a person’s dignity.
An employee may be delictually liable for racial abuse towards fellow employees. So too,
will an employer be delictually liable for the acts of their employees. The chapter that
follows explores the liability of an employer, together with the delictual actions of his or
her employee.
2 What is a delict
“The law of delict is concerned with protecting the interests of plaintiffs, defendants
and society in general...where these interests conflict, delict tries to reconcile them
in an optimal way.”232
A delict is an act or omission of a person which in a wrongful and culpable way causes
harm to another.233
It can also be defined as a civil wrong for which damages can be
claimed in the form of compensation.234
The main aim in delict is to compensate the
victim, rather than to punish the wrongdoer. It could therefore be said that the law of
delict is compensatory in nature as opposed to being punitive in nature.235
The law of
delict establishes who should bear the loss, who should be compensatedand how much
227
Loubser,Midgley, Mukheibir, Niesing and Perumal The Lawof Delictin South Africa (2010) 9;
Neethling Potgieter and Visser Law of Delict (1999) 353.
228
1995 (3) SA 391 (CC).
229
1995 (3) SA 391 (CC) 84.
230
S v Makwanyane 1995 (3) SA 391 (CC) 144.
231
Neethling et al Law of Delict 353.
232
Loubser etal The Law of Delictin South Africa 19.
233
234
235
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) par 72; It is noted that the actio iniuriarum
does have a punitive element.

37
should be paid in damages and under what circumstances.236
The mere fact that a
person has caused another to suffer harm, is insufficient to constitute a delict. To
establish delictual liability, one needs to establish the following elements:
i. Conduct
ii. Harm
iii. Wrongfulness
iv. Fault
v. Causation
Delictual liability in South Africa is established whenever these five elements are present.
The absence of any one of these elements will result in there being no delictual liability.237
South Africa is said to follow a generalizing approach “whereby general principals or
requirements regulate delictual liability.”238
This generalizing approach, due to its
flexibility and pliancy,239
is contrasted by the Anglo-American casuistic approach
“whereby liability arises only if the requirements of a specific delict [or tort] are
satisfied.”240
Therefore, cases have been cited which do not necessarily involve racial
discrimination but highlight the relevant elements that will need to be established.
3 Vicarious Liability
The fundamental premise in law is that damage rests where it falls, that is, that each
person must bear the damage he or she suffers.241
However, damage does not always
rest where it falls, and there are indeed certain legally recognized instances where the
burden of damage is shifted from one individual to another, with the result that the latter
incurs an obligation to bear the former’s damage or to provide compensation
therefore.242
This is the case where damage or harm arises from a delict, and the
236
237
Liability may be avoided despite the presence ofall the elements being established,as in the case of
factors excluding liability.
238
Neethling et al Law of Delict 7; Loubser etal The Law of Delict in South Africa 15.
239
240
Loubser etal The Law of Delictin South Africa 15; The statementthatSouth Africa follows a
generalizing approach is notentirely accurate … as Neethling,Potgieter and Visser refer to the “hybrid”
nature that exists in South African law. That is between the generalizing approach being supplemented by
the detailed and specific nature of the casuistic English approach.
241
Loubser etal The Law of Delict in South Africa 6; Neethling,Potgieter and Visser Law of Delict (1999)
3.
242
Loubser etal The Law of Delictin South Africa 6; Neethling etal Law of Delict3.

38
wrongdoer is legally obliged to compensate the aggrieved party.243
In addition, an
employer may be indirectly or vicariously liable for damage caused by an employee.244
Vicarious liability is the strict liability of one person for the delict of another.245
The focus
of this chapter is to showcase the employers’ delictual liability for actions of their
employees.
An employer will be fully liable for the damage caused by an employee if the following
criteria are met. There must be an employer - employee relationship at the time the
employee committed the delict; the employee must have committed a delict, and the
employee must have acted within the course of his employment when the delict was
committed.246
3 1 The Employer-employee relationship
According to Basson et al, a contract of employment would normally indicate an
employer-employee relationship. 247
“A contract of employment is a voluntary agreement…[whereby] one party (the
employee) places his or her personal services or labour potential at the disposal and
under the control of another (the employer) in exchange for some form of
remuneration which may include money and/or payments in kind.”248
Both section 213 of the Labour Relations Act 66 of 1995 (hereafter the LRA) and section
1 of the Basic Conditions of Employment Act (hereafter the BCEA) exclude an
independent contractor, and are identical in their definitions of an employee.249
Likewise,
section 1 of the EEA250
also excludes independent contractors as employees.251
A
243
Ibid.
244
Note that an employee does notescape liabilityin the case of an employer being held vicariouslyliable;
see Harnischfegar Corporation v Appleton 1993 (4) SA 479 (W) 487.
245
246
Neethling et al Law of Delict373-378.
247
248
Ibid.
249
The LRA and the BCEA appear to exclude an independentcontractor from part(a) of the definition.An
“employee” means (a) anyperson,excluding an independentcontractor,who works for another person or
for the State and who receives, or is entitled to receive, any remuneration;and (b) any other person who in
any manner assists in carrying on or conducting the business ofan employer.
250
55 of 1998.
251
S1 of the EEA “any person other than an independentcontractor…”

39
contract of service (locatio conductio operarum) must therefore exist, while a contract of
mandate, such as an independent contractor, does not found vicarious liability.252
As labour legislation does not define a contract of service, the courts have developed a
number of tests to distinguish between an independent contractor and an employee.253
The question of whether the employer has an element of control was considered to be
a decisive factor in distinguishing between an employee and an independent
contractor.254
This is referred to as the “control test.” However, the control test has now
given way to the multiple or dominant impression test, which takes into account all
relevant factors or “indicia which would contribute to an indication whether a contract is
that of service or a contract of work.”255
A rebuttable presumption has now been added to the LRA in terms of Section 200A. If
the factors in section 200A256
are present the applicant is presumed to be an employee.
The onus is then reversed and placed on the employer to prove that the applicant is not
an employee.257
Recent labour cases have acknowledged a new test in determining the nature of the
relationship between the parties, referred to as the “reality test.”258
The reality test, which
does not focus on the intention of the parties, holds that, if the employer has a right to
supervise and control the employee, or if the employee forms an integral part of the
organization or if the employee is economically dependent on the employer, an
employee-employer relationship is established.259
The reality test therefore includes
aspects of the control test, the organization test, as well as the dominant impressiontest.
In essence what this means is that an employer may not simply escape liability should
an employee not have a contract of employment, or if the employee is not part of the
organizational structure per se.260
A wider net has now been cast and factors such as
economic dependency on the employer and their instructions received from an employer
252
Neethling et al Law of Delict (2010) 366; A mandatorywould only be liable for harm or damage caused
by a mandatoryif both parties committed the delict; Saayman v Visser 2008 (5) SA 312 (SCA) 317-318.
253
Basson etal Essential Labour Law26-31;Tests previouslyused include the control test, the
organization test, the dominantimpression test.
254
Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412 434-435.
255
Medical Association of SA v Minister of Health 1997 (5) BLLR 562 (LC) 569F-G; Some of the factors or
indications include the rightto supervision,the extent to which the worker depends on the employer in
performance ofduties,whether paymentis at a fixed rate or commission,whether the worker provides his
own tools and equipment,whether the worker is required to devote a specific time to his work, the
employer’s power to dismiss.The elementofcontrol is only one aspectthe dominantimpression testtakes
into account.
256
LRA.
257
Van der Walt, Le Roux and Govindjee (eds) Labour Lawin Context (2012) 19; The presumption
contains a threshold and does notapply to an applicantearning in excess ofR172 000 per annum.
258
Van der Walt et al Labour Lawin Context 19.
259
Ibid.
260
Per se means by or in itselfor themselves;intrinsically.

Labour Law Treatise 2015 LLM S NAIR 1.12.2015

Labour Law Treatise 2015 LLM S NAIR 1.12.2015

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