Most Recent Publications Tue, 20 Mar 2018 03:53:31 +0000 Joomla! - Open Source Content Management en-gb Using Emoji’s – When the Smiley Becomes Serious


Using Emoji’s – When the Smiley Becomes Serious

 By Judith Griessel, Griessel Consulting


The use of emoticons or emoji’s has become entrenched in how we as a society communicate today. It has also found its way into business and official communications. But few appreciate the fact that such use may have legal consequences and could result in the sender entering into binding legal agreements, or potentially being held liable for infringements of human rights.



As a more visual society, we are adjusting to a new writing medium, driven by developing technology, such as smart phones and tablets. With fast-paced text-speak, social media and Apps that require limited characters, it has never been truer that ‘a picture is worth a thousand words’. So the use of these little icons speeds up communication and we can convey a range of emotions with a single key stroke.


Emoticons were being used as far back as 1982 to supplement online language; but it really exploded with the emergence of text-messaging. The emoji originated from Japan in 1993 and soon became a whole new pictographic language. According to research by the technology platform Emogi, it has become the fastest growing language in history and emoji’s are being used by 92% of the online population. Text-speak tend to lose context in the absence of non-verbal cues like nodding, smiling or frowning, and sarcasm or humour may be totally missed. Emoji’s put those back and provide powerful nuances to online communication. It can stand in for a facial expression, or clarify context.


Our language is therefore evolving to include visual representations to show our feelings – very much like the old Egyptian hieroglyphics. The Egyptians, too, were pressed for time due to the time-consuming carvings into rock - as the saying goes, as much as things change, they stay the same…! Emoji’s are used to colour the meaning of a word or phrase in the digital space and the inclusion of a single emoji can alter the meaning of the accompanying text.


Interpretation and use

Whilst emoji’s are typically seen as playful additions to an informal message, their widespread use has seen them also included in work message groups, commercial transactions and business- or work-related communications.


Examples of commercial application are social media companies seeking to measure emoji use to quantify emotional states and produce commercially useful data; advertising; or customers communicating with online stores to give feedback on products and deliveries.


Emoji’s are however often capable of multiple interpretations, which could result in an ambiguous representation about goods or services, or intentions. Just as with any particular word or a laugh, it’s a matter of context and interpretation to determine what the intent is, based on one symbol.


So, how do we interpret a particular emoji when we receive it, or choose one when we want to send a message? One could find several different websites providing meanings. Also, for emoji’s to function across different devices, they need to exist in Unicode, which includes definitions of what each character/image/symbol means. But – none of this is an official dictionary and such definitions have little to say about the use of symbols in different cultures, relationships, and so on. New emoji’s are also added at a rapid pace. This means there is of necessity always a margin for ambiguity.


What is clear, however, is that the use of an emoji has an impact and bears consequences. Whilst this is still fairly new in South African law, there are many legal precedents internationally, which are likely to be followed in our courts as well.


Legal consequences

Some examples:

  • When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren’t ignored. In the USA, a post containing an emoji of a police officer and three gun emoji’s pointing at it, resulted in the arrest of the sender on charges of a terrorist threat / a threat against police. They said they felt intimidated and harassed.

  • Also in the USA, an anonymous post on a message board aimed at a co-worker, containing certain comments and an emoticon showing someone sticking their tongue out, found its way to a defamation suit where the court found that, “the joking, hostile, and sarcastic manner of the comments, the use of an emoticon showing someone sticking their tongue out [:-P] … were made facetiously and with the intent to ridicule, criticise, and denigrate plaintiff rather than to assert knowledge of actual facts”.

  • In an Israeli case, the landlord of a property received a text from prospective tenants declaring their interest in the advertised apartment, asking when they could discuss the details and following it up with a range of celebratory emoji’s. The landlord removed the online listing based on this, but then they did not turn up for the meeting and fell out of touch. He was awarded damages by the court for the loss of prospective rental income when he had acted in response to the misleading text message.  


In South Africa, documents from an electronic source are admissible as evidence, if it complies with the legal requirements. (The Electronic Communications and Transactions Act.) Data messages are enforceable in our law and emoji’s or Unicode messages could therefore also be used to prove facts relating to the communications between the parties.

  • Using emoji’s such as a thumbs-up, smiley face, a bottle of champagne or anything that creates the impression of acceptance or agreement in the mind of the receiver in official correspondence when negotiating an agreement, may contribute towards a conclusion that a binding contract between the parties exist.

  • If the use of an emoji constitutes misrepresentation that is wrongful, fraudulent or even negligent and causes someone harm, this could lead to civil action for delictual damages. A similar scenario may arise if the misrepresentation induced someone to enter into a contract.The use of emoji’s in a manner which is intended to defraud a person, constitutes cyber fraud.


Then of course there are the more indirect consequences – even in social interaction – when the use of emoji’s in a certain context can point to (sexual) harassment, ridicule, unfair discrimination and the like.

  • The Promotion of Equality and Prevention of Unfair Discrimination, 2000 prohibits hate speech and harassment in the context of grounds such as race, gender and disability. It is not required for the sender to have actually had the intention to be hurtful – if an objective assessment of the circumstances determines that a reasonable person would have believed there was such an intention, this would suffice.

  • In 2016, a complaint was lodged with Unicode (who universally choose and encode icons) that emoji’s were strengthening the gender divide. The argument was that all the “action” and career-specific emoji’s were male. The female emoji’s are dancing, getting married or grooming themselves, flipping their hair, painting their nails or getting a head massage. They claimed that with people growing up with a phone in their hand, this was a subtle mould for fostering prejudice.



While emoji’s may be fun, fast and mostly endearing, the reality is that they amplify the message and portray the state of mind of the sender. Its interpretation is rife with ambiguity from person to person and from culture to culture. In a particular context, even good intentions may get you more than you bargained for – whether it is business-related or on a social level. It literally represents “a thousand words” and should be used with circumspection.


Avoid unnecessary risk and be alert, especially in commercial or business-related communications, not to create an incorrect impression or belief in the mind of the receiver.


For more information, please contact Judith at







]]> (Fanie) Most Recent Publications Wed, 14 Mar 2018 04:17:43 +0000
Mutual Separation Agreements are Valid and Binding- Constitutional Court


Mutual Separation Agreements are Valid and Binding- Constitutional Court

By Neil Coetzer, Partner and Manala Rabothata, Candidate Attorney, Cowan-Harper Attorneys


In Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another (2016) 37 ILJ 2723 (CC), the Constitutional Court (“the CC”) considered the validity of a mutual separation agreement and re-affirmed that such agreements are lawful, even if they waive an employee's right to seek judicial redress through the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) and the Courts.


In this case, the employee was employed by Unilever in Dubai. In January 2013 he was approached by a recruitment agent with an opportunity to work in South Africa, which he declined one month later.


He then left Unilever and took up employment at Standard Chartered Bank also in Dubai. Shortly after commencing his employment at Standard Chartered Bank, he contacted the recruitment agent to inquire about the opportunity that was offered to him previously.


This opportunity was with Reckitt Benckiser.


After reconsidering the offer, an interview was arranged with Reckitt Benckiser. At the interview, and in his curriculum vitae, he stated that he was still employed by Unilever, when in truth he was employed by Standard Chartered Bank.


Based on this information, Reckitt Benckiser negotiated a remuneration package, which included a US$40 000 sign-on bonus, a housing allowance and an extended work permit.


The employee commenced employment as Reckitt Benckiser’s Regional Human Resources Director in July 2013.


However, in early 2014, when Reckitt Benckiser discovered that the employee was not in fact employed by Unilever at the time that he had represented, he was called to a disciplinary hearing and dismissed for his material misrepresentation.


The employee then requested a ‘softer exit’ and Reckitt Benckiser agreed.


The employee entered into a separation agreement with Reckitt Benckiser in full and final settlement of any claims that the parties may have against each other.


In the agreement, the employee acknowledged and accepted that the termination of his employment was without duress or undue influence, and that he had voluntarily and unconditionally waived his right to approach the CCMA and any other Court for relief.


Initially the employee applied directly to the CC, but the CC dismissed his application, holding that the matter was not in the public interest.


He then approached the Labour Court (“the LC”) on an urgent basis, arguing that he was coerced into signing the separation agreement against his will and was under duress, and that the terms of the agreement restricted his constitutional right to seek judicial address and was therefore against public policy and invalid from the outset.


However, the LC found that his claim of duress was not supported by the facts and that the separation agreement was a valid compromise since the circumstances were created by his own misrepresentation.


The LC dismissed his application.


The employee then took the matter on appeal to the Labour Appeal Court (“the LAC”), which held that the separation agreement should, in law, be treated in the same manner as any other agreement between an employer and employee.


The LAC went on to confirm that a contract is invalid when it is entered into under duress, where intimidation or improper pressure renders the employee’s consent not true, and therefore the burden of proving duress would rest on the applicant.


However, based on the evidence submitted, the LAC agreed with the LC’s decision and dismissed the application with costs.


The employee then appealed further to the CC. The issue before the CC was whether the full and final settlement limited his constitutional right to seek judicial redress in the CCMA and the Courts.


The CC found that there was no violation of his constitutional right of access to Courts because, as a senior manager the employee had a full understanding of the consequences of the agreed waiver and allowed him equal bargaining power.


In applying the seminal case of Barkhuizen v Napier 2007 (5) SA 323 (CC), the CC held that there was nothing to indicate that the employee had unequal bargaining power when taking into account his position and his level of knowledge and understanding of the contract.


The CC further held that when determining the lawfulness of the waiver, constitutional rights may be limited to the extent that such limitation is reasonable. Full and final settlement clauses, which provide for the finality of a dispute are commonplace and lawful and not contrary to public policy.


The CC concluded that the intentions of the parties were clear, since the employee agreed to part ways with his employer on final terms. The CC held that the agreement itself was unambiguous and that a valid compromise took precedence over any other contractual entitlement that the employee could have had.


The Court dismissed the application for leave to appeal with costs.


For more information please contact Neil Coetzer at or Manala Rabothata at (011) 783 8711 / (011) 048 3000







]]> (Fanie) Most Recent Publications Tue, 20 Feb 2018 07:31:16 +0000
Asylum Seekers seek UIF?


Asylum Seekers seek UIF?

By Michael Yeates, Director and Marissa van der Westhuizen, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr


It is safe to say that bona fide Asylum Seekers in South Africa generally don’t have an easy life. Having to escape from one’s own country for fear of being persecuted has its challenges. In many instances, Asylum Seekers escape with little more than the clothes on their back. Those Asylum Seekers who are lucky can adjust to a new lifestyle and integrate into the economic active population of the host country.


South Africa acceded to the U.N. Convention Relating to the Status of Refugees and its 1967 protocol on January 12, 1996, and to the OAU Convention in 1995. The two conventions provide definitions of the term “refugee” and set out the principal rights of refugees in the host country, which in a number of respects are explicitly stated to be the same as those of nationals in that country.


However, Asylum Seekers are currently unable to access Unemployment Insurance Fund (UIF) benefits.


The apparent inability to claim is not a legislative prohibition, but rather because one needs to have a 13-digit South African identity number or passport number in order to successfully apply for UIF benefits. Currently, Asylum Seekers do not have ID numbers – they are simply issued with temporary s24 permits, which are usually renewed on a three or six-monthly basis. According to their permit conditions they are usually entitled to seek employment and to study.


It seems a bit anomalous that although Asylum Seekers despite making contributions to the UIF, are unable to claim. This raises a Constitutional issue – whether or not Asylum Seekers are entitled to social security in terms of s27(1) of the Constitution.


Both the Unemployment Insurance Act and the Unemployment Insurance Contributions Act clearly state that all workers are covered, with no reference to or qualification in terms of nationality. The legislation makes provision for the exclusion of foreigners who enter South Africa in terms of a contract for the purpose of carrying out a contract or service, if upon the termination of the contract, the employer is required to repatriate that person, or if that person is required to leave South Africa. However, there is no duty of repatriation vis-à-vis Asylum Seekers at the time of employing them. 


In a recent unreported judgment, Saddiq v Department of Labour and Others (Case number: EQ 04/2017) wherein, the Applicant – an Asylum Seeker who has been in South African since June/July 2011, employed by the same employer for the last two and a half years – approached the court to enforce a claim for UIF benefits and damages flowing from the rejection of such claim. 


The basis of his application was prejudice based on his status as Asylum Seeker, which consequently impaired his dignity. The practical cause of this prejudice is that, as a legally present, ex-employee Asylum Seeker, the Applicant did not have an ID or Passport, which is required to claim benefits from the UIF. Throughout his employment, UIF contributions were made by his employer on his behalf. But for his lack of the requisite documents, which he cannot obtain due to his status, the Applicant would have been entitled to claim from the UIF. 


Upon submitting a claim for such benefits, the Respondent, the Department of Labour (DOL), informed the Applicant that it had no system to accept or pay asylum seekers, due to the requirement of a 13-digit ID number or valid passport number. 


This results in a discrepancy in individuals who contribute to the fund and the consequent (in)availability of benefits to certain contributors who upon termination of employment otherwise, become eligible for such benefits. The alleged discrimination did not take place on one of the expressly mentioned prohibited grounds listed in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Consequently, the Applicant had to prove that the prejudice he suffered is one which either, causes systematic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner in terms of s13(2)(b) of PEPUDA. 


After termination of his employment, the Applicant incurred a substantial amount of debt and had to sell his household assets to make ends meet after termination of his employment. The Applicant had no money to attend to his medical needs, which were aggravated due to stress arising from his unemployment and him not finding any protection or receiving any benefit from the fund, to weather the storm of unemployment despite his contributions.


Accordingly, the court found that the actions against the Applicant by the DOL were indeed unfair and discriminatory, which created systematic disadvantage to the Applicant. 


PEPUDA provides the court with wide powers to make an appropriate order when unfair discrimination is established, including payment of damages in respect of proven and future financial loss, impairment of dignity/emotional and psychological suffering caused by discrimination. The court may also make an order restraining unfair discriminatory practices or directing that specific steps be taken to stop unfair discrimination. 


Consequently, the court ordered the DOL to process the Applicant’s UIF benefits. Significantly, the court also ordered the DOL to correct their computer systems, which seems to be the practical cause of the preclusion, to allow any asylum seeker who contributed to the fund to be compensated fairly. The court ordered that general damages be paid to the Applicant. The question as to the Constitutionality of such exclusion was left open. It remains to be seen whether UIF benefits will now generally be available to asylum seekers consequent to this judgment. 


For more information contact Michael Yeates at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr







]]> (Fanie) Most Recent Publications Tue, 13 Feb 2018 05:35:45 +0000
What is one month’s notice?


What is one month’s notice?

By Joy Walker, Candidate Attorney and Talita Laubscher, Partner, in the Employment and Benefits practice at Bowmans


The interpretation of a “month’s notice” in a termination clause and whether a qualifier, such as a “calendar month’s notice”, bears any significance, has been the subject of debate in our law for some time. In 2009, the court in SAMRO v Mphatsoe (SAMRO) considered whether this phrase meant:

  1. any 30-day period, with the result that notice may be given on any day of the month and the notice period will then terminate in 30 days’ time; or

  2. the beginning of any given month to the end of the same month, with the result that notice may be given on the first day of the month and will continue until the last day of the month. Accordingly, where notice is given on any day of the month, the notice period will only commence on the first day of the following month and will continue until the last day of that same month.


The context is critical

In SAMRO, Judge van Niekerk noted that the meaning of a “month’s notice” could not be determined in a vacuum, but had to be interpreted in the context of the entire employment contract.


In this case, the employee’s contract of employment provided that either party can terminate the contract on “one calendar month’s notice”. The employee gave notice of termination on 8 January 2008 and ceased working on 7 February 2008, the date on which he contended the calendar month’s notice period expired.


SAMRO held a different view. It argued that the contractual notice period meant that the employee’s notice period had to run from the first day of the month to the last day of the same month. The employee’s notice period accordingly only took effect on 1 February 2008 and ran to 29 February 2008. SAMRO argued that, in the circumstances, the employee was not permitted to cease working on 7 February 2008 but was required to work until 29 February 2008. By leaving his employment on 7 February 2008, SAMRO contended that the employee acted in breach of his employment contract.


In interpreting the meaning of “calendar month” as used in the termination clause, the Court considered the Interpretation Act and the Basic Conditions of Employment Act, which both define a “month” as a “calendar month”. Since these definitions are of limited assistance, the Court held that the term had to be interpreted by looking at the context of the agreement as a whole.


The termination clause clearly qualified the notice period with the word “calendar”. However, throughout the rest of the contract, the term “monthly” or “month” was used without the “calendar” qualifier. For example, remuneration was to be paid “monthly” and pension and medical aid contributions were to be deducted on a “monthly basis”. The Court therefore held that the use of the qualifier “calendar” in the termination clause was a significant indicator that the parties clearly intended a different meaning to be given to the term “calendar month” than to the term “month” as used elsewhere in the contract. In the context of the contract as a whole, the Court held that this distinctive meaning of “calendar month” indicated that notice would only be effective from the first of the month running to the end of the same month.


Blanket interpretations discouraged

It is important to note that this judgment does not mean that the term “calendar month” always bears this meaning. Judge van Niekerk was at pains to reject a blanket statutory-interpretation principle as to the meaning of “month” and “calendar month” in an employment contract.


Rather, Judge van Niekerk emphasised the importance of the context and background of the terms of the employment contract itself and the intention of the parties. It is therefore conceivable that in different circumstances, a “calendar month” may well mean notice taking effect on a particular day of the month and running to the corresponding day of the following month. Suffice to say, however, that if both “month” and “calendar month” are used in an employment contract, depending on the context in which they are used, they will probably not accord the same meaning, unless, of course, this is the intention of the parties. If so, this intention ought to be reflected in the contract.


Clarity always pays

When drafting employment contracts, it is important for parties to make their intentions as clear as possible by ascribing specific meaning to the words used. In the absence of such clarity, the courts will have to ascertain the intention of the parties by taking into account the nature and language of the contract. Parties who specifically intend that notice should run from the first of the month would be well advised to expressly provide for this in the employment contracts.


For further information please contact: Joy Walker at or Talita Laubscher at or contact Melody Makeka at +27 21 480 7898, M +27 74 101 9082 email



Talita Laubscher       

 Joy Walker



]]> (Fanie) Most Recent Publications Mon, 05 Feb 2018 16:35:59 +0000
LRA Bill: Extension of bargaining council agreements to non-parties


LRA Bill: Extension of bargaining council agreements to non-parties

By Fiona Leppan, Director and Bheki Nhlapho, Associate, Employment, Cliffe Dekker Hofmeyr


The LRA Bill seeks to amend s32 to provide a process and criteria for the extension of bargaining council agreements to non-parties by the Minister of Labour. We explore what is envisaged.


The Current Position

A bargaining council may request the Minister of Labour to extend a collective agreement concluded in a bargaining council to non-parties that fall within the scope of the bargaining council. Such non-parties must be identified in the request made to the Minister. Two requirements must be met for such a request to be valid:

  • one or more registered trade unions whose members constitute the majority of members of the unions that are party to the bargaining council have voted in favour of such extension at a meeting of that bargaining council; and

  • one or more registered employer organizations, whose members employ the majority of the employees employed by members of the employer organizations that are party to the bargaining council, have likewise voted in favour or such extension at that bargaining council meeting.


The Minister must also be satisfied that the following factors are met before exercising the power to extend:

  • the majority of all employees who, upon extension of the collective agreement, fall within its scope and are members of the trade unions party to the bargaining council;

  • the members of employer organizations that are parties to the bargaining council, upon the extension of the collective agreement, employ the majority of employees who fall within the scope of the collective agreement;

  • the bargaining council must make allowance for an effective exemption procedure so that non-parties can apply for exemptions from the provisions of the collective agreement and these exemptions must be dealt with swiftly (within 60 days); and must allow for an independent body to hear and decide appeals where such exemption is declined (within 30 days);

  • the provisions of the collective agreement must not discriminate against non-parties.


Despite the above, the Minister is given the power to extend a collective agreement if the parties to the bargaining council are not in the majority but are sufficiently representative. This power can be exercised where the Minister is concerned that a failure to extend could undermine collective bargaining at a sectoral level. When determining sufficient representivity, the Minister must consider a number of aspects such as:

  • the composition of the workforce in the sector;

  • the extent to which employees work for temporary employment services;

  • the number of employees on

    fixed-term contracts, or engaged in other non-standard employment categories.


Court Challenges

In recent years there have been a number of cases where employers have challenged the validity of such Ministerial extensions, for example:

  • NEASA v Minister of Labour (2012)2 BLLR 198 (LC) where the issue was whether all the statutory requirements for an extension had been met by the Minister. The Labour Court ruled against NEASA in its urgent application for an interdict, but NEASA went on to succeed in subsequent review proceedings. Certain of those statutory requirements were not met and the Minister’s decision was set aside.

  • Valuline CC v Minister of Labour (2013)34ILJ 1404 (KZP) where the Minister failed to rely on objective evidence to test the level of representivity of the employer parties to the collective agreement that was sought to be extended.

  • Free Market Foundation v Minister of Labour & Others (2016)8 BLLR 805 (GP) where the High Court held that such extensions to non-parties were not unconstitutional but a request to extend constituted reviewable administrative action in appropriate circumstances.


The LRA Bill

The proposed LRA Bill seeks to make challenges of this nature more difficult to mount. The function to determine the levels of representivity would now shift from the Minister to the Registrar of Labour Relations. It will be up to the Registrar to provide sufficient proof of the levels of representativeness of the parties concerned. This will ultimately be determined by an accurate assessment of applicable membership figures.


With regard to funding agreements, such as the MEIBC training and education scheme and its collective agreement regulating collective bargaining levies, the Minister would be able to renew such collective agreements if a failure to do so might negatively impact sectoral collective bargaining. An agreement may be renewed for 12 months at the request of a party to the bargaining council where the underlying agreement has expired or where the parties have not concluded a replacement collective agreement within 90 days of its expiry. There are procedural steps to be followed as the Minister would be duty bound to publish such intention to renew in the Government Gazette calling for submissions to be made before a decision to renew is determined. Such a decision is susceptible to review in a court with competent jurisdiction.


Much turns on levels of representivity and the change of dynamics in union membership. Recently, the Casual Workers’ Advice Office (CWAO) has claimed that registered trade unions represent only 24% of South Africa’s workforce and that the trade union federations at NEDLAC represent far fewer employees than they did previously. The LRA Bill clearly has this in mind when trying to protect the objective of sectoral negotiations and orderly collective bargaining.


For more information please contact Fiona Leppan at or Bheki Nhlapho at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr







]]> (Fanie) Most Recent Publications Tue, 30 Jan 2018 05:07:32 +0000
Relief for violent and ongoing strike action: What’s on the cards?


Relief for violent and ongoing strike action: What’s on the cards?

By Hugo Pienaar, Director, Sean Jamieson, Associate, Employment practice, Cliffe Dekker Hofmeyr


It is no secret that strike action in South Africa is frequently accompanied by violence, often with far-reaching effects for employers, non-striking employees and the public. Strike action also regularly continues for a protracted period of time, detracting from a focus on collective bargaining. But what relief is available to employers who are faced with such industrial action? 


The Labour Relations Act, No 66 of 1995 (LRA) does not currently provide any direct means of obtaining relief for prolonged strike action. While employers may interdict protected strikes on account of violence, this often does not have the desired effect and the unlawful conduct simply continues.


An employer may, in theory, also approach the Labour Court to declare a protected strike to be unprotected where it is no longer conducive to collective bargaining, however this approach is yet to be successful and our courts appear hesitant to limit the constitutional right to strike for this purpose. 


It’s not all doom and gloom, however, and there appears to be some potential light at the end of the tunnel in the form of proposed amendments to the LRA in order to introduce alternative avenues to obtain relief in the circumstances. 


On 24 November 2017, parliament introduced the Labour Relations Amendment Bill (the Bill) comprising various proposed amendments to the LRA. One such proposed amendment is to introduce the establishment of an advisory arbitration panel (the panel), appointed by the director of the CCMA (the director). 


In terms of the proposed amendments, the director may appoint the panel if a strike has become violent and/or lengthy. The director may appoint the panel of his own accord, on application by a party to the dispute, where the Minister of Labour instructs the director to do so, where the Labour Court makes an order in this regard or when agreement is reached between the parties to the dispute. The appointment of the panel is subject to certain further conditions that must be met.


Interestingly, the amendments also propose that the Labour Court may make an order requiring the director to appoint a panel where the court receives an application by any person or association of persons that will be materially affected by the strike action. This opens the door for a member or members of the public who are not party to the dispute to approach the Labour Court for relief where they are affected by the strike action. 


What is important to consider when utilising this approach is that an arbitration must first take place before any potential relief in the form of an advisory award may ensue. This may be a lengthy process under circumstances where intervention is urgently required.


Should this amendment be passed in its current wording, it may constrain an employer’s ability to approach the Labour Court to declare a protected strike as unprotected. This is because the amendments provide an alternative avenue for employers to pursue in an attempt to resolve the dispute. Accordingly, it may be difficult for an employer to argue that the strike is no longer conducive to collective bargaining where it has not first pursued an advisory award in an attempt to resolve the dispute. 


The significance of the proposed amendment, however, lies in the effect of an advisory award. Once the advisory award is received, the parties have seven days to accept or reject the award (this period can be extended by a maximum of five days). Should a party to a dispute fail to accept or reject the award within that period, the party is deemed to have accepted the award. 


The award will therefore only be binding on a party if that party accepts the award or is deemed to have accepted the award and on condition that at least one other party to the dispute accepts the award. Therefore, in circumstances where there are more than two parties to a dispute (such as where there are two or more unions involved) the award would be binding on those parties who accept or are deemed to have accepted the award and provided that at least one other party accepts that the award is binding. Where the third party rejects the award, it appears that award will not bind that party.


The advisory award would include a report on the findings, recommendations for the resolution of the dispute, the motivation as to why the recommendations ought to be accepted and a statement that the parties have 7 days to accept or reject the award.


It seems unlikely that either the employer or the trade union, after receiving an advisory award which is not in its favour, would nonetheless consent to the award being binding. In such circumstances, the effect of the panel’s award may have no impact on resolving or facilitating the resolution of the dispute. However, where this process has been pursued and an advisory award has been issued declaring a strike to no longer be conducive to collective bargaining, this may potentially bolster the prospects of success in an application to declare a strike to be unprotected.


While these proposed amendments appear to be encouraging, they may present certain obstacles where parties seek to obtain urgent relief. The amendments are however still in the early stages of the legislative process and it may be some time before we see these amendments, in their current form or otherwise, adopted by the legislature. Updates to follow in due course. 


For more information, contact Professor Hugo Pienaar at or Sean Jamieson at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr




]]> (Fanie) Most Recent Publications Tue, 23 Jan 2018 09:43:32 +0000
The first stop is the CCMA


The first stop is the CCMA

By Aadil Patel, Director, National Practice Head and Samantha Coetzer, Consultant, Employment, Cliffe Dekker Hofmeyr


In the unreported case of the South African Equity Union obo Van Wyk and 100 members v Lodestone confectionary (Pty) Ltd t/a Candy Tops (PS19/16), the Labour Court considered whether an unfair dismissal dispute was required to be referred to the CCMA before the Labour Court could determine the dispute in circumstances where, prior to the dismissal, the CCMA facilitated the parties engaged retrenchment consultations.


In the case, the union referred an unfair dismissal dispute to the Labour Court. The dismissals arose as a result of a large scale retrenchment. When the employer contemplated the dismissal it issued the trade union with the s189(3) notice, inviting it to consult. The employer also requested that the CCMA facilitate the consultations in terms of 189A (3) of the Labour Relations Act, No 66 of 1995.


The employer dismissed the employees for operational requirements after seven facilitated consultation meetings and the parties’ failure to reach consensus on issues. 


After the dismissals, the union failed to refer the dismissal dispute to the CCMA for conciliation. It, instead, approached the Labour Court directly to determine the fairness of the employees’ dismissals for operational requirements. 


The employer argued that the Labour Court did not have the jurisdiction to determine the dispute as the union was required to first refer the unfair dismissal dispute to the CCMA for conciliation before it approached the Labour Court. It argued that there was a requirement that the dispute must be referred to conciliation before the Labour Court can determine it. 


The union argued that since the CCMA was involved in facilitating the retrenchment consultations it was not required to refer that dismissal dispute to the CCMA and that it could approach the Labour Court directly. The Labour Court disagreed.


The Labour Court highlighted the differences between the facilitation and conciliation processes and held that they are two different processes. It held that, “facilitation is held pre-dismissal with a view to avoid unfair retrenchment. Conciliations are held post dismissal in an attempt to resolve the unfair dismissal dispute” 


It also held that, “The Constitutional Court confirmed that the referral of a dispute to the CCMA or bargaining council and the issuing of the certificate of the non-resolution of the dispute constitute the necessary jurisdictional fact for the Labour Court to have jurisdiction over unfair dismissal disputes which include unfair mass retrenchment disputes.”


The union was unsuccessful and the Labour Court held that it that it lacked jurisdiction to determine the dispute. 


This case is important as it confirms that despite the CCMA facilitating parties engaged in retrenchment consultations, an unfair dismissal dispute must still be referred to CCMA or bargaining council before the Labour Court will determine the unfair dismissal dispute. 


For more information please contact Aadil Patel at or Samantha Coetzer at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr





]]> (Fanie) Most Recent Publications Wed, 17 Jan 2018 04:25:50 +0000
Where to for labour brokers - third option for constitutional court by “deeming” section 198A(3) unconstitutional


Where to for labour brokers - third option for constitutional court by “deeming” section 198A(3) unconstitutional

By Rod Harper, Head; Tanya Mulligan, Senior Associate and James Horn, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorney 



The purpose of this article is to discuss whether section 198A(3) of the Labour Relations Act 66 of 1995, as amended (“the LRA”), which deals with the controversial “deeming” provision in relation to the Clients of Labour Brokers, should be referred back to Parliament. The fundamental question is whether the Constitutional Court is being asked to intervene to an extent which is unreasonable in light of the poor quality of the drafting of section 198A(3) of the LRA and whether it would be better to simply remit the section back to Parliament for re-drafting.


Judicial Uncertainty

In the recent matter of Numsa v Assign Services (Pty) Ltd and Krost Shelving and Racking (Pty) Ltd[1] the Labour Appeal Court, in interpreting section 198A(3) of the LRA, denounced the dual or parallel employer interpretation in favour of a sole employer interpretation. The matter has been taken on appeal to the Constitutional Court and we understand that it will be heard in early 2018. The Judgment of the Constitutional Court will directly impact upon the TES industry and their respective Clients who may number in the thousands.


The effect of the LAC’s Judgment is that TES employees automatically ‘become’ the sole employees of the Client after being placed at a Client for a period in excess of three months (subject to certain exceptions). If the LAC’s Judgment is correct, the TES then falls out of the picture altogether.


Worryingly, the CCMA has also issued a directive obliging Commissioners to follow the LAC’s decision despite the pending appeal to the Constitutional Court. If the LAC’s decision is ultimately set aside by the Constitutional Court, the Labour Court will no doubt be inundated with review applications on this issue, not to mention the legal and other costs that will be incurred by employers should this transpire.


Inherent Ambiguity

At the heart of the issue regarding the correct interpretation of section 198A(3) of the LRA is the ambiguous and arbitrary manner in which section 198A as a whole was drafted. Based on the inelegant wording of the section, persuasive arguments can be made for either a sole employer or a dual employer construction. This could have been avoided had the drafters simply stated that TES employees would “become” the employees of the Client after a period of three months. Instead the drafters of the amendment stated that the Client is “deemed” to be employer for the “purposes of the LRA”. The LRA is also silent on the continued role of the TES, if any.


The use of the word deeming when drafting statutes often invites confusion because the word can have different meanings and on occasion, with respect, it indicates that the drafters have not given sufficient attention to the intention underlying the provision. In this regard, in commenting on the argument before the Labour Court on this issue, the writer Grogan stated as follows:-


“Both parties focused on the meaning of the word ‘deemed’, and both agreed that it has a meaning that isn’t easy to pin down. Both, naturally, sought to stretch that elastic word in their own favour. In its dictionary meaning, the verb ‘to deem’ means to ‘judge or account to be’, or to ‘regard as’. As an adjective, ‘deemed’ means ‘judgment, opinion or surmise’. To say that X is deemed to be Y is therefore something different from saying X is Y.[2]


The vagueness of the section therefore places the Constitutional Court in the unenviable position where it is essentially left to guess the intention of the legislature, especially in the context where the consequences are potentially highly prejudicial for the TES industry.


Violation of the Rule of Law

It goes without saying that it is a fundamental aspect of the Rule of Law that statutes should be written in a clear and accessible manner in order to create legal certainty and transparency. The Constitutional Court has previously held that “… the legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them”.[3]


In the international context, more certainty with regard to TES’ has been created through the Employment Agencies Convention which provides that all members to the Convention are required to allocate the respective responsibilities of both the TES and the Client. The Convention has not been ratified in South Africa and in any event section 198A(3) does not delineate the respective responsibilities contemplated by the Convention.


The explanatory memorandum that accompanied section 198A is also of little assistance in resolving the issue as it does not specifically address these issues other than stating that the Client should be “treated as” the employer.


The drafting of 198A(3) has therefore created deep seated uncertainty regarding who the employer is and what the obligations of the parties are following the expiry of the three month period. Given that ambiguity, any interpretation will necessarily involve a ‘reading in’ of provisions in order to render the provision intelligible.


As previously pointed out by the Constitutional Court: “[f]or [the Court] to attempt that textual surgery would entail it departing fundamentally from its assigned role under our Constitution.  It is trite but true that our role is to review, rather than to re-draft, legislation”. [4]



Given the circumstances, it may be preferable for the Constitutional Court to simply refer section 198A(3) back to the legislature for re-drafting so that clarity can be provided by the legislature. In the absence of doing so, it appears that the Court will be left to essentially create a body of substantive law dealing with TES’. This is far from ideal and may have a range of unintended consequences including significant job losses.


Given the fact that proper legal debates have now taken place on this section, Parliament would have more clarity on the implications of the amendment and hence the actual intention could be dealt with more coherently.


For more information please contact Rod Harper at, or Tanya Mulligan at or James Horn at or (011) 783 8711 / (011) 048 3000


[1] (2017) 38 ILJ 1978 (LAC).

[2] Grogan, J ‘Let the “deemed” be damned – section 198A(3)(b) deconstructed’ (2015) Dec EL 4.

[3] Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others in re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545.

[4]Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others (CCT20/95, CCT21/95) [1996] ZACC 7.



]]> (Fanie) Most Recent Publications Mon, 27 Nov 2017 08:58:13 +0000
The National Minimum Wage Bill, 2017 and the Proposed Amendments to the Basic Conditions of Employment Act, 2017


The National Minimum Wage Bill, 2017 and the Proposed Amendments to the Basic Conditions of Employment Act, 2017

By Jayson Kent, Senior Associate and Taryn York, Candidate Attorney, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorney


On Friday, 17 November 2017 the Department of Labour published the National Minimum Wage Bill, 2017 (“the NMW Bill”) and the Basic Conditions of Employment Amendment Bill (“the BCEA Bill”) for public comment, pertinent aspects of both are discussed below.


The National Minimum Wage Bill, 2017

The purpose of the NMW Bill is to advance social economic development and social justice by improving the wages of the lowest paid employees, by protecting employees from unreasonably low wages, by preserving the value of the national minimum wage and by promoting collective bargaining and supporting economic policy.


In order to achieve the aforementioned goals, the NMW Bill seeks to provide for a national minimum wage and establish a National Minimum Wage Commission (“the Commission”) which is intended to implement the provisions of the National Minimum Wage Act, 2017 (“the Act”).


The NMW Bill, in its current form, specifies a national minimum wage of R20,00 for each ordinary hour worked. The NMW Bill further specifies that farm workers, domestic workers and workers employed on an expanded public works programme should be paid a minimum wage of R18,00, R15,00 and R11,00 per hour, respectively. Workers who have concluded learnership agreements will also be entitled to allowances, depending on their qualifications, ranging from R301,01 to R1 755,84 per week.


The NMW Bill further prescribes that the payment of a national minimum wage takes precedence over any contrary provision in any contract, collective agreement or law, except a law amending the Act. The national minimum wage must also constitute a term of the employee’s contract except to the extent that the contract, collective agreement or law provides for a wage that is more favourable to the employee.


Furthermore, the national minimum wage is calculated as being the aforementioned amounts excluding any payment made to enable an employee to work including transport, equipment, food or accommodation allowance, any payment in kind, which includes board or accommodation, gratuities including bonuses, tips or gifts and any other prescribed category of payment.


If an employee is paid on a basis other than the number of hours worked, the employee may not be paid less than the minimum wage for the ordinary hours of work. Furthermore it would constitute an unfair labour practice where employers unilaterally alter hours of work or other conditions of employment when the national minimum wage is implemented.


However, the NMW Bill empowers the Minister, on application by an employer, to grant exemptions for payment of the national minimum wage in certain circumstances. The exemption granted must specify the period for which it is granted, which may not be longer than a year, it must specify the wage that the employer is required to pay its employees and any other relevant condition. This may offer some relief to small employers that are genuinely unable to pay employees wages in line with the prescribed minimum.


The NMW Bill also makes provision for the establishment of the Commission to review the national minimum wage and to make recommendations annually for the adjustment of the national minimum wage. The Commission may also investigate the impact of the national minimum wage on the economy, collective bargaining and income differentials.


The Act is to commence on 1 May 2018.


The Basic Conditions of Employment Amendment Bill, 2017

The purpose of the BCEA Bill is to introduce amendments to the Basic Conditions of Employment Act, 1997 (“the BCEA”) as a result of the proposed NMW Bill.


The BCEA Bill aims to, inter alia, empower labour inspectors to monitor and enforce the application of the proposed Act and the Unemployment Insurance Act, to repeal the provisions dealing with making sectoral determinations and to extend the jurisdiction of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) by making provision for enforcement procedures relating to underpayment in terms of, inter alia, the BCEA and the Act.


Proposed Amendments to the Functions of the Labour Inspector

The functions of the labour inspector will be extended to include the referral of disputes to the CCMA concerning non-compliance with, inter alia, the BCEA, the Act, the Unemployment Insurance Act and the Unemployment Insurance Contributions Act.


In order to enforce an employer’s compliance with the proposed Act, the amendments will permit the labour inspector to obtain a written undertaking from an employer to comply with the Act and where the employer has failed to do so, the amendments seek to authorise the Director-General to apply to the CCMA to make an employer’s undertaking an arbitration award.


The BCEA Bill also seeks to empower the labour inspector to issue compliance orders to cover an employer’s breach of the Act, the Unemployment Insurance Act and the Unemployment Insurance Contributions Act. Employers are however able to refer a dispute to the CCMA for determination, through arbitration, if they are served with a compliance order by the labour inspector.


Further Proposed Amendments to the BCEA

The BCEA Bill further seeks to enable employees earning below the threshold, R205 433.30 per annum, to refer disputes to the CCMA regarding an employer’s failure to pay wages or any amount owing to them in terms of the BCEA, the proposed Act, a collective agreement, contract or sectoral determination. It is anticipated that this amendment will provide for a cheaper, more expeditious method of resolving disputes, as the recourse to employees in such circumstances until now has been limited to approaching a Court. However employees earning above the threshold will still be able to bring claims in the Labour Court and any civil Court. It remains to be seen how the CCMA is able to cope with this increase to its already over-burdened caseload.


The BCEA Bill furthermore requires an employer who fails to pay an employee the national minimum wage to pay interest on any late payment calculated and for a fine to be imposed on employers for the non-compliance with the Act. The fine would entail an employer having to pay an employee an amount twice the value of the underpayment or twice the employee’s monthly wage, whichever is greater.


In light of the BCEA Bill’s proposed amendments it is clear that an obligation will be placed on employers to comply with the proposed Act, when implemented, by the proposed monitoring and enforcement of the application of the Act by labour inspectors in regard to obtaining written undertakings from employers and by serving employers with compliance orders, and is further illustrated by the imposition of fines for non-compliance with the Act.


In light of the NMW Bill seeking to advance economic development and social justice by improving the wages of the lowest paid workers and the proposed amendments to the BCEA, employers are encouraged to ensure that their employees’ remuneration is brought in line with the proposed Act in order to avoid being held liable for any potential fines or the payment of interest on any late payments to their employees in regard to their non-compliance. Furthermore, an employer’s compliance in that regard would ensure that they do not find themselves defending further disputes at the CCMA or the Labour Court.

For more information please contact Jayson Kent at or Taryn York at or (011) 783 8711 / (011) 048 3000








]]> (Fanie) Most Recent Publications Wed, 22 Nov 2017 04:51:48 +0000
Suspension without pay: Delays caused by employees will cost them


Suspension without pay: Delays caused by employees will cost them

By Hugo Pienaar, Director, Prinoleen Naidoo, Associate, Employment practice, Cliffe Dekker Hofmeyr


Drawn-out, expensive suspensions are a creeping phenomenon. Whilst there is an onus on the employer to deal with labour disputes “expeditiously”, many employees charged with misconduct deliberately delay the process or attempt to postpone their fate by producing sick notes, claiming unavailability of their representative or changing representatives at the last minute.


Generally, a suspension pending a disciplinary enquiry is effected at the instance of an employer. As a consequence, the employer remains liable to pay a suspended employee at the normal rate. Delays in the process can end up bleeding the employer dry.


The question that then arises is in what circumstances an employee pending a disciplinary hearing may be suspended without pay. The answer to this question is important, because suspension must also be fair and the employee is entitled to challenge a suspension that he/she feels is unfair.


A suspension may amount to an unfair labour practice if not executed in accordance with the principles of fairness and in terms of the employer’s codes and procedures.


In the case of Msipho and Plasma Cut (2005) 26 ILJ 2276 (BCA), an employee was suspended on full pay pending a disciplinary enquiry into alleged misconduct. He was entitled to be represented by a union official. At the hearing his union official was not present. The employee requested and was granted a postponement to enable him to secure the attendance of a representative. The postponed hearing was held six weeks later. The employer failed to pay the employee during this period.


The employee referred an unfair labour practice dispute to the Centre for Dispute Resolution claiming that he was entitled to be paid whilst on suspension pending an enquiry.


The arbitrator noted that the employee was aware of the original date of the hearing and it was his responsibility to secure the attendance of his representative. He failed to discharge this responsibility and it was unfair to blame the employer for his failure. If a scheduled hearing was postponed at the instance of an employee, the employer might not be liable for remuneration from the date of postponement to the date of hearing. Otherwise, employees would find reason to delay disciplinary proceedings as this would always be at the employer’s cost.


The arbitrator therefore, ruled that the failure to pay the employee during the period of postponement was not an unfair labour practice.


Two years later, these sentiments were echoed by an arbitrator of the MEIBC in the matter of SAEWA obo Members and Aberdare Cables [2007] 2 BALR 106 (MEIBC).


In this case, the employee was suspended on full pay pending a disciplinary enquiry. The hearing was postponed at the request of the union and was ultimately held about two weeks after the scheduled date. The company agreed to the postponement with the proviso that the further period of suspension would be unpaid. The employee claimed that he was entitled to his pay during the full period of suspension.


The arbitrator noted that employees suspended pending disciplinary action are normally entitled to their full pay. However, to apply this principle to situations where suspension is extended at the request of the employee would be unfair to employers. The employee was accordingly not entitled to be paid for the additional period of suspension.


It appears that arbitrators have come to realise that delaying tactics by employees on full pay can result in an abuse of the disciplinary process and have sought to close the gap on this phenomenon. In the public service for example, government spends millions on salaries of suspended employees and there are increasing measures identified to address this problem.


It is quite clear that employers have failed to implement proper procedures to ensure the completion of disciplinary processes within reasonable timeframes, and therefore tacitly allow employees to be on suspension endlessly, with full pay.


It is important that the employers amend their disciplinary code or policies and procedures to allow for the remedy of suspension without pay in the case of undue delays in the disciplinary enquiry caused by an employee.


Medical certificates ought not to be accepted on face value. The employer should be guided by the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa with respect to medical certificates and be guided by their own codes and practices in this regard. 


For more information, contact Professor Hugo Pienaar at or Prinoleen Naidoo at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr







]]> (Fanie) Most Recent Publications Tue, 21 Nov 2017 05:58:52 +0000