Public Newsletter
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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on "What constitutes sexual harassment?". We also discuss three new judgments: The first case is a Constitutional Court judgment on the right of municipal employees to hold office in a political party. The second case asks whether a South African working overseas falls under South African labour law. The third case, a Labour Appeal Court judgment, decides whether a contract made subsequent to the termination of employment falls within the Labour Court's jurisdiction.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
Municipal employees holding political office
In South African Municipal Workers' Union v Minister of Cooperative Governance and Traditional Affairs and Another [2025] ZACC 4 the Constitutional Court had to decide whether the section in the Local Government Municipal Systems Act which prohibits municipal employees from holding office in a political party, is unconstitutional.
The Local Government Municipal Systems Act (the 'Systems Act') prohibits municipal employees from holding office in a political party. That limitation previously applied only to senior management (municipal managers and managers directly accountable to them), but in 2022 the Act was amended to provide for the insertion of section 71B, which extended the prohibition to all municipal employees whatever their status.
The Labour Court, in SAMWU v Minister of Cooperative Governance & Traditional Affairs, declared the provisions of the Systems Act that prohibit all municipal employees from holding office in a political party, to be unconstitutional and invalid. As required, the Court referred its order to the Constitutional Court for confirmation, before it could take effect.
Read more (Worklaw subscriber access only)
Do employees working overseas fall under SA labour law?
In Naidoo v Khosa NO and Others (JR1346/22) [2025] ZALCJHB 131 (18 March 2025) an employee working for the SA Government and based in New York, claimed unfair dismissal under SA labour law. The Labour Court had to decide whether South African courts have jurisdiction to deal with disputes arising out of the employment relationship in such circumstances.
Though a South African citizen, the employee was domiciled in the USA. As a result of her domicile, the employee was considered to be "locally recruited personnel" ("LRP") in the USA. She worked at the South African Permanent Mission to the United Nations. The employee rendered her contractual duties, at all material times, within New York City in the USA.
The employee was given notice of the termination of her employment and advised that she was not being dismissed, because her employment would terminate by operation of law, resulting from the abolition of her post.
The employee referred a dispute about the fairness of her dismissal to the GPSS Bargaining Council in South Africa, alleging non-compliance with the LRA's requirements for an operational requirements dismissal.
Read more (Worklaw subscriber access only)
Does the Labour Court have jurisdiction over contracts entered into after termination of employment?
In Van Vuuren v Heaven Sent Gold SA (Pty) Ltd and Another (JA 75/23; JA 76/23) [2025] ZALAC 21 (17 March 2025) the Labour Appeal Court had to decide if its jurisdiction in terms of section 77(3) of the BCEA "to determine any matter concerning a contract of employment", extends to a contract between the parties subsequent to the termination of employment.
Two employees concluded separate settlement agreements on 14 January 2021 with their employer, after their termination of employment, in terms of which it was agreed their employment terminated with effect from 1 January 2020. The agreements provided that from 1 January 2020 until 15 January 2021, "any services performed were performed in the capacity of an independent contractor and not as an employee."
Specific amounts were promised to the two employees in the separation agreements. When the former employees were not paid the amounts agreed, they approached the Labour Court to enforce payment. The former employer argued that these amounts were unrelated to the employment relationship, with the result that section 77(3) did not apply and the Labour Court lacked jurisdiction to determine the matters.
Read more (Worklaw subscriber access only)
ARTICLE: What constitutes sexual harassment?
By Prof Alan Rycroft
Deciding if there has been an act of sexual harassment can be confusing. Considering the facts in a number of judgments, employers can be faced with a variety of complaints:- As an employee walks past a female employee, he playfully swings his lunch bag towards her and it makes contact with her buttocks (Sephton v Anglo Operations (Pty) Ltd and Others (A2024/113960) [2025] ZAGPJHC 239 (25 February 2025))
- A female employee receives an unsolicited whatsapp video depicting a couple engaged in explicit sexual intercourse (V v Passenger Rail Agency of South Africa (PRASA) and Others (P60/2018) [2020] ZALCPE 6 (7 February 2020))
- There is idle talk between consenting adults about a porn movie (Sadulla v Jules Katz & Co Ltd (1997) 18 ILJ 1482 (CCMA));
- Sexually provocative graffiti about a female co-employee is written on the wall of the men's toilet. Another male employee sees it and reports it. (Numsa on behalf of Prezens and Duferco Steel Processing (Pty) Ltd (2006) 27 ILJ 1282 (BCA))
- Over a 7-year period a male employee regularly proposes an intimate relationship, but in that time the female employee lodges no complaint (Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others (JR641/2016) [2018] ZALCJHB 72; (2018) 39 ILJ 1330 (LC) (27 February 2018))
- Employees are seen engaging in consensual kissing. No complaint is lodged (Zaindeen and Clicks Retailers (Pty) Ltd (2014) 35 ILJ 2322 (CCMA)
- A female employee alleging sexual harassment, sent messages to the male employee with affectionate expressions like "my love", "honey" and "sweetie". One sms read as "you know what I am hungry for you now serious sweety what's your plans for today" (Amathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others (PA9/2018) [2022] ZALAC 119 (10 November 2022)).
Read more (Worklaw subscriber access only)
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Bruce Robertson
May 2025
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