IIE Learn Module Outline LLAW7321/w/p/d

Labour Law
LLAW7321w/p/d
MODULE OUTLINE 2024
(First Edition: 2015)

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1978, no part of this manual may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording or by any other information storage
and retrieval system without permission in writing from the proprietor.

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Company registration number: 1987/004754/07.

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IIE Learn Module Outline LLAW7321/w/p/d

Table of Contents

Introduction ............................................................................................................................................ 3
Using this Module Outline ...................................................................................................................... 4
This Module on Learn ............................................................................................................................. 5
Icons Used in this Document and on Learn ............................................................................................ 6
Module Resources .................................................................................................................................. 7
Module Purpose.................................................................................................................................... 10
Module Outcomes ................................................................................................................................ 10
Assessments .......................................................................................................................................... 11
Module Pacer ........................................................................................................................................ 14
Glossary of Key Terms for this Module ................................................................................................. 36
List of abbreviations used in this Module ............................................................................................. 37

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IIE Learn Module Outline LLAW7321/w/p/d

Introduction
Labour law is that part of the South African law which regulates the employment relationship. It
is divided into individual and collective labour law, the former relating to the law applicable to
the individual employment contract, and the latter concerning the relationships between
organised labour and employers. Underpinning the landscape of labour law in South Africa is
Section 23 of the Constitution of the Republic of South Africa Act 108 of 1996, which grants
everyone the right to fair labour practices. The Labour Relations Act 66 of 1995 (LRA) is the
cornerstone of South African labour relations which, together with the other pillars of labour
and social legislation, was enacted to give effect to the constitutionally protected right to fair
labour practices, which includes the right to freedom of association. The LRA further aims to
promote social justice, labour peace and workplace democracy, and to promote orderly
collective bargaining. The timing around the promulgation of the LRA was crucial as there was a
need to adopt legislation which would assist in redressing the injustices of the past within the
employment context.

After completion of this module students should be able to grasp and have a good understanding
of the fundamental principles that underlie labour law, identify problems and formulate
appropriate solutions using case law and legislation.

As such, this module requires students to engage with, apply and analyse the applicable common
law and legislative principles governing the employment relationship. Students should be able
to unpack case law, articles and relevant legal principles in a logical manner in order to solve a
specific problem.

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IIE Learn Module Outline LLAW7321/w/p/d

Using this Module Outline

This module outline has been developed to support your learning. Please note that the
content of this module is on Learn as well as in the prescribed material. You will not succeed
in this module if you focus on this document alone.

• This document does not reflect all the content on Learn, the links to different resources,
or the specific instructions for the group and individual activities.
• Your lecturer will decide when activities are available/open for submission and when these
submissions or contributions are due. Ensure that you take note of announcements made
during lectures and/or posted within Learn in this regard.

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IIE Learn Module Outline LLAW7321/w/p/d

This Module on Learn

Learn is an online space designed to support and maximise your learning in an active manner. Its
main purpose is to guide and pace you through the module. In addition to the information
provided in this document, you will find the following when you access Learn:
• A list of prescribed material;
• A variety of additional online resources (articles, videos, audio, interactive graphics, etc.)
in each learning unit that will further help to explain theoretical concepts;
• Critical questions to guide you through the module’s objectives;
• Collaborative and individual activities (all of which are gradable) with time-on-task
estimates to assist you in managing your time around these;
• Revision questions, or references to revision questions, after each learning unit.

Kindly note:
• Unless you are completing this as a distance module, Learn does not replace your
contact time with your lecturers and/or tutors.
• This is a Learn module, and as such, you are required to engage extensively with the
content on the Learn platform. Effective use of this tool will provide you with
opportunities to discuss, debate, and consolidate your understanding of the content
presented in this module.
• You are expected to work through the learning units on Learn in your own time –
especially before class. Any contact sessions will, therefore, be used to raise and address
any questions or interesting points with your lecturer and not to cover every aspect of
this module.
• Your lecturer will communicate submission dates for specific activities in class and/or
on Learn.

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IIE Learn Module Outline LLAW7321/w/p/d

Icons Used in this Document and on Learn

The following icons are used in all your modules on Learn:

Icon Description

A list of what you should be able to do after working through the learning
unit.

Specific references to sections in the prescribed work.

Questions to help you recognise or think about theoretical concepts to be

covered.

Sections where you get to grapple with the content/ theory. This is mainly
presented in the form of questions that focus your attention and are aimed
at helping you understand the content better. You will be presented with
online resources to work through (in addition to the textbook or manual
references) and find some of the answers to the questions posed.

Opportunities to make connections between different chunks of theory in

the module or to real life.

Real life or world of work information or examples of application of theory,

using online resources for self-exploration.

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Module Resources
Prescribed Material (PM) for The prescribed textbook for this module is:
this Module
PM1: Collier, D & Fergus, E (Eds) Cohen, T. Du Plessis, M.
Godfrey, S. Le Roux, R. & Singlee, S. Labour Law in South
Africa: Context and Principles (2019) Oxford University
Press: Cape Town.

Du Plessis, JV and Fouché, M. A A Practical Guide to Labour

Law 9th ed (2019) LexisNexis: Durban (Chapters 5,6 and 7
ONLY) uploaded onto the student portal as prescribed
additional reading.

The legislative provisions that must specifically be studied

for this module are:
• Sections 9 and 23 of the Constitution of the Republic
of South Africa, 1996.
• Sections 6-18, 19-27, 36-42 and 83A of the Basic
Conditions of Employment Act 75 of 1997.
• Sections 8-16, 21(8A), 21 (8C), 186, 187, 188, 189,
189A, 197, 197A, 198, 200A and 213 of the Labour
Relations Act 66 of 1995.
• Schedule 8 of the LRA (Code of Good Practice:
Dismissals).
• Sections 4-6 of the Employment Equity Act 55 of 1998
• The Unemployment Insurance Act 63 of 2001 (in so
far as it is necessary to meet the learn outcomes
contained in Learning Unit 6 of this module).
• The Compensation for Occupational Injuries and
Diseases Act 130 of 1993 (only in so far as it is
necessary to meet the learn outcomes in Learning unit
6 of this module).
• The Occupational Health and Safety Act 85 of 1993
(only in so far as it is necessary to meet the learn
outcomes contained in learning unit 6 of this module).

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The prescribed cases for this module are the following:

• Apollo Tyres South Africa (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and others
[2013] 5 BLLR 434 (LAC).
• CWIU v Algorax (Pty) Ltd 2003 11 BLLR 1081 (LAC).
• Department of Correctional Services and another v
Police and Prisons Civil Rights Union and others [2013]
7 BLLR 639 (SCA).
• Discovery Health Limited v CCMA (2008) 29 ILJ 1480
(LC).
• Dlamini and others v Green Four Security (2006) 27 ILJ
2098 (LC).
• Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513
(CCMA).
• Fry’s Metals (Pty) Ltd v National Union of
Metalworkers of SA 2003 ILJ 133 (LAC).
• Gunter v Compensation Commissioner 2009 (30) ILJ
2341 (0).
• Harksen v Lane NO & Others 1997 (11) BCLR 1489
(CC).
• Kievits Kroon Country Estate (Pty) Ltd v CCMA (2011)
32 ILJ 923 (LC).
• Kylie v Commission for Conciliation, Mediation and
Arbitration and others (2010) 31 ILJ 1600 (LAC).
• Mahlangu and Another v Minister of Labour and
Others 2021 (1) BCLR 1 (CC); [2021] 2 BLLR 123 (CC).
• Murry v Independent Newspapers (2003) 24 ILJ 1420
(CCMA).
• Mwamwende v University of Kwazulu-Natal (2006) 27
ILJ 2174 (CCMA).
• NUMSA v Bader Bop (Pty) Ltd & another [2003] 2 BLLR
103 (CC)
• Police and Prison Civil Rights Union & others v
Department of Correctional Services and Another
(2010) 31 ILJ 2433 (LC); 2010 (9) BCLR 921 (LC).
• SACCAWU v Cash Crusaders (2010) 19 CCMA 4.7.3
• SA Clothing & Textile Workers Union & others v Berg
River Textiles – A division of Seardel Group Trading
(Pty) Ltd (2012) 33 ILJ 972 (LC).

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• SACWU & others v Afrox Ltd [1999] 10 BLLR 1005

(LAC).
• Schoeman v Samsung Electronics SA (Pty) Ltd [1997]
10 BLLR 1364 (LC).
• Solidarity & others v Eskom Holdings Ltd (2012) 33 ILJ
464 (LC)
• South African Police Service v Solidarity obo Barnard
(Police and Prisons Civil Rights Union as amicus curiae)
2014 (10) BCLR 1195 (CC)
• SAPS v Zandberg and others (2010) 31 ILJ 1230 (LC) ;
[2010] 2 BLLR 194 (LC).
• Swart v Mr Video (Pty) Ltd (1998) 19 ILJ 1315 CCMA.
• Tshishonga v Minister of Justice & Constitutional
Development & another [2007] 4 BLLR (LC)
• Twalo v Minister of Safety and Security and Another
2009 (30) ILJ 1578 (Ck).
• Wyeth SA (PTY) LTD v Manqele & Others (2005) 26 ILJ
749 (LAC)

Prescribed journal articles for this module are:

• McGregor “Affirmative Action on Trial – Determining
the Legitimacy and Fair Application of Remedial
Measures” (2013) (4) TSAR 650
Recommended Readings, Please note that a number of additional resources and links
Digital, and Web Resources to resources are provided throughout this module on the
Learn platform. You are encouraged to engage with these as
they will assist you in mastering the various objectives of
this module. They may also be useful resources for
completing any assignments. You will not, however, be
assessed under examination conditions on any additional or
recommended reading material.
Module Overview You will find an overview of this module on Learn under the
Module Information link in the Course Menu.
Assessments Find more information on this module’s assessments in this
document and on the Student Portal.

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IIE Learn Module Outline LLAW7321/w/p/d

Module Purpose
The purpose of this module is to provide students with the knowledge, skills and competencies
allowing them to analyse and solve legal problems relating to labour law in general.
Module Outcomes
Demonstrate detailed knowledge and understanding of developments relating to
MO1
the South African labour law.
Demonstrate detailed knowledge and understanding of the common law
MO2 principles, the case law and the statutory regulations of labour law, and the
interactions between these sources of labour law.
Apply labour law principles and practices correctly in order to address labour issues
MO3
commonly encountered in the modern workplace.
Evaluate the various rights and duties inherent in the individual employment
MO4
relationship.

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Assessments
Integrated Curriculum Engagement (ICE)
Minimum number of ICE activities to complete 4
Weighting towards the final module mark 10%

ASSESSMENT STRATEGY FOR LLAW7321 p/ d

Formatives Test 1 Test 2
Weighting 30% 25%
Duration 1 hour 1 hour
Total marks 60 60
Limited open book Limited open book (legislation
Open/closed book
(legislation only) only)
Resources required N/A N/A
Learning Units covered 1-3 4-5
Summative Written Unseen Examination
Weighting 35%
Duration 2 hours
Total marks 120
Open/Closed book Limited open book (legislation only)
Resources required N/A
Learning Units covered All

ASSESSMENT STRATEGY FOR LLAW7321W

Formatives Assignment Assignment
Weighting 30% 25%
Duration Approximately 10 hours 10 hour
Total marks 100 100
Open/closed book Open book Open book
Resources required Additional research required Additional research required
Learning Units covered 1, 2, 3 4, 5, 6
Resources required Additional research required Additional research required
Summative Examination
Weighting 35%
Duration 2 hours
Total marks 120
Open/Closed book Limited Open book (Legislation only)
Resources required Prescribed material
Learning Units covered All

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IIE Learn Module Outline
Assessment Preparation Guidelines
Format of the Assessment
Assignmenta
The assignments for this
module will assess your
understanding of relevant
Learning Units and will
include one or more longer
questions. You will be
expected to apply as per
your objectives for these
learning units.
Tests
The test for this module will •
assess your understanding
and will include a series of
short and medium-length •
questions, as well as one or
more longer questions. You
will be expected to apply, as •
well as recall, information as
per your objectives for these
learning units.
Examination
The examination will assess
all learning units in this
module and will include
both theory and
application-type questions.
© The Independent Institute of Education (Pty) Ltd 2024
LLAW7321/w/p/d
Preparation Hints
• Ensure that you work through all the relevant activities,
exercises and revision questions on Learn and in your
textbook.
• Brainstorm possible questions based on the learning
outcomes and objectives provided. Then, complete
these as practice exercises.
• While completing the assignment, pay attention to the
instruction words (like list, apply, describe, etc.) and to
the mark allocations of each question to ensure that you
are able to provide the correct depth and detail in your
answers.
• Make sure that you have mastered the objectives in the
relevant Learning Units
Ensure that you work through all the relevant activities,
exercises and revision questions on Learn and in your
textbook.
Brainstorm possible questions based on the learning
outcomes and objectives provided. Then, complete
these as practice.
During both your preparation for the tests and during the
test itself, pay attention to the instruction words (like list,
apply, describe, etc.) and to the mark allocations of each
question to ensure that you are able to provide the
correct depth and detail in your answers.
• Make sure that you have mastered the objectives in in
the relevant Learning Units and that you understand the
case law, as you will be required to advise on a relevant
scenario with reference to case law.
• Ensure that you work through all the activities, exercises
and revision questions on Learn and in your textbook
and other prescribed material. You must have
completed close readings of your prescribed material to
ensure that you have prepared adequately for your
examination for this module.
Page 12 of 37
IIE Learn Module Outline
You will be expected to
respond to short, theory-
based questions as well as
to application questions.
© The Independent Institute of Education (Pty) Ltd 2024
LLAW7321/w/p/d
• Pay close attention to the instruction words (like list,
apply, describe, analyse, etc.) and to the mark
allocations of each question to ensure that you provide
the correct depth and detail in your answers.
• Make sure that you are comfortable in responding to all
the objectives for all learning units and that you
understand the case law, as you will be required to
advise on a relevant scenario with reference to case
law.
• Brainstorm possible questions based on the learning
outcomes and objectives provided.
Page 13 of 37
IIE Learn Module Outline LLAW7321/w/p/d

Module Pacer
Code Programme Contact Sessions Credits
LLAW7321/p BALW316; BBA322; BCEL332; BLAW421, 36 15
BBA322
LLAW7321d BBA322 24 15
LLAW7321w BBA322 12 15
Learning Unit 1 Introduction to Labour Law

Overview:
Historically, a significant feature of the labour law system in South Africa was the extent to
which racial classification determined the labour rights of a worker.1 This has necessitated a
remedial focus in SA labour law of decolonisation, which is one of the many forces that will
continue to shape the future of labour law in SA. 2We need to reconsider the boundaries of
labour law to further include statutory and other protection for historically disadvantaged
groups who often form part of the informal employment sector.3

Moving forward, legal scholars are considering the need for decolonisation of labour law,
perhaps by moving away from the common-law construction of the employment relationship
with its focus on control, loyalty and subservience to an emphasis on mutual recognition and
fair dealing alongside employee rights. 4Some academics express concern that our labour laws
have not done enough to dismantle white privilege (among other forms of disadvantage, such
as gender and disability).

In this learning unit, we will look at the difference between individual and collective labour
law, the sources of labour law, the varied application of labour law, and the impact of the Bill
of Rights on the employment relationship.

Please work through Theme 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please also ensure that you complete all activities on Learn. You may experience
that this learning unit and the learning units to follow contain legal terminology and concepts
that you may not be familiar with. Therefore, ensure that you are familiar with the way that
these are used in this module by referring to the definitions included in the prescribed
readings. A glossary of key terms for this module has also been included, and you are
encouraged to supplement the glossary with your own terms and definitions as you go along
in engaging with this module.

1
Collier et al 555.
2
Collier et al 555
3
Collier et al 17.
4
Collier et al 17.

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Learning Unit 1: Theme Breakdown

Sessions: Theme 1: Introductory Concepts Prescribed Material (PM)
LLAW7321/p: 1
–3
LLAW7321d: 1 -2
LLAW7321w: 1
Related LO1: Distinguish between individual and PM1: Chapter 1,
Outcomes: collective labour law; PM1: Chapter 2 (only para.
MO001 LO2: Give an exposition of the main 2.2) and Chapter 17 (only in
MO002 sources of labour law; so far as it is necessary to
M0003 LO3: Discuss the varied application of answer the LOs in this
labour law; learning unit)
LO4: Explain how the Bill of Rights affects
the employment relationship in so Prescribed article:
far as social legislation having been
passed to give effect to Section 23C. Bochnig, W, “The lexical
order and sources of labour
law”,
https://dhrc.co.za/main/the-
lexical-order-and-sources-
of-labour-
law/#:~:text=Above%20com
mon%20law%2C%20individu
al%20contracts%20of%20e
mployment%20will%20take
%20precedence.&text=The
%20contract%20of%20empl
oyment%20can,Basic%20Co
nditions%20of%20Employm
ent%20Act. [Accessed 10
February 2023]
Theme 2: The Labour Legislation
Framework
L05: Explain the purpose, objectives, PM1: Chapter 3 (only
application, and interpretation of the LRA. para.3.3) and Chapter 6
(only para 6.4)
L06: Explain how the CCMA functions as a
quasi-judicial, statutory body.

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Learning Unit 2 The Common Law Contract of Employment

Overview:

The modern-day contract of employment is derived from the common law contract of lease.
It involves the rendering of labour or services by an employee to his employer for
remuneration while the employee subjects himself to the supervision and control of the
employer. The common law principles applicable to contracts of employment form part of
individual labour law.

In this learning unit, we will look at the nature of the common law contract of employment
and the rules applicable to the contract of employment.

Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for
this learning unit, please complete all activities on Learn.

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Learning Unit 2: Theme Breakdown

Sessions: Theme 1: The Nature of the Contract of Prescribed Material (PM)
LLAW7321/p 4 - Employment
8
LLAW7321d 3 - 4
LLAW7321w 2-3
Related LO1: Discuss in detail how you will PM1: Chapter 1 (only para
Outcomes: determine whether a person is an 1.1),
MO001 employee or an independent PM1: Chapter 5
MO002 contractor; PM1: Chapter 7
MO003 LO2: Explain the meaning and nature of
MO004 the common law test for Prescribed case law
employment; • Kylie v Commission for
LO3: Distinguish between locatio Conciliation, Mediation
conductio operarum, locatio and Arbitration and
conductio operis and a mandate; others (2010) 31 ILJ
LO4: Discuss the essentials (essentialia) 1600 (LAC).
of a contract of employment; • Discovery Health
LO5: Discuss the statutory presumption Limited v CCMA (2008)
of employment as set out in section 29 ILJ 1480 (LC).
200A of the LRA and section 83A of • Wyeth SA (PTY) LTD v
the BCEA; Manqele & Others
LO6: Apply the legal principles governing (2005) 26 ILJ 749 (LAC)
the contract of employment to a
set of facts. Legislative provisions that
Theme 2: Rules Relating to the must be studied for this
Employment Contract Learn Unit:
LO7: Discuss the employee’s and • Section 83A BCEA;
employer’s common law duties; • Section 200A LRA
LO8: Discuss the remedies available to
employers in the case of breach of
contract by employees;
LO9: Discuss the various ways in which a
contract of employment may be
terminated.

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Theme 3: Other Legal Concepts Relating

to the Contract of Employment
LO10: Discuss the delictual liability of
the employer (vicarious liability)
(see material on VCLearn) and
LO11: Discuss the principle of restraint
of trade (see material on
VCLearn).

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 3 Basic Conditions of Employment Act 75 of 1997 (BCEA)

Overview:

An extensive set of labour legislation governs the employment relationship in South Africa,
read together with the common law, in order to give effect to the constitutional right to fair
labour practices. One of these pieces of labour legislation that make up the labour law
framework is the Basic Conditions of Employment Act 75 of 1997 (BCEA). The BCEA provides
for minimum standards of employment in order to protect employees in light of South Africa’s
past social injustices.

Irrespective of the form that the employment contract takes and the manner in which it is
shaped, the BCEA prescribes certain minimum standards that, generally, cannot be contracted
out of and, thus, is an example of paternalistic legislation that aims to comply with
International Labour Organisation (ILO) standards by eradicating any exploitative traits in the
South African labour market which are inherited from colonial history and were largely
imposed by apartheid policy.5

In this learning unit, we will look at the objectives and the application of the Act, the working
conditions regulated by the BCEA and the variation of minimum employment conditions.

Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete all activities on Learn.

5
Collier et al 16.

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Learning Unit 3: Theme Breakdown

Sessions Theme 1: Introduction to the Basic Prescribed Material (PM)
LLAW7321/p 9 - Conditions of Employment Act
12
LLAW7321d 5 -
6
LLAW7321w 4 –
5
Related LO1: Explain the purpose of the BCEA and PM1: Chapter 3 (para 3.4
Outcomes: how exactly it aims to give effect to only),
MO001 Section 23C (the right to fair labour PM1: Chapter 5 (para 5.5.2
MO002 practices). only)
MO003 LO2: Discuss the scope and application of PM1: Chapter 8 of the
MO004 the BCEA (i.e. to whom the prescribed textbook, as well
provisions of the BCEA apply). as the Basic Conditions of
LO3: Discuss the concept of a temporary Employment Act 75 of 1997
employment service as provided for itself.
in section 1 of the BCEA (also see
amendments to s.198 of the LRA). Legislative provisions that
LO4: Apply the legal principles regulated must be studied for this
by the BCEA to a set of facts. Learn Unit:
Theme 2: Basic Conditions of Employment • Sections 6-18, 19-27,
LO5: Discuss the following aspects as set 36-42 of the BCEA
out in the BCEA and apply to a set of
facts:
1. The regulation of working time (ss 6
– 18), specifically with regard to the
application of the provisions relating
to
a) Ordinary working hours;
b) Overtime;
c) Compressed work week;
d) Averaging of working hours;
e) Meal intervals and rest
periods;
f) Work on Sundays and public
holidays; and
g) Night work;

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IIE Learn Module Outline LLAW7321/w/p/d

2. Aspects pertaining to leave (ss 19 –

27) specifically with regards to the
application of the provisions to:
a) Annual leave;
b) Sick leave;
c) Maternity leave;
d) Parental leave;
e) Adoption leave;
f) Commissioning parental
leave; and
g) Family responsibility leave;
3. Termination of the contract of
employment (ss 36 – 42), specifically
in respect of:
a) Notice periods; and
b) Severance pay;
LO6: Discuss the position with regard to
the application of the National
Minimum Wage, exclusions from the
National Minimum Wage, and its
exemptions.
LO7: Draft a contract of employment with
reference to the essentials of a
contract of employment and the
concepts contained in the BCEA.
Theme 3: Variation of Conditions of
Employment
LO8: Discuss the ways in which the
provisions of the BCEA (conditions of
employment) may be varied.

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Learning Unit 4 Employment Equity Act 55 of 1998 (EEA)

Overview:

As was previously mentioned, an extensive set of codified labour laws, together with the
common law, govern the employment relationship in South Africa, which is underpinned by
Section 23 of the Constitution. Another of these codified laws is the Employment Equity Act
55 of 1998 (EEA). The EEA provides for measures to achieve equity in employment through
promoting equal opportunities and fair employment practises, thereby giving effect to the
constitutionally entrenched right to equality.

In this learning unit, we will look at the meaning of constitutional equality, the objectives and
application of the EEA, the prohibition of unfair discrimination in the workplace and the
implementation of affirmative action measures.

The sessions for this Learning Unit will be as follows:

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete all activities on Learn.

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 4: Theme Breakdown

Sessions: Theme 1: Constitutional Equality
LLAW7321/p LO1: Discuss the meaning of
: 13 – 17 “constitutional equality”.
LLAW7321d: LO2: Explain the way in which the EEA
7–9 gives effect to the equality clause
LLAW7321w: (Section 9) in the Constitution,
6 specifically with reference to:
a) The affirmative action clause
(Sec 9(2) C); and
Related b) The anti-discrimination
Outcomes: clause (Sec 9 (3) & (4) C);
MO001 Theme 2: The Employment Equity Act 55
MO002 of 1998
MO003 LO3: Discuss the objectives of the EEA;
MO004 LO4: Define the following, as provided for
in s 1 of the EEA:
a) Designated employer;
b) Designated employees (see
Amendments).
c) Employee.
LO5: Explain the scope and application of
the EEA (i.e. to whom the EEA
applies) in terms of section 4 of the
EEA.
LO6: Differentiate between direct and
indirect discrimination and indirect
discrimination in terms of sections 5
– 6 of the EEA.
LO7: Apply the test for unfair
discrimination contained in section
6 of the EEA as set out by the
Constitutional Court in Harksen v
Lane NO 1997 (11) BCLR 1489 (CC)
to a set of facts.
LO8: Give an exposition of the affirmative
action measures as prescribed by
the EEA.
Prescribed Material (PM)
PM1: Chapter 3 (only para 3.5),
PM1: Chapter 25,
PM1: Chapter 26
PM1: Chapter 27
Legislative provisions that must
be studied for this Learn Unit:
• Section 9 of the
Constitution
• Sections 1, 4-6 of the
EEA
Case Law
• Harksen v Lane NO &
Others 1997 (11) BCLR
1489 (CC).
• Dlamini and others v
Green Four Security
(2006) 27 ILJ 2098 (LC).
• Police and Prison Civil
Rights Union & others v
Department of
Correctional Services and
Another (2010) 31 ILJ
2433 (LC).
• SAPS v Zandberg and
others (2010) 31 ILJ 1230
(LC). 1195 (CC)
• SA Clothing & Textile
Workers Union & others
v Berg River Textiles – A
division of Seardel Group
Trading (Pty) Ltd (2012)
33 ILJ 972 (LC).
• SAPS v Zandberg and
others (2010) 31 ILJ 1230
(LC).

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IIE Learn Module Outline LLAW7321/w/p/d

LO9: Explain the meaning of “affirmative • Kievits Kroon Country

action” as provided for in the EEA.
LO10: Explain the duties of a designated
employer.
LO11: Explain the preparation and
implementation of an employment
equity plan and
LO12: Apply the legal principles regulated
by the EEA to a set of facts.
Estate (Pty) Ltd v CCMA
(2011) 32 ILJ 923 (LC).
• Swart v Mr Video (Pty)
Ltd (1998) 19 ILJ 1315
CCMA.
• South African Police
Service v Solidarity obo
Barnard (Police and
Prisons Civil Rights Union
as amicus curiae) 2014
(10) BCLR 1195 (CC)

Prescribed articles:
• McGregor “Affirmative
Action on Trial –
Determining the
Legitimacy and Fair
Application of Remedial
Measures” (2013) (4)
TSAR 650.

• Solidarity, “What is an
employment equity
plan”,
https://regsdienste.solid
ariteit.co.za/en/what-is-
an-employment-equity-
plan/#:~:text=An%20em
ployment%20equity%20
plan%20determines,is%2
0going%20to%20achieve
%20them. [Accessed 10
February 2023]

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 5 Unfair Labour Practices (ULPs) and dismissals

Overview:

The Labour Relations Act, 66 of 1995 (LRA) aims to advance economic development, social
justice, labour peace and the democratisation of the workplace. To fulfil these objectives, the
Act extends protection to workers against unfair labour practices and unfair dismissals in the
workplace.

In this learning unit, we will look at the meaning of ‘dismissal’, the law as it relates to unfair
dismissals and unfair labour practices, and the respective dispute resolution procedures
relating to these concepts.

Please work through Themes 1, 2, 3 and 4 on Learn, together with the relevant sections of
your prescribed source/s. To ensure that you are working towards mastering the objectives
for this learning unit, please complete all activities on Learn.

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 5: Theme Breakdown

Sessions: Theme 1: Dismissal Prescribed Material (PM)
LLAW7321/p:
18 – 23
LLAW7321d: 10
– 14
LLAW7321w: 7 -
8
Related LO1: Discuss the meaning of the concept PM1: Chapters 6, 9, 10, 11,
Outcomes: “dismissal” as contemplated in 12, 13, 14, 15, 16 (only in as
MO001 section 186 (1) of the LRA. much detail as it is necessary
MO002 to meet the Learn Outcomes
MO003 LO2: Discuss the transfer of the contract in this Learning Unit)
MO004 of employment in terms of ss 197 &
197Az. Legislative provisions that
Theme 2: Unfair Dismissals must be studied for this
LO3: Differentiate between unfair and Learn Unit:
automatically unfair dismissals as • Sections 186, 187,
well as when a particular dismissal 188, 189, 189A, 197,
would be automatically unfair as 197A of the LRA;
opposed to an ordinary dismissal for • Schedule 8 of the
reasons relating to misconduct, LRA (Code of Good
incompetence (poor work Practice: Dismissals)
performance)/incapacity or
operational requirements. Case Law
LO4: Apply the provisions of Schedule 8 of • Schoeman v Samsung
the LRA (Code of Practice: Dismissals) Electronics SA (Pty) Ltd
in a set of facts. [1997] 10 BLLR 1364
LO5: Differentiate between substantive (LC);
and procedural fairness. • Dlamini v Toyota SA
LO6: Advise a client on the requirements Manufacturing (2004)
for substantive fairness in respect of 25 ILJ 1513 (CCMA);
dismissals on the following grounds: • Murry v Independent
• Misconduct; Newspapers (2003) 24
• Operational requirements; ILJ 1420 (CCMA);
• Incapacity (both for poor work • Mwamwende v
performance as well as for University of Kwazulu-
illness/injury).

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IIE Learn Module Outline LLAW7321/w/p/d

LO7: Advise a client on the requirements Natal (2006) 27 ILJ

for procedural fairness in respect of 2174 (CCMA);
dismissals on the following grounds: • Apollo Tyres South
• Misconduct; Africa (Pty) Ltd v
• Operational requirements; Commission for
• Incapacity (both for poor work Conciliation, Mediation
performance as well as for and Arbitration and
illness/injury) others [2013] 5 BLLR
434 (LAC);
Theme 3: Unfair Labour Practices • Tshishonga v Minister
LO8: Discuss the meaning of the concept of Justice &
of “unfair labour practice” as Constitutional
contemplated in section 186(2) of Development &
the LRA. another [2007] 4 BLLR
LO9: Comprehensively differentiate (LC)
between the various types of • POPCRU and others v
conduct that constitute an “unfair Department of
labour practice”. Correctional Services
LO10: Apply the legal principles relating to and another 2010 (9)
ULPs and dismissals to a set of facts. BCLR 921 (LC);
Theme 4: Dispute Resolution • SACWU & others v
LO11: Discuss the remedies for unfair Afrox Ltd [1999] 10
labour practices, unfair dismissals BLLR 1005 (LAC);
and automatically unfair dismissals • Department of
and Correctional Services
LO12: Discuss the dispute resolution and another v Police
procedure(s) related to unfair labour and Prisons Civil Rights
practices, unfair dismissals and Union and others
automatically unfair dismissals. [2013] 7 BLLR 639
(SCA);
• CWIU v Algorax (Pty)
Ltd 2003 11 BLLR 1081
(LAC);
• Fry’s Metals (Pty) Ltd v
National Union of
Metalworkers of SA
2003 ILJ 133 (LAC).

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 6 Social Security Legislation - UIA, COIDA and OHSA

Overview:

The Unemployment Insurance Act 63 of 2001 (UIA), the Compensation for Occupational
Injuries and Diseases Act 130 of 1993 (COIDA) and the Occupational Health and Safety Act 85
of 1993 (OHSA) are examples of social security legislation which provide protection to workers.
These Acts are specifically aimed at safeguarding the most vulnerable workers in the South
African labour force.

In this learning unit, we will look at the rationale and the application of these Acts and the
requirements that must be met in order to claim in terms of each respective Act.

Please work through Themes 1, 2 and 3 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete all activities on Learn.

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 6: Theme Breakdown

Sessions: Theme 1: The Unemployment Insurance Prescribed Material (PM)
LLAW7321/p : Act 63 of 2001 (UIA)
24 - 28
LLAW7321d: 15 -
17
LLAW7321w: 9
Related LO1: Discuss the rationale for and the PM: chapter 3 (only
Outcomes: application of the UIA. paragraphs 3.8, 3.9 and
MO003 LO2: Discuss the requirements that must 3.10), Chapters 29 and 30
MO004 be met, as provided for in the
applicable Act, in order to qualify to Legislative provisions that
claim unemployment benefits. must be studied for this
LO3: Discuss the categories of benefits as Learn Unit:
provided for by the UIA and • The Unemployment
differentiate between the Insurance Act 63 of
circumstances in which one could 2001 (in so far as it is
claim the following benefits: necessary to meet
• Unemployment benefits; the learn outcomes
• Illness benefits; contained this
• Maternity benefits; learning unit).
• Parental benefits; • The Compensation
• Adoption benefits; for Occupational
• Commissioning parental benefits; Injuries and Diseases
and Act 130 of 1993
• Dependant’s benefits. (only in so far as it is
necessary to meet
LO4: Apply the legal principles governed the learn outcomes
by the UIA to a set of facts. contained in this in
Theme 2: The Compensation for learning unit).
Occupational Injuries and Diseased Act • The Occupational
130 of 1993 (COIDA) Health and Safety
LO5: Discuss the rationale for and the Act 85 of 1993 (only
application of COIDA. in so far as it is
LO6: Discuss the requirements that must necessary to meet
be met in order to qualify to claim the learn outcomes
from the Commissioner for work- contained in this
related injuries (“Workman’s learning unit)
Compensation”).

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IIE Learn Module Outline LLAW7321/w/p/d

LO7: Apply the legal principles governed Case Law

by the COIDA to a set of facts. • Gunter v
Theme 3: The Occupational Health and Compensation
Safety Act 85 of 1993 (OHSA) Commissioner 2009
LO8: Discuss the rationale for and the (30) ILJ 2341 (0).
application of OHSA. • Twalo v Minister of
LO9: Discuss the general as well as the Safety and Security
specific duties of both employers and and Another 2009
employees as provided for in the (30) ILJ 1578 (Ck).
OHSA. • Mahlangu and
LO10: Discuss the functions of the health Another v Minister of
and safety representatives, health Labour and Others
and safety committees and 2021 (1) BCLR 1 (CC);
inspectors; and; [2021] 2 BLLR 123
LO11: Apply the legal principles governed (CC).
by the COIDA to a set of facts.

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 7 Collective Bargaining

Overview:

The Labour Relations Act 66 of 1995 (LRA) places an emphasis on co-operation and
constructive engagement between employees and management. The process of collective
bargaining refers to the negotiation between a trade union (representing the collective
interests of the employees) and an employer or an employer’s organisation. The purpose of
such bargaining is to come to an agreement on matters of mutual interest, such as terms and
conditions of employment.

In this learning unit, we will look at the recognition of the duty to bargain, organisational rights,
collective bargaining structures, the bargaining process and collective agreements.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete all activities on Learn.

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 7: Theme Breakdown

Sessions: Theme 1: The Duty to Bargain and Prescribed Material (PM)
LLAW7321/p: 29 Organisational Rights
- 33
LLAW7321d: 18 -
22
LLAW7321w:10 -
11
Related LO1: Discuss the meaning and effect of PM: Chapter 3 (only
Outcomes: “freedom of association” as provided paragraph 3.3.2), Chapter
MO003 for in the Bill of Rights. (only paragraph 4.6.7),
Chapter 17, 19, 20, and 21
LO2: Explain whether there is a legally (only in so far as it is
enforceable duty to bargain under necessary to answer the
the LRA; Learn outcomes in this
LO3: Differentiate between the following: unit)
• Sufficiently representative trade
unions; Legislative provisions that
• Majority trade unions; must be studied for this
• Minority trade unions; Learn Unit:
• Sections 8-16, 21
LO4: Identify from a set of facts whether a (8A) and 21 (8C) of
union is a majority, sufficiently the LRA (only in so
representative or a minority trade far as it is
union necessary to meet
the learn
LO5: Explain which of the five outcomes
organisational rights each one is contained in this
entitled to (please note the impact of learning unit)
the newly added sections 21(8A) and • Section 23 of the
21(8C) of the LRA). Constitution

LO6: Discuss what each of the five Case Law:

organisational rights entails. • NUMSA v Bader Bop
(Pty) Ltd & another
[2003] 2 BLLR 103
(CC)

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IIE Learn Module Outline LLAW7321/w/p/d

Theme 2: Collective Bargaining Structures, • Solidarity & others v

the Bargaining Process and Collective Eskom Holdings Ltd
Agreements (2012) 33 ILJ 464
LO7: Define a collective agreement. (LC)
LO8: Discuss the legal effect of a collective • Growthpoint
agreement. Properties (Pty) Ltd v
LO9: Differentiate between the various SACCAWU (2010) 31
types of collective agreements that ILJ 2539 (KZD).
may be concluded with specific
emphasis on:
• Agency shop agreements; and
• Closed shop agreements.
LO10: Explain the notion of “collective
bargaining” and what it generally
entails.

LO11: Differentiate between centralised

(sectoral level) and decentralised
(enterprise level) collective
bargaining;

LO12: Differentiate between bargaining

councils, statutory councils and
workplace forums as collective
bargaining structures.

LO13: Discuss the effect of bargaining at

different levels, namely:
• Plant (enterprise) level;
• Industry/ sectoral level.

LO14: Explain the dispute resolution

procedure when it comes to disputes
about collective agreements and

LO15: Apply the legal principles relating to

collective bargaining to a set of facts.

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 8 Strikes, lock-outs and picketing

Overview:

If parties are unable to reach an agreement through collective bargaining, they may decide to
exert pressure on each other through industrial action. Industrial action for employees can
take the form of strikes, secondary strikes, pickets and protest action, while employers are
able to make use of lock-outs.

A human rights-based approach promotes the statutory protection of labour rights6,

particularly in the area of industrial action. The somewhat recent Marikana tragedy symbolises
the extent to which the South African labour market has retained traits inherited from its
colonial history and imposed by apartheid policy7. Hence, there is a need for collective
bargaining processes to be regulated by labour legislation.

In this learning unit, we will look at strikes and other forms of industrial action. We will
examine the different types of industrial action, as well as how they are categorised and the
processes involved in ensuring that they are legal and protected. We will also consider the
consequences of the different types of industrial action. Finally, we will apply these concepts
to practical scenarios in order to understand how they function in real life.

Please work through Themes 1 and 2 on Learn, together with the relevant sections of your
prescribed source/s. To ensure that you are working towards mastering the objectives for this
learning unit, please complete all activities on Learn.

6
Collier et al 15.
7
Collier et al 16.

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IIE Learn Module Outline LLAW7321/w/p/d

Learning Unit 8: Theme Breakdown

Sessions: Theme 1: Strikes Prescribed Material (PM)
LLAW7321/p:
34 – 36
LLAW7321d:
23 – 24
LLAW7321w:1
2
Related LO1: Discuss the Constitutional right to strike. PM: Chapters 3 (only para
Outcomes: LO2: Differentiate between the three 3.2), Chapter 22, Chapter
MO003 categories of strikes as classified in the 23 (only paragraphs 23.4.1
LRA, namely; and 23.5)
• Protected strikes;
• Unprotected strikes; and Legislative provisions that
• Prohibited strikes. must be studied for this
LO3: Discuss the definition of a strike as Learn Unit:
provided for in s 213 of the LRA, with • Section 23 of the
reference to the separate elements Constitution;
contained therein. • Section 213 of the
LO4: Discuss the procedure that must be LRA.
followed for protected industrial action.
L05: Differentiate between the consequences Prescribed article:
of a protected and an unprotected
strike. Shepherd, R, “Strike action:
LO6: Apply the legal principles relating to The proper procedure to
strikes to a set of facts. follow”,
https://www.golegal.co.za/
Theme 2: Other forms of Industrial Action protected-strike-
LO7: Differentiate between the different procedure/#:~:text=In%20t
types of industrial action. erms%20of%20this%20sect
LO8: Identify the different types of industrial ion,be%20referred%20to%
action from a set of facts namely: 20arbitration%E2%80%9D
• Secondary strikes; %3B%20or [Accessed 10
• Picketing; February 2023]
• Protest action in furtherance of socio-
economic interests;
LO9: Discuss the meaning, application and
effect of a lock-out; and
LO10: Apply the legal principles relating to
lock-outs and picketing to a set of facts.

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IIE Learn Module Outline LLAW7321/w/p/d

Glossary of Key Terms for this Module

TERM DEFINITION
A quo From which e.g. a court a quo, that is the court from which the appeal issues.
De facto Based on the factual situation.
De iure Based on the law.
Essentialia Distinctive terms used to identify a contract as one of the specific types of
contract recognised in South African law. It is important that the contracting
parties reach consensus each and every essentiale. For example, in order to
be categorised as a contract of sale, the buyer and the seller must reach
consensus on the article, the price and must agree to buy and sel. Essentialia
illustrates the essence in a contract, without which a particular contract
cannot subsist.
Ex lege Through the operation of law.
Ex Parte If only one party is an interested party.
Ibid Directly above.
In casu In this case.
Incidentalia Additional terms agreed upon expressly by the parties that supplement or
modify the rights and duties incorporated by law into a particular contract
for their own convenience.
Infra Below
Inter alia Amongst other things.
Interim Not final.
Ipso facto Self-evident.
Ipso iure From the law.
Naturalia These are terms automatically included, by operation of law (ex lege) in any
contract belonging to one of the classes of specific contract traditionally
recognised in South Africa. So, one need not agree on the naturalia of a
particular contract. Naturalia may be excluded by incidentalia.
Prima facie At first glance.
Res ipsa The facts speak for themselves –in other words, it speaks for itself.
loquitur
Supra Above
Viva voce Oral, i.e. evidence given orally.

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List of abbreviations used in this Module

ABBREVIATION MEANING/REFERENCE
AUD Automatically unfair dismissal
BC Bargaining Council
BCEA Basic Conditions of Employment Act 75 of 1997
BCEAA, 2013 Basic Conditions of Employment Amendment Act 20 of 2013
CCMA Commission for Conciliation, Mediation and Arbitration
COIDA Compensation for Occupational Injury and Diseases Act 130 of 1993
Constitution Constitution of the Republic of South Africa, 1996
EEA Employment Equity Act 55 of 1998
EEAA, 2013 Employment Equity Amendment Act 47 of 2013
ERO Employers’ organisation
Id. Ibid
ILO International Labour Organisation
LAC Labour Appeal Court
LC Labour Court
LRA Labour Relations Act 66 of 1995
LRAA, 2014 Labour Relations Amendment Act 6 of 2014
NEDLAC National Economic and Development Labour Council
NIA National Intelligence Agency
OSHA Occupational health and Safety Act 85 of 1993
SANAI South African National Academy of Intelligence
SANDF South African National Defence Force
SAPS South African Police Services
SASS South African Security Services
SDA Skills Development Act 97 of 1998
SDLA Skills Development Levies Act 9 of 1999
TES Temporary Employment Services (Employee) [Refers to employees
who are employed by so-called Labour Brokers].
TU Trade union
UIA Unemployment Insurance Act 63 of 2001
ULP Unfair labour practice
WPF Workplace forum

© The Independent Institute of Education (Pty) Ltd 2024 Page 37 of 37