Steenkamp v Edcon Ltd (CCT46/15, CCT47/15) [2016] ZACC 1 (22 January 2016) per Cameron J (Van der Westhuizen J concurring): [1] to [86] and Zondo J (Mogoeng CJ, Moseneke DCJ, Jafta J, Khampepe J, Madlanga J, Matojane AJ, Nkabinde J and Wallis AJ concurring): [87] to [195].

Excerpts with footnotes incorporated

“[186]     Having regard to the purpose of the LRA in general, the purpose of section 189A, the purpose of section 189A(8) and the provisions of section 189(a) and of 189A(13) in particular, and other factors, there is no sufficient basis for the proposition that the purpose of the LRA is that the consequence of a breach of section 189A(8) is the nullity of the act done contrary thereto.

[187]     Two cases were referred to during the hearing in which dismissals that were effected in breach of statutory provisions relating to notice were declared invalid and of no force and effect. One was NTE Ltd v SA Chemical Workers Union (1990) 11 ILJ 43; 1990 (2) SA 499 (N)* and the other was Transport and Allied Workers Union v Natal Co-operative Timber Ltd(1992) 13 ILJ 1154 (D).  Both cases are distinguishable.  The statutory context in which they were decided differs significantly from the statutory context in which we have to decide the present case.  In both cases the legislation involved had a provision that made non-compliance with the relevant notice provisions a criminal offence.  The LRA has no such provision.  In both cases the legislation involved did not have any non-criminal consequences such as we have in section 189A(13) and (9) in the present case.  Schierhout v Minister of Justice 1925 AD 99, upon which there was much reliance by the Union and the other applicants, is similarly distinguishable”.

Comment:

* See also the judgment of Page AJA in NTE Ltd v Ngubane (1992) ILJ 910 (LAC) and both cases cited at pages 434 -5 in Du Toit  Labour Relations Law: A Comprehensive Guide [6th ed, LexisNexis].