A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC)





Disability, Reasonable accommodation, Persons with Disabilities, depression, incapacity


Persons with disabiliites are a historically marginalised minority, but they do possess the capacity to make a valuable contribution in the workplace. Disabilty in no way dimisses the right of individuals to be employed and to make a contribution to the labour market and the economy at large. Recent case law suggests that the duty to reasonably accommodate disabled respondents remains a conundrum for both respondents and employers in South Africa. In Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) the Labour Appeal Court (LAC) overturned a judgment by the Labour Court that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018, the Labour Court ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal, the LAC emphasised that in order to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Respondents were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes, and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002), as well as the Technical Assistance Guidelines. Multi-party consultations and investigations need to be conducted, with the assistance of experts, if needs be. It is further suggested that until South Africa has targeted legislation and policies which make disability management functions mandatory, reasonable accommodation will remain a conundrum.


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Author Biographies

Estie Gresse, North-West University

Senior Lecturer, North-West University.

Werner Gresse, North-West University

Senior Lecturer, North-West University.




Balaram SJ "Mental Health and the Workplace: The Role of the Employer" September 2020 De Rebus 9

Bassuday K and Rycroft A "Incapacity or Disability? The Implications for Jurisdiction. Ernstzen v Reliance Group Trading (Pty) Ltd (C717/13) [2015] ZALCCT 42" 2015 ILJ 2516-2521

Behari A "Disability and Workplace Discrimination: Smith v Kit Kat Group Pty Ltd 2017 38 ILJ 438 (LC)" 2017 ILJ 2226-2240

Cole EC and Van der Walt A "The Effect of Labour Legislation in the Promotion and Integration of Persons with Disabilities in the Labour

Collier D and Fergus E (eds) Labour Law in South Africa: Context and Principles (Oxford University Press Cape Town 2018)

Department of Labour Technical Assistance Guidelines on the Employment of Persons with Disabilities (Department of Labour Pretoria 2017)

Garbers C et al (eds) The New Essential Labour Law Handbook 7th ed (Mace Labour Law Publications CC Centurion 2019)

Gresse E Integration, Rehabilitation and Return-to-Work of Disabled Workers: A Comparative Legal Enquiry (LLD-dissertation North-West University 2020)

Gresse E and Mbao MLM "An Analysis of the Duty to Reasonably Accommodate Disabled Employees: A Comment on Jansen v Legal Aid South Africa" 2020 LDD 109-132 DOI: https://doi.org/10.17159/2077-4907/2020/ldd.v24.5

Grogan J Workplace Law 11th ed (Juta Claremont 2017)

Marumoagae MC "Disability Discrimination and the Right of Disabled Persons to Access the Labour Market" 2012 PELJ 345-356 DOI: https://doi.org/10.4314/pelj.v15i1.10

Ngcobo MM Courts' Treatment of Depression in the Workplace: Incapacity, Poor Performance, Misconduct and Disability (LLM-dissertation University of KwaZulu-Natal 2019)

Ngwena C "Interpreting Aspects of the Intersection between Disability, Discrimination and Equality: Lessons for the Employment Equity Act from Comparative Law: Part II (Reasonable Accommodation)" 2005 Stell LR 534-561

Ngwena C and Pretorius L "Code of Good Practice on the Employment of People with Disabilties: An Appraisal" 2003 ILJ 1816-1839

Spicker 2003 International Social Security Review

Spicker P "Distinguishing Disability and Incapacity" 2003 International Social Security Review 31-43 DOI: https://doi.org/10.1111/1468-246X.00156

Case law

IMATU obo Strydom v Witzenberg Municipality 2012 33 ILJ 1081 (LAC)

Independent Municipal and Allied Trade Unions v Witzenberg Municipality 2012 33 ILJ 1081 (LAC)

Jansen v Legal Aid South Africa 2018 39 ILJ 2024 (LC)

Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC)

LS v CCMA 2014 35 ILJ 2205 (LC)

National Education Health and Allied Workers Union obo Lucas and Department of Health (Western Cape) 2004 25 ILJ 2091 (BCA)

New Way Motor and Diesel Engineering (Pty) Ltd v Marsland (JA 15/2007) [2009] ZALAC 27 (13 August 2009)

Standard Bank of SA v CCMA 2008 29 ILJ 1239 (LC)

Smith v Kit Kat Group (Pty) Ltd 2017 38 ILJ 483 (LC)

Wylie and Standard Executors and Trustees 2006 27 ILJ 2210 (CCMA)


Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Labour Relations Act 66 of 1995

Law of Evidence Amendment Act 45 of 1988

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Government publications

Compensation for Occupational Injuries and Diseases Act Amendment Bill, 2018

GN 1345 in GG 23702 of 19 August 2002 (Code of Good Practice: Key Aspects on the Employment of People with Disabilities) (also see GN 1085 in GG 39383 of 9 November 2015 (Code of Good Practice on Employment of Persons with Disabilities))

GN 605 in GG 45328 of 15 October 2021 (National Strategic Framework on Reasonable Accommodation for Persons with Disabilities of September 2020)

International instruments

Convention on the Rights of Persons with Disabilities (2007)

Optional Protocol to the Convention on the Rights of Persons with Disabilities (2007)

Internet sources

Cliffe Dekker Hofmeyr 2020 OHSA – Yes, this Includes Mental Health – What Does the Law Say? https://www.cliffedekkerhofmeyr.com/

en/news/publications/2020/Employment/employment-alert-2-march-ohsa-yes-this-includes-mental-health-what-does-the-law-say.html accessed 14 August 2022

Jordaan B 2017 How to Deal with Disability vs Medical Incapacity https://www.labourwise.co.za/labour-articles/disability-vs-medical-incapacity accessed 15 August 2022

Lechwano A 2012 When Going to Work is Illegal or Impossible: To What Extent are Employers Expected to Accommodate Incapacitated Employees? (December 2012 De Rebus) http://www.saflii.org/za/journals/DEREBUS/2012/89.html accessed 10 March 2022

South Africa Human Rights Commission date unknown Disability Toolkit: A Quick Reference Guide and Monitoring Framework for Employers https://www.sahrc.org.za/home/21/files/20170524%20SAHRC%20Disability%20Monitoring%20Framework%20and%20guidelines%20Draft%205.pdf accessed 10 August 2022

United Nations Treaty Collection 2023 Status of Treaties: Convention on the Rights of Persons with Disabilities https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en accessed 23 February 2023

World Health Organization and The World Bank 2011 Summary: World Report on Disability https://iris.who.int/bitstream/handle/10665/

/WHO_NMH_VIP_11.01_eng.pdf accessed 23 February 2023



How to Cite

Gresse, E., & Gresse, W. (2024). A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC). Potchefstroom Electronic Law Journal, 27, (Published on 3 May 2024) pp 1–37. https://doi.org/10.17159/1727-3781/2024/v27i0a14641



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