Solidarity and Another v Armaments Corporation of South Africa (SOC) Ltd and Others

Mr Jacobus Martinus Joubert was employed by the Armaments Corporation of South Africa (Armscor) for over 31 years. His employment was subject to obtaining and maintaining an appropriate security clearance in terms of Armscor policies and s 37 of the Defence Act 42 of 2002. After his ‘Secret’ clearance expired, his application for renewal resulted in the Intelligence Division of the SANDF refusing to grant him any grade of security clearance, without providing reasons. Armscor terminated his employment with immediate effect on 18 December 2012 on the basis that he lacked the required clearance. Mr Joubert, assisted by Solidarity, challenged the dismissal as unfair, arguing that he was not afforded reasons, an opportunity to be heard, or the completion of the statutory review process. The CCMA found the dismissal substantively and procedurally unfair and ordered reinstatement. On review, the Labour Court set aside the award, found the dismissal substantively fair but procedurally unfair, and awarded compensation. Solidarity and Mr Joubert appealed to the Labour Appeal Court.

The appeal was dismissed. The Labour Court’s judgment was upheld: the dismissal was substantively fair but procedurally unfair, and Mr Joubert was awarded eight months’ compensation. Reinstatement was refused as impracticable.

This case is significant for clarifying that the loss of mandatory security clearance under the Defence Act constitutes incapacity through supervening impossibility of performance. It affirms that dismissals arising from statutory prohibitions can be substantively fair, while also emphasising that procedural fairness under s 39 of the Defence Act must still be observed. The judgment is an important authority on the intersection between labour law, statutory employment prohibitions, and security clearance regimes.