What legislation and judges say about working beyond retirement age

For centuries, there was no formal retirement age. The first formal retirement age was introduced by President Truman of the United States of America after the Second World War to make way in the workplace for the returning soldiers. Before then, people left without formal retirement benefits. His cunning strategy? A formal retirement age which, believe it or not, was 85!
By Richard Brown
28 Aug 2025
Image source: dotshock –
Image source: dotshock – 123RF.com

Since that time, we have been whittling away the retirement age, which can now be exercised, on an early basis, at the age of 55 in certain cases and 65 in most other cases.

South Africa is a country with a skills shortage. Very often skilled workers are asked to stay on well past their retirement age. This article focuses on the question: “What is to happen to those persons who are employed past their retirement age”?

Employees cannot be discriminated against on the basis of age

Ordinarily, if an employee is discriminated against on the basis of age, this would attract an automatically unfair dismissal claim, as contemplated in section 187 of the Labour Relations Act (LRA). Age is but one of the grounds employers are prohibited from using to treat employees differently.

In a break with the norm, section 187(2)(b), records that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

However, what happens when that employee is still employed after the normal or agreed retirement age? Can an employer simply ask an employee to leave, as they are now eg. 72 years old?

To do so would mean that that employee is being dismissed purely because of his/her age. Can the employer, under those circumstances, invoke the provisions of section 187(2)(b) and claim that it was a fair dismissal?

The first reported case to deal with this issue was Schweitzer v Waco Distributors [1998] (LC). In a twist of irony that will become apparent herein later, the presiding judge, Judge Zondo, held that section 187(2)(b) continued to apply after the employee was kept on and that accordingly, the dismissal of Schweitzer was deemed fair.

For a while, this was our law on the point, certain seminal decisions of Rubenstein v Price’s Daelite (Pty) Ltd [2002] (LC) and Botha v Du Toit Vrey & Partners CC [2006] (LC). In the Botha decision, the court added one further requirement that the affected employee be consulted prior to the termination.

Employees working past retirement age

Matters reached the Constitutional Court in two other cases, the first of which, Motor Industry Staff Association and Landman vs Great South Autobody cc t/a/ Great South Panelbeaters [2022] (LAC) (Great South) and the second matter Solidarity obo Strydom & 5 Others v State Information Technology Agency SOC Ltd (2022) (LC) (Sita). Both matters involved employees working beyond the normal retirement age.

In the Sita matter, the employees were entitled to work to age 67, if they worked beyond the normal retirement age. In both matters section 187(2)(b) had been interpreted in the lower courts in accordance with the Waco decision, the decision by Zondo J, as he then was. For 24 years, the decision in Waco has been the law.

The Constitutional Court, when both matters were filed, consolidated the two matters as they involved similar points in law. Judge President Zondo then, on the eve of his retirement, which is a mandatory retirement, had to reconsider his decision in Waco.

In his judgment, Zondo noted the irony that he had written the Waco judgment, which was now being considered in the present matter at a time when he was on his way out due to having reached the mandatory retirement age. He considered the various circumstances under which section 187(2)(b) could consider to be an automatically unfair dismissal.

If the employer had dismissed the employees who had passed the retirement date for a reason other than age, for example, for participating in a strike or something along those lines, that would have to be considered an automatically unfair dismissal, despite the wording of section 187(2)(b).

Zondo was joined in this decision by Justices Chaskalson, Mathopo and Schippers.

Focus on waiver and election

A second judgment, which relied largely on contractual principles, disagreed with the first decision by Judge Zondo and with his decision in Waco, and chose to deal with it in terms of normal contractual or principles.

Analysing the decision and the arguments, Judge van Zyl focused on waiver and election as his preferred starting points. In normal contractual principles, where someone has the right to chose between two or more different options and makes that decision, that person has elected an option.

Waiver is when the person has the right to make an election but dithers for an unreasonable length of time, then the other party can lawfully interpret that dithering to constitute a waiver.

For Judge van Zyl, the fact that an employer has the right upon the employee reaching the normal retirement age, but does not exercise that right, constitutes a waiver and the wording of section 187(2)(b) cannot come to that employer’s assistance. In essence, “you snooze, you lose”. Judge van Zyl, however, was alone in this approach.

Return to Waco decision

The last decision or third judgment was decided by Judges Rogers, Kollapen, Dodson and Tshiqi. These judges returned to the thinking as set out in Waco and analysed the normal wording of this section. The following quote from this third decision sets it out clearly:

“...a dismissal based on age is fair only ‘if’ the employees reach the normal or agreed retirement age. The words I have quoted from s187(2)(b) are straightforward. If somebody asks me today if I have reached my 65th birthday, I will say yes, even though today is not my 65th birthday. If a request is made to a group of people, ‘will all those who have reached the age of 65, please raise their hands’, nobody would understand the question to be delimited to those whose 65th birthday it was on that day. All those people who were 65 or older, would raise their hands. The state of having reached their specific age starts on the person’s relevant birthday and continues thereafter for as long as the person lives. A person does not cease to have reached his/her 65th birthday because he/she is 66 or 67”.

The return to Waco does mean that this continues to be the law on the point, however, the four judges who decided in favour of Waco as well as the four judges who decided along with Judge President Zondo that there could very well be a circumstance where discrimination could be on the basis of the termination beyond the retirement age, does present some interesting scenarios going forward.

On the specific cases before all the judges who considered the matter, the Great South decision concluded that the dismissals were fair whereas in the Sita decision, as the employees had required a new right after working beyond their 60th year, namely, to work until age 67, if they were terminated short of reaching their 67th birthday, that would be considered unfair and automatically so.

As the six employees in Sita had all been dismissed prior to their 67th birthday, their dismissals were ruled to be automatically unfair as they had not, at that stage, reached the agreed retirement age of 67.

Fixed term contract

It often happens that employees simply continue beyond their retirement age and their employer is blissfully unaware of the potential pitfalls, and then do not apply their mind to when it is that the employee will depart.

It is strongly advocated that, upon reaching the normal or agreed retirement age, the employer would need to enter into a fixed term written contract of employment with the employees concerned, if they wish to retain them beyond that age.

Such fixed term contract would need to be considered every time it came up for renewal and a new contract entered into if the employer wished to retain those employees for a longer period. It is always best dealt with by means of a contract. Having things in writing provides certainty.

Employers are advised to have these agreements in writing or at least record it in some form of correspondence and send it to the affected employees. The affected employees are advised to continue to query what the employer’s position is with a view to approaching the matter in terms of the law of contract.

At the end of the day, the Constitutional Court had something for everyone, but there is still no absolute certainty as to what the meaning of section 187(2)(b) is under these circumstances.

About the author

Richard Brown is a Director at Herold Gie Attorneys

 
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