Abstract

Unfair discrimination is a historical and current issue facing South Africa that tends to reveal itself in the workplace. Since the dawn of South Africa’s democracy, the South African legislature has dynamically tried to suppress this negative force through the adoption of legislation, codes, rules, and regulations, which are designed to promote equal opportunity and fair treatment of individuals in employment. However, individuals with previous criminal records may still be excluded from employment in certain circumstances. In terms of the law, employers are free not to consider an employee for a position if having a clean criminal record is inherent to job requirements. The question to be asked is when will the employer be allowed to conduct a criminal background check and bar a prospective employee from being appointed to a job without violating the prohibition on unfair discrimination? This case note answers the question by analysing the competing interests of both the employer and employee and the application of law in the circumstances.