Few legal terms carry as much practical weight as the word ‘prejudicial’. Whether you encounter it in a court judgment, a letter from an attorney, or a disciplinary hearing at work, the prejudicial meaning shifts depending on the context in which it is used. For South African employers, employees, and legal practitioners, understanding exactly what this word means — and in which situation — is not simply a matter of legal literacy. It can determine the outcome of a case, affect a party’s rights, and shape the fairness of an entire legal process.
The term originates from the Latin word praejudicium, meaning ‘a preceding judgement or decision’. This etymology gives us a useful starting point: something that is prejudicial is, at its core, something that harms or unfairly predetermines an outcome. From there, the word branches out into several distinct legal meanings, each with real consequences for the parties involved.
The Four Distinct Legal Meanings of Prejudice
Across different areas of law, the word ‘prejudice’ does not have a single fixed meaning. Legal practitioners and employers operating under South African law need to be familiar with at least four ways in which the term is used.
Prejudice as Bias or Prejudgement
The most commonly understood prejudicial meaning relates to bias — forming an opinion before all the relevant facts have been considered. In legal proceedings, this is one of the most serious forms of procedural unfairness. A chairperson presiding over a disciplinary hearing, or an arbitrator adjudicating a CCMA matter, is expected to approach each case with an open mind and make findings based strictly on the evidence presented.
Where a chairperson allows personal feelings towards one of the parties to influence their decision — for example, finding an employee guilty of misconduct not because the evidence supports such a finding, but because of a prior personal grievance — that decision can be challenged on the grounds of prejudice. The same is applicable to arbitrators and their decisions. If an arbitrator decides in favour of a particular party at the outset of proceedings, based on factors unrelated to the merits of the case such as race, gender, or personal familiarity, the affected party has grounds to take the matter to the Labour Court, on review.
This form of prejudice is closely linked to the principle of natural justice, which requires that every decision-maker in a legal or quasi-legal proceeding must be, and must be seen to be, impartial.
Prejudice in the Workplace: Discrimination and Unfair Treatment
A second, related meaning arises when prejudice manifests as discriminatory conduct at the workplace. Where an employer harbours a negative opinion of a particular group of people — based on race, gender, religion, or another prohibited ground of discrimination — and allows that opinion to affect the way employees from that group are treated, the employer may be exposed to claims of unfair discrimination under the Employment Equity Act 55 of 1998. This form of prejudice is not merely an attitude; it has legal consequences. Employees who believe they have been subjected to this kind of treatment have the right to refer the matter to the CCMA or the Equality Court.
The ‘Without Prejudice’ Rule
A third meaning of prejudice is found in the phrase ‘without prejudice’. When this phrase appears at the top of a letter or is invoked in negotiations, it signals that the writer or speaker is making a concession or offer for the purpose of settlement only, and is not intending to waive any of their legal rights by doing so. Communications made on a without prejudice basis generally cannot be tendered as evidence in subsequent court or tribunal proceedings.
The rationale behind this rule is straightforward: parties should be encouraged to resolve their disputes through negotiation without fear that any concession they make in good faith will later be used against them. If every settlement offer could be admitted as evidence of liability, parties would be far less willing to negotiate, and the court system would become unnecessarily congested.
It is important to note that the without prejudice label is not a blanket protection. Courts have confirmed that correspondence marked ‘without prejudice’ that does not actually contain a genuine attempt to settle a dispute may be admissible as evidence. The protection is reserved for authentic settlement negotiations, not for concealing facts or evidence from the court.
Prejudice as Detriment or Harm to Legal Rights
The fourth — and perhaps most frequently litigated — prejudicial meaning refers to actual detriment or harm suffered by a party as a result of an error, delay, or procedural irregularity. When a party argues that they have been prejudiced in this sense, they are saying that their legal rights, or their ability to present their case fairly, have been negatively affected .
This meaning has wide application across civil litigation, labour disputes, and criminal proceedings. An employee who has referred a matter late to the CCMA, for example, may argue that the case should nonetheless be heard because a refusal to do so would cause them prejudice — meaning they would lose their opportunity to seek justice. A court or tribunal faced with such an argument must weigh the degree of harm that would result from refusing to hear the matter against the interests of the opposing party.
Prejudicial Meaning in Civil Litigation: With and Without Prejudice Dismissals
Two of the most practically significant applications of the term in civil proceedings are the concepts of dismissal ‘with prejudice’ and dismissal ‘without prejudice’. Understanding the distinction between these two outcomes is essential for any litigant.
A dismissal with prejudice is a final determination. Once a case is dismissed with prejudice, the plaintiff is permanently barred from bringing the same claim again. The matter becomes res judicata — a decided matter — and cannot be relitigated. This type of dismissal typically occurs where the court finds that the facts alleged cannot support a valid legal claim, where there has been misconduct on the part of the plaintiff, or where the parties have reached a settlement agreement that they intend to be final.
A dismissal without prejudice, on the other hand, leaves the door open. The current proceedings are ended, but the plaintiff retains the right to refile the claim at a later stage, provided that any procedural or technical defects that caused the dismissal are addressed. This outcome is common where a filing has a technical error or where the parties need more time to comply with court procedures.
The Difference Between Some Prejudice and Substantial Prejudice
Not all prejudice carries the same legal weight. Courts have drawn a clear distinction between a mere presumption of prejudice and substantial prejudice, and the difference matters enormously in practice.
In the Canadian case of Tsivaras v The Cadillac Fairview Corporation (2023 ONSC 3973), the Ontario Superior Court was asked to dismiss a civil action on the grounds that the plaintiff had delayed the proceedings unreasonably. The court confirmed that for a dismissal of this kind to succeed, the delay must not only be inordinate and inexcusable, but must also give rise to a substantial risk that a fair trial will no longer be possible. The mere presumption that some prejudice has resulted from delay is not sufficient. The party seeking dismissal must provide concrete evidence showing how the delay has actually impaired their ability to present their case — for example, by demonstrating that witnesses’ memories have faded, that relevant documents have been lost, or that evidence can no longer be preserved.
This distinction between ‘some prejudice’ and ‘substantial prejudice’ is a critical one for litigants on both sides of a dispute. Defendants seeking to have an action struck out for delay carry the burden of demonstrating real and significant harm, not merely theoretical inconvenience.
Prejudicial Meaning in Criminal Law
In criminal proceedings, the concept of prejudice operates alongside fundamental protections for the accused. A criminal case that ends prematurely due to an error, judicial misconduct, or procedural irregularity may be classified as ending either with prejudice or without prejudice to the accused.
Where a case ends without prejudice, the accused may be retried. Where it ends with prejudice, the effect is equivalent to an acquittal — the accused cannot be prosecuted again for the same offence. This protection is closely linked to the principle against double jeopardy, which holds that no person should be tried twice for the same crime.
An action taken during a criminal trial — such as an error made by the presiding officer — is considered prejudicial if it substantially affects the accused’s legal rights. A minor procedural error that has no meaningful impact on the outcome would generally be regarded as a harmless error and would not qualify as prejudicial. Only where the error is significant enough to have affected the fairness of the trial will it rise to the level of prejudicial conduct.
Prejudicial Meaning in South African Labour Law
South African labour law is particularly rich ground for the application of the various prejudicial meanings discussed above, and employers who do not understand how the term operates expose themselves to significant legal risk.
Prejudice at the CCMA
When parties appear before the Commission for Conciliation, Mediation and Arbitration (CCMA), the concept of prejudice arises in a number of ways. An employee who refers a dispute out of time may ask the CCMA to condone the late referral by arguing that refusing to hear the case would cause them prejudice — in other words, that they would suffer a tangible loss of their right to seek a remedy. The CCMA must then assess the degree of prejudice on both sides: the harm to the employee if the matter is not heard, balanced against the harm to the employer if a stale dispute is revived.
Bias on the part of an arbitrator is also a recognised ground for review. Where an arbitrator displays conduct that suggests they have already formed a view of the matter before hearing the evidence, or where they favour one party for reasons unrelated to the merits, the aggrieved party may approach the Labour Court to have the arbitration award reviewed and set aside on the grounds of prejudice.
Prejudice in Disciplinary Hearings
Disciplinary hearings at the workplace must be conducted fairly and in accordance with procedural requirements. Where an employer deviates from its own disciplinary code or procedure, the key question is not simply whether the deviation occurred, but whether the deviation caused any prejudice to the employee.
This principle was confirmed in Dell v Seton (2009 2 BLLR 122), in which the employer did not follow its disciplinary code precisely when dismissing an employee. The Labour Court found that while the procedure deviated from the code, this deviation did not result in any prejudice to the employee, and upheld the fairness of the dismissal. The message from this case is clear: procedural imperfections do not automatically render a dismissal unfair. What matters is whether the employee suffered real detriment as a result.
Both meanings of prejudice — bias and detriment — appeared simultaneously in Slabbert v Ikhwezi Truck Tech (Pty) Ltd (2008 1 BALR 75). In that case, a managing director who was dismissed for allegedly accepting a bribe argued, firstly, that the chairperson of his disciplinary hearing was biased because he had wanted the MD’s position for himself, and secondly, that the refusal to allow him legal representation at the hearing prejudiced his ability to receive a fair hearing. The arbitrator rejected both arguments and upheld the dismissal, finding neither that the chairperson had been biased, nor that the denial of legal representation had negatively affected the fairness of the process.
These cases illustrate why South African employers must ensure that their management teams are trained in the proper conduct of disciplinary hearings. A chairperson who is biased, or who is perceived to be biased, creates grounds for the outcome to be overturned. Equally, procedural steps that are skipped without good reason and that cause the employee genuine harm are likely to render a dismissal procedurally unfair.
Prejudicial Evidence: When Proof Does More Harm Than Good
A separate but important application of the prejudicial meaning arises in the context of evidence. Evidence is described as prejudicial when its potential to cause unfair harm to a party — particularly by leading a court or tribunal to decide a matter on an improper basis — outweighs its probative value, meaning its usefulness in proving or disproving a fact in dispute.
Courts are regularly called upon to weigh the probative value of a piece of evidence against its prejudicial effect known. Where the prejudicial effect is found to be greater, the evidence may be excluded. This balancing exercise is especially important in criminal trials, where the admission of inflammatory or emotionally charged material could sway a jury or presiding officer away from an objective assessment of the facts.
Pretrial media coverage is another area where the prejudicial meaning of evidence becomes relevant. Extensive and one-sided media reporting about a criminal accused prior to trial may be so prejudicial to the accused’s right to a fair trial that it could affect the outcome of the proceedings, particularly in jury-based systems.
Why South African Employers Must Understand the Prejudicial Meaning
South Africa’s labour legislation is among the most comprehensive and employee-protective in the world, and the concept of prejudice runs through much of it. From the Employment Equity Act to the Labour Relations Act and the Basic Conditions of Employment Act, the law requires that employers act fairly, consistently, and without bias in all dealings with their employees.
Understanding the prejudicial meaning in law — across all four of its applications — allows employers to identify and correct conduct that could expose them to legal liability. Disciplinary hearings must be chaired by individuals who have no personal interest in the outcome. Correspondence with employees or their representatives that touches on potential legal disputes should be carefully considered before any concessions are made. Procedural steps in disciplinary and dismissal processes must be followed, and where deviations occur, employers need to assess and address any resulting prejudice to the employee.
Investing in proper management training around the conduct of disciplinary hearings, the handling of CCMA matters, and the day-to-day treatment of employees is not optional. It is an essential component of managing legal risk and ensuring that the workplace operates fairly, lawfully, and consistently.
The Broader Significance of Prejudicial Meaning in Law
The prejudicial meaning in law is not a single concept but a family of related ones, each sharing the common thread of unfair harm. Whether the word describes a biased decision-maker, a discriminatory employer, a bona fide settlement communication, a harmful procedural error, or inadmissible evidence, the underlying concern is always the same: that the legal process should be fair, and that no party should be placed at an unjust disadvantage.
For individuals navigating the South African legal system — whether as employees, employers, litigants, or legal practitioners — a clear grasp of what is meant by ‘prejudicial’ in any given context is one of the most practically useful pieces of legal knowledge to carry. It allows parties to identify when their rights are at risk, to raise the right objections at the right time, and to understand what remedies may be available to them.
The law’s consistent attention to prejudice, in all its forms, reflects a deeper commitment to procedural justice — the idea that how a decision is reached matters just as much as what that decision is.
