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Article 11/2021

Labour Edge

On what basis did the supreme court of appeal recently, in Theron v Premier of the Western Cape Province and Others (2019) 30 SALLR 192 (SCA), adopt the approach that, when interpreting contracts, statutory provisions, etc, a unitary exercise should be undertaken considering the text, context and purpose to achieve a sensible meaning?

  1. The supreme court of appeal referred to the principles dealing with the interpretation of contracts. It is clear that interpretation is a unitary exercise. It starts with the text to be interpreted, and considers it within the contract as a whole, and in context.  As put most pithily by Unterhalter AJ, in Betterbridge (Pty) Ltd v Masilo and Others NNO 2015 (2) SA 396 (GNP), at paragraph [8] (referring to the decision of this court in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)), ‘the interpretation of language, including statutory language, is a unitary endeavour requiring the consideration of text, context and purpose’.
  2. Most recently, the supreme court of appeal, in The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association 2019 (3) SA 398 (SCA), at paragraph [59], referred to the English approach set out by Lord Hodge in Wood v Capita Insurance Ltd [2017] UKSC 24, at paragraph 10:‘The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. In Prenn v Simmonds [1971] 1 WLR 1381 (1383H-1385D) and in Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 (997), Lord Wilberforce affirmed the potential relevance to the task of interpreting the parties’ contract of the factual background known to the parties at or before the date of the contract, excluding evidence of the prior negotiations.’
  3. Navsa ADP continued, in City of Tshwane, (at paragraph [61]):‘It is fair to say that this court has navigated away from a narrow peering at words in an agreement and has repeatedly stated that words in a document must not be considered in isolation. It has repeatedly been emphatic that a restrictive consideration of words without regard to context has to be avoided. It is also correct that the distinction between context and background circumstances has been jettisoned. This court, in Natal Joint Municipal Pension Fund v Endumeni Municipality … stated that the purpose of the provision being interpreted is also encompassed in the enquiry. The words have to be interpreted sensibly and not have an un-business-like result. These factors have to be considered holistically, akin to the unitary approach.’
August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?

July 27, 2026

Before the BCEA Amendment Act of 2018 came into operation, if an employee was owed money in terms of a contract of employment, such employee’s only recourse was to utilise s77(3) of the BCEA to institute a claim with the labour court and the high court having concurrent jurisdiction.

In this period, before the BCEA Amendment Act of 2018, if monies were owed to an employee, in terms of a collective agreement, then, if the terms of such collective agreement had been incorporated into an employment contract, the above route was also the only avenue for such an employee.

Previous articles already dealt with some of the implications of s24 of the LRA. The CCMA only has jurisdiction over the interpretation or application of collective agreements and not the enforcement thereof.

What is the effect of the BCEA Amendment Act of 2018 on the dispute-resolution path for monies owed ito the National Minimum Wage Act (NMWA), a contract of employment, sectoral determination, or a collective agreement?