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Article 13/2025

In the preceding articles, we have dealt with the reasonable decision-maker test introduced by Sidumo v Rustenburg Platinum Mines Ltd the CCMA and Moropa NO
(2008) 19 SALLR 35 (CC).

But, there is also another test to be applied in review proceedings. The aim of this article is to highlight the approach to be adopted to determine which test is to be applied on review.
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  1. In essence, the dispute to be resolved determines the test to be applied. (Jonsson Uniform Solutions (Pty) Ltd v Brown and Others (DA10/2012)
    (13 February 2014)
  2. If legal or jurisdictional findings are challenged, the reasonable decision-maker test is not to be applied, but the correctness test is to be applied, so formulated in, inter alia, SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others [2008] 9 BLLR 845 (LAC).
  3. If the factual findings of the arbitrator are challenged on review, then the reasonable decision-maker test, as formulated in the Sidumo judgment, is to be applied.
  4. On the other hand, if, on review, the legal or jurisdictional issues are inextricably linked to the factual findings, then the reasonable decision-maker test, as formulated in the Sidumo judgment, is to be applied.

See, further, Pikitup Johannesburg (Soc) Ltd v Muguto and Others (2019) 30 SALLR 186 (LC).

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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?