Article 14/2024

The supreme court of appeal, in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), at paragraph [18], formulated the approach to be adopted when interpreting legislation, other statutory instruments or any contract.  Since then, in the labour law environment, such approach has consistently been followed in interpreting, inter alia, pre-trial minutes, provisions of the BCEA, strike ballot guidelines issued by the CCMA, provisions of the LRA and the Gatherings Act, protest action, separation agreements, benefits, advisory arbitration awards, secondary strikes, restraint of trade clauses, etc.  Furthermore, this approach has also been followed by the constitutional court in numerous judgments, e g NUMSA v Chamber of Mines (2017) 38 ILJ 831 (CC), Democratic Alliance v Speaker, National Assembly 2016 (3) SA 487 (CC), Bertie van Zyl v Minister of Safety and Security 2010 (2) SA 181 (CC) and Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC).

What does this test entail?

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The test entails the following essential considerations:

  • words must be given their ordinary grammatical meaning, unless it results in absurdity
  • provisions must be interpreted purposefully
  • provisions must be properly contextualised
  • provisions must be interpreted to preserve their constitutional validity (if applicable)
  • with reference to the above, it is apparent that the starting point is the language of the provision, read with regard to its context (i e reading the document as a whole, the purpose of the provision, the background to the preparation and production of the document, etc)

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).