Skip to main content

Article 14/2024

LabourEdge

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?

_____________________________________

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)
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?