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Article 17/2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

If so, your understanding of the principles and application adopted by the SCA in Natal Joint Municipal Pension Fund v Endumeni Municipality (2012) 4 SA 593 (SCA) is required.

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The SCA, in Natal Joint Municipal Pension Fund v Endumeni Municipality (supra), adopted the following approach:

  • the exercise of interpretation entails attributing meaning to words used in any document, such as legislation, other statutory provisions or a contract;
  • the starting point is to read the language of the provision with reference 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;
  • when considering the language, reference must be made to the ordinary rules of grammar and syntax;
  • where more than one meaning is possible, each meaning must be weighed with reference to the above factors and a sensible meaning is to be preferred to one that leads to an insensible or unbusinesslike result, or undermines the apparent purpose of the document;
  • when interpreting a document, whoever is required to do so must be alert not to substitute what he/she thinks is reasonable, sensible or businesslike for the actual words used; and
  • at all times, cognisance must be taken of the fact that the process of interpretation is objective and not subjective.

See, further, Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC), Democratic Alliance v Speaker, National Assembly 2016 (3) SA 487 (CC) and NUMSA v Chamber of Mines (2017) 38 ILJ 831 (CC).

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

What is the difference between desertion and abscondment?

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?