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Article 17/2024

LabourEdge

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.  This is commonly referred to as the Shifren principle that came about as a result of SA Sentrale Ko-op Graanmaatskappy Bpk v Shifren and Another 1964 (4) SA 760 (A).

Is this principle applicable to cancellation of agreements?

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  • The supreme court of appeal, per Harms JA, in Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA), at para [12], provided the requisite answer as follows:
    • ‘…the [Shifren] principle does not create an unreasonable straitjacket because the general principles of the law of contract still apply, and these may release a party from its workings …’ (see also Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (South Africa) Limited 2018 (3) SA 405 (SCA) at para [13]. Cf Hlophe v TS Galaxy FC (C1083/2018) [2022] ZALCCT 21 (9 May 2022), at para [23])
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?