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Article 18/2021

Labour Edge

Employment contracts are, by their nature, reciprocal contracts.  What does this principle of reciprocity entail?

In the case of reciprocal contracts, one party undertakes to perform specifically in exchange for a particular counter-performance by the other. In such cases, the principle of reciprocity applies: the first party is not entitled to demand counter-performance from the other party unless the first party has himself or herself performed, or is prepared to perform, as the case may be. Whether the obligations are reciprocal depends on the terms of the contract, actual or implied. In each instance, it is basically a question of interpretation whether the obligations are so closely linked that there exists the relation that one was undertaken specifically in return for the other (see ‘Contract’ Vol 9 LAWSA 3rd ed paragraph 379 – By ADJ van Rensburg, JG Lotz & TAR van Rhijn (updated by RD Sharrock)).

 

 

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?