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Article 2/2023

An employee suffered severe injuries, whilst on duty and working on a machine. It is common cause that the employee’s injuries were caused by the negligence of senior management whilst under the influence of alcohol.

What are the principles applicable when injuries at work are caused by the negligence of senior management as opposed to when same are caused by a co-employee or third party?

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In Clementz v Millbo Paper CC and Others (2021) 32 SALLR 35 (GJ), Gilbert AJ followed, so it is
submitted, the following correct approach:

  • in terms of s35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993
    (‘COIDA’), an employee, or any dependent of such employee, is not entitled to damages in
    respect of an injury or disease against the employee’s employer and the employer is not liable in
    this regard, save to the extent as set out under COIDA
  • in terms of s35(2) of COIDA, for the purposes of s35(1), the following shall be deemed to be an
    employer:

    • an employee managing a business, in control of a business or any branch or department
      thereof
    • an employee who has the right to engage or discharge employees on behalf of the employer
    • an engineer appointed to be in charge of machinery or a person appointed to assist such
      engineer in terms of the Minerals Act
    • a person appointed to be in charge of machinery in respect of regulation in terms of the
      Occupational Health and Safety Act
  • when negligence is caused by the employer (including the senior management referred to
    above), and if COIDA is applicable, this would lead to increased compensation
  • however, on the other hand, if a co-employee caused the said injury (or a third party), then, in
    terms of s36 of COIDA:

    • the employee may claim compensation ito COIDA and may also institute action for damages
      against the third party and
    • the compensation commissioner or employer, by whom compensation is payable, may
      institute action against the third party for recovery of compensation that he is obliged to pay
      in terms of COIDA

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?