Skip to main content

Article 21/2024

LabourEdge

Up to now, the traditional approach in respect of collective agreements was that the civil courts do not have jurisdiction in respect of the interpretation or application (inclusive of breaches) of collective agreements – e g Aucamp v South African Revenue Services [2014] 2 BLLR 152 (LC) and Ekurhuleni Metropolitan Municipality v South African Municipality Workers Union [2015] 1 BLLR 34 (LAC).  The supreme court of appeal recently, in MEC for Economic Development, Environment and Tourism, Limpopo v Leboho (2022) 33 SALLR 281 (SCA); (2022) 43 ILJ 2695 (SCA), adopted a very different approach that, as is apparent, will in future have an important impact as to the dispute-resolution path selected by a party who alleges non-compliance with a collective agreement.  What does this approach entail?

_____________________________________

  • The supreme court of appeal, with reference to Health and Other Services Personnel Trade Union of SA obo Tshambi v Department of Health, KwaZulu-Natal (2016) 37 ILJ 1839 (LAC), indicated that:
    • a dispute about the interpretation of a collective agreement requires, at a minimum, a difference of opinion about a provision in the agreement
    • a dispute about the application of a collective agreement requires, at the minimum, a difference of opinion as to whether it can be invoked
    • once application is proven and there is no dispute about the interpretation, a party can enforce such an agreement in the civil courts
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?