Article 22/2023

What is the interpretive approach to be adopted in respect of, inter alia:

  • pre-trial minutes
  • content of the BCEA
  • strike ballot guidelines
  • protest action
  • the content of the LRA
  • a separation agreement
  • benefits
  • advisory arbitration award
  • secondary strikes, etc?

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Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (para [18] et seq) formulates the approach to be adopted when interpreting legislation, other statutory instruments or contracts and essentially entails the following:

  • the starting point is attributing meaning to words used in the aforesaid documents
  • the language of the provisions must be read with reference to the context (reading the document as a whole), the purpose of the provision(s) and the background preparation and production of
    the document
  • obviously, consideration must be given to the language used with reference to the ordinary rules of grammar and syntax
  • where more than one meaning is possible, each meaning must be weighted with reference to the aforesaid factors and a sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document
  • judges (and arbitrators) must be alert not to substitute what they think is reasonable, sensible or businesslike for the actual words used in the documents
  • the process of interpretation is objective and not subjective

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).