Article 23/2023

Delictual claims may be instituted by an employee as an alternative, or in conjunction with various statutory claims. How do these civil claims, based on delict, fit into the following scenarios:

  • an automatically unfair dismissal in terms of s187(1)(f) of the LRA
  • a constructive dismissal in terms of s186(1)(e) of the LRA or
  • unfair discrimination in terms of s6(3) of the EEA?


  • A civil claim, based on delict, may be instituted by an employee as an alternative claim to the
    aforesaid statutory claims, or in conjunction therewith
  • The first potential delictual claim is to be based on the actio legis aquiliae – this entails that, if the employer negligently or intentionally and wrongfully caused patrimonial (pecuniary) damage to the employee in the aforesaid statutory environment, then the employee, in addition or alternatively to the statutory claims, has access to such a delictual claim
  • Alternatively, and in addition to a claim based on the actio legis aquiliae, the employee may also have a second potential delictual claim based on the actio iniuriarum – if the employer intentionally (dolus animus injuriandi) infringed the interest of personality of the employee, the employee will also be able to recover sentimental damages (solatium)
  • In respect of both the actio legis aquiliae and the actio iniuriarum, the amount of damages that the employee would be entitled to is based on the proven damages

(see, further, Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG)

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.