Skip to main content

Article 24/2024

LabourEdge

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?

_____________________________________

  • In Hobongwana v Benteler SA (Pty) Ltd (2023) 44 ILJ 1125 (ECP); (2023) 34 SALLR 69 (ECP), the high court adopted the following approach in determining that the client was vicariously liable
    • the test to be applied to determine whether the client was negligent in dealing with the labour broker employee was that as set out in Kruger v Coetzee 1966 (2) SA 428 (A), namely,
      • determining whether or not a reasonable person in the position of the client (a) would have foreseen the reasonable possibility of its conduct injuring another person or property and causing patrimonial loss and (b) would have taken reasonable steps to guard against such occurrence; and
      • the client failed to take such steps
    • in applying the aforesaid test, the high court determined that the client had been negligent in allowing the labour broker employee to operate the required machine and also failed to take reasonable steps to preserve and protect the bodily integrity and physical well-being of such employee.
  • After applying the tests for both factual and legal causation in delictual claims, the high court determined that the client is vicariously liable for the injuries sustained by the employee of the labour broker.
  • Kindly note that there is another test for negligence as formulated by the supreme court of appeal in Mukheiber v Raath 1999 (3) SA 1065 (SCA).
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?