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).
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?