Skip to main content

Article 25/2021

Labour Edge

In terms of a health and safety collective agreement, an employee was appointed as a fulltime health and safety shop steward (HSS).  To what extent does this collective agreement between the employer and trade union constitute a contract for the benefit of a third party (stipulatio alteri), namely, the employee?

The labour appeal court recently, in Maripane v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) (2019) 30 SALLR 163 (LAC), adopted the following approach to this issue:

  1. the test whether a contract is made for the benefit of a third party (a stipulatio alteri) is whether, by adopting the contract, the third party can become a party to it (see GB Bradfield Christie’s Law of Contract in South Africa 7 ed. (LexisNexis 2016). at 266 and the cases referred to there, including Crookes v Watson 1956 (1) SA 277 (A) at 291C; and Joel Melamed and Horwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A). at 172A–F); and
  2. because of its terms and the way in which it was structured, the agreement was capable of being construed as a contract made for the benefit of a third party(ies), such as the health and safety representatives envisaged in it. By standing for and being elected to the position of HSS, they adopted the agreement and a vinculum iuris was created between the elected HSS, NUM and the employer (i.e. the respondent). As a result, they (individually and respectively) came into the agreement as a party with one of the parties to the agreement, were bound by it and could enforce its terms insofar as those terms related to them (see: inter alia, McCullough v Fernwood Estates Ltd 1920 A.D. 204 at 206, cited in Christie’s (above). at 310). These would include the terms relating to their qualifications, their appointment, their term of office, their conditions of employment, including their reporting obligations, their remuneration, their hours of work, their facilities, the termination of their appointment and the manner in which they had to perform their functions, the obligations of the respondent, including its obligation to inform the health and safety representatives of inspections, accidents, etc, the obligations of secrecy, the dispute procedures regarding disclosures of information, and the training of health and safety representatives;

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?