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Article 28/2026

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?

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Traditional consensus

  • No agreement exists unless the intention of the one party corresponds exactly with that of the other.

Quasi-mutual assent

  • If there is not traditional consensus, there can still be an agreement based upon quasi-mutual assent.

Three-fold enquiry

  • The following three-fold enquiry must be conducted before it can be accepted that a contract has been established on the basis of quasi-mutual assent:
    • step 1: determine whether there was a misrepresentation as to one party’s intention
    • step 2: determine who made the representation
    • step 3: determine whether the other party was misled by such misrepresentation – there are two possibilities in this regard, namely, a determination that the other party was actually misled and a determination as to whether or not a reasonable man would have been misled

Important considerations to be taken into account in determining step 3

  • An examination of the factual matrix is required, taking into account the following:
    • all the facts relevant to show the intention of entering into the contract
    • contemporaneous documents
    • conduct in negotiating the deal
    • communication between the parties
    • steps taken to implement the contract
  • If there is a real possibility of a mistake made in the offer, the party that wishes to assert that there is a contract has the following obligations:
    • there is a duty to speak and to enquire whether the express offer is the intended offer – only once such obligation has been executed could an offer be accepted
    • such party should not be negligent, but exercise proper care in concluding that the parties reach an agreement
  • Snapping up a bargain, when a reasonable person would have acted more carefully, having realised the real possibility of a mistake in the offer, is not bona fide and will not be sanctioned by the courts.

Food for thought

  • Concluding contracts via an email exchange may be risky.
  • The language used in email exchanges may be overly informal, ambiguous, contrary or short of the details necessary for the intended contract.
  • A poorly-worded email might also be interpreted in a manner contrary to what was intended.
  • In University of Zululand v Dlongolo (2025) 36 SALLR 11 (LAC), the labour court had to deal with the issues as set out in this article – the cross-pollination of employment jargon with terminology contained in pension fund rules, in an offer and acceptance by email, resulted in the claim in this appeal.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?