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Article 3/2023

An employee has a pre-existing injury. However, subsequently, he was involved in an accident at work which caused further injury.

Does the pre-existing injury affect compensation claimed by the employee for the latter injury?

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In Department of Labour: Compensation Commissioner v Botha (2022) 3 SALLR 17 (SCA), it is
submitted that the supreme court of appeal adopted the following correct approach:

  • the question to be determined is whether there is a causal connection between the subsequent
    accident and the disability
  • in order to determine whether or not such causal link is established, the approach adopted in
    Basson v Ongevallekommissaris [2000] 1 All SA 67 (C) is to be followed, entailing that a causal
    connection is established if the subsequent accident was a contributing factor, even if a pre-
    existing condition existed, i e the disability was exacerbated by the subsequent accident,
    rendering the employee disabled
  • once such causal link is established, that would entail the end of the ‘first enquiry’ and the
    ‘second enquiry’ is to be proceeded with in order to determine the extent that the pre-existing
    injury contributed to the disablement – in casu, the SCA found that it was impossible to establish
    such extent on the medical records before it and ordered the compensation commissioner to
    obtain such record and also provide the employee with the opportunity to obtain his own medical
    reports in this regard

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?