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Article 30/2025

The purpose of this article is to highlight some of the principles underlying the legal position that the admission of trade union members outside such trade union’s scope is ultra vires and invalid.

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The principles extracted from National Union of Metalworkers of South Africa v Lufil Packaging (2020) 31 SALLR 138 (CC) (Lufil) and Afgri Animal Feeds v National Union of Metalworkers of South Africa (2024) 35 SALLR 169 (CC) (Afgri) are as follows:

  • in terms of s4(1)(b) of the LRA, every employee has the right to join a trade union, subject to its constitution
  • a trade union’s registered scope is defined in its constitution
  • its constitution, together with its rules and regulations, establish a contract between the individual members who are bound in a voluntary association
  • a trade union cannot operate outside its registered scope
  • any act that deviates from, or is contrary to, a trade union’s constitution is thus ultra vires and null and void
  • Lufil specifically dealt with the scenario that a trade union may not admit as members employees not covered by its constitution, for the purposes of exercising organisational rights
  • Afgri specifically dealt with the scenario that a trade union may not represent employees who are not permitted to be members of such trade union in terms of its constitution – bringing into focus s161(1)(c), s200(1)(b) and s200(1)(c) of the LRA
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?