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Article 31/2022

What are the three scenarios identified in Hillside Aluminium v Mathuse (2016) 27 SALLR 29 (LC) covering the utilisation of a record/transcript of an internal disciplinary enquiry to be utilised at the CCMA or bargaining council and recently followed by the constitutional court in AMCU v Ngululu Bulk Carriers (in liquidation) (2020) 31 SALLR 111 (CC); (2020) 41 ILJ 1837 (CC)?

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Scenario 1

This scenario entails no agreement on the authenticity of the documents or, alternatively, such authenticity is disputed.  If a party wants to rely on a document, it bears the onus to prove the authenticity by leaving evidence.  If authenticity is not proven or admitted:

  • the document is inadmissible
  • cannot be used in cross-examination
  • cannot be considered as evidence

Scenario 2

This scenario covers an agreement that the documents are what they purport to be.  If a party wants to rely on the document, it does not have to prove the authenticity and evidence can be led relying on the documents on the basis of what it purports to be.

However, the following principles are applicable:

  • the documents must be introduced as evidence and cross-examination on such documents is permissible
  • the presiding officer can accept the document as evidence insofar as it was properly introduced by a witness
  • if a document is not introduced as evidence, the presiding officer cannot mero motu consider such document as evidence merely because it was included in the trial bundle (see, further, Interstate Bus Lines v Daniel Phakwe (2017) 38 ILJ 915 (LC))

Scenario 3

This scenario covers an agreement that the documents and the bundle should be regarded as evidence.  Therefore, the presiding officer is entitled to accept the contents of the document as if evidence was adduced.  Even if no witness testifies about the authenticity of the document and its content, it can be considered as relevant and admissible evidence (see further, Interstate Bus Lines (supra)).

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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?

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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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Where do delictual claims fit into dispute resolution options applicable to employment disputes?