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Article 46/2025

If the cause of action is an alleged breach of an agreement, s77(3), read with s77A(e), of the BCEA is applicable, establishing the concurrent jurisdiction of the labour court and high court to determine the dispute (we have dealt with this scenario in previous articles).

On the other hand, if the cause of action is the alleged non-compliance with the required statutory unfairness so contained in the LRA, then the jurisdiction of the CCMA (and bargaining councils) and the labour court is established in terms of s191 of the LRA (previous articles also dealt with this issue).

But what about if the cause of action is based on a collective agreement?

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It is important to realise that s24 of the LRA is not applicable under all circumstances.

The SCA, in MEC for Economic Development, Environment and Tourism, Limpopo v Leboho (2022) 33 SALLR 281 (SCA); (2022) 43 ILJ 2695 (SCA), adopted the following approach:

  • if the cause of action concerns the interpretation of the collective agreement or, alternatively, entails an application issue of such collective agreement, then s24 of the LRA is applicable See, further, Tshambi v Hospersa (2016) 37 ILJ 1839 (LAC)
  • If, however, on the other hand, the cause of action centres around the enforcement of the collective agreement, or boils down to a compliance issue of the collective agreement, then the civil jurisdiction of the high court comes into play.
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?