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Article 51/2025

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?
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  1. A statutory automatically unfair dismissal cause of action exists in terms of s187(1)(f) of the LRA. A statutory cause of action, based upon a constructive dismissal, exists in terms of s186(1)(e) of the LRA. A statutory unfair discrimination cause of action exists in terms of s6(3) of the EEA.
  2. What are the alternative civil claims that exist in delict?
  3. The first claim is based on the actio legis aquiliae – negligent (culpa), or intentional (dolus) and wrongful causing of patrimonial damage (pecuniary damage) is covered in this action.
  4. An alternative or simultaneous claim may also be based on the actio iniuriarum – the intentional (dolus animus iniuriandi) infringement of the interest of personality is covered by means of this cause of action and is instituted to recover sentimental damages (solatium).
  5. Under both the aforesaid actions, the claimant would be entitled to damages, if successful, to the extent proven.

See, in general, Erasmus v Dr Beyers Naude Local Municipality (2021) 42 ILJ 1545 (ECG), (2021) 32 SALLR 6 (ECG).

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?