Article 5/2022

Does sexual harassment fall within the protection provided to an employer in terms of the Compensation for Occupational and Diseases Act 130 of 1993 (‘COIDA’)?

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Once the employee in the high court, in Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), proved that she had been sexually harassed and that her employer was vicariously liable for such delict, the municipality made application for leave to appeal, holding that the relief claimed had not been competent in the first place, seeing that Erasmus was obliged to pursue her remedies in terms of COIDA.

In terms of s35 of COIDA, an employee or dependent of an employee is not entitled to recover damages in respect of any occupational injury or disease resulting in the disablement or death of such employee, against such employee’s employer.  The high court further held as follows:

  • in refusing the application for leave to appeal on the basis that sexual harassment does not fall within the definition of accident arising out of and in the course of employment, it was further held that a strong message was to be sent to employers that they would be liable for the failure to protect the employees within the context of sexual violence
  • the court followed the approach as already dealt with in previous articles, with reference to Churchill v Premier of Mpumalanga and Another (2021) 32 SALLR 27 (SCA) [Article 2/2022]
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?