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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]
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?