Skip to main content

Article 7/2022

Under which circumstances can an organ of state, such as a municipality, offer employment to an aggrieved employee to settle a delictual claim?

_____________________________________

In Erasmus v Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the high court followed the following approach:

  • in Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC), the labour appeal court held that a court may exercise its discretion not to award compensation if: (i) the employer had already provided the employee with substantially the same kind of redress; or (ii) the employer’s ability and willingness to make that redress is frustrated by the conduct of the employee
  • the aforesaid principles should equally be applicable in the civil law environment;
  • the employer is required to, most importantly, establish its bona fides in making an offer of reinstatement, entailing that it must not be an attempt to merely implement damage control
  • generally, an offer of reinstatement will be acceptable to cure or remedy procedural defects but not substantive unfairness – however, this is not an immutable rule – Rawlins v Dr DC Kemp t/a Centralmed [2011] 1 All SA 281 (SCA)
  • had Erasmus pursued an unfair dismissal dispute: (i) she would have been entitled to refuse the offer on the basis that the employment relationship had broken down, (ii) her dismissal had been substantively unfair, and (iii) the offer constituted an attempt at damage control – these considerations are equally applicable in casu, dealing with a delictual claim
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?