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Article 8/2022

Is there a difference between an organ of state, such as a municipality, offering employment to settle a claim and an employer in an unfair dismissal dispute offering such a settlement?

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In Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the following approach was adopted:

  • the municipality argued that it was ‘not really’ making an appointment but legitimately settling a claim
  • the high court held that it was not correct that the municipality could rely on a transfer policy, seeing that it was only applicable to employees in the employ of the municipality and Erasmus (seeing that she had resigned) was not an employee at the stage the offer was made – this is different from settling a dismissal matter by means of reinstatement because reinstatement does not entail the conclusion of a fresh contract of employment
  • furthermore, it was held that an organ of state is not entitled to fill vacancies for ulterior purposes, such as the settling of litigation
  • consequently, it was further held that an agreement reached by Erasmus to fill a vacancy would not pass constitutional muster, would be contrary to public policy and thus unenforceable (Corruption Watch NPC and Others v President of the Republic of South Africa; Nxasana v Corruption Watch NPC and Others 2018 (10) BCLR 1179 (CC), at paragraph [29])
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?