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Article 82/2021

Labour Edge

The parol evidence rule prevents a party from contradicting, adding to or modifying an agreement by reference to extrinsic evidence and, in that way, redefining the terms of such contract.  To what extent has this rule survived our new constitutional dispensation?

  1. Even after the advent of the new constitutional dispensation in our law, and more recently, the court, in Dreyer and Another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA), at paragraph [16], applied the parol evidence rule as follows:

‘The general import of the parol evidence rule … is well known. It is to the effect that, where an agreement is embodied in writing, the written document is conclusive as to its terms. No evidence, save the document itself, is admissible to prove them. Nor may the contents of the document be contradicted, altered, added to or varied by oral evidence.’

  1. In KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA), at paragraph [39], the court held:

‘The integration (or parol evidence) rule remains part of our law. However, it is frequently ignored by practitioners and seldom enforced by trial courts. If a document was intended to provide a complete memorial of a jural act, extrinsic evidence may not contradict, add to or modify its meaning’ (see also HNR Properties CC and Another v Standard Bank of SA Ltd 2004 (4) SA 471 (SCA), at paragraph [19].

  1. The parol evidence rule has been applied often in the labour court and in the labour appeal court (see, for example, Blue IQ Investment Holdings (Pty) Ltd v Southgate (2014) 35 ILJ 3326 (LAC), paragraph [18]; LAD Brokers (Pty) Ltd v Mandla (2001) 22 ILJ 1813 (LAC), paragraph [15]; FMW Admin Services CC v Stander and Others (2015) 36 ILJ 1051 (LC), paragraph [41]; Continuous Oxygen Suppliers (Pty) Ltd t/a Vital Aire v Meintjes and Another (2012) 33 ILJ 629 (LC), paragraph [31]; Ebrahim and Others v Sans Fibres (Pty) Ltd (2011) 32 ILJ 304 (LC), paragraphs [26]–[28].

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?