This is the ninth alert notice of those issues that will cause YOU to slip and definitely trip in 2024.
These issues will be incorporated into our famous seminar textbook as well as our highly sought-after PowerPoint presentation. Attached kindly find such notice dealing with the following ‘tricky issues’: an election not to testify at the disciplinary hearing for fear of self-incrimination and the constitutionality of an exemption clause, excluding liability for an employer on the basis of a delictual claim, as a result of theft by its employees.
We look forward to YOU being part of this continuing learning event – secure YOUR seat, register here.
- In terms of section 35(3)(h) of the Constitution, every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent and not to testify during the proceedings. In terms of section 35(1)(a) of the Constitution, everyone who is arrested for allegedly committing an offence has the right to remain silent. With reference to the said constitutional environment, how did the labour court recently deal with the issue as to whether or not an employer may be interdicted from starting and proceeding with a disciplinary hearing where criminal charges have been laid or are under investigation or are pending before a court?
- With reference to Zondi and Others v President, Industrial Court and Others (1991) 12 ILJ 1295 (LAC), what were the circumstances recently identified by the labour court justifying an interruption in internal proceedings that have not been completed?
- When considering an employee’s election not to testify at a disciplinary hearing for fear of self-incrimination, does it matter whether the relevant criminal charges have been laid before or after the completion of the disciplinary enquiry?
- To what extent is an employee entitled, at a criminal trial, to object to being cross- examined as to what he said during a disciplinary enquiry
- With reference to S v Lubaxa 2001 (2) SACR 703 (SCA), may the state supplement evidence given by an accused person or given against him at a disciplinary hearing relevant to the criminal trial?
- When an employee refuses to participate in a disciplinary enquiry on the basis of the fear of self-incrimination, what is the content of the element of ‘state compulsion justifying a court’s interference’ and ‘the element of choice’?
- An employer can be held vicariously liable under certain circumstances. The general principle is that the employer is vicariously liable for a wrong committed by an employee during the course/scope/sphere of employment. However, where the employee commits a wrong entirely for his own purposes (the so-called deviation matters), the general principle is not applicable. However, over time, our courts have developed a test to determine vicarious liability in such deviation matters. With reference to the aforesaid, how did the constitutional court recently deal with the following issues:
- is the enforcement of a contractual clause, challengeable on the basis that it is contrary to public policy, a constitutional issue subject to the jurisdiction of the constitutional court?
- is an exemption clause capable of excluding liability for a delictual claim based on theft by employees?
- with reference to Cinema City (Pty) Ltd v Morgenstern Family Estates (Pty) Ltd and Others 1980 (1) SA 796 (A), how did the constitutional court determine the role of the courts when, firstly, interpreting a commercial contract and, secondly, determining whether a party to a commercial contract may benefit from the unlawful conduct of its employees?
- in Punch v Savoy’s Jewellers Ltd et al 1986 (14) OAC 5 (CA), it was held that, if an employer wishes to exclude any responsibility for loss arising from theft by its own employees, it is required that such exclusion be spelt out with clarity and precision – to what extent did the constitutional court endorse such approach?
- what is the approach to be adopted to determine whether an exemption clause from vicarious liability applies to both deliberate or intentional conduct as well as negligent acts or omissions causing loss or damage?
- The supreme court of appeal, in Goodman Brothers (Pty) Ltd v Rennies Group Ltd 1997 (4) SA 91 (W), held that the phrase ‘no liability whatsoever for … any loss or damage to the goods’ absolved the respondent from liability for loss in the case of theft – in short, it was reasoned that, because theft is not for the benefit of the respondent, the exemption clause is permissible. In this case, no mention was made of the Constitution nor was any other policy rationale for enforcing the clause considered. On the other hand, Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) and Barkhuizen v Napier 2007 (5) SA 323 (CC) are the most extensive engagements by the constitutional court on the rule that governs the power of the courts to set aside or refuse to enforce contractual terms. In these judgments, the constitutional court established principles of fairness, reasonableness, justice and Ubuntu and found that these constitutional values play a fundamental role in the development and application of the rules of contract law. To what extent did the constitutional court recently determine whether or not Goodman Brothers can coexist with Barkhuizen and Beadica?
