"The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 2)

Revisiting the Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment - Part 2

Keywords: Common-law employment contract, labour legislation, good faith, fairness, implied duty of trust and confidence, implied duty of fair dealing, constitutional development of the common law, right to fair labour practices, breach of employment contract


This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of Appeal (SCA) judgments during the 2000s. This process culminated in the recognition of an "implied duty of fair dealing" in the common-law employment contract. This piece will discuss such developments, will argue that such an implied duty still forms part of our law (despite the apparent consensus in the literature that the SCA turned its back on such earlier judgments), will critically examine some of the arguments for and against the recognition of such a duty, and will then consider the issue within the broader context of the role of good faith and fairness in our general law of contract.





Bosch 2006 ILJ
Bosch C "The Implied Term of Trust and Confidence in South African Labour Law" 2006 ILJ 28-47

Cohen 2010 SA Merc LJ
Cohen T "Jurisdiction over Employment Disputes - Light at the End of the Tunnel?" 2010 SA Merc LJ 417-428

Conradie 2016 Fundamina
Conradie M "The Constitutional Right to Fair Labour Practices: A Consideration of the Influence and Continued Importance of the Historical Regulation of (Un)Fair Labour Practices Pre-1977" 2016 Fundamina 163-204

Currie and De Waal Bill of Rights Handbook
Currie J and De Waal I The Bill of Rights Handbook 6th ed (Juta Cape Town 2013)

Doorey 2005 Queen's LJ
Doorey DJ "Employer 'Bullying': Implied Duties of Fair Dealing in Canadian Employment Contracts" 2005 Queen's LJ 500-559

Du Toit 2008 SALJ
Du Toit D "Oil on Troubled Waters? The Slippery Interface between the Contract of Employment and Statutory Labour Law" 2008 SALJ 95-133

Geldenhuys 2016 PELJ
Geldenhuys J "The Reinstatement and Compensation Conundrum in South African Labour Law" 2016 PELJ 1-39
Grant and Whitear-Nel 2013 SALJ

Grant B and Whitear-Nel N "Can an Employee Claim Damages as a Result of a Breach of an Implied Contractual Term that He will not be Unfairly Dismissed? South African Maritime Safety Authority v Mckenzie" 2013 SALJ 309-317

Grogan Workplace Law
Grogan J Workplace Law 12th ed (Juta Cape Town 2017)

Hepple Rights at Work
Hepple B Rights at Work: Global, European and British Perspectives (Oxford University Press Oxford 2005)

Van Eck and Mathiba 2014 ILJ
Van Eck BPS and Mathiba MK "Constitution Seventeenth Amendment Act: Thoughts on the Jurisdictional Overlap, the Restoration of the Labour Appeal Court and the Demotion of the Supreme Court of Appeal" 2014 ILJ 863-879

Van Niekerk and Smit Law@Work
Van Niekerk A and Smit N (eds) Law@Work 3rd ed (LexisNexis Durban 2015)
Van Staden and Smit 2010 TSAR
Van Staden M and Smit N "The Regulation of the Employment Relationship and the Re-emergence of the Contract of Employment" 2010 TSAR 702-719

Wahlstrom-Schatt Dismissal of the Implied Term of Mutual Trust
Wahlstrom-Schatt O The Dismissal of the Implied Term of Mutual Trust and Confidence in Employment Contracts: Filling the Gap Left Behind (Centre for Employment and Labour Relations Law, University of Melbourne Melbourne 2017)

Case law

es Mthatha v Mbenya 2007 5 SA 450 (SCA)

Commonwealth Bank of Australia v Barker 2014 HCA 32

Eastwood v Magnox Electric Plc; McCabe v Cornwall County Council 2004 UK HL 35

Fedlife Assurance Ltd v Wolfaardt 2002 1 SA 49 (SCA)

Gogay v Hertfordshire County Council 2000 IRLR 703

Goussard v Impala Platinum Ltd 2012 33 ILJ 2898 (LC)

Gxolo v Harmony Gold Mine (Pty) Ltd (LC) unreported case number J1124/2017 of 27 October 2017
Johnson v Unisys Limited 2001 UKHL 13

Makhanya v University of Zululand 2009 30 ILJ 1539 (SCA)

Malik and Mahmud v Bank of Credit and Commerce International SA 1997 UKHL 23

Manamela v Department of Cooperative Governance, Human Settlement and Traditional Affairs, Limpopo Province (CJHB) unreported case number 1886/2013 of 5 September 2013

Moloto v City of Cape Town 2011 32 ILJ 1153 (LC)

Murray v Minister of Defence 2009 3 SA 130 (SCA)

Old Mutual Life Assurance Co SA Ltd v Gumbi 2007 5 SA 552 (SCA)

SA Maritime Safety Authority v McKenzie 2010 3 SA 601 (SCA)

Tsika v Buffalo City Municipality 2009 2 SA 628 (ECD)


Basic Conditions of Employment Act 75 of 1997
Constitution Seventeenth Amendment Act of 2012
Labour Relations Act 66 of 1995

BCEA Basic Conditions of Employment Act 75 of 1997
CCMA Commission for Conciliation, Mediation and Arbitration
ILJ Industrial Law Journal
LRA Labour Relations Act 66 of 1995
PELJ Potchefstroom Electronic Law Journal
Queen's LJ Queen's Law Journal
SA Merc LJ South African Mercantile Law Journal
SALJ South African Law Journal
SCA Supreme Court of Appeal
TSAR Tydskrif vir die Suid-Afrikaanse Reg
UK United Kingdom
How to Cite
Louw, A. (2018). "The Common Law is … not what it used to be"*: Revisiting Recognition of a Constitutionally-Inspired Implied Duty of Fair Dealing in the Common Law Contract of Employment (Part 2). Potchefstroom Electronic Law Journal, 21, 1-20. https://doi.org/10.17159/1727-3781/2018/v21i0a5661