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[2017] ZAWCHC 115
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Theron v Premier of the Western Cape Province and Another (21435/12) [2017] ZAWCHC 115; [2017] 4 All SA 916 (WCC) (10 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
REPORTABLE
CASE
NO: 21435/12
In
the matter between:
ERNEST
THERON
Plaintiff
and
THE
PREMIER OF THE WESTERN CAPE
PROVINCE
First
Defendant
DIRECTOR
GENERAL, DEPARTMENT
THE
PREMIER, WESTERN
CAPE
Second
Defendant
JUDGMENT
DELIVERED ON 10 OCTOBER 2017
GAMBLE,
J:
INTRODUCTION
[1]
On
13 July 2009 the Plaintiff concluded a written contract of employment
with the Western Cape Provincial Development Council (“the
PDC”) in terms whereof he was appointed as its chief executive
officer (“CEO”) for a fixed term of three years
effective
from 1 July 2009 to 30 June 2012. The contract made provision for the
general terms and conditions of his employment
and included an all
inclusive annual remuneration package of R746 181. In addition,
the plaintiff was entitled to a performance
bonus and annual leave of
24 working days. The contract provided that, notwithstanding the fact
that it was for a fixed term of
3 years, either party could terminate
the agreement on one month’s written notice to the other side
under certain agreed
circumstances
[1]
.
[2]
The PDC was a creature of statute having
been established by the Provincial Development Council Act, 5 of
1996, which act was later
amended by the Provincial Development
Council Law Amendment Act, 4 of 2004. Early in September 2010 the
plaintiff received a letter
from the first respondent informing him
that the Provincial Cabinet had taken a decision that the PDC should
be disestablished
and that all its assets, liabilities, contracts,
rights and obligations would be transferred to the Department of the
Premier (hereinafter
“the Department”).
[3]
A further letter was written to the
plaintiff by the MEC for Finance, Economic Development and Tourism on
3 November 2011 impressing
upon him the need to urgently finalize the
“
retrenchment
”
process in respect of employees of the PDC as it was said that the
legislative program in relation to the passage of an
act to
disestablish the PDC was at an advanced stage. As the PDC’s
CEO, the plaintiff was effectively tasked with managing
his own
“
retrenchment”
(along with other employees of the PDC) in collaboration with the
chief financial officer of the PDC, Ms Domingo.
[4]
I say “
retrenchment
”
because in broad terms the intended termination of the plaintiff’s
contract of employment was based on “
operational
requirements
” as that term is
understood in s189 of the Labour Relations Act, 66 of 1995 (“the
LRA”). In any event, in November
2011 the plaintiff and Ms
Domingo drew up a document which detailed the amounts that were
considered to be payable to the various
staff members of the PDC upon
the anticipated disestablishment. In relation to the plaintiff the
amount due was calculated to be
R678 690.31, made by as to:
·
The PDC’s alleged “
contractual
obligation
” to the plaintiff of
R499 736.17 (being the balance of his salary then due to him up
to the end of his contract);
·
Leave pay of R82 369.92;
·
A performance bonus of R96 459.44; and
·
UIF contributions by the PDC of R124.78.
[5]
In the result no agreement as to the basis
for the termination of the plaintiff’s employment with the PDC
was concluded prior
to 5 December 2011 and there was no “
retrenchment
package
” to which he could lay
claim under the LRA, or any agreed amount which the first defendant
could be required to pay as an
existing liability of the PDC, whether
in the amount of R678 690.31 or any lesser sum.
THE
REPEAL ACT
[6]
On 2 December 2011 the first defendant
signed and assented to the Provincial Development Council Repeal Act,
5 of 2011 (“the
Repeal Act”) which was gazetted on 5
December 2011 thereby immediately disestablishing the PDC. It is said
now that the gazetting
was an administrative error in that the
promulgation was only intended to be effected once all outstanding
staff issues were resolved.
Accordingly, as at 5 December 2011 the
plaintiff was still employed as the CEO of the PDC and there was no
basis for the termination
of his fixed term contract, other than the
impending disestablishment of the PDC. Importantly, there had been no
transfer or assignment
of the plaintiff’s contract of
employment in terms of s197 of the LRA from the PDC to the Department
as at that date. The
effect of the Repeal Act therefore was that the
plaintiff’s contract of employment was effectively terminated
when the first
respondent assented thereto since the entity which
employed him ceased to exist. By way of analogy, it could be said
that the plaintiff
was in a position similar to that of a worker
employed by a sole proprietor who had died.
[7]
In
terms of section 4 (b) of the Repeal Act, upon the disestablishment
of the PDC, all of its outstanding liabilities were required
to be
settled by the Department
[2]
. In
light of the fact that the plaintiff’s fixed term contract of
employment was stiil of full force and effect and had not
been
terminated by the PDC as at the date of disestablishment, one of the
PDC’s outstanding liabilities as at 5 December
20011 was its
ongoing contractual obligation to the plaintiff under his contract of
employment.
[8]
On 8 December 2011 a certain Mr Brent
Gerber (who was apparently the erstwhile incumbent of the office of
the second defendant)
informed the plaintiff in writing of the
promulgation of the Repeal Act in the following terms:
“
On
2 December 2011 the Premier assented to the Bill. Unbeknown to us the
Provincial Parliament had forwarded the Bill to the Government
printers for publication on 5 December 2011. This office was informed
on 7 December 2011 that the Act had been published in the
Provincial
Gazette on 5 December 2011, on which day it came into effect.”
[9]
A copy of the Repeal Act was attached to Mr
Gerber’s letter and the plaintiff was informed of the legal
implications thereof
(insofar as Mr Gerber understood them) in regard
to his contract of employment. The plaintiff was told that a certain
Mr Clive
Stuurman had been appointed by the Provincial authorities to
oversee the finalization of the dissolution process of the PDC. The
plaintiff was further informed by Mr Gerber as follows:
“
1.
The staff’s contracts and/or permanent employment were
terminated as a result of the disestablishment of the PDC. Mr
Stuurman’s
first task would (sic) be to advise staff that as of
Monday, 5 December, their services were terminated as a result of the
dissolution.
He would (sic) also require the PDC’s former CFO’s
assistance to calculate the salaries, accrued leave, severance and
any other payments due to each employee. I would appreciate if this
was treated as a priority, as it is a liability of the PDC
at the
date of disestablishment in terms of section 4 (b) of the Repeal
Act…”
PAYMENTS
ARISING FROM THE DISESTABLISHMENT AND SUBSEQUENT LITIGATION
[10]
On 15 December 2011 the plaintiff was informed by Mr Stuurman that
his contract had been terminated by operation of law with
effect from
5 December 2011. It is common cause that he was later paid 2 amounts
totalling R325 961.42 :
·
R90 724.69 on 20 December 2011, and
·
R235 236.73 on 15 March 2012.
[11]
The plaintiff was dissatisfied with the amount paid to him believing
that he was entitled to be remunerated up to the expiry
of his
contract on 30 June 2102. Accordingly, in February 2012 he approached
the Commission for Conciliation, Mediation and Arbitration
(“the
CCMA”) in terms of the LRA, claiming compensation as a
consequence of an alleged unfair dismissal. In those proceedings
the
first defendant adopted the stance that the plaintiff was not an
employee in her department and that there had accordingly
been no
dismissal as alleged.
[12]
In an arbitration award handed down on 21 June 2012, a CCMA
commissioner upheld the first defendant’s argument and found
that the CCMA lacked the necessary jurisdiction to hear the matter.
The plaintiff evidently decided not to proceed further under
the LRA
but approached this court in November 2012 for contractual relief
under the common law.
BASIS
OF THE PLAINTIFF’S CLAIM IN THIS COURT
[13]
In his particulars of claim, the plaintiff sought damages from the
defendants in the sum of R352 728.89 being the difference
between what he had been paid by the first defendant and the amount
of R678 690.31, which he claimed was the amount that would
have
accrued to him if the contract had run its full term. His claim is
therefore one for damages based on his positive
interesse
– the right to be put in the position that he would have been
in had the contract not been terminated.
[3]
[14]
The case for the plaintiff has not been pleaded on the basis that
there was a breach of the contract of employment by the PDC.
The high
water mark of his case is to be found in the following allegations in
the particulars of claim:
“
13.
The Repeal Act had the result that the plaintiff’s Employment
Contract (sic) was effectively terminated by the Premier
of the
Western Cape Government when she assented to it.
14.
The sole cause for the termination of the plaintiff’s
Employment Contract (sic) was the signing and assenting to the Repeal
Act by the Premier of the Western Cape Government.”
THE
DEFENDANTS’ RESPONSE
[15]
When the first defendant entered an appearance to defend the
plaintiff applied for summary judgment and in an affidavit filed
in
opposition thereto on behalf of the first defendant, Mr Gerber set
out the departmental defence as follows:
“
12.
I admit that the plaintiff and the Council concluded a contract of
employment. In terms of paragraph 5.1 the contract of employment
commenced on 1 July 2009. Clause 5.2 thereof provides that the
contract of employment would not extend beyond 30 June 2012. The
contract of employment however, also provides that either the
plaintiff or the Council could terminate the contract of employment
on one month’s written notice to each other (see paragraph 7.9
of the particulars of claim). Thus, notwithstanding the provisions
of
clause 5, the contract of employment could be brought to an end upon
one month’s written notice by either party.
13.
I admit that the defendants paid the plaintiff the sum of R90 724.69
on 20 December 2011 and the sum of R235 236.73
on 12 March 2012
as alleged in paragraph 19.9 of the particulars of claim, i.e. a
total of R 325 961.42. This amount excludes
the unemployment
insurance fund (UIF) contribution of R128.78 as detailed below.
14.
I respectfully point out that the sum total of the amounts paid above
is made up of the following amounts:
a.
Pro-rata 15
th
December salary
R35 206.46
b.
Leave pay (11.97 days)
R39 427.21
c.
2010/2011 performance bonus
R96 459.44
d.
Severance pay (two completed weeks)
R32 949.64
e.
One month’s
notice
R71 390.88
f.
UIF
R124.78
[R275 558.61]
15.
The defendants deny that any other amounts are due and payable to the
plaintiff. Accordingly, the plaintiff is required to prove
the
defendants’ liability for any amount above that which has
already been paid.”
[16]
Mr Gerber’s maths does not add up: as demonstrated above the
aggregate of the individual sums referred to in para 14
of his
affidavit is R275 558.61 and not R325 961,42 as alleged in
para 13. In any event, on 4 March 2013 the application
for summary
judgment was refused by agreement and the defendant was granted leave
to defend the matter.
[17]
In the plea filed on behalf of the defendants it was admitted that
the plaintiff’s contract of employment was terminated
by
operation of law. In relation to the components of the plaintiff’s
claim for damages as set out in paragraphs 19.1 to
19.7 of the
particulars of claim, the defendants surprisingly pleaded that they
had no knowledge of the allegations contained in
such paragraphs and
put the plaintiff to the proof thereof, this notwithstanding the
positive assertions made by Mr Gerber in the
affidavit opposing
summary judgment as to the component parts of the amounts paid to the
plaintiff in December 2011 and March 2012.
In relation to the amount
claimed in respect of UIF the first defendant, notwithstanding Mr
Gerber’s allegation in para 14
of his affidavit, denied in the
plea that the plaintiff was entitled to the amount claimed and said
that it was a statutory deduction
which the defendants were obliged
to deduct from the 2 amounts paid to the plaintiff, as set out above.
[18]
In the result, the case for the first defendant on the pleadings is
anything but a picture of clarity, and does not serve to
assist the
court in understanding its defence. However, as the trial progressed,
it became clear that the first defendant adopted
the view that the
plaintiff was only entitled to one month’s “
notice
pay”
and not the amount due up to the expiry of the
contract. The legal basis for that claim was never properly pleaded
but was dealt
with comprehensively by counsel for the defendants, Mr
de Villiers Jansen, in his heads of argument. The defendants’
case
is that in a without prejudice letter written on 8 December 2011
the plaintiff was effectively given one month’s notice and
paid
a month’s notice pay together with ceratin other amounts to
which he was contractually liable, and it is denied that
he is
entitled to anything more. I did not understand the plaintiff to
dispute any of the amounts paid to him other than the “
notice
pay”.
THE
EVIDENCE
[19]
The plaintiff gave evidence in support of his claim and testified,
inter alia, that he had not been given contractual notice
by the PDC
before its disestablishment, or by the Department thereafter.
Further, he said that he had not been able to find any
alternate
employment after the disestablishment of the PDC. None of this
evidence was challenged by the defendants.
[20]
Mr Stuurman, then the Acting Chief Director in the Department, was
the only witness called by the first defendant. He was asked
to
explain how it came about that the sum of R325 961.42 was paid
to the plaintiff as a consequence of the termination of
his contract.
Mr Stuurman said that he had been told how the sum had been
calculated but was unable to say what the legal basis
therefor was.
That decision, he said, had been taken by Mr Gerber, who evidently
held the view that the plaintiff was only entitled
to one month’s
notice pay and was not entitled to the balance of his contractual
remuneration. Mr Gerber did not explain
the reasoning behind this
decision to the court and so Mr Stuurman’s evidence on that
score is, strictly speaking, inadmissible
hearsay.
THE
PLAINTIFF’S CLAIM AT COMMON LAW
[21]
Counsel for the plaintiff, Ms Mahomed, submitted that the effect of
the first defendant’s assent to the promulgation
of the Repeal
Act in the circumstances which prevailed at the beginning of December
2011 was the premature termination of the plaintiff’s
contract
of employment. The plaintiff was both willing and able to perform all
of his obligations in terms of that contract with
the PDC but was
precluded from doing so by virtue, not through the passing of the
Repeal Act by the Provincial Legislature, but
the implementation
thereof through the assent of the first defendant which breathed life
into the nascent legislation.
[22]
Ms Mahomed referred the court to the decision of the Supreme Court of
Appeal in
Wolfaardt
[4]
,
pointing out that the plaintiff was entitled to approach this court
under the common law for damages for breach of contract and
was not
restricted to exercising a statutory remedy under the LRA for an
unfair dismissal. There can be no debate with that submission:
the
preservation of the plaintiff’s common law remedy in contract
is apparent from the judgment of Nugent AJA in
Wolfaardt:
“
[13]
The clear purpose of the Legislature when it introduced a remedy
against unfair dismissal in 1979
[5]
was to supplement the common law right of an employee whose
employment might be lawfully terminated at the will of the employer
(whether on notice or summarily for breach). It was to provide an
additional right to an employee whose employment might be terminated
lawfully but in circumstances that were nevertheless unfair…..
[15]
However, there can be no suggestion that the constitutional
dispensation deprived employees of the common law right to enforce
the terms of a fixed-term contract of employment. Thus irrespective
of whether the 1995 Act was declaratory of rights that had
their
source in the interim Constitution or whether it created substantive
rights itself, the question is whether it simultaneously
deprived
employees of their pre-existing common law right to enforce such
contract, thereby confining them to the remedies for
‘unlawful
dismissal’ as provided for in the 1995 [Labour Relations] Act.
[16]…..
The continued existence of the common law right of employees to be
fully compensated for the damages they can prove
they have suffered
by reason of an unlawful premature termination by their employers of
fixed term contracts of employment is not
in conflict with the
spirit, purport and objects of the Bill of Rights and it is
appropriate to invoke the presumption
[6]
in the present case.
[17]
The 1995 Act does not expressly abrogate an employee’s common
law entitlement to enforce contractual rights and nor do
I think that
it does so by necessary implication. On the contrary there are clear
indications in the 1995 Act that the Legislature
had no intention of
doing so.”
[23]
Ms Mahomed went further and relied on
Wolfaardt
and
cases such as
Solidarity
[7]
and
Buthelezi
[8]
in
support of the argument that premature termination of employment of a
fixed term contract entitles the employee to damages. The
problem
with those cases is, firstly, that they all involved dismissals under
fixed-term contracts, and, secondly, that they were
brought before
the Labour Court in terms of the LRA under jurisprudence which
recognizes a claim for unfair dismissal.
[24]
In relation to the latter Nugent AJA made the following observation
in relation to the definition of “
dismissal”
in
s186 (b)
[9]
of the LRA –
“
[18]…
It is significant that although the Legislature dealt specifically
with fixed term contracts in this definition it
did not include the
premature termination of such a contract notwithstanding that such a
termination would be manifestly unfair.
The reason for that is plain:
the common law right to enforce such a term remained intact and it
was thus not necessary to declare
a premature termination to be an
unfair dismissal. The very reference to fixed term contracts makes it
clear that the Legislature
recognised their continued enforceability
and any other construction would render the definition absurd.”
TERMINATION
OCCASIONED BY BREACH?
[25]
The cases referred to by counsel for the plaintiff do not deal with
termination on notice at common law. So, what then is the
position
where the termination of a fixed term contract of employment occurs
through circumstances other than a breach by one of
the parties? It
will be observed, firstly, that in terms of clause 9.1 of the
agreement the PDC would have been entitled to terminate
the contract
summarily in the event of a breach by the plaintiff, or, if it
considered it expedient to do so in such circumstances,
it could have
terminated on notice of less than a month. Provided that the breach
was established, there would be no contractual
liability on the part
of the PDC in such circumstances.
[26]
Further, in terms of clause 9.2 of the agreement, the PDC was
entitled to terminate the employment relationship on a month’s
notice in the event that the plaintiff was guilty of misconduct, or
if operational requirements existed or on account of his incapacity.
In the circumstances that prevailed in December 2011, the only basis
upon which the PDC could have terminated on notice was for
operational requirements.
[27]
That term was not defined by the parties in their agreement and it
must bear its ordinary meaning. However, given that the
contract
arises from an employment relationship it is in my view not
unreasonable to have regard to the definition of the term
as it
appears in s213 of the LRA, it being a term with which both an
employer and employee would have been familiar when utilising
it in
their contractual relationship.
[10]
[28]
Accordingly, to the extent that the PDC was a statutory body created
in the public interest and funded with provincial funds,
if it had
been informed that its funding was to be curtailed it would no doubt
have been entitled to consider dismissing its staff
for operational
requirements as defined under the LRA. So too, would it have been
entitled to dismiss for operational requirements
if it had been told
of its imminent statutory demise. In either event, it would have been
bound to apply s189 of the LRA and the
failure to do so would afford
a dissatisfied employee relief under the LRA for an unfair dismissal.
[29]
But the existence of such operational requirements would not only
have triggered the PDC’s obligation to follow s189,
they would
have also afforded it a basis to terminate, without more, the
plaintiff’s fixed term contract of employment in
terms of the
agreed notice period. Such a termination, although “
premature”
in the sense that it occurs prior to the expiry of the contract,
would not have constituted a breach of the contract at common law
as
the parties expressly agreed that it could form the basis for early
termination. As such, it could not found a claim for damages.
Whether
that termination was fair or not would not have been a consideration
at common law. As I have said, unfairness might have
afforded the
plaintiff a cause of action under the LRA but that does not fall for
consideration in this court, and in any event
is an avenue which he
has already pursued.
[30]
Finally, as I have already said, the case for the plaintiff has not
been pleaded on the basis that there was a breach of the
contract of
employment by the PDC but on the basis set out in para’s 13 and
14 of the particulars of claim, to which reference
has already been
made in para 14 above.
THE
AGREED ISSUES
[31]
In a pre-trial minute concluded on 20 June 2017 the parties made
common cause on a number of issues. Those included the terms
of the
plaintiff’s contract of employment, the fact of his employment
with the PDC, the liability of the first defendant
in terms of s4(b)
of the Repeal Act for the outstanding liabilities of the PDC and ,
importantly, that
“
the
promulgation of the Repeal Act disestablished the PDC and the
contract between the Plaintiff and the PDC was terminated.”
The
effect of the common cause issues is that the allegations made in
para’s 13 and 14 of the particulars of claim are admitted
and
both parties agree that the contract of employment terminated on 5
December 2011.
[32]
In that minute the parties articulated the issues in dispute as
follows:
·
“
Whether the termination of the
Plaintiff’s fixed term employment contract can be considered a
premature termination; and
·
Whether the plaintiff is entitled to be
compensated for damages in the amount of the full unexpired duration
of his fixed term employment
contract or whether the plaintiff is
entitled to only one month’s notice period, arising out of the
termination of the plaintiff’s
fixed term employment contract.”
[33]
In relation to the first question, it is noted that the parties do
not refer in their minute of a breach of the employment
contract, as
such. That is for good reason since there was no notice of
termination given by the PDC and, further since the first
defendant
did not (nor could she) terminate the contract given that the
plaintiff was never an employee of the Department.
[34]
What then do the parties mean when they talk of “
premature
termination”
as being an issue in this matter? The
phrase suggests that they considered that termination of the contract
of employment ahead
of 30 June 2012 might, in appropriate
circumstances, constitute a breach. It may well be that a notice of
termination given by
the PDC in the absence of misconduct,
operational requirements or incapacity on the part of the plaintiff
would be classified as
a breach and hence a “
premature
termination”
but that is not what happened here and no such
allegations are made in the particulars of claim.
[35]
Further, the facts are that the employment contract came to an end as
a consequence of the passing of legislation by the relevant
Provincial Legislature and its subsequent promulgation by the first
defendant. There is no suggestion that those legislative steps
and
subsequent executive acts were in any way wrongful. The position thus
is that the performance of their reciprocal obligations
by both the
plaintiff and the PDC were rendered impossible by an act of an organ
of State
viz
the promulgation of the Repeal Act. In such
circumstances the parties are excused from performing and no action
lies either way
for damages. See
Peters, Flamman and Co v
Kokstad Municipality
1919 AD 427
at 434;
LAWSA
Vol 13 Part 1 para 260.
[36]
In the circumstances I am unable to find that the plaintiff has
established a breach in the form of a premature termination
which
entitles him to relief at common law.
HAS
THE PLAINTIFF SUFFERED DAMAGES?
[37]
Turning to the second issue articulated by the parties in their
pre-trial minute, the court is required to determine whether
the
plaintiff is entitled to contractual damages calculated with
reference to the balance of the contract period or only payment
of
one month’s notice arising out of the termination. In this
regard Ms Mahomed relied on the decision of the Labour Appeal
Court
in
SAFA
[11]
.
The
case involved a fixed term contract of employment of the respondent
during the currency of the 2010 FIFA Soccer World Cup. His
contract
had been terminated prior to the expiry thereof and he sued the
appellant in the Labour Court in terms of
s77(3)
of the
Basic
Conditions of Employment Act, 75 of 1997
, which gives the Labour
Court concurrent jurisdiction with the civil courts to hear claims
based on contracts of employment. One
of the issues that arose before
the Labour Court was the computation of the employee’s damages,
if any. In considering the
basis of a claim for damages at common
law, Murphy AJA had the following to say:
“
[39]…..Non-compliance
with procedural provisions in a contract of employment ordinarily
will ground a claim for unfair dismissal
in terms of the LRA, even
where there is a justifiable substantive reason for dismissal; but at
common law a procedural breach
will be of no contractual consequence
unless it results in damages, particularly where there has been a
material breach or repudiation
by the employee entitling the employer
to cancel. In the law of contract there must be a causal nexus
between the breach (procedural
or otherwise) and the actual damages
suffered. A contractant must prove that the damage for which he is
claiming compensation has
been factually caused by the breach. This
involves a comparison between the position prevailing after the
breach and the position
that would have obtained if the breach had
not occurred. Accordingly, if the respondent’s contract is
found to have been
lawfully terminated on account of his repudiation
of the warranty of competence, he would have suffered no contractual
damages
arising from the procedural breaches. As I have just
explained, he may have been entitled to compensation (not damages) in
terms
of the LRA for a procedurally unfair dismissal, but then he
needed to refer an unfair dismissal dispute to the CCMA in terms of
section 191
of the LRA.
”
[38]
Murphy AJA went on to say, with reference to the judgment in this
Division in
Myers
[12]
,
that ordinarily the measure of an employee’s damages in the
case of a material breach of a fixed term contract is the difference
between what might have been earned had the contract run to its
stipulated conclusion and any sum which could reasonably have earned
during that period. But the court there stressed that it was dealing
with cases of material breach. Where there is no breach but
a lawful
termination, the measure of a party’s claim is limited to the
loss of salary for the notice period.
[13]
CONCLUSION
[39]
In the circumstances, I am bound to conclude that the plaintiff’s
claim against the PDC, for which the Department is
liable, is his
notice pay. There is no dispute between the parties that that amount
has been paid in full together with all the
other amounts
contractually due to him by the the Department. In the circumstances
his claim against the defendants cannot succeed.
ORDER
OF COURT:
The
plaintiff’s claim is dismissed with costs.
____________________
GAMBLE
J
[1]
9.
Termination
9.1
Notwithstanding anything to the contrary in clause 5.1 herein
contained, either party to this Agreement may terminate it at
any
time during the currency thereof on giving one month’s notice
in writing to the other party. The EMPLOYER may, however,
in its
discretion accept a shorter period of notice.
9.2
The EMPLOYER may terminate this Agreement summarily or after notice
of less than one month, as it may deem expedient, in the
event of a
breach of the terms of this agreement by the EMPLOYEE. The agreement
may otherwise only be terminated for reasons
relating to misconduct,
operational requirements or incapacity."
[2]
“
Transitional
provisions
4.
For the purposes of disestablishment of the Provincial
Development Council -
(a)……
(b)
all outstanding liabilities of the Provincial Development Council as
at date of disestablishment must, subject to the Public
Finance
Management Act, 1999 (Act 1 of 1999), be settled by the Department
of the Premier."
[3]
Van der
Merwe et al
Contract,
General Principles (4
th
ed) at 362;
ISEP
Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co
(Pty) Ltd
1981
(4) SA 1
(A);
Rens
v Coltman
1996
(1) SA 452 (A)
[4]
Fedlife
Assurance Ltd v Wolfaardt
2002
(1) SA 49
(SCA)
[5]
This is a reference to the 1979 amendments to the Labour Relations
Act, 28 of 1956, which introduced the erstwhile unfair labour
practice regime in to our employment law.
[6]
The presumption referred to is that in the interpretation of
statutes it is presumed that the Legislature does not intend to
interfere with existing law.
[7]
Solidarity
and another v Public Health and Welfare Sectoral Bargaining Council
and others
2014 (5) SA 59 (SCA)
[8]
Buthelezi
v Municipal Demarcation Board
(2004)
25 ILJ 2317 (LAC)
[9]
In
terms of
s186(b)
the definition of “
dismissal
”
includes the situation where “
(A)n
employee reasonably expected the employer to renew a fixed term
contract of employment on the same or similar terms but the
employer
offered to renew it on less favourable terms, or did not renew it.”
[10]
The
definition reads as follows: “operational requirements”
means requirements based on the economic, technological,
structural
or similar needs of an employer;”
[11]
The
South African Football Association v Mangope
(2013) 34 ILJ 311 (LAC)
[12]
Myers v
Abrahamson
1952
(3) SA 121 (C)
[13]
Harper
v Morgan Guarantee Trust Co of New York, Johannesburg and another
2004
(3) SA 253
(W) at 258 D-G;
Parry
v Astral Operations Ltd
[2005]
10 BLLR 982
(LC) at [97];
National
Entitled Workers Union v CCMA and others (2007) 28 ILJ 1223 (LAC)
at [15];
Morgan
v Central University of Technology, Free State
[2013]
1 BLLR 52
(LC) at [10].