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[2014] ZAGPJHC 316
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Dirk Cornelius Aspeling v Nedbank Ltd (31767/2012) [2014] ZAGPJHC 316 (2 July 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 31767/2012
DATE:
02 JULY 2014
In the matter
between:
DIRK CORNELIUS
ASPELING
..........................
Applicant
And
NEDBANK
LTD
...............................................
Respondent
JUDGMENT
VICTOR J:
[1] The plaintiff in
this matter seeks contractual damages arising out of breaches of
various terms of his employment contract with
the defendant.
[2] The plaintiff
has not sought to pursue his claim in terms of the Labour Relations
Act 66 of 1995, (the LRA). During the course
of his employment with
the defendant in South Africa the parties concluded a secondment
agreement of services to Nedbank Namibia
as from 1 July 2006. On 5
February 2009 the plaintiff gave notice of termination of his
secondment agreement since Nedbank Namibia
failed to obtain a work
permit. Upon his return to South Africa he was retrenched for
operational reasons.
[3] A perusal of the
secondment agreement indicates the following:
‘At the end of
your contract/secondment you will be accommodated in Nedbank Africa
or alternatively where possible you will
be placed in an appropriate
or suitable position in another division within Nedbank Limited.’
The final sentence
in this covering letter states:
‘You will
remain an employee of Nedbank Limited in South Africa.’
[4] A notice of
exception was filed and the plaintiff had two attempts at amending
his particulars of claim. The plaintiff had commenced
his initial
employment with the defendant in South Africa some time before the
secondment agreement. The material terms of the
secondment agreement
included that he would occupy a position of Senior Manager Credit
Risk. Whilst occupying such position the
plaintiff’s
employment with the defendant was not terminated and he remained an
employee of the defendant. The defendant
could also extend the terms
of the secondment agreement having regard to the circumstances
prevailing in Namibia at the relevant
time. It is quite clear that
without the necessary work permit the plaintiff could not continue in
Namibia. The Namibian authorities
refused to issue him with a work
permit.
[5] The first
tranche of amendments related to an appropriate or suitable position
being available to the applicant and a pre-dismissal
hearing. The
defendant’s exception is directed to the plaintiff’s
particulars of claim as being vague and embarrassing
since the
defendant avers that it is up to the plaintiff to allege the
necessary facts to prove that there was not an appropriate
or
suitable position available. Secondly a further exception being
vague and embarrassing was based on the allegation that it
was an
implied term that the plaintiff was entitled to a pre-dismissal
hearing and/or a pre-dismissal consultation. Although the
latter is
suggestive of the provisions of the LRA, actual reliance on the LRA
is not pleaded.
[6] It is trite law
that an amendment should be refused if the amended pleading would
result in further excipiability. See Krischke
v Road Accident Fund
2004 (4) SA 358
(W). It is trite that in determining an exception
the court must assume the correctness of the factual averments made
in the
particulars of claim. See Voget and Others v Kleynhans
2003
(2) SA 148
(C) at 151 and Theunissen & Andere v Transvaal se
Lewendehawe Co-op Bpk
1988 (2) SA 493
(A) at 500 E.
[7] It is the
obligation of the defendant to persuade the court that upon every
possible interpretation of the pleading it is vague
and embarrassing
and is excipiable. The purpose of an exception is to avoid the
leading of unnecessary evidence at the trial.
See Barclays National
Bank Ltd v Thompson
1989 (1) SA 547
(A) at 553 F-I.
[8] The secondment
agreement provides expressly that the plaintiff would remain an
employee of the defendant in South Africa. The
contract further
expressly provides that the plaintiff will be accommodated in Nedbank
Africa. As already indicated he was retrenched
for operational
reasons although operational reasons are within the jurisdiction of
labour relations. In my view the plaintiff
can legally pursue that
avenue of his claim. It is not necessary for him to prove at this
stage of pleadings that there was a
possible position for him within
the South African business of the defendant.
[9] The secondment
agreement also provides in the alternative that where possible the
plaintiff would be placed in an appropriate
or suitable position in
another division in Nedbank Limited. The use of the word ‘or’
is disjunctive and ‘where
possible’ refers to a position
in another division in Nedbank Limited. It is necessary to interpret
the word ‘or’
as used in the latter part of this clause.
[10] Counsel for the
excipient submitted in its heads of argument that the word ‘where
possible’ should be interpreted
to mean that the obligation
existed on the defendant to accommodate the plaintiff in Nedbank
Africa or Nedbank only where possible.
The word ‘or’ must
be interpreted so that the true meaning of the clause may be
established. In many cases reference
to the word ‘or’
within the context of statutes can also be read as the word ‘and’.
[11] In this
contractual context however it is my view that the word ‘and’
cannot be read into the present context and
therefore it was
correctly pleaded that the defendant was to accommodate the plaintiff
in Nedbank Africa and the words ‘or
alternatively where
possible’ must not be read as ‘and’ and that an
appropriate or suitable position was to be
found for him within
Nedbank Limited. This in my view is not an excipiable pleading.
[12] It is trite law
that words in any legal instrument must be interpreted according to
their grammatical and ordinary meaning
and therefore the word ‘or’
in this case should be interpreted disjunctively. The cardinal rule
of construction is
that words must be given their ordinary literal
grammatical meaning and not to do so must only be resorted to where
the word ‘or’
simply would not make sense. See also
Volschenk v Volschenk
1945 TPD 486.
Whilst the Volschenk case
referred to ‘or’ in the context of a statute, the case is
still relevant because the same
principles of interpretation which
apply to statues also apply to contracts and other legal instruments.
See Southall v Bowditch
1876 (1) CP 374.
[13] It is clear
from the case of Volschenk that the ordinary meaning of ‘or’
is a disjunctive one and this is confirmed
in the case of R v Mdita
1951 (1) SA 763
(SR) in relation to the context of the then Forestry
Act.
[14] In my view,
therefore, in relation to the exception taken to the amendment in
relation to the first portion, it is not necessary
for the plaintiff
to plead facts as to whether an appropriate or suitable position in
another division within the defendant was
available as these facts
would be within the knowledge of the defendant.
[15] The second
tranche of amendments relate to the following. The plaintiff alleges
he wishes to delete paragraph 17 and replace
it with the following
(renumbered 16):
16. ‘The
plaintiff’s eventual retrenchment was unlawful in that:
…
16.3 the defendant’s
decision to terminate was founded on personal resentments and other
unlawful motivations.
16.4 The defendant
did not act with the utmost good faith and therefore unlawfully in
that the defendant did not afford the plaintiff
a pre-dismissal
hearing and/or pre-dismissal consultation prior to the repudiation of
the agreement.’
[16] The exception
to the alternative cause of action relates to the common law
contractual right to a pre-dismissal hearing and/or
pre-dismissal
consultation. It is the defendant’s contention that the common
law does not recognise a right to a pre-dismissal
hearing and/or
pre-dismissal consultation nor does it recognise a right not to be
retrenched unlawfully.
[17] The contract
itself is silent on what has come to be recognised as labour
relations rights emerging from the statute - see
Lamprecht and Nissan
SA (Pty) Ltd v McNeillie
1994 11 BLLR 1
AD.
[18] The decisive
point in South African law on this aspect is South African Maritime
Safety Authority v McKenzie
2010 (3) SA 601
(SCA), where Wallis AJA
held that contracts outside of the protection of the LRA are not
subject to an implied term that employees
will not be unfairly
dismissed or subject to unfair labour practices. The LRA does not
itself confer such right in a common law
situation.
[19] It follows
therefore that although the plaintiff does not place specific
reliance on section 185 of the LRA, a substantial
amount of evidence
will have to be adduced on this point. It was made clear in South
African Maritime Safety Authority supra that
in the absence of a
specific provision for a pre-dismissal hearing in the contract this
cause of action would fail in any event.
[20] In the English
case of Edwards v Chesterfield Royal Hospital NHS Foundation Trust
Botham v Ministry of Defence
2011 UKSC 58
where Lord Phillip, Lord
Walker, Lady Hale, Lord Mance, Lord Kerr, Lord Dyson and Lord Wilson
concurred as follows:
‘It is now
well established that an employment contract is subject to the
implied term that the employer and employee may
not without
reasonable and proper cause conduct themselves in a manner likely to
destroy or seriously damage the relationship of
confidence and trust
between them.’
[21] In Johnson v
Unisys Limited
2001 UKHL 13
the claimant sought to rely on an alleged
breach of this implied term, not as a foundation for a statutory
claim for unfair dismissal
or as a foundation for a claim for damages
unrelated to dismissal but as a foundation for a claim at common law
for damages for
the manner of his dismissal. The House of Lords
refused to extend the implied term to allow an employee to recover
damages for
loss arising from the manner of his dismissal, because
such a development of the law would be contrary to the intention of
Parliament
that there should be such a remedy, but that it should be
limited by the statutory code regarding unfair dismissal found in the
English Employment Rights Act 1996.
[22] Therefore loss
arising from an unfair manner of a dismissal is not recoverable as
damages for breach of the implied term of
trust and confidence and it
falls within what has been called the Johnson exclusion rule. If
this were not so there would be a
plethora of claims for damages and
this would result in confusion and would be contrary to the evident
intention of Parliament.
The co-existence of a common law right in
those circumstances overlapping with the statutory right would be a
recipe for chaos.
See judgment of Lord Hoffman at paragraph 25.
[23] In the result
the exception taken against the second tranche of amendments, that is
that the right to a pre-retrenchment hearing
or pre-dismissal
consultation is bad in law, must be upheld.
[24] On the question
of costs, as this is a matter involving an employment relationship
there will be no order for costs. See President
of the Republic of
South Africa and Others v Reinecke
2014 (3) SA 205
(SCA). A further
motivating factor for there not to be a costs order is that each
party has been successful in respect of one
of the two exceptions
raised and the appropriate order would in the circumstances be that
each party pay their own costs.
The order therefore
that I would make is the following:
1. The defendants’
exception to paragraphs 1 and 2 of the plaintiff’s notice of
intention to amend dated 23 November
2013 is dismissed.
2. The defendants’
exception to paragraph 4 of the plaintiff’s notice of intention
to amend dated 23 November 2013 is
upheld.
3. Neither party
shall be entitled to costs.
VICTOR J
COUNSEL FOR
APPLICANT PJJ ZIETSMAN
INSTRUCTED
BY FRESE MOLL AND PARTNERS
COUNSEL FOR
RESPONDENT K ILES
INSTRUCTED BY
CLIFF DEKKER HOFMEYER INC
DATE OF HEARING:
26 May 2014
DATE OF
JUDGMENT: 2 July 2014