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[2016] ZAGPJHC 48
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Mbebe v Minister of Communications and Another (31593/2014) [2016] ZAGPJHC 48 (26 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE:
26 February 2016
CASE
NO: 31593/2014
In
the matter between:
MBEBE,
MVUZO
MARTIN
....................................................................................................
Applicant
And
THE
MINISTER OF
COMMUNICATIONS
............................................................
First
Respondent
SOUTH
AFRICAN BROADCASTING CORPORATION LTD
.........................
Second
Respondent
JUDGMENT
DAVIS
AJ
[1]
INTRODUCTION
:
1.1
The current Applicant is Lungiswa Mbebe in her capacity as the duly
appointed executrix
of the estate of the late Mvuzo Martin Mbebe (“
Mr
Mbebe
”). Mr Mbebe has
during the course of this litigation passed away and was replaced by
the executrix in terms of a notice
in terms of Rule 15(3) delivered
on 4 November 2015.
1.2
The Applicant is proceeding with a claim against the Minister of
Communications as First
Respondent for the payment of R1 853 000,00
and with a claim against the South African Broadcasting Corporation
Ltd (SABC)
as Second Respondent for the payment of a sum of
R787 170,00. These two claims are said to arise from two
settlement
agreements which Mr Mbebe alleged he had concluded with
the two Respondents.
1.3
It is common cause that there are no written settlement agreements
countersigned by both
the respective parties thereto. The
agreements on which Mr Mbebe sought to rely are in dispute and both
Respondents oppose
the application. The First Respondent, being
the incumbent Minister, has delivered an answering affidavit to which
I shall
refer to more fully hereunder and to which the late Mr Mbebe
had replied prior to his passing away. The Second Respondent
has not delivered an answering affidavit and a belated “
opposing
affidavit
” by one of its
attorneys was handed to me at the hearing of the matter. The
Applicant declined to reply thereto and
was content in dealing with
the affidavit by way of argument.
[2]
BACKGROUND
:
2.1
Early on in his founding affidavit the late Mr Mbebe stated that the
background circumstances
to the disputes between himself and the
First and Second Respondents were not “
pertinently
relevant to the present application
”
and that the briefest outline thereof would suffice. He then
did go on to describe the disputes and the preceding
litigation
between the parties in some detail. In argument, this has been
summarised along the lines to which I shall refer
to hereunder.
2.2
During 2006 and after a selection process described by Mr Mbebe, he
emerged as the Applicant
preferred by the board of the SABC for
appointment as its Chief Operating Officer. In terms of the
prescribed procedure the
First Respondent (to whom I shall also refer
to from time to time as “
the
Minister
”) was to place the
recommendation before Cabinet for acceptance or refusal. Having
regard to the time frames and various
Cabinet shuffles, no less than
six consecutive ministers became involved in the matter from time to
time.
2.3
The incumbent Minister at the time of the SABC board’s
recommendation failed to place
the recommendation before Cabinet.
Pursuant hereto the SABC board resolved to rescind its earlier
recommendation, citing
the fact that the then Minister had not
approved the recommendation as a basis for the rescission.
2.4
Mr Mbebe then instituted proceedings in this court and obtained
urgent interim relief aimed
at preventing the SABC from appointing
another Chief Operating Officer pending the outcome of his
application to review the failure
of the Minister to place the
recommendation before Cabinet as well as a review of the board’s
resolution to rescind its earlier
recommendation.
2.5
It was common cause between the parties to the review application
that the Minister’s
function in the appointment of the Chief
Operating Officer of the SABC was limited to placing the board’s
recommendation
before Cabinet. The Minister was not empowered
to accept or reject the recommendation.
2.6
Ultimately, the SABC conceded the relief sought against it by Mr
Mbebe and resubmitted the
initial recommendation to the Minister in
order for it to be placed before Cabinet.
2.7
On 13 May 2009 the relief sought against the Minister was postponed
sine die
to enable the then Minister to consider and deal with the renewed
recommendation of the board.
2.8
Despite the amendment of the relief sought by Mr Mbebe and the
re-enrolment of his review
application, the dispute remained
unresolved.
[3]
SETTLEMENT
:
3.1
Against the abovementioned background Mr Mbebe set out his cause of
action in his founding
affidavit as follows:
“
8.
After
lengthy negotiations between myself, the Minister and the SABC we
reached agreement upon the settlement of the review application:
(8).1
In December 2013 my attorneys received a settlement proposal from the
attorneys representing the SABC.
On 19 December 2013 my
attorneys notified the SABC’s attorneys of my acceptance of the
SABC’s settlement proposal.
Annexures “MMM1”
and “MMM2” are copies of the SABC’s settlement
proposal and my attorney’s
acceptance thereof on my behalf.
(8).2
On 16 February 2014 my attorneys received a settlement proposal from
the Minister. On 17 February
2014 my attorneys notified the
Minister of my acceptance of the Minister’s settlement
proposal. Annexures “MMM3”
and “MMM4”
are copies of the Minister’s settlement proposal and my
attorney’s acceptance thereof on my
behalf.
”
3.2
In addition to the allegations regarding the settlement agreements
themselves, Mr Mbebe
dealt with the issue of the subsequent
appointment of Mr Hlaudi Motsoeneng as the Chief Operating Officer of
the SABC as follows:
“
50.
On
Wednesday 9 July 2014 I woke up to the news that the board of the
SABC purported to appoint Mr Hlaudi Motsoeneng as the Chief
Operating
Officer of the SABC following upon the purported acceptance by the
Minister of a recommendation from the board to this
effect.
51.
The
purported appointment of Mr Motsoeneng immediately became the subject
of much debate in the public domain. Media reports
raised the
matter of the interim interdict I obtained on 2 October 2008 that
prevented the appointment of a Chief Operating Officer
for the SABC
until the final determination of my review application. In
response to this the Minister was widely reported
to have stated that
she, the SABC and I had reached an agreement of settlement removing
the impediment of the interim interdict
and paving the way for the
appointment of a Chief Operating Officer.
52.
It
is evident from these reports that the Minister was cognisant both of
the interim interdict and the settlement agreements I reached
with
her predecessor and the SABC.
”
3.3
Prior to dealing with the aforementioned annexures and the documents
which Mr Mbebe averred
constituted the settlement agreement, it is
apposite to refer to the First Respondent’s stance. This
stance is set
out in an answering affidavit of the incumbent
Minister, the Honourable Azwihangwisi Faith Muthambi. In
view of allegations
of conflicting versions of the Minister, it is
necessary to quote from her affidavits, which I do hereunder.
3.4
The version of Mr Mbebe that the dispute had been settled is dealt
with
inter alia
as follows:
“
17.
AD
PARAGRAPH 8
:
I
am not the Minister that the Applicant is referring to herein, I have
never discussed the settlement with the Applicant and deny
that any
of my predecessors have settled the matter with the Applicant, in
this regard I challenge the Applicant to produce any
signed
settlement agreement by any Minister representing the Department of
Communications of the Republic of South Africa …
19.
AD
PARAGRAPH 1.2
:
The
alleged settlement agreement as reflected on “MMM1” is
not signed by the Second Respondent and there is no proof
accompanying the alleged settlement agreement to show it was coming
from the Second Respondent. Applicant failed to provide
this
court with a signed settlement agreement to show that the matter is
settled. Annexure “MMM3” and “MMM4”
only serve to proof (sic) that there was settlement discussion
between the office of my predecessor and the Applicant attorneys,
the
said annexures do not show any signed settlement.
20.
AD
PARAGRAPH 9
:
I
deny that any of my predecessors had signed a settlement with the
Applicant or they have agreed with the Applicant as alleged
…
37.
AD
PARAGRAPH 40 TO 43
:
Annexure
“MMM3” reflected a discussion about the settlement rather
the actual settlement. My predecessor was Mr
Carrim informed me
that there was no agreement between the Department of Communication
and the Applicant to settle the matter …
41.
AD
PARAGRAPH 52
:
I
deny that I have made a statement to the effect that the SABC and the
Applicant had reached a settlement and I further deny that
my
predecessor or myself had signed any settlement with the Applicant.
”
3.5
In dealing with the Minister’s
aforementioned denials, Mr Mbebe in reply relied on affidavits
exchanged in an application launched by the Democratic Alliance on or
about 16 July 2014 in the Western Cape High Court under case
no.
12497/14. In the Democratic Alliance’s founding affidavit
deposed to by the Chairperson of the Federal Executive
of the
Democratic Alliance at the time, Mr James Selfe, he stated the
following with reference to Mr Mbebe:
“
53.
One
of the obstacles to filling the post of COO and part of the reasons
Motsoeneng served in an acting capacity for so long –
was that
Mr Mvuzo Mbebe had obtained an interdict preventing the post from
being filled on a permanent basis. Mbebe had been
recommended
as COO in 2007 by the board, but his recommendation was overturned
when a new chairperson – Ms Khanyi Mkhonza
– took
office. The interdict prevented the board from permanently
filling the post pending Mbebe’s review of
the board’s
reversal.
54.
The
matter was close to being resolved by the previous Minister, Mr Yusuf
(sic) Carrim. It appears that the matter may have
been finally
settled by the current Minister (Ms Muthambi) some time in early
July. The Minister arrived at a board meeting
on 7 July 2014 in
possession of a note of settlement of the Mbebe dispute. If
valid, this would open the way for the appointment
(sic) a new COO.
”
3.6
The following was said by the said Minister in response to the
aforementioned allegations
in her answering affidavit delivered in
the application in the Western Cape High Court:
“
46.3
I deny that I arrived at the board meeting of the (sic) 7 July 2014
with a so-called note of
settlement on Mbebe’s matter. It
is further not true that I had a 2 hours meeting with the Third
Respondent upon my
arrival to the said board meeting. As a
matter of protocol it is the duty of the Third Respondent to give me
a brief of the
issues.
46.4
The Second Respondent had already noted in its previous board meeting
the closure of Mbebe’s
matter and Mbebe through his attorneys
had written to me on two occasions confirming that he had accepted
settlement.
”
(The
Second Respondent referred to in the quotation is also the Second
Respondent in the present application and the Third Respondent
referred to was its chairperson.)
3.7
Based on the aforementioned, Mr Mbebe averred that the Minister’s
current denial of
a settlement having been reached is untrue.
3.8
In view of the conflicting statements, it is necessary to examine Mr
Mbebe’s statement
and the documents on which he relied for
alleging the existence of settlement agreements in detail.
[4]
THE AGREEMENT WITH THE SABC
:
4.1
According to Mr Mbebe’s statement, this agreement is
constituted by Annexure “MMM1”
and the acceptance thereof
in Annexure “MMM2”.
4.2
Annexure “MMM1” is a 4-page typewritten document.
It bears the heading
“
IN THE
DISCIPLINARY HEARING BETWEEN SOUTH AFRICAN BROADCASTING CORPORATION
SOC LTD THE EMPLOYER AND MR MVUZO MBEBE THE EMPLOYEE
”.
It refers in the preamble to disciplinary proceedings initiated by
the employer against the employee and concludes
the preamble by
stating that the parties have agreed that there is “…
no
longer a need to proceed with the disciplinary hearing …
”
4.3
Hereafter the agreement records that the employer formally withdraws
all charges of misconduct
levelled against the employee and that the
employer will within 5 days of signature of the agreement pay the
employee’s legal
costs occasioned by the disciplinary hearing
amounting to:
“
2.1
R582 540 (Five Hundred and Eighty Two Thousand Five Hundred and Forty
Rand) inclusive
of VAT for Mncedisi Ndlovu and Sedumedi Attorneys’
legal fees; and
2.2
R204 630 (Two Hundred and Four Thousand Six Hundred and Thirty Rand)
for
senior and junior counsel’s fees
”
.
4.4
The agreement also contains a paragraph stating that the employee
shall within 5 days of
signature of the agreement withdraw any legal
action in any court or tribunal that he may have instituted against
the employer
related to the disciplinary hearing. The agreement
also contains a non-variation clause to the effect that no amendment
or
waiver shall be binding unless contained in the agreement and
signed by the parties.
4.5
Annexure “MMM1” is undated and was not signed by the
employer (the Second Respondent
in this application). The last
page of the document is blank, save for in the top right-hand corner
there is a space and
the typewritten words “
for
the employee
” and a signature
which Mr Mebebe alleged was his.
4.6
Annexure “MMM2” is a letter from Mr Mbebe’s
attorneys dated 19 December
2013 but bears no relevance to Annexure
“MMM1”. The letter is directed to the then Minister
of Communications,
the Honourable Yunus Carrim and a copy thereof is
apparently also sent to Ms Rosey Sekese to whom I shall refer to
hereunder.
The letter reads as follows:
“
Pursuant
to the telephone conversation that Mr Mvuzo Mbebe had with Minister
and Mr Mjwara last night and the subsequent text messages
sent to
yourselves, we attach herewith a revised settlement agreement which
our client has already signed. We look forward
to receiving a
signed settlement agreement by Minster Yunus Carrim by close of
business today.
”
4.7
The document to which this letter apparently refers is another
settlement agreement which
bears the heading of the review
application in this court in case no. 30814/2008. Its preamble
reads as follows:
“
Whereas
the Applicant has instituted legal action against the Second
Respondent in the South Gauteng High Court under case no. 30814/2008
contesting the process followed by the Second Respondent in filling
up the position of Chief Operating Officer and whereas the
parties
have now agreed that there is no longer a need to proceed with said
action. The parties have agreed to settle the
dispute as
follows …
”
(The
Second Respondent referred to in this settlement agreement is the
First Respondent in the present application.)
4.8
This settlement agreement (which counsel for the Applicant has
assured me is not one on
which the Applicant relies) provides that
the Minister shall within 5 days of signature of the agreement pay Mr
Mbebe one year’s
salary equivalent to the salary package that
Mr Mbebe would have earned as Chief Operating Officer of the SABC as
well as his legal
costs occasioned by the litigation process in an
amount of R787 170,00. As a separate part of the agreement the
Minister
would have appointed Mr Mbebe for one year to review and
develop the sports broadcasting policy of the SABC, to project-manage
the drafting of legislation that will govern sports broadcasting and
to oversee the implementation of the Digital Terrestrial Television
Project. Certain ancillary issues are also referred to and
again, the agreement contains a non-variation clause in similar
fashion as “MMM1” and purports to constitute the full and
final agreement between the parties. The agreement
was only
signed by Mr Mbebe and not by any Minister.
4.9
So far Mr Mbebe’s allegations.
[5]
THE AGREEMENT WITH THE MINISTER
:
5.1
Mr Mbebe averred that on 16 February 2014 his attorneys received a
settlement proposal from
the Minister to which his attorneys
responded the next day notifying the Minister of Mr Mbebe’s
acceptance. This Mr
Mbebe and the Applicant still says
constitutes the agreement with the First Respondent and which is
contained in Annexures “MMM3”
and “MMM4”.
5.2
Annexure “MMM3” was apparently e-mailed by Ms Rosey
Sekese to whom I had referred
to above to Mr Mbebe and his attorneys
at 19:08 on the evening of 16 February 2014. The attachment to
Ms Sekese’s e-mail
is identified as “
Mvuzo
Mbebe draft Tripartite Settlement Agreement
”.
5.3
The document which she had attached to her e-mail is headed “
draft
only for discussion purposes
”.
It similarly bears the heading of case no. 30814/2008 in this court
and its preamble reads as follows:
“
Whereas
the Applicant has instituted the above action against the Respondents
and whereas the Applicant and the Respondents have
agreed to settle
the matter in the interests of the South African Broadcasting
Corporation and in the interests of the broader
South African public
by allowing the First Respondent through his settlement to fill
critical vacancies to assist the First Respondent
to fulfil its
broadcasting mandate in accordance with the applicable legislation
and constitutional requirements and whereas the
parties have agreed
to reduce the settlement to writing …
”
5.4
Hereafter the Deed of Settlement again states that the First
Respondent therein (the SABC)
will pay Mr Mbebe’s legal costs
occasioned by the disciplinary hearing amounting to R582 540,00
and R207 630,00 being
a total amount of R787 170,00. It
also provides that Mr Mbebe would within 5 days of signature of the
agreement withdraw
any legal action. The agreement provides
that the Minister would within 30 days of receiving an invoice pay Mr
Mbebe one
year’s salary equivalent to the salary package that
he would have earned at the time as Chief Operations Officer of the
SABC
which was then estimated at an amount of R1 853 000,00
less the salary that Mr Mbebe was earning at the time that he was
recommended for the position and again payment of the legal costs in
the amount of R787 170,00 was repeated.
5.5
Apart from the obvious question of the repeated inclusion in this
agreement of what Mr Mbebe
stated had already been agreed to between
him and the SABC in Annexure “MMM1”, the document annexed
to Ms Sekese’s
e-mail of “MMM3” is replete with
numerous “
tracking changes
”
apparently done to an initial draft document. The changes are
also from time to time on the right-hand side of the
document
supplemented by comment. Examples hereof are the following:
5.4.1
In paragraph 5 of the document reference is made to the Public
Finance Management Act and the
obligations of accounting officers and
resolutions relating to the implications of unauthorised expenditure
not budgeted for.
The comment on this document on the
right-hand side reads as follows:
“
Mbulo,
I haven’t been able to secure the resolution and/or minutes
that authorised this settlement.
”
5.4.2
Virtually all the time periods referred to in the initial agreement
of which this was clearly
an amendment were amended. Time
periods of payment within 5 days were extended to 30 days and the
like.
5.4.3
Various wordings referring to the description of the disciplinary or
misconduct hearings were
also made on this document. Deletions
were made by a line having been drawn through words and insertions
indicated by underlining.
From paragraph 11 onwards all the paragraph
numbers have all been changed and reformatted.
5.5
The document ends on the top of the last page thereof on paragraph 31
which has been amended
to read paragraph 29 whereafter no provision
has been made for any signatures. Despite this the document
again contains the
standard non-variation clause and the statement
that it constitutes a full and final agreement between the Minister
and Mr Mbebe
and in particular insofar as Mr Mbebe might have had any
right relating to the filling of the Chief Operating Officer
position.
5.6
The typescript of the document has in the background on each page a
printed draft statement
reading “
M
Mbebe draft settlement agreement tracked
”.
5.7
The acceptance of this document on which Mr Mbebe relies is contained
in Annexure “MMM4”
which is an e-mail by Mr Mbebe’s
attorneys with the subject “
DoC/SABC/Mbebe
Tripartite Agreement
”. It
simply reads:
“
Dear
Rosey, We refer to the settlement agreement between Mvuzo Mbebe and
SABC/Minister of Communications and advise that our instructions
are
to accept the proposed settlement agreement. Please note that
the acceptance of payment of R1 853 000 is a further compromise
by
our client. Our client is available to sign the settlement
agreement during the course of the day. We will shortly
send
you and the SABC the invoice for the legal costs.
”
5.8
So far Mr Mbebe’s allegations pertaining to the agreement with
the Minister.
[6]
APPLYING THE LAW TO THE FACTS
:
6.1
Additional to what I have already stated above, it is common cause
that neither of the agreements
on which Mr Mbebe seeks to rely were
countersigned by or on behalf of the SABC or the Minister.
6.2
It was further common cause that no payment has been made by either
the SABC or the Minister
and no appointment of Mr Mbebe to any other
position with the SABC had been made.
6.3
It is also common cause that for the initial four months subsequent
to the date of the second
purported agreement no demand has been made
for any of the substantial amounts mentioned in the agreements.
The only demand
which was made was done by Mr Mbebe’s attorneys
in writing on 16 July 2014 being a week after Mr Mbebe heard of the
appointment
of Mr Motsoeneng.
6.4
In considering the finality validity of the agreements contained in
Annexures “MMM1”
to “MMM4” of Mr Mbebe’s
affidavit I find the following summary of the position contained in
the well-known work
of Christie and Bradfield,
Christie’s
The Law of Contract in South Africa
,
6
th
Edition at 37 under the heading “
Proposals
for partial, incomplete or provisional agreement
”
instructive:
“
Especially
in complicated or protracted negotiations it is not uncommon for the
parties to record the progress they have made in
a partial agreement,
thus clearing the points on which they are agreed out of the way and
facilitating discussion on the points
that remain outstanding.
If agreement is eventually reached on the outstanding points and a
complete contract drawn up and
signed, the prior partial agreement is
usually forgotten, but if for one reason or another the intended
contract is never concluded
one party will sometimes seek to hold the
other to the partial agreement. Obviously he cannot be
permitted to do so …
”
6.5
In my view this is exactly what Mr Mbebe attempted to do in launching
the application and
what the Applicant is now still doing.
6.6
In relation to the question of whether the documents on which Mr
Mbebe and the Applicant
seek to rely constituted provisional or final
agreements the following was stated by Corbett JA (as he then was) in
Pitout v North Cape Livestock Co-Op
Ltd
1977(4) SA 842 (A) at 850D:
“
Was
the undertaking an offer made animo contrahendi which upon acceptance
would give rise to an enforceable contract or was it merely
a
proposal made … while the parties were in the process of
negotiating and were feeling their way towards a more precise
and
comprehensive agreement? This is essentially a question to be
decided upon the facts of the particular case.
”
See also:
Alstham Equipments et
Enterprises
Electriques,
South Africa Division v GKN Sankey (Pty)Ltd
1987(1)SA 81 (A) at 92 E:
6.7
Mr Mbebe and the Respondents appear to argue that the contract in
question did not have
any outstanding items and that there was
sufficient consensus on the contents thereof to constitute agreements
upon acceptance.
While there might not be much difference in detail
in the contracts it is clear that when Ms Sekese sent MMM3, she did
so as a
draft or as a proposal. It was not a complete offer
which merely required the signature of Mr Mbebe. That this
proposal
was understood in that sense and that a signature of a later
document was required also appears from his own attorney’s
letter.
Annexure “MMM4” does not constitute an
acceptance of “MMM3” but an indication that the terms
thereof are
acceptable and can be embodied in a subsequent document
which would be signed. It is common cause that this never
happened.
6.8
In similar fashion, if “MMM1” had been the final say in
respect of the agreement
between Mr Mbebe and the SABC, then why
would those same terms again be repeated in Ms Sekese’s draft
document? This
question becomes even more pertinent when “MMM3”
is styled to be a tripartite agreement. Furthermore, Annexure MMM2
was not an acceptance of AnnexureMMM1.
6.9
In all the instances all the documents on which the Applicant relied
envisaged a written
agreement signed by all the parties thereto.
The requirement for signature is reiterated by the non-variation
clauses.
6.10
A further indication that the agreements were not yet final one finds
in the agreement with the Minister
wherein various and numerous
references were made to the requirements of the Public Finance
Management Act and the need for reporting
of the Deed of Settlement
to the National Treasury and the Auditor-General. None of these
steps had taken place or were catered
for and would only have
followed once a final document had been signed.
6.11
The clear
animus
of
the parties, in particular the SABC and the Minister was that
signature of a final complete document without amendments or
variations
would constitute a settlement and nothing else.
6.12
I therefore find that the documents were incomplete and that an
agreement had not yet come into being between
the late Mr Mbebe and
the SABC and the Minister of Communications as claimed by Mr Mbebe.
6.13
Having reached the aforementioned conclusion, it is not necessary to
further comment on or speculate on the
reasons for the conflicting
statements made by the Minister. In argument for the Second
Respondent any statement amounting
to an admission of a settlement
was expressly disavowed. The statements made in public and
referred to in the affidavit in
the litigation in the Western Cape
may or may not have been made for the sake of political expediency
but I need not make any finding
on that. What is clear however from
the Minister’s answering affidavit, is her insistence that no
signed written agreement
existed.
6.14
Apart from the fact that the employment offered to Mr Mbebe can of
course no longer be accepted since his
passing away and the fact that
the Notice of Motion erroneously claims a double payment of the
amount of R787 170,00 and that the
amount of R1 853 000,00
claimed therein also does not accord with the terms of the “MMM3”
to which I have
referred, I find that there were no final agreements
between the respective parties which would entitle the Applicant to
the relief
claimed.
[7]
On a conspectus of the evidence presented and documents filed I find
no reason why costs should not follow the event.
[8]
ORDER
:
The
Applicant’s application is dismissed with costs.
N
DAVIS
ACTING
JUDGE OF THE HIGH COURT
OF SOUTH
AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
Heard: 23 February 2016
Counsel
for Applicants: Adv H. M Viljoen
Instructed
by: Mncedisi Ndlovu & Sedumedi Attorneys
Counsel
for First Respondent: Adv A. Tiny
Counsel
for Second respondent: Adv P. P Sekhula
Instructed
by: Lugisani Mantsha Incorporated
Date
of Judgment: 26 February 2016