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[2018] ZAGPJHC 40
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Chowan v Associated Motor Holdings (Pty) Ltd and Others (22142/16) [2018] ZAGPJHC 40; [2018] 2 All SA 720 (GJ); 2018 (4) SA 145 (GJ); (2018) 39 ILJ 1523 (GJ) (23 March 2018)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case No: 22142/16
(1)
REPORTABLE: Yes.
(2)
OF INTEREST TO OTHER JUDGES: Yes.
(3)
REVISED.
In
the matter between:
ADILA
CHOWAN
Plaintiff
and
ASSOCIATED
MOTOR HOLDINGS (PTY) LTD
1
st
Defendant
IMPERIAL
HOLDINGS
LIMITED
2
nd
Defendant
MARK
LAMBERTI
3
rd
Defendant
Case
Summary
:
Delict –
Actio
legis Aquilia
–
Elements – Wrongfulness – breach of employer’s duty
not to subject employee to occupational detriments
on account of
making protected disclosure as contemplated in
Protected Disclosures
Act 26 of 2000
– conduct wrongful –
aquilian
claim succeeds.
Delict
-
Actio Iniuriarum
– impairment of dignity
– actionable injury –
iniuria
claim
succeeds.
JUDGMENT
MEYER J
INTRODUCTION
[1]
The plaintiff, Ms Adila Chowan, is suing the first defendant,
Associated Motor Holdings (Pty) Ltd (AMH), the second defendant,
Imperial Holdings Limited (Imperial) and the third defendant, Mr Mark
Lamberti, in delict under the
actio legis Aquilia
for pure
economic loss that she allegedly suffered through the wrongful and
intentional acts of the defendants. In the alternative,
she
claims payment of damages in contract from AMH as a result of its
alleged repudiation of the employment contract that was concluded
between her and AMH on 16 March 2012. Furthermore, she sues
Imperial and Mr Lamberti for payment of damages under the
actio
iniuriarum
as a result of alleged injuries to her reputation
(
fama)
and to her sense of self-worth (
dignitas)
.
During the course of the trial a consent order was made, separating
the questions of liability and the
quantum
of damages in
respect of each claim and providing for the questions of liability to
be determined first.
[2]
Ms Chowan was employed by AMH in the capacity of group financial
manager from 16 March 2012 until she was dismissed with immediate
effect at the end of September 2015. Mr Harvey Adler was AMH’s
chief financial officer (CFO) at the time when Ms Chowan
was
appointed and the director to whom she reported. During June
2012, Mr Peter Hibbit was appointed in that position of
CFO. He
left the employ of AMH at the end of September 2014. During
October – December 2014, Ms Chowan fulfilled
not only her own
duties as group financial manager, but she also ‘held the fort’
as far as the position of CFO is concerned.
Mr Ockert Janse van
Rensburg was appointed in that capacity and he has been the CFO of
AMH since the beginning of January 2015.
Mr Manny de Canha was
at all material times the chief executive officer (CEO) of AMH.
[3]
AMH is a subsidiary of Imperial. Mr de Canha held ten percent
and Imperial ninety percent of the shareholding in AMH.
Mr de
Canha sold his ten percent shareholding to Imperial about a year
prior to the commencement of this trial. Since then
AMH
underwent a name change to Motis Corporation. Mr Hubert Brody
was the CEO of Imperial until the beginning of 2014.
Mr Mark
Lamberti took over the reigns as CEO from him since 1 March 2014.
Mr Thulani Gcabashe was a non-executive director
and group chairman
of Imperial’s board until the end of 2015.
APPLICATION
FOR ABSOLUTION AT THE END OF MS CHOWAN’S CASE
[4]
Ms Chowan testified and she also called, under
subpoena
, Mr
Gcabashe as a witness. Once Ms Chowan’s case was closed, AMH,
Imperial and Mr Lamberti made application for absolution
from the
instance in respect of all Ms Chowan’s claims. I granted
absolution from the instance only in favour of Imperial
and Mr
Lamberti in respect of the contractual claim. They were not
parties to Ms Chowan’s employment contract on which
her
contractual claim is founded. As far as Ms Chowan’s
aquilian
claim against AMH, Imperial and Mr Lamberti, her
contractual claim against AMH and her
inuria
claim against
Imperial and Mr Lamberti are concerned, I concluded that there was
evidence upon which a reasonable person might
find for her. I
was satisfied that she had made out a
prima facie
case in
respect of those claims. (see
Marine and Trade Insurance Co
Ltd v Van der Schyff
1972 (1) SA 26A)
;
Claude Neon Lights (SA)
Ltd v Dunhill
1976 (4) SA 403
(A).)
[5]
Furthermore, as far as Ms Chowan’s
aquilian
claim is
concerned, I took heed of the following passage in
Carmichele v
Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 80:
‘
There
may be cases where there is clearly no merit in the submission that
the common-law should be developed to provide relief to
the
plaintiff. In such circumstances absolution should be granted.
But where the factual situation is complex and the
legal position
uncertain, the interests of justice will often better be served by
the exercise of the discretion that the trial
judge has to refuse
absolution. If this is done, the facts on which the decision
has to be made can be determined after hearing
all the evidence, and
the decision can be given in light of all the circumstances of the
case, with due regard to the relevant
factors.’
Messrs
de Canha and Janse van Rensburg thereafter testified on behalf of
AMH, Imperial and Mr Lamberti.
THE
EVIDENCE
[6]
Ms Chowan is 42 years old at present. She obtained a bachelors
degree as well as an honours degree in accountancy whereafter
she
served the three year period articles at Deloitte & Touche, from
1997 until 2000, in order to qualify as a chartered accountant.
By the time she was head-hunted for the position of group financial
manager at AMH, Ms Chowan already had extensive experience
as a
chartered accountant and in the corporate world. Once she
qualified as a chartered accountant at the end of 2000, she
stayed on
at Deloitte & Touche in the capacity of audit manager for about a
year. She thereafter spent about a year in
the United Kingdom
where she was employed at Ernst & Young. Upon her return to
South Africa, she joined Rand Merchant
Bank where she worked in the
capacity of treasury accountant for about three years. During
2004, she joined the Central Energy
Fund (CEF); first in the capacity
as financial manager and she was later promoted to the position of
CFO, which position she held
for about three of the seven years
during her employment at the CEF. There she also acted as CEO
for about three months and
she occupied a number of other board
positions. She was exposed to and gained experience at a
strategic level.
[7]
At the beginning of 2012, Ms Chowan was recruited for the position of
group financial manager at AMH. She was interviewed
by Mr Adler
and underwent psychometric tests. Before she accepted the
position in what was then a new industry for her, the
motor industry,
she wanted an assurance from Mr Adler that opportunities would be
available to her within the Imperial group ‘for
career
progression’. She testified that he assured her that–
‘
[t]here
would be ample career opportunities of growth within Associated Motor
Holdings and at large within the Imperial Group, because
Associated
Motor Holdings was a major subsidiary of Imperial Holdings.’
On
the strength of that assurance, so Ms Chowan testified, she accepted
the permanent position offered to her by AMH and her intention
was to
stay there for the long term, a minimum of ten years. She also
added:
‘
I
really enjoyed working at Associated Motor Holdings and I had seen
myself actually growing within the Imperial Group.’
[8]
When the then CEO of Imperial, Mr Brody, appointed Mr Hibbit as the
CFO of AMH when Mr Adler had been moved into the position
of COO, Mr
Adler explained to Ms Chowan that Mr Hibbit was only going to be the
CEO ‘on a two year contract and that he was
also there to groom
[her] into the CFO position’. Mr Hibbit, according to Ms
Chowan, came from an insurance industry
background and she was
responsible for most functions of his position as CFO. And, as
she put it when she testified, he was
quite happy with her work.
[9]
Mr Hibbit decided to terminate his two year contract earlier and he
left AMH at the end of September 2014. He informed
Ms Chowan
that he would be recommending her for the position of CFO, and he
accordingly requested her to undergo a psychometric
test to establish
whether there were any ‘gaps where [she] would need some
development’. Ms Chowan underwent
the psychometric test
and neither Mr Hibbit nor anyone else ever informed her of any such
‘gaps’. Mr Hibbit further
discussed with her the
successor to her position as group financial manager, should she be
appointed as CFO.
[10]
Around May or June 2014, upon being so advised by Mr de Canha’s
secretary, Ms Robyn Gilfern, Ms Chowan became aware that
the position
of CFO at AMH had been advertised and that Mr Sass Sassenberg of the
recruitment firm ATI, had been appointed by Mr
Lamberti to recruit
candidates to enable AMH to appoint ‘a top flight CFO’.
On 2 June 2014, Ms Chowan was also
interviewed for the position by Mr
Sassenberg. Mr de Canha also arranged a meeting for her with Mr
Lamberti, which took place
on 20 June 2014. Before the meeting
Mr de Canha informed her that Mr Lamberti will be interviewing her
for the position of
CFO. At the meeting Mr Lamberti requested
her to go through her
curriculum vitae
and they talked about
her career progression at the various entities where she had been
employed, her personal background, education
and family life.
At the end of the meeting Mr Lamberti informed her that she would not
be appointed as the CFO. She
was upset. Mr Lamberti
promised her that if she gave her full support to the CFO whom he
appoints, ‘he promises [her]
a career path within one year’
and that she would be properly compensated.
[11]
The next day, 21 June 2014, Ms Chowan received an email from Mr
Lamberti, in which he states:
‘
Thank
you for our meeting yesterday – I know how difficult it must
have been for you.
As
you reflect on your career with AMH and Imperial I would like to
place the following on record:
Manny,
Osman [Mr Arbee (CFO at Imperial)] and I will only appoint an AMH
CFO who you can look up to and learn from (the attached
briefing
document and my note on Imperial’s CFO guideline gives you
some sense of the type of individual we are targeting).
We
will support you in appointing better calibre subordinates to enable
you to take on more challenging work and grow your capabilities.
I
give you a personal commitment that by virtue of the executive
development interventions I intend introducing to the Group,
you
will be a more assured and competent leader one year from now.
In this regard I attach a questionnaire for a “Covenant”
discussion, which I intend to implement with the 80 or so most
senior executives in the Group. Working through this may
provide you with some clarity on how you might like your career to
evolve.
Adila
you are at a defining point in your career where, building on your
technical accounting skills you have the potential to make
the
transition from a functional specialist to someone who will provide
thought leadership not only to your subordinates, but to
your
colleagues and to the greater Imperial group.
Manny,
Osman and I are committed to assisting you on this journey and hope
that your deliberations over the coming days lead you
to conclude as
we have, that your interests and those of Imperial will be best
served by you remaining with the Group’.
[12]
The selection process was led by Mr de Canha who was to recruit
someone ‘supported by [Imperial’s] CFO Osman Arbee
and
[Mr Lamberti]’. Mr Sassenberg sourced 154 candidates and
shortlisted ten of them. Messrs Sassenberg and de
Canha
interviewed those ten and three potential candidates were identified,
all white males. The three were also interviewed
by Messrs
Lamberti and Arbee. Mr de Canha recommended that Mr Janse van
Rensburg be appointed, which recommendation was accepted
by Messrs
Lamberti and Arbee.
[13]
Ms Chowan testified that she had been disappointed and had felt let
down by the company. She was overlooked when Mr Hibbit
was
appointed as CFO and she was again overlooked when Mr Janse Van
Rensburg was appointed despite the assurance that Mr Hibbit
had given
her that she would be appointed. She accordingly handed in her
resignation on 25 June 2014. About a week
later, on 3 July
2014, a meeting was held with her to discuss her resignation.
The meeting included Messrs Lamberti, Arbee
and de Canha. Mr de
Canha was opposed to her leaving AMH and wanted to retain her
services. He arranged the meeting
so that a reassurance could
be given to her ‘that [she] had career progression with the
Imperial Group’. At the
meeting Mr Lamberti reassured her
that she would be appointed into a CFO position within one year, not
necessarily within AMH,
but within the Imperial Group. On the
strength of that ‘comfort and assurance’ she withdrew her
resignation.
[14]
Mr Janse van Rensburg commenced his employment as CFO at AMH on 5
January 2015. It is not disputed that Ms Chowan gave
support to
the new CFO. Ms Chowan, however, did not consider him to be the
‘top flight CFO’ who she had been
told would be appointed
in accordance with Mr Lamberti’s new ‘vision’ and
requirements for that position.
His performance, according to
her, was not even on
par
with that of Messrs Adler and Hibbit
when they held that position and she had to assume more
responsibilities with Mr Janse van
Rensburg in that position.
He too, I accept, had the right academic qualifications with
extensive experience as a chartered
accountant and in corporate
life. But he, it is common cause, had no experience in the
motor industry and initially he had
little understanding of the
Imperial Group accounting and Ms Chowan had to explain such
accounting practice to him as they went
along. Under
cross-examination, Mr Janse van Rensburg initially downplayed Ms
Chowan’s assistance to him by saying
that ‘she was not
that helpful’, but later he conceded that at least those parts
of the ‘AMH group strategy report’
which she had compiled
was helpful and that her explaining the group’s accounting
policies, assumptions and the complexity
of the transactions to him,
was helpful. It is common cause that the relationship between
Ms Chowan and Mr Janse van Rensburg
was strained and that Mr de Canha
often intervened in order to resolve the issues between them.
It is not necessary for a
determination of this action to go into any
detail regarding Ms Chowan’s complaints and views relating to
Mr Janse van Rensburg’s
performance as CFO, which are mostly
disputed issues between them. It is, however, only
necessary to refer to
one incident between them, which upset Ms
Chowan greatly.
[15]
According to Ms Chowan, on one occasion when Mr van Rensburg had gone
to her office they were discussing the new company vehicles
that were
being given to employees and the new taxes to be levied in respect of
such benefit. During the conversation she
complained to him
about the colour of the car that had been given to her; it was in a
shade of brown. Mr Janse van Rensburg
then made a comment,
saying ‘well the colour of the car suits your skin’.
When she objected, saying to him that
that was an inappropriate
comment to make, he replied that he had a light or white colour car
that suited his skin colour.
Mr Janse van Rensburg admits that
such a comment would have been inappropriate, if made, but he denies
that he made such an inappropriate
comment to Ms Chowan. He
agreed that a conversation in which Ms Chowan’s unhappiness
with the colour of her company
car had been raised by her happened in
her office roughly during March 2015. According to him,
however, he did not respond
and they ‘just carried on with
normal business’. When he was cross examined on the
improbability of his version
that he would not have responded to her
complaint, he replied thus:
‘
Ja,
she did not lodge a complaint about the car, because then I would
have said can we do something about it. But she did
not lodge a
complaint.’
She
may not have lodged a complaint, but she told him about her
unhappiness, and one would have expected him to say something, even
simply that she should not let that upset her.
[16]
What makes Ms Chowan’s version about that incident even more
plausible than that of Mr van Rensburg, is the fact that
she at the
time mentioned the incident to Ms Uvasha Singh, a group accountant at
AMH, and she volunteered to take a polygraph test,
which she was
entitled to undertake in terms of AMH’s policy, but her request
was not acceded to. That comment, Ms
Chowan testified, made her
feel insulted; she ‘never had anyone objectify [her] and say
that [her] skin colour is similar
to … the colour of a car’
[17]
Ms Chowan testified that after Mr Janse van Rensburg had returned
from a meeting with Mr Lamberti during March 2015, he told
her that
Mr Lamberti had told him to tell her that she would never be a CFO in
the Imperial Group, that he did not believe that
she had what it
takes to be one and that she should be moved to another part of the
AMH group. She was very upset, because
she felt Mr Lamberti had
reneged on the promise that he had made to her on 20 June 2014 that
she would be appointed to that position
within the Imperial Group in
one year’s time. She also felt that it was inappropriate
for Mr Lamberti to have told
Mr Janse van Rensburg to convey that
message to her. He, according to her, should have spoken to her
personally. She
thereafter raised the matter with Mr de Canha.
[18]
When he was cross-examined, Mr de Canha said that he was not aware
that Mr Lamberti had told Mr Janse van Rensburg to tell
Ms Chowan
that she would never be appointed to the position of CFO in the
Imperial Group. When Mr Janse van Rensburg was
cross-examined,
he confirmed that he and Mr Lamberti had a meeting during March 2015
at which meeting they discussed Ms Chowan’s
suitability or
readiness to become a CFO. Mr Lamberti, according to him,
presented him ‘with the facts … as
well as her appraisal
form on certain development areas that she still needed.’
Mr Janse van Rensburg also agreed
that he and Ms Chowan had a
discussion about what he and Mr Lamberti had discussed on his return
to the office, but he denied that
Mr Lamberti asked him to tell her
that she would never become a CFO within the Imperial Group.
[19]
Again, I find the version of Ms Chowan on this disputed issue to be
more probable. It is undisputed that she was very
upset after
the conversation between her and Mr Janse van Rensburg upon his
return from the meeting in question, and that was why
Mr de Canha
arranged another meeting for Ms Chowan with Mr Lamberti. In
this regard he said:
‘
I
arranged the meeting because I got to a boiling point and I said,
look, let us all get in the same room and let us try to resolve
these
issues.’
Mr
de Canha also conceded that Ms Chowan had ‘a gripe’ with
Mr Lamberti because he had not made good on his promise
regarding the
advancement of her career path within one year. Mr de Canha
also confirmed that Ms Chowan did not wish to attend
yet another
meeting with Mr Lamberti, because she had lost confidence and trust
in him and she was exploring opportunities outside
Imperial since she
could not deal with the way that she was being treated.
[20]
The meeting was held on 15 April 2015. Present were Ms Chowan
and Messrs Lamberti, Arbee, de Canha and Janse van Rensburg.
It
is undisputed that Mr Lamberti told Ms Chowan that she is ‘a
female, employment equity, technically competent, they
would like to
keep her but if she wants to go she must go, others have left this
management and done better outside the company,
and that she required
three to four years to develop her leadership skills’.
(Counsel referred to these statements
by Mr Lamberti as ‘the
utterance’ and I adhere to such nomenclature.) Ms Chowan
testified that Mr Lamberti had
also told her in no uncertain terms
that he would not be having any more meetings with her after that
one.
[21]
It is common cause that Ms Chowan was extremely upset. She went
to see Mr de Canha after the meeting. It is common
cause
between them that she considered the utterance ‘totally
unprofessional and unacceptable’; there was no need for
Mr
Lamberti to have mentioned her race and her gender; she was made to
feel that the only reason why she had been employed within
the
Imperial Group was because she was an ‘equity employment
employee’; she felt that she was being discriminated against;
and she was deeply hurt and insulted. Ms Chowan testified that
she categorised the utterance as part of racial and gender
discrimination against herself, because she had never been addressed
in that manner before, it humiliated her, degraded her, objectified
her, and worse, it was being said in front of other senior
executives. She took exception to the utterance ‘in that
particular setting’. She testified-
‘
Because
I pride myself on the fact that I am a qualified professional
chartered accountant. I had built my career. I
had been a
CFO. And in Mark Lamberti’s eyes I was being narrowed
down because of my colour and being female.
’
And
also:
‘
I
had built my career. I had been a CFO. I had acted as a CEO.
All those achievements was (
sic
)
not being recognised, apart from the fact that I am now being
objectified in terms of being a female empowerment equity candidate.’
[22]
Ms Chowan also felt discriminated against in the light of AMH’s
poor performance on diversity in the workplace at that
time as far as
its senior leadership was concerned. It is common cause that
they were all white males, except for a white
female who was the CFO
of Liquid Capital. Furthermore, in the two and a half years
preceding mid-2015, there had been fourteen
executives appointed by
AMH of whom eight were appointed since Mr Lamberti’s
appointment as CEO. Except for one Indian
male, they were all
white males. It is, therefore, undisputable that AMH, as far as
its senior management was concerned,
fared very badly in redressing
the imbalances and wrongs of the past. When this was put to Mr
Gcabashe when he testified,
he confirmed that if those statistics
were true ‘it could be shocking’.
[23]
When Mr Hibbit was interviewed during the investigation that
followed, to which I return, he, according to the investigator,
described the culture and white male domination at particularly AMH’s
head office as follows
‘
Hibbit
said that the Imperial Group as a whole is a very hard culture.
He said he did not know that it is necessarily racist,
but it is not
a warm embracing culture. Typically, at AMH head office, a lot
of new junior staff were not white people and
he said that they would
probably find it a difficult culture to accept. With regards to
the hiring of senior people, he said
that his view is that it is a
very white male dominated group. All senior positions in AMH
are held by white males except
for Kerry Cassel [Chief Executive of
Liquid Capital] but she is white female.’
Ms
Chowan and Mr de Canha agreed with those sentiments expressed by Mr
Hibbit. Also Mr Janse van Rensburg agreed that that
was indeed
the situation when he arrived at AMH, but, he added, it ‘certainly
changed now’.
[24]
Ms Chowan testified that Mr de Canha had apologised to her for the
comments that Mr Lamberti had made to her. He further
told her
that he did not see her having a career within the Imperial Group,
because Mr Lamberti would be obstructive to it and
that he Mr de
Canha would give her a very good reference. Ms Chowan believed
that she had exhausted all internal avenues
available to her.
She indicated to both Mr de Canha and Mr Koornhof, the human
resources manager at AMH, her intention to
lodge a grievance against
Mr Lamberti with the chairman of the Imperial Group, Mr Gcabashe.
Mr Koornhof warned her ‘that
it would be a career limiting move
if [she] raised a grievance against a powerful man like Mr Mark
Lamberti’. But he
never objected to the procedure she
intended to follow on the basis that it would be in breach of AMH’s
grievance procedure.
Mr Koornhof was not called as a witness to
refute Ms Chowan’s evidence in this regard. Mr de Canha
conceded under cross-examination
that he ‘understood where [Ms
Chowan] was coming from’. When Ms Chowan told him of her
intention to lodge a grievance
against Mr Lamberti with Mr Gcabashe,
he, Mr de Canha, had done what he could do and he thus tried to
accommodate her by saying
that she ‘must do what she has to
do’.
[25]
In a letter addressed to Mr Gcabashe, dated 8 June 2015, Ms Chowan
raised her grievance of racial discrimination and unfair
treatment
against Mr Lamberti. In this regard she said the following when
she testified:
‘
All
I wanted was an apology from Mark Lamberti for insulting me and
offending my human dignity, and I wanted him to honour the promise
he
had made.’
[26]
Mr Gcabashe responded to her by letter dated 18 June 2015, wherein
the following is stated;
‘
You
have submitted a letter, which set
(sic)
out
a number of allegations against the Imperial Group CEO, under the
heading “Grievance against Mark Lamberti”. This
letter
was submitted to me in my capacity as the Imperial Group Chairperson.
Despite
the fact that your letter does not follow the provisions of the
Grievance Procedure itself, and therefore cannot be considered
as
part of it, the allegations are of a very serious and most troubling
nature.
It
is therefore necessary that a proper and detailed investigation must
take place, to determine the veracity and accuracy of your
claims,
and that it is only once this has been determined, that the Company
will be able to decide an appropriate way forward.
You
will shortly be contacted by a relevant Executive of AMH to advise
you of the basis of such an investigation.’
[27]
Mr Gcabashe testified that he believed an investigation was warranted
because of the nature of the complaint. Mr Lamberti
reported to
the board of directors of Imperial and Mr Gcabashe conceded that Ms
Chowan could not report the matter to anyone else,
apart from him,
within the hierarchy – all others would have been junior to Mr
Lamberti. Once he had received Ms Chowan’s
grievance, he
took the matter to the ‘Nominations Committee’ and it was
resolved to get an independent investigator
to investigate and take
statements from various witnesses to examine the veracity of the
complaints.
[28]
In a letter dated 22 May 2015 addressed to Mr de Canha but handed to
Mr Koornhof on 18 June 2015, Ms Chowan also reported a
formal
grievance against Mr Janse van Rensburg to Mr Koornhof. Therein
she essentially raised his comment to her that the
colour of her car
matches that of her skin and the issues which she had with his
performance as CFO. She concluded by stating
that she sought
the following through the grievance:
‘
1.
The responsibilities between [herself] and the CFO be defined and his
responsibilities are not
passed onto [her].
2.
The
CFO gets more involved in the detail of the business and refrains
from blaming [her] for things he does not understand, which
is
subsequently proved to be correct.
3.
He
goes on a management relationship course.
4.
Apologise
and refrain from making any discriminatory comment, based on race,
gender and ethnicity.
5.
Immediately
desist from undermining [her] in front of staff.’
[29]
By letter dated 18 June 2015, Mr Koornhof advised Ms Chowan
inter
alia
that-
‘…
it
is proper that the person appointed to conduct this investigation has
a clear field in which to operate.
It
has therefore been decided that it would be most appropriate to
suspend you from your normal duties, during the conduct of this
investigation. I have noted that your allegations also involve
your immediate line officer, Ockert Janse van Rensburg.
Under
these circumstances, and the undoubted difficulties and tensions that
they will cause, it is my considered opinion that this
is the best
step to take.
The
purpose of this letter is therefore to inform you that you are
suspended from your duties with immediate effect. . . .
Should
you wish to bring any reasons to the attention of the Company, as to
why you should not be suspended, you may make written
representations
to me, Otto Koornof in this regard. Such representations should
be made before close of business on Monday
the 22
nd
June
2015.’
[30]
Neither Mr Gcabashe nor Messrs de Canha nor Janse van Rensburg could
give any plausible explanation for why Ms Chowan (who
was in the
position of a complainant) was summarily suspended, or why Messrs
Lamberti and Janse van Rensburg were not also so suspended.
Furthermore, no plausible explanation could be proffered for
suspending her prior to giving her the opportunity to make
representations as to why she should not be suspended. And Mr
Koornhof was not called as a witness. Ms Chowan testified
that
on 18 June 2015, she was marched out of the premises by Mr Koornhof,
her laptop and office keys were taken from her and other
employees
could hear the conversation. Ms Chowan responded to the
invitation to furnish reasons why she should not be suspended
pending
the investigation in a letter addressed to Mr Koornhof, which she
submitted to him on 22 June 2015, but there was no positive
outcome
for her and she remained suspended.
[31]
The firm of attorneys, Dewey Hertzberg Levy Inc., was appointed to
conduct the grievance investigation. A senior associate
of that
firm, Ms Merlisha Haripal, was mandated to conduct the
investigation. She held interviews with Ms Chowan, Mr Hibbit,
Ms Singh, Mr Janse van Rensburg, Mr de Canha, Mr Andrew Mackey, Mr
Arbee, Mr Lamberti and Mr Koornhof. Her report on the
interviews was placed before me as part of the exhibits. On 24
June 2015, she interviewed Mr Koornhof. She
inter alia
reported:
‘
Otto
[Mr Koornhof] said that he and Ockert [Mr Janse van Rensburg] then
travelled to Imperial’s Head Office for the 13h00
meeting with
Mark [Mr Lamberti]. In that meeting, Mark explained the process
that they wanted Otto to follow with Adila [Ms
Chowan]. Otto
said that he mentioned to Mark that he already had good insight into
the issues. Mark then gave Otto
the letters and asked if he had
any comment or concerns. Otto said that he mentioned that there
could be a problem around
the suspension because in terms of the law,
they would need to give her an opportunity to defend herself before
she was suspended.
Otto said that Mark phoned Andrew Levy in
that meeting and Andrew felt that it was not going to be a problem.
Andrew advised
that if Adila had a problem with the suspension, she
could raise it in writing. The other concern that Otto had was
whether
she might object against handing in her laptop as he was
worried that there would be a confrontation in the office as she may
have
personal information on the laptop. Otto said that Mark
said that if that happened, he was to get security to escort Adila
off the premises.’
What
is disturbing here, and not explained by any witness, is Mr
Lamberti’s involvement in the ‘process they wanted
Otto
to follow with Adila’ and in the suspension of Ms Chowan.
Furthermore, the question raised by Ms Chowan when she
testified
about the independence of the investigation in the light of the fact
that the same firm which advised Mr Lamberti on
her suspension had
been appointed to conduct her grievance investigation, remains
unanswered.
[32]
The investigation was concluded by the 20
th
July 2015.
The report of the investigation does not contain any findings nor
recommendations. Mr Gcabashe testified
that the record was
tabled at a meeting of Imperial’s non-executive directors.
The report was also given to Imperial’s
legal advisor.
The investigator also addressed that board meeting. It was then
resolved that Ms Chowan’s allegations
against Mr Lamberti and
against Mr Janse van Rensburg were ‘completely without
foundation’ and ‘devoid of substance’.
[33]
By letter dated 20 July 2015, Mr Gcabashe advised Ms Chowan thus:
‘
I
refer to the letter you submitted to me on the above date [8 June
2015], headed “Grievance against Mark Lamberti”.
I
also refer to your letter which although dated 22
nd
May
2015, was handed to Otto Koornhof on 18
th
June 2015
immediately after he informed you of your suspension. This
letter was addressed to Manny de Canha, and was headed
“Grievance
against Ockert Janse van Rensburg (CFO)”.
Since
the matters clearly had common links, as you are aware, after
consultation with the Nominations Committee of Imperial Holdings
Limited, I gave instructions that the allegations in your letters be
investigated by an independent outside party.
This
examination has now concluded, and the statements are delivered
herewith for your reference.
I
am satisfied that your allegations are completely without foundation
in fact, and are devoid of substance.
Accordingly
your ‘grievance’ application is dismissed, and is now
closed.
However,
this does not mean that this is the end of the matter. As your
actions constitute misconduct and an abuse of the
grievance
procedure, it has been decided to institute the disciplinary
procedure. Disciplinary charges will be drawn up and
issued to
you by an AMH executive within a matter of days.’
[34]
It is not clear, on the evidence before me, why the decision was
taken to institute the disciplinary action against Ms Chowan,
particularly in the light of Mr Gcabashe’s decision, after he
had consulted the Nominations Committee, ‘that a proper
and
detailed investigation must take place’ notwithstanding ‘the
fact that [Ms Chowan’s] letter [addressed to
him] does not
follow the provisions of the grievance procedure itself, and
therefore cannot be considered as part of it’,
as conveyed to
Ms Chowan in his letter dated 18 June 2015. Furthermore, the
CEO of AMH, Mr de Canha, at the very least, acquiesced
(tacitly
consented) to Ms Chowan following the procedure to direct her
grievance to the chairperson of the Imperial Group, that
board being
the only entity to which Mr Lamberti reports. Also, it was not
Ms Chowan who directed her grievance against Mr
Janse van Rensburg to
Mr Gcabashe nor did she request that it be investigated in the same
way as her grievance against Mr Lamberti.
There is, in my view,
much force in the argument of Adv D Mpofu SC, who appears for Ms
Chowan with Adv G Badela, that once Imperial’s
board of
non-executives had resolved that Ms Chowan’s allegations were
without foundation and substance, the matter should
have rested right
there, an issue to which I return.
[35]
By letter dated 24 July 2015, Mr Koornhof informed Ms Chowan that her
suspension would continue ‘until such time as her
disciplinary
hearing has delivered its findings’. On 30 July 2015, the
disciplinary charges were served on Ms Chowan.
The disciplinary
hearing was held on 26 and 27 August 2015. An attorney, Ms
Vanessa de Souza from the law firm Garache de
Souza Inc., presided.
On 4 September 2015, Ms de Souza recommended that Ms Chowan be
dismissed with immediate effect.
AMH confirmed Ms Chowan’s
dismissal at the end of September 2015.
[36]
Neither Mr de Canha nor Mr Janse van Rensburg instilled much
confidence when they were in the witness stand. I have already
referred to certain unsatisfactory features in the evidence of Mr
Janse van Rensburg. A few examples, which adversely impact
on
the credibility of Mr de Canha, suffice: Under
cross-examination he testified that he was unaware that Mr Hibbit
recommended
Ms Chowan to become CFO at the time when Mr Hibbit left
AMH and he refused to make any concession in that regard despite the
fact
that it was pointed out to him that his evidence at Ms Chowan’s
disciplinary hearing was to the effect that he himself at
the time
asked Mr Hibbit whether he would recommend Ms Chowan to become CFO,
which Mr Hibbit confirmed. And in answer to
a question from Ms
Chowan during the disciplinary hearing, Mr da Canha answered her:
‘Peter Hibbit had recommended you for
the position.’
Once counsel had pointed out the different passages of the exchange
between him and Ms Chowan at the
disciplinary hearing, the following
exchange took place between counsel and Mr de Canha in this court:
‘
So
you are aware of the recommendation by Peter Hibbit for Adila to hold
the position which we know the position … [intervenes]
---
Correct.
So
are you prepared to change your answer … [intervenes] --- No,
I am not going to change my answer.
Okay,
so you stick by your answer that you are not aware that Peter Hibbit
made a recommendation for Adila to hold the position?
--- No.’
Mr
de Canha was also evasive as to whether Ms Chowan acted as the AMH
CFO for three months and on Mr Lamberti’s involvement
in
appointing and directing the investigation against him.
Furthermore, the failure to call material witnesses, such as Messrs
Lamberti and Koornhof, who were available, warrants an adverse
inference in all the circumstances. By contrast, Ms Chowan
was
a singularly impressive witness. She, in my view, is a credible
witness and her evidence is reliable.
PROTECTED
DISCLOSURES ACT 26 OF 2000
[37]
The provisions of the Protected Disclosures Act 26 of 2000 (the PDA)
are central to Ms Chowan’s
aquilian
claim and her alternative contractual claim.
Section
3 provides that ‘[n]o
employee
may be subjected to any
occupational
detriment
by his or her
employer
on account, or partly on account, of having made a
protected
disclosure
.
The objects of the PDA,
in terms of s 2(1) thereof, are:
‘
(a)
to protect an
employee
,
whether in the private or the public sector, from being subjected to
an occupational
detriment
on
account of having made a
protected
disclosure
;
(b)
to provide for certain remedies in connection with any
occupational
detriment
suffered on account of having made a
protected
disclosure
; and
(c)
to provide for procedures in terms of which an
employee
can,
in a responsible manner, disclose information regarding
improprieties
by his or her
employer.
’
[38]
Section 1 defines ‘disclosure’ as ‘. . . any
disclosure of information regarding any conduct of an
employer
,
or an
employee
of that
employer
,
made by any
employee
who
has reason to believe that the information concerned shows or tends
to show’,
inter alia
,
‘. . . (f) unfair discrimination as contemplated in the
Promotion of Equality and Prevention of Unfair Discrimination Act,
2000 (Act 4 of 2000)’. A ‘protected disclosure’
is defined as a disclosure made to ‘(a) a
legal
adviser in accordance with section 5; (b) an
employer
in accordance with section
6; (c) a member of Cabinet or of the Executive Council of a province
in accordance with section 7; (d)
a person or body in accordance with
section 8; or (e) any other person or body in accordance with section
9, . . . ’
And ‘”occupational detriment”,
in relation to the working environment of an employee’ is
defined as meaning,
inter
alia
‘
(a) being
subjected to any disciplinary action; (b) being dismissed, suspended,
demoted, harassed or intimidated; . . . ‘
[39]
Section 6 deals with a protected disclosure to an employer and
provides as follows:
‘
(1)
Any
disclosure
made
in good faith;
(a)
and
substantially in accordance with any procedure
prescribed
,
or authorised by the
employee’s
employer
for
reporting or otherwise remedying the
impropriety
concerned; or
(b)
to
the
employer
of
the
employee,
where
there is no procedure as contemplated in paragraph (a), is a
protected
disclosure
.
(2)
Any
employee
in accordance with a procedure authorised by his
or her
employer
, makes a
disclosure
to a person other
than his or her
employer
, is deemed, for the purpose of
this
Act
to be making the
disclosure
to his or her
employer
.
[40]
The Promotion of Equality and Prevention of Unfair Discrimination Act
was enacted ‘[t]o
give effect to section 9 read with item 23(1)
of Schedule 6 to the Constitution of the Republic of South Africa,
1996, so as to
prevent and to prohibit unfair discrimination and
harassment; to promote equality and eliminate unfair discrimination;
to prevent
and prohibit hate speech; and to provide for matters
connected therewith’. This was done, as is stated in the
preamble
of that Act,
inter alia
in recognition that
‘[a]lthough significant progress has been made in restructuring
and transforming our society and its
institutions, systemic
inequalities and unfair discrimination remain deeply embedded in
social structures, practices and attitudes
undermining the
aspirations of our constitutional democracy’. Section 9
of the Constitution, as is also stated in the
preamble, provides for
the enactment of national legislation to prevent or prohibit unfair
discrimination and to promote the achievement
of equality’.
[41]
Section 4(2) provides that the following should be recognised and
taken into account in the application of that Act:
‘
(a)
The existence of systemic discrimination and inequalities,
particularly in respect of race,
gender and disability in all spheres
of life as a result of past and present unfair discrimination,
brought about by colonialism,
the apartheid system and patriarchy;
and
(b)
the need to take measures at all levels to eliminate such
discrimination and inequalities.’
[42] Section 1 defines
‘discrimination’ as-
‘…
any
act or omission including a policy, law, rule, practice, conditional
situation which directly or indirectly –
(a)
imposes
burdens, obligations, or disadvantage on; or
(b)
any
person or one or more of the prohibited grounds’.
The
‘prohibited grounds’ are:
‘
(a)
race, gender, sex, pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability,
religion,
conscience, belief, culture, language and birth; or
(b)
any other ground where discrimination based on that other ground-
(i)
causes or perpetuates systemic disadvantage;
(ii)
undermines human dignity;
or
(iii)
adversely affects the equal enjoyment of a person’s rights and
freedoms in a serious manner that is comparable to discrimination on
a ground in paragraph (a)’.
[43]
Adv NA
Cassim SC, who appears with Adv R Itzkin for AMH, Imperial and Mr
Lamberti, argues that Ms Chowan did not make a protected
disclosure as contemplated in the PDA: First, so he argues, she
lodged a grievance which did not contain a
bona
fide
disclosure of any impropriety. Second, she did not do so in the
reasonable belief of its truthfulness. Third, she did
not
report it through the appropriate reporting channel, but instead
address a ‘grievance’ to the chairman of Imperial’s
board of directors. Fourth, the disclosure on which she relies
is excluded from being a protected disclosure by s 9(b) of
the PDA,
which provides that ‘[a]ny disclosure made in good faith by an
employee . . . who reasonably believes that the information
disclosed, and any allegation contained in it, are substantially true
. . . and . . .
who
does not make the disclosure for purposes of personal gain
,
. . . is a protected disclosure . . .’. (Emphasis added.)
I cannot agree with these submissions for the reasons
that
follow.
[44]
Section 6 of the PDA, and not s 9, finds application in this case.
The scheme of the PDA encourages internal
procedures and
remedies to be exhausted before the disclosure is made public.
(See
Tshishonga v Minister of Justice and Constitutional
Development and another
[2007] 4 BLLR 327
(LC), para 196.
The requirements for protection become more onerous as the disclosure
becomes more public. As was held
in
Tshishonga
, para
198:
‘
The
tests are graduated proportionately to the risks of making
disclosure. Thus the lowest threshold is set for disclosures
to
a legal advisor. Higher standards have to be met once the
disclosure goes beyond the employer. The most stringent
requirements have to be met if the disclosure is made public or to
bodies that are not prescribed, for example the media.’
[45] The requirements for protection
of a disclosure to an employer in terms of s 6 of the PDA, read with
the definition of disclosure
in s 1, are that it must be
‘information’ that the employee ‘has reason to
believe’ shows or tends to show
the commission of a listed
impropriety, the disclosure must be made ‘in good faith’
and substantially in accordance
with any prescribed or authorised
procedure for the reporting of the impropriety, or to the employer
where there is no such procedure.
[46] The procedure followed by Ms
Chowan in reporting her grievance to the group chairman of Imperial’s
board of directors
was, as I have held, consented to by the CEO of
her employer, AMH. It thus follows that it was an ‘authorised
procedure’
within the meaning of s 6(1)(a) of the PDA and,
although she made the disclosure to a person other than her employer
(AMH), it
is, in terms of s 6(2), deemed to be one made to her
employer. Furthermore, it was Mr Gcabashe, having taken the
matter to
the Nominations Committee, who resolved to refer Ms
Chowan’s grievance to an independent investigator for ‘a
proper
and detailed investigation’ and to refer her grievance
against Mr Janse van Rensburg, which she handed not to him but to
AMH’s group human resources manager, to the same investigator
for simultaneous investigation. It can in all the circumstances
not be said that Ms Chowan’s disclosure was an external one
that falls under s 9 of the PDA and to which the more stringent
requirements –
inter alia
that it may not be made for
purposes of personal gain – apply in order for it to be
protected.
[47]
I am of the view that Ms Chowan also satisfies the requirement of
‘reason to believe that the information concerned shows
or
tends to show’ unfair discrimination as contemplated in the
Promotion of Equality and Prevention of Unfair Discrimination
Act.
The test for determining whether an employee had the requisite
‘reason to believe’ is subjective and objective.
The employee who makes the disclosure is required to hold the belief
and that belief has to be reasonable, or as was said in
Tshishonga
,
para 185, ‘whether the belief is reasonable is a finding of
fact based on what is believed.’ The information
contemplated in the definition of ‘disclosure’ in s 1 of
the PDA includes ‘such inferences and opinion based
on facts
which show that the suspicion is reasonable and sufficient to warrant
an investigation.’ (
Tshishonga,
para 179.)
Furthermore, as was also held in
Tshishonga
para180,:
‘
The
standard of quality that the information must meet is pitched no
higher than requiring the impropriety to be “likely”.
It is enough if the information “tends to show” an
impropriety. That anticipates the possibility that no
impropriety
might ever be committed or proven eventually. If
the suspects are cleared, the protection will not be lost.
“Likely”
and “tends to show” must therefore
mean that the impropriety can be less than an improbability but must
be more than
a mere possibility.’
[48] I have extensively dealt with the
context in which Ms Chowan ultimately directed her grievance to Mr
Gcabashe. She is
academically appropriately qualified, has
extensive experience as a chartered accountant and in corporate life,
had held the position
of CFO in the past and also acted as CEO on one
occasion, she is experienced in the motor industry, she is on
everyone’s
version technically good, she has held the fort for
three months at AMH in the absence of a CFO, she enjoyed the support
of two
previous CFO’s to be appointed in their positions as CFO
when they vacated that position and Mr Lamberti himself, it is
undisputed,
promised her that she would be appointed into the
position of CFO within the Imperial Group within one year from the
time when
he made that promise. Furthermore, at the time when
she directed her grievance of gender and racial discrimination to Mr
Gcabashe, the senior management of AMH was white male dominated and,
with one exception, the last fourteen appointments were all
white
males. Again a white male, who had no experience in the motor
industry at the time of his appointment and little understanding
of
the Imperial Group accounting and complexity of the transactions, was
appointed as the AMH CFO, and not her. Ms Chowan’s
inference of racial and gender discrimination against her based
inter
alia
on those facts, as well as what had been said to her by Mr
Lamberti when he made the utterance, was justified and an
‘impropriety’
as contemplation in the PDA was, at the
very least, likely. It is common cause that Ms Chowan
subjectively believed that
she was the victim of unfair
discrimination based on race and gender. Her subjective belief,
in my judgment, was a reasonable
one within the meaning of the
definition of ‘disclosure’ in s 1 of the PDA.
[49]
In
Street v Unemployed Workers’ Centre
[2004] EWCA Civ 964
;
[2004] 4 All ER
839
para 41, Auld LJ considered the meaning of the requirement ‘in
good faith’ for a disclosure to qualify as a protected
disclosure as contemplated in a legislative instrument - the purpose
of which is to protect individuals who made certain disclosures
in
the public benefit and to allow them to bring an action in respect of
victimisation – and attributes the following meaning
to the
words:
‘
Shorn
of context, the words ‘in good faith’ have a core meaning
of honesty. Introduce context, and it calls for
further
elaboration. Thus in the context of a claim or representation,
the sole issue as to honesty may just turn on its
truth. But
even where the content of the statement is true of reasonably
believed by its maker to be true, an issue of honesty
may still creep
in according to whether it is made with sincerity of intention for
which the Act provides protection or for an
ulterior and, say,
malicious purpose.’
[50] Ms Chowan’s wish for an
apology from Mr Lamberti for, as she viewed it, insulting her and
offending her human dignity,
and for him to honour the promise that
he had made to her, do not seem to me to be sufficient reason to find
that the disclosure
had not been made
bona fide
.
(Compare
Grieve v Denel (Pty) Ltd
[2003] 4 BLLR 366
(LC) para
12.) She reasonably believed in the truth of the content of her
statement and made it with honesty and sincerity
of intention aimed
at remedying the wrong. She, in my view, has established that
her disclosure to Mr Gcabashe was also made
bona fide.
There is not a single fact presented in this trial, which
dissuades me from arriving at this conclusion. Ms Chowan
exhausted
the internal avenues available to her before she elevated
an indisputably serious matter to the Imperial group chairperson.
He, himself, considered her allegations to be ‘of a very
serious and most troubling nature’, which, despite the fact
that her letter to him ‘does not follow the provisions of the
Grievance Procedure itself’, warrant ‘a proper
and
detailed investigation’.
[51] The disclosure made by Ms Chowan,
therefore, is a protected disclosure and the occupational detriments
- being suspended, subjected
to disciplinary action and ultimately
dismissed - to which she had been subjected by her employer, AMH, on
account of having made
the protected disclosure are in violation of
the provisions of s 3 of the PDA and unlawful.
AQUILIAN
CLAIM
[52] Adv Cassim SC, on behalf of AMH,
Imperial and Mr Lamberti, argues that there are a variety of
tailor-made avenues available
to persons in Ms Chowan’s
position through which to seek remedies, such as the Labour Relations
Act 66 of 1995 (the LRA)
and the Employment Equity Act 55 of 1998
(the EEA), which, so counsel argues, militate against extending the
aquilian
action to import wrongfulness and fashion a remedy in
delict for Ms Chowan. The fact that there are other available
remedies
may in an appropriate case not satisfy the requirement of
wrongfulness for delictual liability to follow, but the present
matter,
in my view, is not such a case.
[53]
In
Gcaba v Minister for Safety and Securtiy and others
2010
(1) SA 238
(CC), Van der Westhuizen J, who wrote the unanimous
judgment of the Constitutional Court, said the following:
‘
[52]
First, it is undoubtedly correct that the same conduct may threaten
or violate different constitutional rights and give
rise to different
causes of action in law, often even to be pursued in different courts
and fora. It speaks for itself that,
for example, aggressive
conduct of a sexual nature in the workplace could constitute a
criminal offence, violate equality legislation,
breach a contract,
give rise to the
actio
iniuriarum
in the law of delict and amount to an unfair labour practice.
Areas of law are labelled or named for purposes of systematic
understanding and not necessarily on the basis of fundamental reasons
for a separation. Therefore, rigid compartmentalisation
should
be avoided.
.
. .
[73]
Furthermore, the LRA does not intend to destroy causes of action or
remedies and the section 157 should not be interpreted
to do so.
Where a remedy lies in the High Court, section 157(2) cannot be read
to mean that it no longer lies there and should
not be read to mean
as much. Where the judgment of Ngcobo J in
Chirwa
speaks
of a court for labour and employment disputes, it refers to labour-
and-employment-related disputes for which the LRA creates
specific
remedies. It does not mean that all other remedies which might
lie in other courts like the High Court and Equality
Court, can no
longer be adjudicated by those courts. If only the Labour Court
could deal with disputes arising out of all
employment relations,
remedies would be wiped out, because the Labour Court (being a
creature of statute with only selected remedies
and powers) does not
have the power to deal with the common law or other statutory
remedies.
.
. .
[75]
Jurisdiction is determined on the basis of the pleadings, as Langa CJ
held in
Chirwa
, and not the substantive merits of the case.
If Mr Gcaba’s case were heard by the High Court, he would have
failed
for not being able to not make out a case for the relief he
sought, namely review of an administrative decision. In the event of
the Court’s jurisdiction being challenged at the outset
(in
limine)
, the applicant’s pleadings are the determining
factor. They contain the legal basis of the claim under which
the applicant
has chosen to invoke the court’s competence.
While the pleadings - including in motion proceedings, not only the
formal
terminology of the notice of motion, but also the contents of
the supporting affidavits – must be interpreted to establish
what the legal basis of the applicant’s claim is, it is not for
the court to say that the facts asserted by the applicant
would also
sustain another claim, cognisable only in another court. If
however the pleadings, properly interpreted, establish
that the
applicant is asserting a claim under the LRA, one that is to be
determined exclusively by the Labour Court, the High Court
would lack
jurisdiction. An applicant like Mr Gcagaba, who is unable to
plead facts that sustain a cause of administrative
action that is
cognisable by the High Court, should thus approach the Labour Court.’
(Footnotes omitted.)
[54]
Courts have refused to extend the
aquilian
action to cover
certain instances, because of the probability that allowing an action
would lead to unnecessary duplication or
multiplicity of actions so
that more harm than good can be done by such an extension. (See
Combrinck Chiro Praktiese Kliniek (Edms) Bpk v Datsun Motor
Vehicle Distributors (Pty) Ltd
1972 (4) SA 185
(T) at 192.)
But the courts have always been prepared to consider an action for
pure economic loss where such loss is caused
intentionally.
Prof PQR Boberg
Law of Delict
(1984) Vol 1 at 105 states:
‘
Economic
loss caused intentionally does not present the problem of
indeterminate liability, for the ambit of the defendant’s
intention is itself the limiting factor. That is not to say
that such loss is always recoverable, for it may be lawful to
cause
it. The requirement of wrongfulness must yet be satisfied,
though it assumes a different shape.’
[55] Ms Chowan asserts her
constitutional rights to equality and against unfair discrimination
(s 9 of the Constitution).
And she claims for loss
intentionally caused. In her particulars of claim, Ms Chowan
avers that AMH subjected her to occupational
detriments on account or
partly on account of having made the protected disclosure, and in
doing so it acted in contravention of
s 3 of the PDA, which provides
that ‘[n]o employee may be subjected to any occupational
detriment by his or her employer
on account or partly on account of
having made a protected disclosure’. She then avers that
AMH, Imperial and/or Mr
Lamberti owed her a legal duty not to subject
her to an occupational detriment and/or the consequential unlawful
termination of
her employment and/or to protect her from being
exposed to racial and/or gender discrimination in the workplace,
which duty, she
avers, they breached. The protected disclosure,
which, in terms of the particulars claim, had given rise to the legal
duty,
is one concerning racial and gender discrimination.
[56]
Joubert
LAWSA
(2
nd
Ed) Vol 8 Part 1 para 74 states:
‘
Whether
a particular statute was intended to give a person a civil remedy is
a question of interpretation. The ascertainment
of the presumed
intention of the legislature requires a consideration of the statute
as a whole, its objects and provisions, the
circumstances in which it
was enacted, and the kind of mischief it was designed to prevent.
If the statute imposes a duty
for the protection of a certain class
of persons to which the plaintiff belongs, there is strong indication
that the plaintiff
was given a right which needs to be respected.
However, the intention of the legislature, as reflected in the
statute, might
indicate otherwise. If the statute prescribes a
special remedy for the enforcement of the duty, it is likely that the
civil
remedy was not contemplated, but this does not necessarily
exclude a civil remedy.’
(Footnotes omitted.)
[57] I have mentioned that a
‘disclosure’ of information, in terms of s 1 of the PDA,
includes information that shows
or tends to show unfair
discrimination as contemplated in the Promotion of Equality and the
Prevention of Unfair Discrimination
Act. The objects of the
latter Act, in terms of s 2 thereof, include the object of giving
effect to the letter and spirit
of the Constitution, such as the
promotion of equality and the values of the non-racialism and
non-sexism. The circumstances
in which that Act was enacted and
the kind of mischief it was designed to prevent was the recognition
of the existence of systemic
discrimination and inequalities,
particularly in respect of race and gender in all spheres of life as
a result of past and present
unfair discrimination, brought about by
colonialism, the apartheid system and patriarchy, as is stated in s
4(2), and the recognition
of the need to take measures at all levels
to eliminate such discrimination and inequality. That Act
imposes a duty
for the protection of a class of persons to whom Ms
Chowan belongs, she being a 42 year old Indian women. The PDA
expressly
does not exclude civil remedies, such as the
aquilian
action asserted by Ms Chowan. Section 4(1) of the PDA provides
that ‘[a]ny
employee
who has been subjected, is subject
or may be subjected, to an
occupational detriment
in breach of
section 3, may - (a) approach any court having jurisdiction,
including the Labour Court established by section 151
of the Labour
Relations Act, 1995 (Act 66 of 1995), for appropriate relief; or (b)
pursue any other process allowed or prescribed
by the law.’
[58]
In
Le
Roux and others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
2011 (3) SA 274
(CC) para 122, Brand AJ said the following regarding
the criterion of wrongfulness in the context of the law of delict:
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict: (a) the criterion
of
wrongfulness ultimately depends on a judicial determination of
whether – assuming all the other elements of delictual
liability to be present – it would be reasonable to impose
liability on a defendant for the damages flowing from specific
conduct; and (b) that the judicial determination of that
reasonableness would in turn depend on considerations of public and
legal
policy in accordance with constitutional norms.
Incidentally, to avoid confusion it should be borne in mind that,
what is
meant by reasonableness in the context of wrongfulness has
nothing to do with the reasonableness of the defendant’s
conduct,
but it concerns the reasonableness of imposing liability on
the defendant for the harm resulting from that conduct.’
(Footnotes omitted.)
[59]
And in
Loureiro and others v Imvula Quality Protection (Pty) Ltd
2014 (3) SA 394
(CC) para 53, Van der Westhuizen J said the following
about the enquiry into the wrongfulness:
‘
.
. .
The
wrongfulness enquiry focuses on the conduct and goes to whether the
policy and legal convictions of the community, constitutionally
understood, regard it as acceptable. It is based on the duty
not to cause harm – indeed to respect rights – and
questions the reasonableness of imposing liability.’
[60]
The present matter, in my view, is a classroom example of an
appropriate case where delictual liability should be imposed.
There are ample public-policy reasons in favour of imposing
liability. The constitutional rights to equality and against
unfair discrimination are compelling normative considerations.
There is a great public interest in ensuring that the existence
of
systemic discrimination and inequalities in respect of race and
gender be eradicated. As blatant and patent as discrimination
was in the days of apartheid, so subtle and latent does it also
manifests itself today. The protection afforded to an employee,
such as Ms Chowan, by the PDA against occupational detriments by her
employer on account of having made a protected disclosure
that was
‘likely’ to show unfair racial and gender discrimination,
is one of the measures taken by the legislature
to eradicate the
existence of systemic discrimination and inequalities. If
employers are too easily insulated from claims
for harms, such as the
occupational detriments to which Ms Chowan was subjected to on
account of having made a protected disclosure
to her employer, they
would have little incentive to conduct themselves in a way that
complies with the provisions of s 3 of the
PDA. As was said by
Van der Westhuizen J in
Loureiro
,
para 56:
‘
.
. . And p
olicy
objectives (such as the deterrent effect of liability) underpin one
of the purposes of imposing delictual liability.
The
convictions of the community as to policy and law clearly motivate
for liability to be imposed’.
[61]
The requisite of causality for delictual liability to be imposed has
also, in my view, been established.
But
for
AMH’s intentional
breach of the duty not to have subjected Ms Chowan to occupational
detriments on account of her having made
a protected disclosure, she
would not have been suspended, have undergone disciplinary action and
been dismissed.
That
Ms Chowan has suffered some pure economic loss is undisputed -
anything from one month’s salary, as AMH would have it,
to the
equivalent of several years’ employment, as she would have it.
But the question of the
quantum
of her
damages does not presently occupy us and will be adjudicated in due
course. AMH’s conduct is also linked sufficiently
closely
or directly to the harm suffered by Ms Chowan for legal liability to
ensue. It can hardly be contended that considerations
of
reasonableness, justice and fairness dictate that AMH should not be
held liable for the harm suffered by Ms Chowan.
(See
Wille’s Principles of
South African Law
9
th
Edition at 1130 -1133.)
[62]
The duty not to subject an employee to occupational detriments on
account of making protected disclosure as contemplated in
Protected
Disclosures Act, is
one imposed upon an employer. AMH, and not
Imperial nor Mr Lamberti, was Ms Chowan’s employer. AMH,
therefore,
is liable for payment of the delictual damages proven by
Ms Chowan. My conclusion on Ms Chowan’s
aquilian
claim renders it unnecessary to consider her contractual claim.
INIURIA
CLAIM
[63]
In
her particulars of claim Ms Chowan avers that she made a disclosure
to AMH regarding ‘allegations of racism and/or gender
based
discrimination perpetrated against her by means of unfair racial and
gender discriminatory utterances made to her by the
third defendant
[Mr Lamberti] to the effect that she would not be promoted to the
position of chief financial officer, despite
the fact that she is a
black women and an affirmative action candidate’ (para 9).
Ms Chowan then avers that ‘[t]he
utterances made by the third
defendant were intended by the third defendant to demean the dignity
of the plaintiff, to insult her,
to damage her and to injure her
feelings and did have that effect, more particularly in that the
words implied that she was not
a meritorious employee in her own
right and an inferior human being’ (para 23).
Those averments were denied in the
plea and it is further pleaded that-
‘
[o]n
15 April 2015, during a meeting attended by
inter
alia
the plaintiff and the third defendant, the third defendant indicated
to the plaintiff that he would like nothing more than for
a person of
colour to be appointed by the first defendant as Chief Financial
Officer, but that she would require a few years to
develop for
purposes of a leadership position, and that efforts would be made to
facilitate her development.’
[64]
However, the evidence, as I have mentioned, revealed that what had
been said by Mr Lamberti on 15 April 2015 was rather that
Ms Chowan
is a female, employment equity, technically competent, they would
like to keep her, but if she wants to go, she must
go – others
have left his management and done better outside the company –
and that she would require three to four
years to develop her
leadership skills. The correct words comprising the utterance
have been fully canvassed in the evidence,
and are undisputed. Mr
Lamberti, although available as a witness, elected not to testify.
I, therefore, consider Ms
Chowan’s
iniuria
claim on the
basis of the utterance that is proved and not the one as formulated
in her particulars of claim.
[65]
What Ms Chowan has to prove in order to succeed with her
iniuria
claim for
defamation
is the publication by Mr Lamberti of
defamatory matter of or concerning her. If she accomplishes
this, it is presumed that
the statement was both wrongful and
intentional, and if Imperial and Mr Lamberti had wished to avoid
liability for defamation they
should have raised a defence which
excludes either wrongfulness or intent, which they have not done. (
Le
Roux
, paras 84-85.)
[66]
The primary meaning of a statement is, as was said by Brand AJ in
Le
Roux
para 87, ‘
the
ordinary meaning given to the statement in its context by a
reasonable person. An implied meaning of the statement “is
regarded as part of its primary or ordinary meaning”’.
Ms Chowan elected to rely on the primary or ordinary meaning
of the
utterance. I am unable to find that the ordinary meaning given
to Mr Lamberti’s words in its context by a reasonable
person,
is one that is defamatory of or concerning Ms Chowan.
[67]
I now turn to the other part of Ms Chowan’s
iniuria
claim,
viz.
her
dignity
claim.
The common
law requirements for a dignity claim to succeed are thus set out by
Froneman J and Cameron J in
Le
Roux
para 174:
‘
.
. .
What
the common law requires for a dignity claim to succeed are three
elements: a deliberately inflicted, wrongful act, that impairs
the
plaintiff’s dignity.’
[68]
Brand
AJ said the following about a dignity claim in
Le
Roux
para 138:
‘
In
terms of our Constitution, the concept of dignity has a wide meaning
which covers a number of different values. So, for
example, it
protects both the individual’s right to reputation and his or
her right to a sense of self-worth. But under
our common law
“dignity” has a narrower meaning. It is confined to
the person’s feeling of self-worth.
While reputation
concerns itself with the respect of others enjoyed by an individual,
dignity relates to the individual’s
self-respect. In the
present context the term is used in the common-law sense. It is
therefore used to the exclusion
and in fact, in contradistinction to
reputation, which is protected by the law of defamation.’
And
further (para 143):
‘
.
. . Broadly stated, the claim for impairment of dignity comprises
both a subjective and an objective element. The subjective
element requires that the plaintiff must in fact feel insulted.
To satisfy the objective element our law requires that a
reasonable
person would feel insulted by the same conduct.’
(Footnotes omitted.)
[69]
As to the subjective element, I have referred to Ms Chowan’s
evidence that she had never been addressed in that manner
before, she
was extremely upset, humiliated, degraded and objectified in terms of
being a female empowerment equity candidate without
recognition for
the fact that she was a professional qualified chartered accountant
with extensive experience and achievements,
which evidence was
corroborated by that of Mr de Canha, and is accepted my me. In
this light the subjective element of the
dignity claim is clearly
established.
The
objective element, as was stated by Froneman J and Cameron J in
Le
Roux
para 179, reflects
‘outwardly’, as opposed to the subjective element, which
reflects ‘inwardly’.
The question is thus whether
the reasonable person would conclude ‘that objectively seen,
the injury to [Ms Chowan’s]
feelings was palpable and
reasonably felt, and hence actionable’. Such is the
inevitable conclusion, in my judgment,
which the reasonable person
would reach about the injury to Ms Chowan’s feelings.
[70] Ms Chowan has established the
common law requirements for her dignity claim to succeed.
Imperial and Mr Lamberti
are liable, jointly and severally, for Ms
Chowan’s damages, as quantified in due course, as a result of
the impairment of
her dignity.
COSTS
[71] Ms Chowan succeeds against AMH as
far as its liability for her
aquilian
damages is concerned and
against Imperial and Mr Lamberti as far as their liability for her
damages as a result of the impairment
of her dignity are concerned.
There is no reason why the general rule that costs follow the result
of her claims should not
find application. The question,
however, is what a fair and just apportionment of their liability for
Ms Chowan’s costs
should be, a matter that has not been
addressed in argument. The costs order which I propose to make,
therefore, is made
on the understanding that it is open to the
parties to apply, within a reasonable time, to be heard on the
question of costs and
for a variation of the costs order. (See
Joubert
LAWSA
Vol 3 Part 2 (2
nd
Ed) para 298.)
Most of the evidence and counsels’ addresses concern the
aquilian
and alternative contractual claims. An
appropriate costs order, in my view, is for AMH to be liable for the
payment of 70%
of Ms Chowan’s costs and for Imperial and Mr
Lamberti to be jointly and severally liable for the payment of 30% of
her costs.
Furthermore, their liability for costs should
include the costs incurred up to and including the 18
th
September 2017, when the trial on the questions of liability in
respect of Ms Chowan’s
aquilian
and dignity claims was
concluded.
ORDER
[72]
In the result the following order is made:
1.
The
first defendant is liable to pay to the plaintiff her proven
aquilian
damages.
2.
The
second and third defendants, jointly and severally, the one paying
the other to be absolved, are liable to pay to the plaintiff
her
proven damages as a result of the impairment of her dignity.
3.
The
first defendant is to pay 70% and the second and third defendants,
jointly and severally, the one paying the other to be absolved,
are
to pay 30% of the plaintiff’s costs of suit incurred up to and
including the 18
th
September 2017, including those of two counsel.
______________________________
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Dates
of hearing:
7,8,10 and 11
August and 18 September 2017
Date
of Judgment:
23 March 2018
Counsel
for Plaintiff:
Adv D Mpofu SC (assisted
by Adv G Badela)
Instructed
by:
Rogers Devachander Attorneys, Benoni
c/o Hannelie Swart Attorneys,
Johannesburg
Counsel
for Defendants: Adv NA Cassim SC
(assisted by Adv R Itzkin)
Instructed
by:
Dewey Hertzberg Levy Inc. Sandton