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[2018] ZAGPJHC 714
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MacKay v Bidcorp Food Africa (Pty) Ltd and Others (40557/17) [2018] ZAGPJHC 714 (28 June 2018)

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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
40557/17
In
the matter between:
JOHAN ROSS
MACKAY                                                                                       Applicant
And
BIDCORP
FOOD AFRICA (PTY)
Ltd
1
st
Respondent
LIBSTAR
OPERATIONS (PTY)
Ltd
2
nd
Respondent
PATLEYS (PTY)
Ltd
3
rd
Respondent
JUDGMENT
SIWENDU
J
INTRODUCTION
[1]
The Applicant, Johan Ross Mackay (Mackay) claims payment of an amount
of R 2 345 904.40 plus interest at the rate of 10.25%
per annum from
30 June 2017 to the date of payment and the costs of the suit from
the first respondent, Bidcorp Food Africa (Pty)
Ltd (Bidcorp). Mackay
was the MD of Patleys, (Patleys) which was a division and/ or a
subsidiary of Bidcorp until it was sold to
the second respondent,
Libstar Operations (Pty) (Ltd) (Libstar) at the end of May 2015.
Libstar and Patleys, the second and
third respondent are cited
because they are interested parties in the application. No relief is
sought against them.
[2]
The background to the claim is that in May 2012, because of Mackay’s
employment with Patleys, then a division/ subsidiary
of Bidcorp, he
was invited to partake in the Bidvest Incentive Option Scheme (the
scheme). Share options, which he accepted were
granted to him over a
period from 15
th
April 2013, 13
th
of March 2014
and October 2014.
[3]
The sale of the Patleys business by Bidcorp to Libstar in May 2015
meant Mackay was disqualified from participating in the scheme.
As
consideration for the loss of the benefit of the share options that
had not yet vested as at 30 June 2015, Bidcorp agreed to
compensate
him for the non-vested share options, then valued at R 3 440
660.00
[1]
in terms of a
Consideration Agreement concluded between Mackay and Bidcorp.
[4]
Mackay was to have remained employed by Patleys for a duration of two
years after the effective date of the sale of the Patleys
business,
namely July 2015. On 4 December 2015 Mackay and his new employers
entered into a Separation Agreement and agreed to terminate
his
employment with effect from 31    January 2016.  On 29
February 2016, they concluded a Supplementary Agreement
to the
Separation Agreement dated 29 February 2016 was concluded thereafter
which recorded that Mackay had been retrenched from
Patleys. At
present, Mackay is employed by Super Group Trading (Supergroup) as a
Group Executive, Marketing and New Business.
[5]
Mackay claims that on 17 May 2017, the Bidcorp paid him the gross
amount of R 1 094 775.40, and R 602 115 25 net after deductions.
It
was calculated on the basis that he resigned from his employment.
He disputes that he resigned from his employment. He
alleges that he
was entitled to the full consideration of R 3 440 660.00 agreed to in
terms of the consideration agreement.
[6]
Bidcorp opposes the claim by Mackay in an affidavit executed by Mr
Herculaas Petrus Havenga, the Chief Executive (Havenga) It
claims
that the supplementary agreement was signed
ex post facto
to
reclassify Mackay’s resignation as a retrenchment. It states
that the purpose of the supplementary agreement was to assist
Mackay
to obtain a tax benefit from the South African Receiver of Revenue
(SARS) so that his salary is reflected as severance pay
when it was
not. It alleges that the supplementary agreement was a disguised,
simulated agreement, contrived to assist Mackayto
create an
impression that he was retrenched and for him to claim the full R3.4m
from Bidcorp. It argues that there is a dispute
of facts on whether
Mackay resigned, and the supplementary agreement was contrived not
capable of resolution on the papers.
[7]
The issue in dispute is whether Bidcorp has successfully established
the dispute of fact, pertaining to Mackay’s resignation
from
Patleys and, whether the Supplementary agreement was simulated as
alleged. Should Bidcorp, fail, Mackay would be entitled
to the
payment claimed.
BACKGROUND
AND THE VARIOUS AGREEMENTS
[8]
The dispute can best be understood against the backdrop of the
various agreements and their terms, starting with the Bidcorp
Share
Option Scheme. Clause 3.3 of the salient features of the Scheme
states that:
"On termination
of services for whatever reason, other than contemplation in 3.4 and
3.5 below, employees are only eligible
to exercise those options that
have matured at the date of such termination. These matured options
must be exercised within a period
of 180 days of such termination
date or else they will lapse. All other options which have not
matured on the date of termination
shall lapse”.
[9]
The conditions of clauses 3.4 were that he would forfeit the options
if found guilty of fraud or misconduct. They are not material
to the
facts of the application.
[10]
The second agreement is the Consideration Agreement signed by Mackay
and Bidcorp.  The terms of the Consideration Agreement
were
first embodied in a draft letter of June 2015. The only term of the
Draft Consideration Agreement linking Mackay and Bidcorp
to aspects
of an employer and employee relationship and   conduct was
that Mackay was not to be summarily dismissed and/
or found guilty of
conduct that brings him or the company or Bidvest into disrepute
prior to 31 December 2016.
[11]
The draft letter of June 2016 was subsequently incorporated in a
written letter dated 6 November 2015. It differed from the
June draft
letter in that the date for evaluating his conduct (presumably to
trigger entitlement to the full payment) was altered
from 31 December
2016 to 4 May 2017. The condition for calculating the consideration
amount was altered and the date for reckoning
what was due extended
to 4 May 2017. He signed the letter on 10 November 2015.  This
is reflected in clause 2.3.2 which states:
In circumstances where
you resign from the Company before 4 May 2017, the Consideration
payable to you by no later than 31 May 2017
shall be an amount
calculated in accordance with the following formula:
A
= B x
C
22
[2]
[12]
At the time of signing the reconsideration letter, Mackay had already
signed a new contract of employment with Patleys dated
29 June 2015.
Clause 3.1 of the employment contract dealing with the duration of
his employment reads as follows:
“
Whilst Patleys
and Mackay accept that employment relationships are dynamic, and
subject to change on account of numerous variables,
it is their
intention that Mackay shall remain in Patleys employ for a period of
at least 2 (two) years with effect from 1 July
2015. Accordingly,
Mackay and Patleys agree that Mackay’s contract of employment
may not be terminated prior to 2 (two) years
after 1 July 2015,
unless Patleys and Mackay specifically agree that such earlier
termination will be allowed. In that instance,
Mackay and Patleys
will enter into a separate agreement recording the circumstances,
terms and conditions of such earlier termination
of Mackay’s
employment with Patleys.”
[13]
Mackay alleges that it was a condition of the sale of the Patleys
business that he remains in the employ of Patleys for two
years after
30 June 2015, the effective date of the sale. This was to ensure the
integration of the business as an operating division
of the acquirer,
Libstar.  He became an Executive Director reporting to Mr
Andries Van Rensburg from 1 July 2015. He alleges
that his position
was made redundant following the restructuring. His role was reduced
from a Managing Director of an enterprise
of R 780m with an employee
compliment of more than 500 people to a relationship manager with no
direct reports.
[14]
Mackay claims he initiated discussions with Conradie, the Human
Resources Executive of Libstar on a mutual separation agreement

because he believed that his contract of employment had been
repudiated. His new contract of employment did not provide for a
notice period. This is evident from Clause 3.1 of the employment
contract that the termination of his employment before the agreed

duration had to be by agreement. Mackay claims that he had intended
to remain at Patleys for the duration of the contract, however
it
became clear the restructure effectively “worked him out of a
job” hence why he approached Mr Conradie for a separation

agreement.
[15]
He alleges that Libstar agreed to the mutual termination because they
could not offer him employment under similar terms and
they had no
option but to retrench him. For this contention, he relies on
correspondence from Conradie dated 16 November 2015 as
well as the
agreement dated 14 December 2015.  The latter agreement was
signed by Mr Andries van Rensburg (Van Rensburg) to
whom he reported
on behalf of Patleys.  There is nothing contentious and it is
not necessary to repeat the terms in the judgment.
Mackay claims to
have made representatives of Libstar aware of the share option scheme
and the terms thereof in what he refers
to as “retrenchment
discussions”.
[16]
The further supplementary agreement, at issue, dated 29 February 2016
was signed by Mr Niel van Heerden (Van Heerden) on behalf
of Patleys.
It records the operational requirements as the grounds for the mutual
separation. The agreement states that:
“
PREAMBLE
1.1 On 14 December
2015, the employee entered into an agreement (the agreement ) with
the Company, the purpose of which was to regulate
the terms and
conditions of his separation from the Company. A copy of the
Agreement is appended hereto and marked “Annexure
A”
1.2 subsequent to the
date referred to in 1.1 above the employee however made additional
representations to the company to the effect
that his separation from
the company was to be treated as a retrenchment, for the reason that
his position at the company had become
redundant when the interests
of the company merged with that of Rialto Foods, a Division of
Libstar Operations (PTY) Ltd. In addition,
neither the company nor
Rialto Foods was able to offer the employee a position identical to
or similar to his former position at
the company.
1.3. both the company
and Libstar Operations (PTY) Ltd are in agreement with the facts as
outlined in 1.2 above.
1.4 the parties
therefore intended for this agreement to supplement the agreement
appended hereto as Annexure A for the purpose
of specifically
providing for the retrenchment of the employee with effect from 1
January 2016.
AGREEMENT
2.1 The parties are
agreed that the termination of the Employees contract of employment
was occasioned by the operational requirements
of the business
2.2 It is furthermore
agreed between the parties that the Employee had effected the
handover required per the Agreement during the
month of December 2015
and therefore will be paid the month of January’s salary by way
of severance pay, in lieu if a physical
tender of service during the
month.
2.3 It was agreed that
the company will furnish the Employee with a Ul19 form indicating
that his services were terminated pursuant
to a
retrenchment.”
[17]
Mackay submits that he complied with all the obligations under the
agreement and is entitled to the payment of the full amount
less
statutory deductions.
[18]
Bidcorp submits there is a dispute of facts on whether Mackay was
retrenched, or he resigned. It contends that the matter is
not
capable of resolution from the papers. For its contentions it relies
on a confirmatory affidavit of Mr Leon Conradie, the Executive
Human
Resources of Libstar Operations (Pty) Ltd.  The mainstay of the
opposition is that although the documents refer to a
“retrenchment”
to support the version by Mackay, Patleys agreed to formulate and
describe the agreement as such for
this purpose to arrive at a
mutually acceptable separation even though he was not retrenched.
Therefore, the supplementary agreement
did not reflect the true
position and was entered after the employment was already terminated.
COMMON
CAUSE FACTS
[19]
The following is common cause on the papers, namely that:
[19.1] After the
acquisition, Patleys was restructured in 2015, with its warehousing
and distribution business outsourced to Imperial.
An integrated
business known as Libstar Food Solutions was announced and planned to
be operational from 1 December 2015.
[19.2] The new contract
of employment already envisaged that Mackay would no longer be the MD
of Patleys but would take up the position
of Trading Head: Agency
Brands of an Executive reporting to Mr Van Rensburg.
[19.3] Mackay had agreed
to be employed for a period of not less than two years after 30 June
2015. Bidcorp disputes that the applicant’s
role was reduced or
that the contract was repudiated.
[19.4] When Mackay
initiated the discussions, Patleys was amenable to enter into an
agreement of separation.
[19.5] The first letter
regulating the terms of the consideration agreement and payment was
sent to Mackay in June albeit unsigned.
Other than in respect of the
amended period of separation from 31 December 2016 to 4 May 2017 and
the reference to his resignation,
the terms of the agreement sent to
him in November were largely the same as the Draft Letter sent to him
in June.
[20] The assertion by
Mackay that the consideration agreement was part of the suspensive
conditions of the sale between Libstar
and Bidvest Group, was not
disputed. I observe that given the sale of the business to Libstar, a
third party, it is evident that
t
he only nexus
between Bidcorp and Mackay was through the consideration agreement.
Other than the term of the provision of Clause
2.3.2 referred to in
paragraph 11 above, the consideration agreement was no longer
connected to a direct employment relationship
with Bidcorp, which
would have been the case had Patleys remained part of Bidvest Food
Africa group or as a division thereof.
[21]
It is against this factual background, that the contentions of
resignation and simulation creating the alleged dispute of fact
are
to be examined.
DID
MACKAY RESIGN OR WAS HE RETRENCHED?
[22]
The contention by Mackay is that the contract of employment was
repudiated. On the other hand, Bidcorp contends that the position

offered to Mackay after the restructure was not a demotion or
reduction of his role.
In
Nash
v Golden Dumps
(Pty)
Ltd
[3]
Corbett JA explained that a
repudiation occurred:
‘
Where
one party to a contract, without lawful grounds, indicates to the
other party in words or by conduct a deliberate and unequivocal

intention no longer to be bound by the contract’. When there is
a repudiation the aggrieved party may elect to cancel and
sue for
damages, in which case he or she will inevitably be bound by that
election, or elect to abide by the contract and claim
performance.
Once the contract is cancelled it cannot be revived.
[23]
Bidcorp
places much weight on the fact that Mackay had initiated the
discussions to support the contention that he was not retrenched.

Mackay on the other hand contends that the restructuring rendered his
position redundant.
In
Datacolor
International (Pty) Ltd v Intamarket
(Pty)
Ltd
[4]
Nienaber
JA observed that in determining whether there was an unequivocal
intention not to fulfil contractual obligations, the
‘
emphasis
is not on the repudiating party’s state of mind, on what he
subjectively intended, but on what someone in the position
of the
innocent party would think he intended to do; repudiation is
accordingly not a matter of intention, it is a matter of perception.

The perception is that of a reasonable person placed in the position
of the aggrieved party.’
[24]
It is not disputed that Mackay had been unhappy with what he viewed
as a diminished role in the newly restructured business.
In addition,
he does not dispute that the restructuring was contemplated. His
contention is based on the results there of. The
nature and scope of
the new role following the restructure can best be understood by
Mackay and Patleys’ first-hand knowledge
in my view. I deal
with the evidence tendered by Bidcorp to support this later in the
judgment.
[25]
The nature of resignation is aptly described by Van Niekerk J in
Vodacom
(Pty) Ltd v Motsa and Another
[5]
where
he states that:
“
The principles
that regulate resignation are well established. Resignation is the
unilateral act (see Sihlali v SA Broadcasting
Corporation Ltd (2010)
31 ILJ 1477(LC)…). When an employee gives the required notice,
the contracts 10 minutes at the end
of the notice period. When an
employee leaves his or her employment without giving the required
period of notice, the employee
breaches the contract. Ordinary
contractual rules dictate that the employer may hold the employee to
the contract and seek an order
of specific performance requiring the
employee to serve the period of notice. Alternatively, the employer
may elect to accept the
employee’s repudiation, cancel the
contract and claim damages. Of course, it is always open to the
parties to terminate an
employment contract on agreed terms and for
either of them to waive whatever rights they might otherwise have
enjoyed.”
[6]
[26]
There is no evidence that Mackay either verbally or in written
correspondence tendered a resignation. Contrary to the contention
by
Bidcorp, the details point to the fact Mackay did not leave
unilaterally.  After the discussions he initiated with
Executives
at Patleys and with Mr Conradie (Conradie), the Human
Resource Director at Libstar, Conradie had recorded in a letter dated
16
November 2015 the views about the terms of the applicant’s
departure. Excerpts from the letter read as follows:
“
Bidvest is
desirous of the success of Patleys following the acquisition of the
business by Libstar.
You are equally
desirous of leaving Patleys in good standing (as well as to remain in
the good standing following the termination
of your employment
relationship with Patleys) inter alia so as not to in any way
jeopardise the encashment of your share options
at Bivdvest in 2017
In order to
demonstrate to Bidvest the termination of your employment in good
standing and on a “no -fault basis, you had
requested to be
retrenched by Patleys
it is confirmed that
Patleys will agree to such retrenchment against the execution by you
or for voluntary separation agreement
subsequently to be drafted and
which agreement will inter alia embody the terms and conditions of
the aforementioned restraint
(Such Agreement will furthermore serve
to satisfy the requirements of Clause 3.1 of the Side Agreement).”
[27]
The letter is consistent with the terms of his employment that he
would not leave Patleys’ employ unless by agreement.
It is also
consistent with parties negotiating acceptable terms of mutual
separation. Initiating a mutual separation must be seen
in the
context of the terms of his employment contract. It is not tantamount
to resignation. Mackay stated that he had been open
with all the
parties about ensuring that he does not place his entitlement to the
consideration in jeopardy. This would have been
the case had he been
dismissed for misconduct for example.
WAS
THE SUPPLEMENTARY AGREEMENT A SIMULATED AGREEMENT?
[28]
I now turn to the question whether the supplementary agreement is
simulated.  The starting point as stated in
Investec
Bank Ltd and Another v Lefkowitz
[7]
is
that:
“
the
law ‘concerns itself with the external manifestations, and not
the workings, of the minds of parties to a contract.’
(Sonap
Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd v
Pappadogianis[1992] ZASCA 56
[1992] ZASCA 56
; ;
1992 (3) SA 234
(A) at 238I-J”
[8]
[29]
Citing the
locus
classicus
decision in Zan
dberg
v Van Zyl
[9]
1901 AD 302
(at 309) i
n
Maizeboard
v John Jackson
[10]
,
Ponna JA observes the legal position as follows:
“
This
court recently held (per Scott JA) in Michau v Maize Board
2003 (6)
SA 459
para 4:  '[I]t has long since been established in cases
such as Zandberg v Van Zyl
1910 AD 302
Dadoo Ltd and Others v
Krugersdorp Municipal Council
1920 AD 530
, Commissioner of Customs
and Excise v Randles, Brothers & Hudson Ltd
1941 AD 369
and
more recently affirmed in Erf 3183/1Ladysmith (Pty) Ltd and Another v
Commissioner of Inland Revenue
[1996] ZASCA 35
; 1996(3) SA 942 (A)
that parties are free to arrange their affairs so as to remain
outside the provisions of a particular statute.
Merely because those
provisions would not have been avoided had the parties structured
their transaction in a different and perhaps
more convenient way does
not render the transaction objectionable. What they may not do is
conceal the true nature of their transaction
or in the words of Innes
JA in Zandberg's case, supra, at 309, "call it by a name, or
give it a shape, intended not to express
but to disguise its true
nature". In such event a court will strip off its ostensible
form and give effect to what the transaction
really is. But, while
the principle is easy enough to state in the abstract, its
application in practice may sometimes give rise
to considerable
difficulty. Each case will depend upon its own facts. A Court will
seek to ascertain the true intention of the
parties from all the
relevant circumstances, including the manner in which the contract is
implemented. The onus is upon the party
who alleges that the
transaction is simulated.'
[30]
More
recently, Lewis JA in
Commissioner
for the South African Revenue Service v NWK Ltd
[11]
formulated
the two- fold test for determining simulation as follows
“
In
my view the test to determine
simulation
cannot simply be whether there is an intention to give effect to a
contract
in accordance with its terms. Invariably where parties structure a
transaction to achieve an objective other than the one ostensibly

achieved they will intend to give effect to the transaction on the
terms agreed. The test should thus go further and
require
an examination of the commercial sense of the transaction:
of its real substance and purpose. If the purpose of the transaction
is only to achieve an object that allows the evasion of tax,
or of a
peremptory law, then it will be regarded as simulated.
And
the mere fact that parties do perform in terms of the contract does
not show that it is not simulated:
the
charade
of performance
is generally meant to give credence to their simulation.”
[12]
[ emphasis added]
[31]
Wallis JA states in
Roshcon
(Pty) Ltd v Anchor Auto Body Builders CC & Others
[13]
that the question is whether the transaction is genuine, for a
simulated transaction is a dishonest one. According to
NWK
,
the performance of the terms of the transaction may or may not change
its simulated nature because a charade of performance is
generally
meant to give credence to the simulation. The transaction must make
commercial sense and the facts before and after the
agreement may
require examination to establish whether there is a real and sensible
commercial purpose to it other than a tax advantage.
If the
transaction fails to make commercial sense, then it could be set
aside as “
a
sham”.
[32]
Having regards to the onus which rests on it, the question is whether
the Bidcorp has successfully established the simulation
and the
dispute of facts as alleged.  Bidcorp contends that I must apply
the principles in
Plascon
v Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[14]
,
where the court held that :-
“…
[relief
in] motion proceedings should only be granted if the facts as stated
by the respondents together with the admitted facts
in the
applicant’s affidavits justify such an order. …Where it
is clear that facts though not formally admitted cannot
be denied
they must be regarded is admitted.”
[15]
However,
in
Buffalo
Freight Systems (Pty)(Ltd) v Crestleigh Trading (Pty) Ltd &
Another
[16]
,
then went further than
Plascon
Evans
and held that:
“
The court
should be prepared to undertake an objective analysis of such
disputes when required to do so. In Wightman t/a JW Construction
v
Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)[2008]
2 All SA
512)
it was suggested how that might be done in appropriate
circumstances”
[17]
The
authorities invite a dissection of all the agreements
[18]
and the surrounding circumstances before and after the conclusion of
the supplementary agreement.  The dominant tenure of
the terms
of the consideration agreement, part of which required Mackay to
remain in Patley’s employ must be examined in
the context of
the sale of that business to Libstar. The following is apparent:
[32.1] The term relating
to the retention of Mackay for a defined duration, though signed by
him was predominantly for the benefit
of Libstar as new owners of
Patleys.
[32.2] The benefit to
Libstar (
qua
purchaser) was to ensure that the acquired
business is integrated as a division of its operations. Mackay had
been its MD and would
have had intimate knowledge of its operations.
[32.3] Viewed in the
context of the suspensive conditions of the sale of the business,
part of the terms were to secure some of
Bidcorp’s warranties
(
qua
seller) to the purchaser, Libstar. This is evident from
the reference to claims not being instituted by Libstar in the amount
up
R3.5m. by 31 December 2016.
[33]
Bidcorp in exchange for locking Mackay in the employment contract for
the predetermined period procured that the payment of
the R 3 440 660
in lieu
of the option scheme which he had forfeited because of
the sale would accrue to him.
[34]
There are two difficulties for Bidcorp in my view. The first is that
by concluding the separation agreement, regardless of
the label
attached to the separation, Patleys, acting through Van Rensburg whom
Mackay reported to, accepted that Mackay would
be released early from
the employment contract. In the context of the sale, Patleys could
not be heard to complain to Bidcorp that,
that term of the suspensive
condition of the sale pertaining to Mackay has not been fulfilled.
They would be estopped from doing
so.
[35]
The second difficulty amplifies the first, and, demonstrates that who
initiated the separation is not a dispositive factor
in determining
either the retrenchment or the simulation
[19]
.
For example, a voluntary retrenchment which was put to Mr Lamprecht
for the Bidcorp during argument is a legitimate means of terminating

an employment relationship. In this instance, had Patley’s or
Libstar initiated the separation discussion, Bidcorp would
not be
heard to say to Mackay, “
No,
stay right there and tender your services for we hold you to the
consideration contract
”
because he would have no employer.
[36]
Pari
passu
with the emphasis on substance over form, and to establish whether
the supplementary agreement was “a dressed-up contract”

to disguise its true nature - the letter dated 16 November 2015
directly implicates the simulation alleged.  Even though it
is a
statement made before the contract and not binding, it forms a part
of the consideration of the material known to those involved
and the
circumstances surrounding the disputed supplementary agreement
[20]
..
Having regards to the substance of the separation, regardless of
whether I apply the “real object test” or “the
true
intention test”:
[36.1] The reference to
Mackay’s “retrenchment” commenced during
negotiations as referred to in the letter. It
is not a matter that
arose only in the Supplementary Agreement. The letter culminated in
the negotiated separation agreement. The
supplementary agreement was
not a “reclassification” as contended because it was
already referred to in earlier negotiations.
The assertion by Bidcorp
is not factually correct.
[36.2] There was a
commercial benefit for Mackay to preserve the rights he enjoyed given
the release from his employment obligations.
There is no reason why
he would agree to forego the benefit of the consideration if he was
negotiating a mutually acceptable exit
for himself.  I am unable
to find on the papers or to conclude that doing so was dishonest as
it was not disputed he had been
candid about the need to preserve the
benefit.
[36.3] It is a legitimate
commercial rationale to negotiate commercially sensible terms of
separation, therefore, I am unable to
conclude that there was a
charade of performance. Mackayleft the employ of Patleys as agreed as
all the parties acted on the agreement.
[37]
Turning to the evidence tendered, to establish the dispute of fact
and the simulation, there are difficulties with the evidence

presented. In the light of the authorities referred to above, in the
case of
Room
Hire Co (Pty) Ltd v Jesper Street Mansions (Pty) Ltd
[21]
Murray
AJP had this to say about the disputed facts and the quality of the
denial of the suit:
.
“
Enough
must be stated by the respondent to enable the court to conduct a
preliminary examination and to ascertain whether denials
are not
fictitious intended merely to delay the hearing”
[22]
[ emphasis added]
[38]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[23]
the
court had this to say:
“
There
is thus a serious duty imposed upon a legal adviser who settles an
answering affidavit to ascertain and engage with facts
which his
client disputes and to reflect such disputes fully and accurately in
the answering affidavit. If that does not happen
it should come as no
surprise that the court takes a robust view of the matter.”
[24]
[39]
The court in the
Buffalo
Freights
also refers to
Da
Matta v Otto No
[25]
and the proof of the facts in issue where there are contradictions.
The requirement is that the disputed issues must be direct
and
obvious.
[40]
There is no dispute that Conradie was amongst the people with whom
Mackay first consulted to secure the mutual separation.
It is common
cause that Havenga for Bidcorp had no personal knowledge of the facts
leading to the conclusion of the separation
and supplementary
agreements. For this he relies on the confirmatory affidavit by
Conradie. Havenga’s affidavit fails to
explain why Conradie’s
affidavit is the best available evidence which the court must take
account of pending the trial. Mackay
takes issue with the
confirmatory affidavit. He contends that it constitutes hearsay. It
also fails to explain why the allegations
of simulation were not
obtained from the personnel who signed the agreements, namely van
Rensburg and van Heerden. The allegation
that Patley’s own
documents submitted to SARS are fraudulent was not clearly
established and supported.
[41]
It is material for the court that given the direct knowledge Conradie
had of the facts leading up to the signing of the two
agreements, the
confirmatory wholly fails to provide a pertinent explanation about
the diametrically opposed view he adopted to
the question of Mackay’s
“retrenchment” after he sent the letter dated the 16th of
November 2015. He was best
placed to assist establish whether there
was a genuine dispute of facts before the court but failed to do so.
Accordingly, Bidcorp
has failed to establish that
there
was no intention to conclude the supplementary agreement.
[42]
It is nevertheless clear that Bidcorp was not consulted on the
separation because Bidcorp was no longer Mackay’s employer.
It
was not argued that the consideration agreement created a duty to do
so. In addition, given that the consideration agreement
was a
conversion of the right that accrued in terms of an option scheme, it
was not argued that the fulfilment of the consideration
agreement
depended on the timing of the vesting of the overall option scheme
which prevented the payment.  It was not Bidcorp’s
case
that the consideration agreement juristically, created an independent
set of obligations between Mackay and Bidcorp either.
These issues
were not the basis of the opposition of the claim either.
[43]
Accordingly, Mackay succeeds because Bidcorp has failed to establish
the dispute of facts in respect to the simulation and
the
retrenchment.
ORDER
[44]
In the result, I make the following order:
(i) Bidcorp is ordered
to make payment of the amount of R 2 345 904.40 less statutory
deductions to the applicant;
(ii) Interest in the
aforesaid amount at the rate of 10.25% per annum from 30 June 2017 to
date of payment;
(iii) The cost of the
application.
_____________
T.
SIWENDU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
For
the Applicant:
Adv C Humphries
Instructed
by:

Loxton Attorneys
For
the first respondent:
Adv  Lamprecht
Instructed
by:

Attorneys Werksmens
Date
of Hearing:                     18

May 2018
Delivered
on:

28  June 2018
[1]
The consideration payable to him in respect of the non-vested shares,
was calculated based on: the closing price of the Bidvest
Shares as
at 30 June 2015, less the predetermined strike price per non- vesting
share option multiplied by the number of the of
the non-vested
shares. The amount was payable to him net of statutory deductions.
[2]
A = the adjusted consideration; B = the stipulated Consideration of
R 3 444. 660; C = the number of completed months you
were in the
employ of the Company between 1 July 2015 and your last working day.
[3]
1985
(3) SA 1
(A) at 22D-H
[4]
2000]
ZASCA 82
;
2001 (2) SA 284
(SCA) at para 16
[5]
2016
(3) SA 116 (LC)
[6]
Ibid para 19
[7]
1997
(3) SA 1
SCA
[8]
Ibid
at 8I-9A
[9]
1910
AD 302
[10]
3
All SA 511
(SCA) para 7
[11]
2011
(2) SA 67
(SCA)
[12]
Ibid
para 55
[13]
2014
(4) SA 319 (SCA)
[14]
1984
(3) SA 623 (A)
[15]
Ibid at 634
[16]
2011
(1) SA 8 (SCA)
[17]
Ibid
at 14B-D
[18]
Consideration Agreement, Separation Agreement and Supplementary
Agreement
[19]
See Vodacom supra note 3 and 4:
“Of
course, it is always open to the parties to terminate an employment
contract on agreed terms and for either of them
to waive whatever
rights they might otherwise have enjoyed.”
[20]
Roschon
supra
note 11 para 27
[21]
1949 (3) SA 1155 (T)
[22]
Ibid
at 1165
[23]
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA)
[24]
Ibid
para 13
[25]
1972(3) SA 858 (A) at 869 D-E