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[2010] ZAGPPHC 52
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Bodigelo v Public Investment Corporation Ltd (17573/08) [2010] ZAGPPHC 52 (2 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 17573/08
DATE:
2/07/2010
In
the matter between:
KAGISO
GERALD BODIGELO PLAINTIFF
And
PUBLIC
INVESTMENT CORPORATION LTD DEFENDANT
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
The Plaintiff instituted an action against the Defendant for payment
to him by the Defendant of amounts representing remuneration
of the
nature contemplated in paragraph 3.4 of his particulars of claim and
on the basis reflected in annexure "POC2"
to such
particulars of claim aggregating R 2. 345.534.00. The Defendant
defended the action. The Plaintiff brought an application
for summary
judgment which the Defendant successfully resisted.
BRIEF
SUMMARY OF THE BACKGROUND FACTS
[2]
The Defendant, according to the Chief Executive Officer of the
Defendant, Mr Brian Molefe ("Mr. Molefe") is a juristic
person established in terms of
section 2
of the
Public Investment
Corporation Act 25 of 2004
. The Defendant has one shareholder namely
the National Government of the Republic of South Africa duly
represented by the Minister
of Finance. The Defendant is the
successor in title to the then Public Investment Commissioners.
According to Mr. Molefe, the Defendant
invests and manages, "on
behalf of public sector entities' funds based on investment mandates
set by each of the Respondent's
clients and approved by the
Financial Services Board, with which the Defendant is registered as a
Financial Services Provider."
The Defendant's organisational
structure, according to Mr. Molefe, has two components which are:
1.
The Asset Management Business which has four investment divisions
comprising fixed income and dealing, equities, properties and
the
Isibaya fund.
2.
Operations supporting the investments divisions. The pleadings reveal
that the Plaintiff was employed by the Defendant as a junior
manager:
private equity and corporate finance with effect from 12 January
2004. The Plaintiff held the position until 1 December
2006, when he
was promoted to a post of senior manager in the same division within
the Isibaya fund. The Isibaya fund, according
to Mr Molefe, was
established by the Defendant pursuant to a decision which the
Defendant's board took to diversify the Defendant's
assets to include
investments that provide infrastructure development, contribute to
economic infrastructure and social responsibility.
The Defendant
manages 3.5% (the three comma five percent) of the total of the
Government Employees Pension Fund's assets. Mr. Molefe
reveals that
the funding investments of the Isibaya Fund include equity, quasi
equity and debt investments. The Defendant appoints
a board
representative to serve as a non-executive director ("nominee
director") on the board of an entity which the
Isibaya fund
funded which is still indebted to the Defendant or the entity into
which the entity funded has invested ("the
counterparty").
All the funding/loan agreements, according to Mr Molefe, have this
requirement. The nominee directors appointed
by the Defendant to the
counterparty boards, according to Mr. Molefe, come from the ranks of
the employees of the Defendant. The
Defendant avers that it charges
fees such as 'Board fees' which are payable to the Defendant in
accordance with the Defendant's
Isibaya fund-policy and procedures
manual said to be amended from time to time and the latest of which
is annexure "BM2"
appearing on page 61 of the bundle to
discovered documents. It is the Defendant's case that the Plaintiff,
as the Defendant's employee,
had been nominated by the Defendant to
act as a non-executive director on the boards of the four companies
that the Plaintiff refers
to in paragraph 3.3 of his particulars of
claim, and that in having been appointed as, and in performing his
functions and duties
as a non-executive director of the said
companies, the Plaintiff performed his functions and duties as a
manager : private equity
and Corporate finance of the Defendant and
that he was not entitled to payment of remuneration in addition to
what is set out in
annexure "DOC 1" to his particulars of
claim. This, the Plaintiff disputes. It is the Plaintiffs contention
that the
Board fees and bonuses should be payable to him and not to
the Defendant by the companies on whose boards he served.
THE
ISSUE
[3]
The issue to be determined is whether the board fees and bonuses
should be paid to the Plaintiff or the Defendant.
COMMON
CAUSE FACTS
[4]
The following facts are common cause.
1.
The Plaintiff was employed by the Defendant.
2.
The Plaintiff at the time, served on four boards of the companies
mentioned in paragraph 3.3 of his particulars of claim.
3.
The Plaintiff had been placed on the said boards by the Defendant.
4.
The Plaintiff, at the time, had been in the employment of the
Defendant.
5.
The Plaintiff had been placed there after having been so nominated
and appointed by the Defendant.
6.
The companies on whose boards the non-executive directors' served
paid directors fees and bonuses.
7.
The Defendant issued an instruction that the directors fees and
bonuses in respect of the Plaintiff had to be paid to the Defendant
and not to the Plaintiff.
8.
Such monies were paid into the Defendant's account.
9.
Non-executive directors not employed by the Defendant retain the fees
and bonuses paid directly to them.
[5]
The Plaintiff testified in support of his case and called no
witnesses. Dr. D. Matjila ("Dr. Matjila") and Mr. Brian
Molefe ("Mr. Molefe") testified on behalf of the Defendant.
The parties closed their cases whereafter I was addressed
by their
respective counsel, namely, Mr. Semenya on behalf of the Plaintiff
and Mr. Bokaba on behalf of the Defendant.
[6]
The Plaintiff in his testimony, confirms that he had been employed by
the Defendant as a junior project manager. He confirms
further that
he later became senior project manager. He gave the court a brief
summary of the nature of his work. He operated from
the offices of
the Defendant. He eventually was nominated and appointed as a
non-executive board member on the boards
of-
1.
DCD - Dorbyl (Pty) Limited ("Dorbyl");
2.
Blue Label Investments (Pty) Limited;
3.
Kulungile Metals Group (Pty) Limited; and
4.
Global Roefing Solutions (Pty) Limited where he looked after the
interests of the Defendant. He specifically testified that he
served
on the boards at the instance of the Defendant and that his presence
on the said boards had been at the behest of the Defendant.
He also
described the business of the Defendant explaining that the Defendant
was an asset management Company which managed,
inter
alia,
the
Government Employees Pension Fund. The Defendant, according to him,
funded various companies and that gave the Defendant the
right to
nominate a non-executive director to serve on the board of the entity
that the Defendant funded. This would enable the
Defendant to know if
the money that it lent was used for what it was meant. He looked at
the strategic issues of the funded company
and that the company
sustained itself going forward. He dealt with the issues which
concerned him as the non-executive director
but stated that he did
not have to tell his senior of the decisions they took at the board
meetings. Neither did he have to report
on the activities of the
company. This, in my view, appears a little strange particularly if
regard is had to the fact that the
Defendant had special interest in
how the funded company progressed. He testified that his contract of
employment did not provide
for that. Payments flowing from his being
a board member were made to the Defendant. He, however, at some stage
questioned why
the money had to be paid to the Defendant and not to
him directly. He first raised this with his senior Mr. Tshepo
Mahloele who
was surprised to learn that the money was not paid to
him direct as he was serving on the board of Telkom which was paying
him
directly. His senior was not called to confirm this and the
evidence cannot be helpful. He again raised the issue with Albertinah
Kekana, the Chief Operating Officer who was not helpful either. He
eventually raised the issue with Mr. Brian Molefe, the Chief
Executive Officer who informed him that he had needed to think about
it. Nothing materialised. The last time he spoke to the CEO
was when
he was resigning and the issue fell away. He then resorted to legal
action. None of the officers he spoke to told him
that the board fees
and bonuses had belonged to the Defendant. He dealt with e-mails
between him and the officers of he Defendant
such as the e-mail on
page 1 of the Bundle of Discovered Documents. The e-mails relate to
the issue of the money. The e-mail of
30 May 2006 from him to
Albertina Kekana deals with two issues, namely, the issue of
indemnity and the issue of the board fees
which he suggested be
'shared 50:50 between the nominee director and the PIC (the
Defendant). Of significance is the e-mail from
Mr Chris Ransome, the
Chairman of Dorbyl, to the Plaintiff. The e-mail deals with the
decision of Dorbyl to remunerate its non-executive
directors.
Paragraph two of the e-mail on page 3 of the Bundle states:
"Typically,
the payment of non-executive directors' remuneration (after deduction
of PAYE) will he made directly to the individual
concerned with an
IRP5 tax form being delivered to that person every year. In the event
that an individual non-executive director
requires this payment to be
made to his employer or other entity, such director shall then inform
DCD-Dorbyl of this whereafter
appropriate alternative arrangements
are to be made between the company and such director. "
One
asks oneself a question as to why the Plaintiff would require the
payment to be made to 'his employer' if the money was due
to him.
He
testified that his contract of employment does not state that the
non-executive directors bonuses belong to the Defendant. The
board
meetings were held during weekdays with the permission of the
Defendant. Such permission which according to the contract,
was
supposed to have been in writing was, however, not produced. The
grievance hearing which was supposed to be heard dealing with
the
issues of the board fees and the bonuses was not proceeded with as
the CEO had indicated that the matter had deserved to be
resolved
amicably. This, however, never happened. He resigned on 3 August 2007
and the Defendant accepted the resignation in its
letter written by
HR Manager, M Bezuidenhout. The issues of indemnity, board fees and
bonuses was dealt with by the executive committee
meeting on 8 June
2006. This appears on pages 58 and 59 of the Bundle to discovered
documents. The Plaintiff testified that he
had not attended the
meeting; the contents of the extract from the minutes of the
executive committee meeting held on 8 June 2006
had not been shown to
him; he had not been given a copy thereof and that the he had seen it
for the first time when the document
was given to him by his
attorney. He had kept on raising the issue with the officers of the
Defendant who had never intimated to
him that the matter had been
sorted out. He testified that the Isibaya Fund - policy and
procedures manual is dated September 2006.
The bottom of pages 62 to
pages 84 reads:
"Policies
and procedures manual - Isibaya (final), doc
II
January 2007."
He
was referred to Board fees on page 74 whereupon he testified that he
had never seen the document while he still worked for the
Defendant.
He was referred to page 96 of the Bundle and he testified that
Tyalimpi was the head of Isibaya Fund. Paragraph (dd)
deals with the
rating that pertained to him. He was again referred to page 97 of the
Bundle which is an e-mail from Ernest Loubser
of Dorbyl which
reflects that "R855.288.00 is bonus due to the PIC in respect of
Kagiso Bodigelo."
He
testified that he took the matter up with Albertina Kekana who
advised him that the money had to be paid to the Defendant and
that
the issue would be considered when they sat for moderation rating.
The witness was referred to page 99 of the Bundle and his
response
thereto was that it seemed bonus was paid
in
lieu
of
his performance and that the word "bonuses" was not
mentioned. His resignation letter appears on page 100 of the Bundle.
He testified that page 134 is an e-mail from Mark Pamesky, the CEO of
the prepaid company, a subsidiary of the Blue Label Telekom
where he
was an ex-director. The witness was cross examined. He confirmed that
he was a salaried employee of the Defendant and
that his relationship
with his employer was governed by a written contract. He agreed that
he would, in terms of the contract,
'devote the whole of his time
and attention during the employer's normal business hours,
and any additional time that
may be required from time to time,
exclusively to his assigned duties and functions'. Clause 10.2
provides:
"On
occasion,
owing to the nature of the Employee's position and the nature of the
business and operations of the Employer, the Employee
may be required
to work such reasonable hours as may be necessary for the efficient
performance of his duties, without any additional
entitlement to
remuneration, including on weekends and public holidays, and hereby
agrees to do so."
He
testified that he understood the contract. He agreed that he received
bonuses from the Defendant. He also agreed that the letter
on page 99
of the bundle dealt with his bonus and monthly salary for work that
he did for the Defendant. He confirmed that he understood
the
contents of clause 24 of the contract of employment. He specifically
testified that he had been nominated to sit on the boards
as a
non-executive officer while he was still an employee of the Defendant
and while receiving a salary and bonuses from the Defendant.
Their
relationship was based on the contract of employment. He conceded
that he sat as a board member at the behest of the Defendant.
He
testified that in terms of the Isibaya Fund - policy and procedures
manual, fees were charged by the Defendant but that such
was not the
case while he was still employed by the Defendant. Referred to page
72 of the manual which deals with the fees, he
testified that he had
only seen the copy when same was given to him by his attorney. He was
then referred to clause 17 on page
19 of the bundle and the board
fees on page 74 of the bundle where it appears that the board fees
are not payable to individuals
but to the Defendant and his response
thereto was that he was seeing that for the first time as no fees
were charged during his
time. He, however, agreed such was the
position according to the documents. He testified, when asked about
it, that he had never
sent an invoice to the Defendant for board
fees. He testified that he had been entitled to board fees and
bonuses, over and above
his salary and bonus. He conceded that he had
suggested that the board fees be shared on 50:50 basis. He agreed
that the minutes
of 8 June 2006 had been subsequent to his proposal
and that he understood the discussion referred to on page 58 of the
bundle.
He also agreed that his proposal was dealt with on page 59 of
the bundle under (C). He, however, denied that he was called into
the
meeting and told of its outcome. He was referred to the second last
paragraph of page 36 of the bundle which reads:
"It
should also be noted that over and above the above average work that
I perform for the PIC I contribute by bringing board
fees (Kulungile
Metals, BCD Dorbyl, Global Roofing Solution and Blue Label
Investment) and non-executive board bonuses (DCD Dorbyl)."
and
he agreed that he was not claiming directors fees but proposing that
the Defendant should consider increasing his salary having
regard to
the contribution that he made by bringing in the board fees as a
non-executive director. Told that that had been in line
with the
resolution of the Executive committee of 8 June 2006, he disagreed.
He surprisingly, again agreed that he had wanted the
Defendant to
consider his contribution when the same question was repeated. He
further agreed that that would take place when he
was evaluated. He
testified that he had not been privy to his evaluation. He was,
however, forced to concede that he had been once
he was shown pages
88, 91 and 92 of the bundle thereby contradicting his initial denial.
He specifically told the court that he
was no longer persisting with
the denial. He thereafter admitted that his employment contract did
not make provision for him to
receive board fees and bonuses under
the circumstances of his case as he sat on the boards of the
companies while receiving salary
and bonuses from the Defendant. He
also admitted that the Isibaya manual does not provide for directors
fees and bonuses payable
to non-executive directors and that page 74
of the bundle only make provision for payment of such fees to the
Defendant. He remembered
that the resolution of the executive
committee confirmed that. He confirmed that he and the Defendant had
never agreed that he
would receive board fees and bonuses while he
was still employed by the Defendant. He finally conceded that his
claim was based
on the fact that the Defendant had received payment
for the services that he had rendered while employed by the
Defendant. The
re-examination brought to light the fact that he was
given a low mark when he was evaluated and that there had been no
policy of
Isibaya in place when he served as a board member or that
such policy would have retrospective effect. The Plaintiff closed his
case.
[7]
The Defendant then called Dr. Matjila as its first witness. His
testimony is briefly that he has been Chief Investment Officer
since
1 April 2005. His duties entail being responsible for all the
investment activities of the Defendant. He overseers the
implementation
of clients' mandates when monies entrusted to the
Defendant are invested. He also sketched the business of the
Defendant which
is managing the assets of the government which
includes managing the state pension fund as well as the unemployment
insurance fund.
The Defendant, in short, manages public funds. He
explained what Isibaya fund is all about. Referred to page 61 of the
bundle,
he testified that that was the Isibaya fund - policy and
procedures manual which governed the activities of Isibaya fund and
which
was first published in September 2006. The Plaintiff, according
to him, has been employed by the Defendant as a junior private equity
analyst. He explained that the Defendant charges various fees for its
work. He testified that employees of Isibaya got nominated
to the
board of the companies that were funded by the Defendant. The fees
charged were reflected in the books as other income.
The Isibaya fund
falls under him. The executive committee consists of the Chief
Executive Officer, Chief Operating Officer, Chief
Investment Officer
and Heads of Business Units. ("Departments"). The Executive
Committee is responsible for operational
matters i.e. the day to day
running of the business. He was referred to the extract from the
minutes of the Executive committee
on pages 58, 59 and 60 of the
bundle. He testified that he had attended the meeting which had
discussed and resolved the issues
that were tabled. He further
testified that there was a committee whose assignment was
inter
alia
to
evaluate the investments and the investments in the Isibaya
portfolio. The evaluation involves the non-executive directors who
provide the committee with valuable information. The Plaintiff did
that too. According to him no one gets directors fees and bonuses.
The employees are paid in accordance with the employment contracts
that they sign. He testified that he, too, did non-executive
directors duties for which he was not paid. This, he still does. The
witness, when cross examined, conceded that he had been sitting
in
court when the Plaintiff testified. He agreed that the Defendant had
representatives on its board. Referred to page 133 of
the bundle he
agreed that Telkom there tells the world how its finances look like;
that T. D. Mahloele used to be the Plaintiff's
senior; that he and
the Plaintiff had been placed on its board and that the amounts
reflected thereon had been received by the
people whose names are
shown there and that the correct position is that the amounts that
are shown to have been received by the
people whose names appear were
actually received by the Defendant which had nominated them to serve
on the boards. He testified
that the first issue of the manual on
page 61 of the bundle came out in September 2006 and that the
Defendant had no policy before
then showing that it could retain the
fees of anybody. This included the period the Plaintiff did
non-executive work for the Defendant.
He agreed that the foot of page
62 of the bundle reflected the date of 11 January 2007. He agreed
that the manual consists of 20
pages. He could not agree that the
document had come about as a result of the issues that the Plaintiff
had raised because the
document had been in existence since 2006. He
conceded that the document did not relate to the Defendant in its
entirety or totality.
He disagreed that someone's money (board fees)
was retained without authority. According to him the employment
contract clearly
evidenced the exact state of affairs regarding the
issue. He, however, conceded that the contract did not mention board
fees. He
also conceded that the contract did not refer to
non-executive directors bonuses. He further conceded that the
contract was signed
in July 2006 while the policy came into being in
September 2006. He again conceded that the money that came from
Dorbyl had not
come from the Defendant. The witness stressed that the
Plaintiff was paid by the Defendant while he was on the board of
Dorbyl.
He conceded that the Dorbyl money was paid before the
employee fixed-term employment contract was signed. He also conceded
that
companies paid company tax and not PAYE. He reiterated that the
Plaintiff had been called to the Executive committee meeting on
8
June 2006. He would not know why the Plaintiff kept on writing
letters when he had been duly informed of the outcome of the meeting.
He reiterated that the Plaintiff had been duly informed of the
outcome of the meeting. The version of the manual was according
to
him, never created to protect the big boys.
The
re-examination revealed that no employee, since he joined the
Defendant, had been paid board fees. There is equally no document
which shows that non-executive directors nominated by the Defendant
are entitled to board fees. He testified that Ngwedzi is Albertina
Kekana, the Chief Operating Officer. The witness specifically
testified that the monies which are said to have been received by
the
people mentioned on page 135 of the bundle were paid to the
Defendant.
[8]
The last witness for the Defendant was Mr. Molefe the CEO of the
Defendant. He is highly educated with a string of qualifications.
He
joined the Defendant in 2003.
He
had been Deputy Director General in the National Treasury. He
explained the transition that took place from those days to the
days
of the Defendant. As CEO he is responsible for all the operations and
technical investment activities of the Defendant. He
had previously
sat on the boards of various entities which he mentioned. The
remuneration which he was supposed to receive while
on those boards
was paid to the Treasury. From the time he was with the Defendant the
remuneration was paid to the Defendant. He
did not receive
remuneration outside his normal salary. He testified that the
Defendant invests funds on behalf of the government.
The Government
Employees Pension Fund is the biggest fund they manage on behalf of
the government. He explained the investment
procedures to the court
explaining that the Defendant deals with public funds. This includes
nurses, teachers, policemen, magistrates
and others who contribute to
the fund. He explained what the Isibaya fund involves. He also serves
on the board of Telkom SA and
other companies at the behest of the
Defendant.
Referred
to page 135 of the bundle, he testified that the monies thereon shown
were paid to the Defendant and not the people. Not
to him either. He
explained that the Plaintiff applied to join them when the employees
were still the employees of the National
Treasury. Mr. Semenya
objected to two questions by Mr. Bokaba. The objection resulted in
Mr. Bokaba intimating that an amendment
would be forthcoming. Mr.
Bokaba eventually abandoned the idea of the amendment. He testified
that he chaired the Executive committee
meeting on 8 June 2006. He
repeated the issues that had been tabled for the meeting to deal
with. These were insurance (indemnity),
board fees and the bonuses.
He had found it strange that Dorbyl was prepared to pay the board
fees and bonuses as it intimated
as that had been unheard of at the
time. It was resolved that all board fees and bonuses should be paid
directly to the Defendant.
He requested that the Plaintiff be called
into the meeting and be duly informed. That was done. He explained
why the non-executive
directors employed by the Defendant did not
have to receive the board fees and bonuses.
Under
cross examination, he conceded that as an employee of the Defendant
he was not subject to Public Services Act. He further
conceded that
in terms of section 8 of PIC Act the board must control and not the
Public Services Act. Told that Dr. Matjila had
testified that before
September 2006 there had been no policy which entitled the Defendant
to take the board fees and bonuses of
non-executive board members he
answered that Dr. Matjila was a doctor of mathematics. He, however,
testified that the Dr had erred
if he had testified that the
non-executive board members sitting on the boards had not been
working for the Defendant. He then
conceded that the said directors
on the boards had been working for the companies and that they were
remunerated for that. He denied
that he had been evasive and
difficult. He did not tell the court about the discussions he had
with the Plaintiff because he had
regarded that as insignificant. He
testified that he had told the Defendant's employees of the
application of the Public Investment
Act to them. He did not know why
the Plaintiff was not told by his lawyers that he had chaired the
meeting and that the Plaintiff
had been duly informed of the outcome.
He conceded that it did not have to be resolved if there was a policy
in place. He conceded
that the Defendant employed non employees as
directors and that they had no legal claim to their monies. He
conceded that Kekana
did not raise that there was already a policy in
place. He disagreed that the Defendant had no right in law and in
fact to retain
the director's fees and bonuses. Re-examination
revealed that the Plaintiff had had no agreement with the Defendant
that he be
paid directors fees. The Defendant closed its case.
[9]
Both Mr. Semenya and Mr. Bokaba addressed me on the merits.
[10]
When determining the issue it is always important to have regard to
the evidence in its entirety. The contract of employment
is paramount
in that it governed the relationship between the parties. I will not
in any way lose sight of the valuable documents
which also have a
bearing on the matter in the determination of the issue. Mr. Semenya
in the main wanted to be shown the document
which legally entitled
the Defendant to retain the board fees and the bonuses paid to the
Defendant in respect of the Plaintiff.
The important clauses of the
employment contract were referred to during the trial. It is
important to again mention the some of
them.
These
are:
1.
Clause 7 which deals with remuneration.
2.
Clause 10 which deals with working hours.
3.
Clause 11 which deals with responsibilities and duties. Clauses
11.1.7; 11.1.8; 11.1.9; 11.1.10; 11.1.11 and 11.1.13 are particularly
important.
4.
Clause 24 which deals with other remunerative work. This clause
together with clause 11.1.8 are very important and need to be
understood in their context.
[11]
The evidence reveals that:
1.
The common cause facts are as I have stated in paragraph 4 above.
2.
The Defendant had an interest in the running of the companies that it
funded. This is born out by the nomination by the Defendant
of those
who were to serve on the boards. The Plaintiff was one of them and
Dorbyl is one such company.
3.
The Plaintiff served on the boards of the 4 companies at the behest
of the Defendant.
4.
the Defendant when nominating the Plaintiff and appointing him to
serve on the boards of the said companies had in mind the fact
that
the Plaintiff would still be working for it and that no additional
remuneration would be paid to the Plaintiff for as long
as he worked
for the Defendant. It seems to me that the Defendant, placed the
Plaintiff on the boards of the companies while retaining
the rights
and obligations contained in the contract of employment. This is
evidenced by clauses 7.1; 10.2; 11.1.1; 11.1.3; 11.1.4;
11.1.5,
11.1.7;, 11.1.8; 11.1.9; 11.1.10; 11.1.11; 11.1.13; 11.2.1 and 24.
5.
The Plaintiff did not misunderstand the employment contract. If he
did not, surely one would have expected him to have dealt
with what
he did not understand at the very earliest opportunity particularly
when the contract was concluded or shortly thereafter.
6.
The Plaintiff understood and agreed that he be placed somewhere else
while in the employment of the Defendant. He also understood
and
accepted that he would not receive additional remuneration over and
above what he was paid by the Defendant. The e-mail of
29 June 2006
from the Plaintiff to Magda Bezuidenhout reveals that he had wanted
the Defendant to consider the contribution that
he made when he
brought in the board fees when his salary and bonuses were considered
by the Defendant. He so conceded under cross
examination. This would
happen when he would be evaluated. The evaluation would have been in
line with the resolution of 8 June
2006.
7.
The Plaintiffs contribution and performance was considered in the
CEO's letter to the Plaintiff dated 12 June 2007 appearing
on page 99
of the bundle. There is no evidence showing that the Plaintiff did
not receive and accept the money referred to in the
letter.
8.
The Plaintiff was aware that he was not entitled to the board fees
and the bonuses of the non-executive board members. Evidence
in this
regard is found in his e-mail of 29 May 2006 to Albertina Kekana. In
issue number 2 on page 2 of the bundle, the Plaintiff
is prepared to
share the board fees with the Defendant. It is surprising that he
comes with this proposal if one considers the
fact that according to
him, he and he alone is entitled to the board fees and the bonuses.
9.
These aspects I have mentioned in paragraphs
1-8
above
clearly demonstrate that the Plaintiff could not have laboured under
any misapprehension, and in fact he did not.
10.
The evidence of Dr. Matjila and Mr. Molefe whom I regard as good and
reliable witnesses also evinces that the Plaintiff understood
the
employment contract and that, according to the contract, he would not
be entitled to remuneration over and above what he was
receiving by
way of salary and bonuses from the Defendant.
11.
The Executive committee met on 8 June 2006 and resolved as it did.
This evidenced by the extract of minutes from the said meeting.
Dr.
Matjila attended the meeting and so did Mr. Molefe who chaired the
meeting. Both witnesses testified that the Plaintiff was
called into
the meeting and given the outcome of the meeting.
12.
That the e-mail from Ransome on page 3 of the Bundle is a little
startling. Why would the Plaintiff decide that the non-executive
directors fees should be paid to the Defendant if the Defendant was
not entitled thereto. This again shows that the Plaintiff knew
that
he was not entitled to additional remuneration over and above his
salary and bonuses from the Defendant.
13.
The Executive committee meeting merely confirmed what had been
understood and accepted by the parties regarding the payment
of the
board fees and the non-executive board members bonuses.
14.
Even if there had been no policy in place when Dorbyl made the
payments to the Defendant in respect of the board fees and
non-executive
directors bonuses, the position, in my view, was very
clear. The Plaintiff had not been entitled to the fees and the
bonuses. The
fact that the contract does not specifically refer to
the board fees and the bonuses is, in my view, of no consequence.
15.
The Plaintiff was not very bold and direct when he handled the
question of board fees and bonuses. It is surprising why he did
not
deal therewith there and then when he was nominated and appointed as
a board member. The need was not there because he understood
the
employment contract. This appears to be something that was considered
by the Plaintiff after the employment contract was concluded
and
after the Plaintiff had been on the boards. One would have expected
the Plaintiff to have, in so many words, told the Defendant
that he
was entitled to the board fees and the bonuses without even
suggesting that the money be shared.
16.
Additional remuneration (i.e. over and above what the Defendant paid
the Plaintiff) needed an agreement between the parties
which
agreement should have been in writing. This much is clear because the
board fees and bonuses constitute remuneration over
and above the
salary and bonus that the Plaintiff received from the Defendant. The
Plaintiff appears to have been aware of this,
hence he was prepared
to share the money with the Defendant. On the other hand, because of
his clear understanding of the employment
contract, the Plaintiff
asked the Defendant to seriously consider the contribution he made by
sitting on the boards when his salary
was considered. The Plaintiff
does not seem to be someone who did not know his rights and
obligations. 17. The Plaintiff appeared
not to want to be helpful to
the court. He denied that he had been involved in his evaluation
something which Mr. Bokaba quickly
disproved forcing the Plaintiff to
concede. His case is tainted with improbabilities. His evidence,
therefore, cannot be relied
upon. The cases that were cited, in light
of the clear wording of the employment contract, in my view, do not
seem to assist the
Plaintiff either. The Plaintiffs claim, in the
circumstances of the case, ought to be dismissed with costs.
[12]
In the result, I make the following order:
The
Plaintiffs claim is dismissed with costs.
M.
W.
MSIMEKI
JUDGE
OF THE HIGH COURT
Heard
on: 11 - 12 February 2010
For
the Plaintiff: Adv. Semenya (S.C.) with Adv Clarke
Instructed
by: Fluxman Attorneys
For
the Defendant: Adv. Bokaba (S.C.)
Instructed
by: Werksman Inc.
Judgment
handed on: