Transman (Pty) Ltd v Dick and Another (2009 (4) SA 22 (SCA) ; [2009] 3 All SA 183 (SCA) [2009] 7 BLLR 629 (SCA); (2009) 30 ILJ 1565 (SCA)) [2009] ZASCA 176; [2009] ZASCA 38 (31 March 2009)

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[2009] ZASCA 176
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Transman (Pty) Ltd v Dick and Another (2009 (4) SA 22 (SCA) ; [2009] 3 All SA 183 (SCA) [2009] 7 BLLR 629 (SCA); (2009) 30 ILJ 1565 (SCA)) [2009] ZASCA 176; [2009] ZASCA 38 (31 March 2009)
THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case number: 147/08
In the matter between:
TRANSMAN
(PTY)
LTD
….......................................................................
APPELLANT
v
GRAHAM
DICK
….......................................................................
1
st
RESPONDENT
THE
CHAIRPERSON OF THE TRANSMAN
(PTY)
LIMITED DISCIPLINARY ENQUIRY
….......................................................................
2
nd
RESPONDENT
Neutral
citation:
Transman
v Graham Dick
(147/2008)
[2008]
ZASCA 38
(31 March 2009)
Coram:
Mpati
P, Jafta, Maya, Mhlantla JJA et Hurt AJA
Heard: 10
March 2009
Delivered: 31
March 2009
Summary: Jurisdiction
– the high court has jurisdiction to entertain administrative
reviews – dismissals from employment cannot
be challenged by means
of review – non-compliance with administrative law rules
incorporated into employment agreements constitutes
a contractual
breach giving rise to ordinary remedies.
ORDER
On
appeal from:
High
Court, Witwatersrand Local Division (Van Oosten J)
In
the result the following order is made:
1. The
appeal is upheld with costs, including the costs of two counsel.
2. The
order of the court below is set aside and replaced with the following
order:
‘
(a) The
application is dismissed with costs, including the costs consequent
upon the employment of two counsel.’
JUDGMENT
JAFTA
JA
(Maya
and Mhlantla JJA concurring)
[1]
This
is an appeal against a judgment of the High Court, Witwatersrand
Local Division (Van Oosten J) in terms of which the verdict
of the
employer’s disciplinary body was set aside and replaced with a
different verdict by the court. The first respondent (the
employee)
challenged – by means of a review application – the findings and
recommendation of the disciplinary body and the
employer’s decision
to terminate his employment. The appeal is with the leave of the
court below.
THE
FACTS
[2]
The employee and his wife w
ere
both employed by the employer while they were at the same time also
its directors. The employee’s wife held the position of
managing
director. The employee was chairman before his removal from the board
of directors. He was removed from the board on 10 October

2005.
[3]
The employer carries on a labour broking business in terms of which
it provides temporary workers to various
clients. It places about 11
000 such workers daily with clients who require temporary labour. Its
annual turnover is approximately
R400 million. The business started
in 1983 as a partnership between the employee and his wife. In 1988
they formed a close corporation
through which they operated the
business. Later they established the employer company as a vehicle
through which they ran
the business. The employee and his wife held
equal shares in the company. Such shares were later transferred to a
trust controlled
by them.
[4]
As from 2001 the employee and his wife experienced marital problems
which also affected their relations at
work. There were
complaints and counter-complaints made by them against each
other.
Some
of these complaints had to be resolved
by the employer’s board. During 2005 the employer became aware of
certain allegations of misconduct against the employee. On
15 August
2005 it addressed to him a notice of suspension in terms of which he
was suspended on specified conditions pending
an investigation into
the allegations.
[5]
The employee was later charged with 13 counts of misconduct and was
instructed to appear before a disciplinary
enquiry chaired by the
second respondent. After a number of postponements for various
reasons, the disciplinary hearing commenced
on 13 February 2006.
After hearing evidence from the employer’s witnesses the second
respondent received argument from the parties’
legal
representatives. She handed down her verdict on 10 March 2006
in terms whereof she found the employee guilty
of misconduct in
respect of some charges and acquitted him on others. Having
considered the mitigating and aggravating factors
the second
respondent recommended that the employee be dismissed.
[6]
The employer’s board considered the findings and recommendation
before terminating the employee’s employment
on 27 March 2006.
Although the second respondent had recommended dismissal, the board
took a softer line against
the employee and decided to
retire him. In a letter addressed to the employee the board stated:
‘
As
you are aware the chairperson of the disciplinary enquiry
recommended that your services with this company be terminated.

The Board has considered the recommendation and resolved to accept
the recommendation and accordingly terminate your employment.
The Board
resolved further that in view of your status as one of the founding
members of the company and as a former Chairman
of the Board, you
would not be summarily dismissed. The Board shall comply with the
Chairperson’s recommendation by retiring
you. Your employment with
Transman (Pty) Ltd is accordingly terminated with effect from today,
27th March 2006 at 10h00.’
[7]
There is a dispute on the papers about whether the employee was
dismissed or retired. For present purposes
the dispute is however
immaterial. There can be no doubt that the employee’s employment
was terminated. As stated earlier the
employee instituted a review
application
challenging
the termination and the second respondent
’s
verdict which underpinned it.
PROCEEDINGS
IN THE HIGH COURT
[8]
There can be no dispute regarding the nature of
the proceedings instituted by the employee in the court below. He
sought an order in the following terms:
‘
1. Reviewing
and setting aside and/or correcting the verdict and decision of [the
chairperson] and [the employer] in terms of which:
1.1 [The
chairperson] found the applicant guilty of certain charges and
recommended the dismissal of the applicant.
1.2 [The
employer] retired the applicant.
2. Setting
aside and/or substituting the verdict and dismissal of [the
chairperson] and/or [the employer] with a verdict of
not guilty
and/or substituting the recommendation of [the chairperson] with
a recommendation that no sanction should
be imposed on the
application or a sanction other than dismissal.
3. Directing
[the employer] to re-instate the applicant as an employee of [the
employer] with effect from the date of his retirement
and on the same
terms and conditions as existed at the time of his retirement.’
[9]
In challenging the verdict and termination the employee raised a
number of review grounds.
In his founding affidavit he alleged:
‘
GROUNDS
FOR REVIEW
43    I
respectfully state that [the chairperson], in finding me guilty in
her verdict of certain of the charges
and certain of the individual
counts:
43.1 acted
grossly unreasonably, alternatively, unreasonably; and
43.2 could
not reasonably or logically have done so on the evidence before her;
and
43.3 displayed
a biased attitude during my disciplinary enquiry;  and
43.4 was
well aware of the fact that the disciplinary enquiry was initiated
for ulterior motives and unlawful purposes and
that her verdict and
recommendation justify the conclusion that she failed to apply her
mind to the matter in a judicial manner.’
[10] Apart
from disputing each ground relied upon by the employee the employer
objected to the jurisdiction of the high court in
this matter and the
competence of the relief sought. It contended that both the
chairperson’s verdict and the termination of
the employment were
not susceptible to review because those decisions did not constitute
administrative action and principles of
administrative law do not
apply to the matter. Regarding jurisdiction the employer argued that
in the light of
s 157
of the
Labour Relations Act 66 of 1995
the high
court lacked jurisdiction to hear the matter.
[11] Proceeding
from the premise that in our law courts are entitled to review
proceedings of domestic tribunals, the court below
held that it had
jurisdiction to hear the matter and set aside the verdict of guilty
and replaced it with the verdict of not guilty.
Relying on
Feinsberg
v African Bank and Another
1
and
Klein
v Dainfern College and Another
2
– to which I shall later return – the court held not only that
principles of administrative law applied to this case but also
that
the impugned decisions could be reviewed and set aside in the same
way as administrative actions.
[12] The
court below reasoned thus:
‘
Counsel
for Transman did not take issue with this Court’s power to review
the decision of the chairperson. He in my view correctly
,
submitted that it must be assumed in favour of the applicant that his
contract of employment with Transman is subject to an implied
term
that he would be afforded a fair hearing before he was dismissed.
Authority for the proposition is again to be found in a
recent
decision of the Supreme Court of Appeal in
Old
Mutual Life Assurance Company SA Limited v Gumbi
3
where Jafta JA, writing for the Court, held as follows:
“
An
employee’s entitlement to a pre-dismissal hearing is well
recognized in our law, such right may have as its source the common

law or a statute which applies to the employment relationship between
the parties (
Modise
& Others v Steve Spar Blackheath
2001 (2) SA 406
(LAC) ((2000) 21 ILJ 519; [200]
5 BLLR 496
in para 21
and the authorities collected there)”.
Finally
on this aspect, I agree with counsel for Transman that this Court in
reviewing her decision,
can
concern itself only with the relief the applicant would be entitled
to at common law. The nature of the relief that the applicant
may be
entitled to is contractual in nature as opposed to the relief
provided for in the
Labour Relations Act of 1995
.
The
grounds of review relied upon by the applicant are, firstly, malice,
secondly, bias and thirdly, unreasonableness or gross
unreasonableness.
In
the view I take of the matter only gross unreasonableness requires
determination.’
[13]
Before
considering the issues raised in this appeal it is necessary to
remark on the findings and reasoning of the court below.
Before the
decision of this court in
Gumbi
4
the right to a pre-dismissal hearing was not implied at common law
and this necessitated the development of the common law in terms
of s
39(2) of the Constitution. As from the date of delivery of the
judgment in
Gumbi
the
right of every employee to a pre-dismissal hearing is implied at
common law. Since that judgment was delivered after the cause
of
action had arisen in the present matter reliance on
Gumbi
was misplaced.
[14] Secondly,
in its reasoning the court below conflated the concept of extending
the application of administrative law principles
to employment
contracts with administrative review. It spoke of the employee being
entitled to a contractual relief and yet it
approached and decided
the matter as if it amounted to administrative action. It reviewed
and set aside the chairperson’s verdict
on the basis that it was
grossly unreasonable. Taking a step further than just setting aside
the verdict, the court substituted
such verdict with its own verdict
of not guilty. The relief granted is not in keeping with a
contractual claim and there was no
legal basis for replacing the
verdict with one of not guilty. For reasons that are not apparent
from the judgment the court below
left the termination intact after
rescinding its underlying reason – the verdict of guilty.
THE
ISSUES
[15] Three
issues were raised in this court. The first issue is whether the high
court had jurisdiction to adjudicate the case.
The second relates to
the competence of the relief claimed in view of the nature of the
impugned decisions. The issue is whether
the validity of such
decisions can be challenged by invoking administrative review
procedure. The third issue is whether on the
papers
–
as
they presently stand
–
the
employee has made out a case for a pre-dismissal hearing based on the
terms of the employment agreement.
JURISDICTION
[16] Counsel
for the employer conceded, correctly so in my view, that in so far as
the employee’s claim for a review is concerned,
the high court had
jurisdiction to hear the matter. The proposition that administrative
action disputes are justiciable in the
high court is without
controversy. What has been controversial is whether a set of facts
supporting a claim of an unfair dismissal
could at the same time give
rise to a violation of administrative justice rights.
5
As it appears below the controversy has been settled by the
Constitutional Court.
[17] In
Chirwa
v Transnet Ltd and Others
6
the
Constitutional Court held that public servants can no longer
challenge their dismissals by invoking administrative review
procedures
because they now enjoy the same protection afforded
employees in the private sector under the
Labour Relations Act.
Writing
for the majority in that matter Ngcobo J stated:
‘
Support
for the view that the termination of the employment of a public
sector employee does not constitute administrative action
under
s 33
can be found in the structure of our Constitution. The Constitution
draws a clear distinction between administrative action on
the one
hand and employment and labour relations on the other. It recognises
that employment and labour relations and administrative
action are
two different areas of law….
In
my judgment labour and employment relations are dealt with
comprehensively in s 23 of the Constitution. Section 33 of the
Constitution
does not deal with labour and employment relations.
There is no longer a distinction between private and public sector
employees
under our Constitution. The starting point under our
Constitution is that all workers should be treated equally and any
deviation
from this principle should be justified. There is no reason
in principle why public sector employees who fall within the ambit of

the LRA should be treated differently from private sector employees
and be given more rights than private sector employees. Therefore,
I
am unable to agree with the view that a public sector employee, who
challenges the manner in which a disciplinary hearing that
resulted
in his or her dismissal, has two causes of action, one flowing from
the LRA and another flowing from the Constitution
and PAJA.
I
conclude that the decision by Transnet to terminate the applicant’s
contract
of
employment did not constitute administrative action under s 33 of the
Constitution.’
[18] It
is important to note that in
Chirwa
the Constitutional Court deprecated the proposition that civil
servants have two causes of action, but only in so far as the second

cause of action is based on s 33 of the Constitution or the Promotion
of Administrative Justice Act 3 of 2000 (PAJA). The decision
in
Chirwa
prohibits the use of review process in challenging the validity of a
dismissal from employment. What this means is that a cause
of action
based on a contractual breach is still permissible.
7
But for purposes of determining jurisdiction the fact that
incompetent relief is sought is immaterial. Such enquiry does not
entail
the outcome of an adjudicative process. The issue that is
essential to the enquiry is whether the court has authority to
adjudicate
a particular dispute. The incompetence of the claim made
in the present case, therefore, plays no part in the determination of
the high court’s jurisdiction. As stated earlier, the employee has
instituted review proceedings over which the high court
unquestionably
has jurisdiction.
WAS
THE REVIEW APPLICATION COMPETENT?
[19] The
answer to this question lies in whether the chairperson’s verdict
and the termination of employment constitute decisions
which are
reviewable in administrative law. On the authority in
Chirwa
we know that such decisions cannot be reviewed either under PAJA or s
33 of the Constitution. Although
Chirwa
dealt with employment in the public sector there is no reason why the
same principle should not apply to the private sector employment.
[20] In
this case the employee eschewed any reliance on the
Labour Relations
Act 66 of 1995
, and as stated above, the court below found that that
Act did not apply to the matter. It dealt with the case on the basis
that
the relief claimed was competent at common law. Proceeding from
this premise the court below then invoked the common law standard
of
gross unreasonableness as a basis for setting aside the chairperson’s
verdict. The question that arises is whether it is permissible
to do
so in the light of the decision in
Chirwa
.
Does the review procedure at common
law
continue
to exist side by side with the system entrenched in the Constitution?
[21] In
Container
Logistics
8
this court held the view that judicial review could be claimed either
under the Constitution or at common law. In this regard Hefer
JA
said:
‘
Judicial
review under the Constitution and under the common law are different
concepts. In the field of administrative law constitutional
review is
concerned with the constitutional legality of administrative action,
the question in each case being whether it is or
is not consistent
with the Constitution and the only criterion being the Constitution
itself. Judicial review under the common
law is essentially also
concerned with the legality of administrative action, but the
question in each case is whether the action
under consideration is in
accordance with the behests of the empowering statute and the
requirements of natural justice.…
No
doubt administrative action which is not in accordance with the
behests of the empowering legislation is unlawful and therefore

unconstitutional, and action which does not meet the requirements of
natural justice is procedurally unfair and therefore equally

unconstitutional. But, although it is difficult to conceive of a case
where the question of
legality
cannot ultimately be reduced to a question of
constitutionality
,
it does not follow that the common-law grounds for review have ceased
to exist. What is lawful and procedurally fair within the
purview of
s 24 is for the courts to decide and I have little doubt that, to the
extent that there is no inconsistency with the
Constitution, the
common-law grounds for review were intended to remain intact.’
[22] The
above
proposition
was, however, rejected by the Constitutional Court in
Pharmaceutical
Manufacturers.
9
In that case Chaskalson P, writing for the unanimous court, said:
‘
I
cannot accept this contention, which treats the common law as a body
of law separate and distinct from the Constitution. There
are not two
systems of law, each dealing with the same subject-matter, each
having similar requirements, each operating in its
own field with its
own highest Court. There is only one system of law. It is shaped by
the Constitution which is the supreme law,
and all law, including the
common law, derives its force from the Constitution and is subject to
constitutional control.’
10
[23] But
even if
Chirwa
did not stand in the way of the relief sought by the employee in this
matter, it would be equally incompetent to grant such relief
at
common law. Barring public sector employment contracts, our common
law has always drawn a clear line of distinction between
the branches
of law which govern employment matters on the one hand, and
administrative action on the other. The former is governed
by the
labour or employment law rules and the latter by administrative law
rules. But before the decision in
Chirwa
there was an overlap between the two branches of law when it came to
public service contracts.
11
The application of administrative law rules was extended to
employment matters for two reasons. First, the employment and
dismissal
of public servants was regulated by statute. Second, public
servants were denied the procedural fairness process that applied to

dismissals of employees in the private sector under the Labour
Relations Act of 1956.
[24]
Since
the decision in
Chirwa
public servants can no longer invoke administrative review to
challenge the validity of dismissals. However this does not mean
that
parties cannot incorporate administrative law requirements into their
employment agreements. In that event the failure to
comply with such
requirements would, however, be a breach of contract and ordinary
contractual claims would be available to the
aggrieved party.
12
The incorporated requirements cannot convert what is essentially a
contractual claim into an entitlement to judicial review on
any of
the grounds recognised in law. As stated earlier the court below
failed to draw this distinction. It was influenced by decisions
of
the North Gauteng High Court in
Feinberg
and
Klein
referred to in para [10] above.
[25] In
Feinberg
,
without referring to any authority, the high court reviewed and set
aside a dismissal based on the verdict of guilty reached by
a
disciplinary body, on the basis that the employee was denied a fair
and just hearing. This was done after the court had rejected
the
argument that it had no jurisdiction to entertain the matter. The
issue of whether the relief sought was competent was not
considered
at all.
[26] In
Klein
the high court, proceeding from the premise that coercive decisions
of domestic tribunals in entities such as churches and recreation

clubs have always been susceptible to review,
13
held that ‘no rational reason exists to exclude individuals from
the protection of judicial review in the case of coercive actions
by
private tribunals not exercising any public power’. Having found
that the employment agreement between the parties before
it included
principles of natural justice, the court held that the employer’s
decision to dismiss the employee did not constitute
administrative
action contemplated in PAJA and therefore PAJA did not apply. It
proceeded to review and set aside the verdict of
guilty and the
sanction imposed pursuant to such verdict. That case was concerned
with
a
challenge mounted against the verdict of a disciplinary enquiry in a
private sector employment
setting.
[27] Although
the
Klein
judgment was delivered before the decision in
Chirwa
,
the high court lost sight of the fact that none of the domestic
tribunal decisions that it relied on dealt with employment contracts.

As it appears above, in concluding that parties to an employment
agreement can incorporate administrative law rules, the high court

was correct. But it was wrong to assume that once this happens a
dismissal of the employee may be reviewed as if it were
administrative
action. There can be no doubt that the object of
administrative law rules such as the rules of natural justice is to
afford procedural
fairness to the party against whom the decision is
taken. It is also true that judicial review is not the only mode
through which
such procedural fairness can be achieved in an
employment setting. The Labour Relations Act imposes a duty on
employers to act
in a fair manner when effecting dismissals.
14
As does the common law since its development in
Gumbi
.
In addition, where the parties have agreed to incorporate rules of
natural justice into their employment agreement, the employee
can
insist on compliance with such rules by means of a contractual claim.
I conclude therefore that there is no need to permit
a challenge
based on judicial review in employment dismissals. It follows that in
this regard the employee has misconceived his
cause of action.
HAS
THE EMPLOYEE MADE OUT A CASE FOR A CONTRACTUAL PRE-DISMISSAL HEARING?
[28] Counsel
for the employee argued that the employee was entitled to a second
hearing before the board terminated his employment.
He submitted that
this entitlement arose from an implied term of the employment
agreement. As mentioned earlier the parties to
an employment contract
may set a standard of procedural fairness applicable to their
employment relationship by incorporating principles
of natural
justice into their agreement. Such incorporation may either be
express or tacit.
15
[29] Where
– as in the present matter – the incorporation is claimed to have
been tacit, the test ordinarily applicable to a
determination of a
tacit term applies.
16
That test was restated in a recent decision of this court in
City
of Cape Town (CMC Administration) v Bourbon – Leftleyh and Another
NNO.
17
In that case Brand JA said:
‘
(A)
tacit term is based on an inference of what both parties must or
would necessarily have agreed to, but which, for some reason
or
other, remained unexpressed. Like all other inferences, acceptance of
the proposed tacit term is entirely dependent on the facts.
But as
also appears from the cases referred to, a tacit term is not easily
inferred by the courts. The reason for this reluctance
is closely
linked to the postulate that the courts can neither make contracts
for people nor supplement their agreements merely
because it appears
reasonable or convenient to do so….
It
follows that a term cannot be inferred because it would, on the
application of the well-known “officious bystander” test,
have
been unreasonable of one of the parties not to agree to it upon the
bystander’s suggestion. Nor can it be inferred because
it would be
convenient and might therefore very well have been incorporated in
the contract if the parties had thought about it
at the time. A
proposed tacit term can only be imported into a contract if the court
is satisfied that the parties would necessarily
have agreed upon such
term if it had been suggested to them at the time…. If the
inference is that the response by one of the
parties to the
bystander’s question might have been that he would first like to
discuss and consider the suggested term, the
importation of the term
would not be justified.’
18
[30] In
the present case the duty was on the employee not only to plead a
contractual claim but also to prove facts from which the
contended
tacit term could be inferred. This the employee has failed to do and
as a result there is no factual basis for importing
into the employment agreement the term that he was entitled to a
hearing before the board terminated his employment. In fact he
has
failed to plead the terms of the employment agreement between himself
and the employer. Therefore he has not satisfied the
requirements of
the test for importing terms into a contract. Accordingly the court
below erred in assuming that his employment
contract was ‘subject
to an implied term that he would be afforded a fair hearing before he
was dismissed’. It follows that
the appeal must succeed. This
finding is reached without adjudicating the merits of the complaint
by the employee.
[31] In
the result the following order is made:
1. The
appeal is upheld with costs, including the costs of two counsel.
2. The
order of the court below is set aside and replaced with the following
order:
‘
(a) The
application is dismissed with costs, including the costs consequent
upon the employment of two counsel.’
________________________
C
N JAFTA
JUDGE
OF APPEAL
HURT
AJA (Mpati P concurring):
[32] I
have read the judgment of my brother Jafta and agree with the order
which he proposes. I consider, though, that justification
for the
order can be found on a more simple basis. I will refer to the
parties by the designations used in the judgment of Van
Oosten J in
the high court, viz to the appellant as 'Transman' and to the first
respondent as 'the applicant'.
[33] The
background facts material to the decision of the matter are set out
in the judgment of Jafta JA and need not be repeated
here. The
essence of the approach adopted by van Oosten J is set out thus in
the early part of his judgment:
‘
Counsel
for Transman did not take issue with this Court's power to review the
decision of the chairperson. He in my view correctly,
submitted that
it must be assumed in favour of the applicant that his contract of
employment with Transman is subject to an implied
term that he would
be afforded a fair hearing before he was dismissed.
19
. . . . Finally on this aspect, I agree with counsel for Transman
that this Court in reviewing her decision, can concern itself
only
with the relief the applicant would be entitled to at common law. The
nature of the relief that the applicant may be entitled
to is
contractual in nature as opposed to the relief provided for in the
Labour Relations Act, 66 of 1995
.
20
The grounds of review relied upon by the applicant are, firstly,
malice secondly, bias and, thirdly, unreasonableness or gross

unreasonableness. In the view I take of the matter only gross
unreasonableness requires determination.’
21
[34] Having
thus stated his approach, the learned Judge proceeded to consider the
evidence in the record of the disciplinary enquiry
and the evidence
and submissions in the review application. He concluded that the
chairperson's decisions to find the applicant
guilty on what may be
referred to the 'main charge' as well as on various other charges of
a less serious nature were either grossly
unreasonable (the main
charge) or not based fairly upon the evidence adduced by the
employer.
22
The learned Judge also found that a decision to suspend the applicant
pending the resolution of the disciplinary proceedings and
a decision
by the Board of Directors to retire the applicant from service as an
employee were irregular and unlawful because the
audi
alteram partem
rule
had not been followed before these decisions were taken.
[35] Based
on these findings, the following order was made:
'1. The
verdict of [the chairperson] in terms of which the applicant was
found guilty on certain charges as well as the decision
to retire the
applicant, are set aside;
2. The
verdict of [the chairperson] referred to in para 1 above is
substituted with a verdict of not guilty.'
[36] There
are two features of the situation in which an employee challenges
disciplinary proceedings and/or dismissal on a contractual
basis as
opposed to the 'unfair labour practice' with which the
Labour
Relations Act 66 of 1995
and proceedings in the Labour Tribunals are
concerned. The first is that, having based his claim on contract, it
is incumbent on
the employee to prove the terms of the contract on
which he relies and the breach which entitles him to relief. The
second is that
the relief which he seeks must be relief in terms of
the common law of contract. This much is clearly established in the
judgments
of this court in
Lamprecht
v McNeillie
[1994] ZASCA 45
;
1994
(3) SA 665
(AD),
Fedlife
(above,
footnote 2) and
Denel
(Edms) Bpk v Vorster
2004 (4) SA 481
(SCA) at 488.
[37] There
is no evidence in the founding papers which establishes the terms of
the applicant's contract of employment with Transman.
In paragraph
8.2.2 of her answering affidavit, the deponent for Transman
specifically pointed out that:
'.
. . the relief sought by the applicant (
sc
the review of the disciplinary proceedings) is, in any event, not
based on any right identified in the founding papers.'
[38] In
this situation, the simple question may be asked of the applicant:
'In
what respects did the disciplinary hearing constitute a breach of
Transman's contractual obligations toward you?' The question
could
certainly not be answered by reference to anything in the applicant's
papers. It is not enough for him to contend for a
general implied
term that he would be 'afforded a fair hearing' because what
constituted a fair hearing in this particular situation
would plainly
depend on the contractual provisions read as a whole. There is
clearly an infinite variety of ways in which steps
can be taken to
ensure that an employee is given a fair hearing in matters which may
affect his interests, particularly in the
cases of disciplinary
action or dismissal. Where the contract contains express provisions
in this regard, these must be followed.
23
Where such provisions must be implied, their nature and extent must
be gauged by reference to the contract as a whole so that
a 'clear
and exact formulation' can be arrived at.
24
It follows that the applicant cannot establish his case as a breach
of contract without taking the primary, elementary step of
proving
the contract on which he relies. As was decided in
Lamprecht,
the
applicant's case must fail at its threshold for want of proper proof
of his contract.
[39] I
think I should add, in this connection and as further support for the
view that I take, that the very relief granted by Van
Oosten J was
plainly not contractual. If he could establish a breach of contract,
the applicant was entitled to an order that
Transman perform its
obligations under the employment contract and such damages as the
applicant may have suffered by virtue of
the breach, or an order
declaring the contract cancelled and appropriate compensation to the
applicant pursuant to such cancellation.
[40] I
agree fully with what my brother Jafta has said in paras 28 to 30 of
his judgment, in relation to the applicant's contention
that the
decision to retire him without first affording him the right of
making representations to Transman's Board was a breach
of contract.
My view is simply that the same approach should be adopted to the
issues arising out of the applicant's attempt to
review the
disciplinary proceedings.
________________________
N
V HURT
ACTING
JUDGE OF APPEAL
APPEARANCES:
FOR
APPELLANT: P J van Blerk SC
A
C Botha
Instructed
by
Bowman
Gilfillan Inc,
Sandton,
Johannesburg
McIntyre
& Van der Post
Bloemfontein
FOR
RESPONDENT: J L C J van Vuuren SC (1
st
Respondent)
M
Smit
Instructed
by
Feldman
Nance-Kivell,
Parktown,
Johannesburg
Lovius-Block
Attorneys
Bloemfontein
1
(2004) ILJ 217(T).
2
2006 (3) SA 73
(T).
3
2007 (5) SA 552
(SCA).
4
Above n 3.
5
Claase v Transnet Bpk en ‘n Ander
1999 (3) SA 1012
(T);
Mgijima v Eastern
Cape Appropriate Technology Unit and Another
2000 (2) SA 291
(Tk) at 309;
Minister
of Correctional Services and Another v Ngubo and Others
2000 (2) SA 668
(N);
Runeli v Minister
of Home Affairs and Others
2000
(2) SA 314 (Tk);
NAPTOSA and Others v
Minister of Education, Western Cape
2001 (2) SA 112
(C).
6
[2007] ZACC 23
;
2008 (4) SA 367
(CC).
7
Fedlife Assurance Limited v Wolfaardt
2002 (1) SA 49
(SCA).
8
Commissioner of Customs and Excise v Container
Logistics (Pty) Ltd, Commissioner of Customs and Excise v Rennies
Group Ltd t/a
Renfreight
1999 (3) SA
771
(SCA).
9
Pharmaceutical Manufacturers Association of SA
and Another : In re ex parte President of the Republic of South
Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC).
10
Id in para 44.
11
Administrator Transvaal and Others v Zenzile
and Others
1991 (1) SA 21
(A).
12
Denel (Edms) Bpk v
Vorster
2004 (4) SA 481
(SCA);
Nakin
v MEC, Department of Education, Eastern Cape
2008 (6) SA 320
(Ck) para 11 and the authorities there cited.
13
Jockey Club of South Africa and Others v
Feldman
1942 AD 340
and
Taylor
v Lurstag NO and Others
2005 (1) SA
362 (W).
14
Section 188
of the
Labour Relations Act 66 of
1995
.
15
Lamprecht and Another v McNeillie
[1994] ZASCA 45
;
1994 (3) SA 665
(A) at 668.
16
Turner v Jockey Club of South Africa
1974 (3) SA 633
(A) at 645H-648B.
17
2006 (3) SA 488
(SCA).
18
Id in para 19.
19
The learned Judge referred, in this regard, to
Old Mutual Life
Assurance Co of SA Ltd v Gumbi
2007 (5) SA 552
(SCA).
20
In this regard the learned judge cited
Fedlife Assurance Ltd v
Wolfaardt
2002 (1) SA 49
(SCA)
21
That the applicant's claim was, indeed, based on contract is quite
clear from paragraph 12 of the applicant's founding affidavit
in the
application, where he explicitly asserted that the high court had
jurisdiction to deal with the application and the Labour
Court did
not.
22
On certain of the charges she had made ‘no
finding’ and these were not considered further, save for a comment
by the Judge
that the applicant was actually entitled to a formal
acquittal on these.
23
Denel (Edms) Bpk v Vorster
2004 (4) SA 481
(SCA),
particularly at 488.
24
Desai & Others v Greyridge Investments (Pty) Ltd.
1974
(1) SA 509
(A) at 522.