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[2021] ZAGPPHC 356
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Sasol South Africa (Pty) Ltd v Lawal (A1266/2019) [2021] ZAGPPHC 356 (24 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A1266/2019
DOH
26 APRIL 2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter of:
SASOL
SOUTH AFRICA (PTY)
LTD
APPELLANT
and
SULAIMAN
LAWAL
RESPONDENT
JUDGMENT
THIS
JUDGMENT
HAS
BEEN
HANDED
DOWN
REMOTELY AND
SHALL
BE
CIRCULATED
TO THE
PARTIES
BY
WAY
OF
EMAIL. ITS DATE AND
TIME
OF HAND DOWN SHALL
BE DEEMED TO
BE 24
MAY 2021
Barn
AJ (Mabuse J and Holland-Muter AJ concurring)
1.
This is an appeal against the order made by Baqwa J, sitting as court
of first instance, in terms of which the appellant
was
ordered to pay the respondent an amount of R1 414 646.50
plus interest, along with additional relief, in line with
the
parties' contractual arrangement. The present appeal is with leave
of that court. Before we set out the grounds
of
appeal, we provide a brief sketch of the background facts. For
consistency, we use the parties' names.
2.
Mr Suleiman Lawal, (Lawal) launched motion proceedings against his
former employer, Sasol South African (Pty) Ltd (Sasol),
on 24
March 2017 in which he sought an order of specific
performance to perform in terms of the parties' VER agreement.
In
this regard, Lawal sought an order that Sasol: (i) pay him an amount
of R1 414636.50; (ii) interest on the aforesaid amount
at the rate of
10.25% per annum from 1 July 2015 to date of payment; (iii) reinstate
Lawal as a member and his three dependents
on Sasol's medical aid
scheme, Sasolmed, and that Sasol be held liable for payment of 60%
contribution towards the monthly medical
aid premiums; (iv) transfer
and or issue to Lawal 5000 (Five Thousand) shares in the lnzalo
Management Scheme; (v) pay Lawal any
and all dividends that were
declared from the period 1 July 2015 until date of that court's order
; (vi) interest on the aforesaid
amounts at the rate of 10.25% per
annum from the date that each dividend was payable to date of payment
with costs. The case was
argued on 25 February 2019 and the order was
granted on 26 March. The events leading to the present litigation are
captured in
the court a quo's judgment. For purposes of this
judgment, we consider that a summary will suffice.
3.
Lawal was in the employ of Sasol from 21 July 1997 until his
retirement on 30 June 2015. During the time of his employment, he
occupied several positions, with the last position before his exit
being that of a senior manager for Safety, Health and Environment.
Sometime in October 2014, at a time when Lawal was 54, he applied and
was approved for voluntary early retirement, VER, which was
then
offered by Sasol to some of its employees. It is common cause that
employees who had successfully applied for the VER qualified
for some
benefits such as, a cash amount and had the option of remaining with
the Sasol medical scheme, with a fraction of the
individual
employee's scheme contributions being paid by Sasol. Lawal's
approval was confirmed in a letter dated
15 December 2014
. The effect thereof was that his open ended employment contract
became a fixed term contract with a final exit
or retirement date
determined by the employer as 30 June 2015. His notice period, as
reflected in the Project Phoenix Workforce
Transition document
(Phoenix document), would begin on 1 March 2015 and end on 30 June
2015.
4.
On 11 June 2015, Lawal was served with a notice informing him that he
had been charged with falsification of certain safety checklists
pertaining to Sasol's Nigeria based offices, a charge Lawal continues
to deny. The notice directed him to attend a disciplinary
hearing on
23 June 2015. There is no dispute about the fact that prior to the
disciplinary hearing, Lawal had not been furnished
with the documents
supporting the employer's case. On the day of the hearing and upon
his request, he was furnished with the Landman
handwriting expert
report, one key document on which Sasol based its case. He requested
a postponement to consider the report.
The postponement was granted,
but he was informed that his retirement date would no longer be 30
June but 31 July 2015 . Lawal
objected to the unilateral variation of
his VER date and promptly requested the chairman of the enquiry
to record his objection.
On 30 June 2015 , Lawal handed in his
clearance certificate, access card and the employer's equipment as he
was reporting for work
for the last time. On 3 July 2015, an employee
from Sasol telephoned him and enquired about his reason for not being
at work, to
which Lawal responded that he had retired as of 1 July
2015, in line with his VER agreement. Subsequently, his lawyers wrote
to
Sasol regarding payment of his VER benefits. The response was a
Notice of Continuation of Disciplinary proceedings with the date
of
22 July 2015 noted as the date of the hearing. An additional charge
of absenting himself from work without leave was also noted.
His
lawyers wrote to Sasol advising that Lawal was no longer an employee
of Sasol and that there is no legal basis on which
Sasol could
pursue disciplinary proceedings against him. The only outstanding
issue, advised the lawyers, was for Sasol to perform
in terms of the
VER agreement. Thus , Lawal did not attend the hearing set down for
22 July or on the later date of 29 July 2015.
In a letter penned by
the chairman of the disciplinary proceedings dated 29 July 2015,
Lawal was advised that he had been found
guilty on the charges of
falsifying the employer's checklists and the additional charge of
absenting himself from work without
leave and was thus summarily
dismissed.
Proceedings in the court
a quo
5.
There were two issues before the court a quo. The first was whether
it was competent for Sasol to cancel Lawal's employment contract
based on the findings of the 29 July 2015 hearing. The second was
whether Sasol was bound by the terms of the VER agreement, also
rephrased as whether Sasol was entitled to unilaterally amend the
terms of the VER agreement by changing Lawal's retirement date
to 31
July 2015, without Lawal consenting thereto .
6.
In summary, Lawal's case was premised on Sasol's disciplinary
policies and the Phoenix document. The Phoenix document is identified
in the court a quo's judgment as carrying terms that governed the
reconstructed relationship between the parties. Briefly, clause
44 of
the Phoenix document recorded that employees are bound by the
employer's disciplinary processes and all applicable rules.
In the
clause, employees are cautioned to perform their duties in accordance
with normal practices and that transgressions will
be dealt with in
terms of the employer's disciplinary code.
7.
In terms of the Sasol disciplinary code, the following clauses bear
mention: clauses 6.4.1.8 and 6.4.1.10. The first mentioned
clause
deals with the consequences of an employee furnishing the employer
with insufficient notice to terminate the employment
contract (regard
being had to the employee's contract of employment), either prior to
or during disciplinary proceedings. The clause
provides that the
employer may not accept such short notice, and in those
circumstances, the enquiry may commence or continue,
regardless of
whether the employee attends. The second clause, 6.4.1.10, deals with
a case of adequate notice, in line with the
letter of appointment, in
a case where an investigation or disciplinary proceedings cannot be
concluded within the notice period.
In terms of the clause, the
resignation must prevail.
8.
The
thrust
of
Sasol's
opposition
was, as
the
court
a
quo
found,
premised
on
the outcome
of the
disciplinary
proceedings
of 29 July
2015.
Briefly,
Sasol
submitted
that it was
justified
in
cancelling
the
contract
in that:
(i)
Lawal
had
breached
the
terms
of his
employment
contract.
This
must
necessarily
refer
to
the
charge
of
falsifying
the
checklists. (ii)
In the
second
instance,
it
was
submitted
that
Lawal
had
made
some
pre-contractual
material
misrepresentations.
(iii)
Finally,
it was
submitted
that
Lawal
had
repudiated the contract. This final point referred to the additional
charge of absenting
himself
from
work
without
a
valid
reason.
Sasol
further
submitted
that
it was
bound
to
comply with the provisions of
the Labour
Relations
Act
[1]
to
validly
cancel Lawal's
contract,
but
it
denied
that
the
disciplinary
code
was
applicable to Lawal, which the court a quo rejecte
d
.
9.
In finding for Lawal, the court a quo referred to the following: (i)
The alleged offence had been committed on or about December
2013 and
that at the time of Lawal's application for the VER, Sasol's
investigation into the matter had commenced. This is now
around
October 2014. (ii) Sasol approved Lawal's VER application with the
full knowledge of the allegations against Lawal. (iii)
Sasol had
failed to provide reasons for its delay in finalising its
investigation, regard being had to the provisions of its disciplinary
code and Lawal's notice period. As to the submission that Lawal
had sought the postponement of the disciplinary proceeding
under a
false pretence, the court a quo rejected this submission pointing to,
inter
alia,
Sasol's failure to commence
disciplinary proceedings on time and the fact that it had not shared
with Lawal the documents on which
the employer's case was premised.
In short, the court accepted that Sasol ought to have expected that
Lawal would seek a postponement
to consider the report. As to the
claim by Sasol that Lawal had made pre-contractual
misrepresentations, the court a quo noted
that Sasol's opposition to
Lawal's case was premised on the outcome of the disciplinary
proceedings. Finally, the court a quo found
that Sasol's unilateral
amendment of Lawal's retirement date to enable it to continue with
the disciplinary proceedings was in
violation of its own policies and
was therefore unlawful. As is apparent from its order, the court a
quo held Sasol to the terms
of the VER agreement.
On appeal
10.
Outlined in Sasol's heads of argument are three grounds. (i) First,
Sasol submits that it does not matter whether Lawal's retirement
date
was extended to a date later than 30 June 2015, the fact is, Sasol's
cancellation of Lawal's contract of employment on 29
July 2015 was
effective. We demonstrate shortly that with this ground, Sasol is
paddling two canoes at the same time. (ii) In the
second instance,
Sasol submits that Lawal's application for the postponement during
his disciplinary hearing was tainted by wrongfulness.
It is thus
submitted that Lawal should not be allowed to better his position
from his own wrongful conduct. Finally, Sasol submits
that the VER
agreement is in any event voidable because of Lawal's pre-contractual
misrepresentation. In all, counsel asked that
the appeal be upheld
with costs.
11.
The submissions on behalf of Lawal can be summarised thus: (i) Sasol,
in terms of its own disciplinary policies, was precluded
from
continuing with the disciplinary proceedings against Lawal when he
ceased being an employee. Thus, the findings of that forum
cannot be
considered. (ii) Having noted certain concessions made by
Sasol, counsel submitted that the concessions are fatal
to Sasol's
case and that the appeal ought to be dismissed. (iii) It was further
submitted that the VER contract constituted a binding
agreement. In
terms of the principle of
pacta
servanda
sunt,
agreements must be honoured. On this score, Sasol
must be held to the contract. (iv) Finally, and in response to the
submission
that Lawal had committed material misrepresentations prior
to the conclusion of the contract, which render the VER agreement
voidable,
it was submitted that Sasol had neither lodged a
counterclaim of fraud nor proved the requirements of fraud. Counsel
submitted
that in any event, the objective facts belie that fraud had
been proved. Counsel asked that the appeal be dismissed with costs.
Discussion
Cancellation
of
Lawal's employment
contract
following
his retirement
in terms
of the VER
12.
Sasol's
development
of
this
ground
was
fraught
with
contradictions.
First,
counsel
submitted that the contract
between
Sasol and Lawal was
not merely
an employment contract
but
one
with
enduring
obligations
and,
in that
regard,
the
court
a
quo
was wrong
in
a
fundamental
way
in
holding
that
there
was
no
contract
of
employment
after
30
June
2015
and
consequently,
that
the
contract
could
not
be
cancelled
as Lawal
officially
ceased
to
be
Sasol's
employee on
30
June
when he
knocked
off work
. According
to
Sasol,
it and
Lawal
remained
parties to
an ongoing
contract
after June
2015, thus the contract
could
be
cancelled on 29 July 2015,
as Sasol
did. In an
about
turn,
counsel
conceded,
both
in
its
submissions
before
this
court
and
in
its heads
of
argument
[2]
,
that
Sasol
accepted
that
Lawal's
employment
came
to
an
end on
30 June
2015
and
that
its
cancellation
of
Lawal's
contract
of
employment
on
29 July
2015,
after
his
retirement,
was
legally
incompetent
[3]
.
Counsel
went
further
and
submitted that owing
to Sasol's
mistaken belief
that it
could
extend [unilaterally]
Lawal's
employment
to
31
July
2015,
based
on
its
mistaken
view
of
the
law,
Sasol
proceeded with the disciplinary
proceedings,
leading to Lawal's dismissal.
13.
We had earlier
noted that
on this
ground,
Sasol
is paddling
two
canoes
at the
same time,
with
the
consequence
that it
must
fail. It
needs
to be
emphasised
that
the
question
before
this
court
is
whether
Sasol
could
validly
cancel
Lawal's
contract
of
employment
following
his
retirement. As
Sasol
has
correctly
conceded,
there
was
no such
contract
after
30
June
2015.
Its
purported
cancellation
by way
of
dismissal
on 29 July
was
a
misdirection
and
therefore
invalid and
of no force or effect.
In our
view, these concessions were appropriately
made,
and
they align
with the
definition
of dismissal
in terms
of
section
186 of the
Labour
Relations
Act
[4]
, which
means:
termination
of
a
contract
of
employment
by
an
employer
with
or
without
notice. It goes
without
saying
that
the
statements
about
enduring
obligations,
pointing
to
the
existence
of
a
contract,
as was
submitted
on
behalf
of
Sasol,
are
not
evidence
of
a current
contract
of
employment.
We
add
that
thousands
of people
retire
on
their
erstwhile
employer
's medical
scheme,
with
the
employer's
commitment
to
contribute
a fraction
of the
contributions
remaining
extant. Any suggestion
that those
pensioners
may be dismissed
by
their
former
employers
is
incorrect.
The court a quo had
correctly
found
that
there
was no
contract of
employment
to
cancel
after
Lawal's retirement and thus no contract could be breached after that
date.
14.
Considering
the
inevitable
concessions
made by
Sasol,
one
would
assume
that
this was
the
end
of
the
matter,
but
it was
not.
Counsel
went
further
and
submitted
that
Sasol's
mistaken
view
of the
law cannot
amount
to
a waiver
of
its right
to cancel the contract. Aligned
to this
proposition
was
a
further
submission
that
evidence
showed,
without
a
doubt, that
Lawal had committed fraud by falsifying
a
checklist
and
presented
it
to
Sasol
as
genuine.
Thus,
the
court
a
quo
had
erred
in
so
far
as
its finding
that
fraud had
not
been
established
.
Referring
to
the Plascon
Evans
rule,
counsel
submitted
that
in the
circumstances
, this
court ought
to find
in its
favour
that
Lawal is
not
entitled to benefit
from his
own
wrongdoing.
These
submissio
n
s
by
counsel are
startling
considering
Sasol's own
version that it pursued disciplinary
proceedings
in
violation
of
the
law
and
its
own
policies.
In that
regard,
there
cannot
be
a
dispute
of
fact. It
is
readily
apparent
that
the
reference
to
evidence
can
only mean
evidence
presented
during the unlawful disciplinary
proceedings
held post
Lawal's retirement.
At this
point,
two
important
issues must
be mentioned.
Throughout
the conduct
of this
case, Sasol does
not appear
to accept that
it is bound
by
its
own
policies
and
the
law. To
this
end,
Sasol's
disciplinary
codes
[5]
precludes
the
continuation
of
disciplinary
proceedings
where
termination
of
employment
was
preceded by
adequate
notice,
such
as in
the present
case.
This is
a
question
of
vires.
Fortifying
our view
are the
comments
below,
extracted
from
the
minority
judgment of
the
Constitutional
Court,
by
Zonda
J,
in
Toyota
SA
Motors
(Pty)
Ltd
v
CCMA and Others
[6]
,
where
the court noted:
'
...Where an employee resigns from the employ of his employer and does
so voluntarily, the employer may not discipline that employee
after
the resignation has taken effect. That is because, once the
resignation has taken effect , the employee is no longer an employee
of that employer and that employer does not have jurisdiction over
the employee anymore . Indeed, even the CCMA or the relevant
bargaining council would have no jurisdiction to entertain a referral
of a "dismissal" dispute in such a case because
there would
be no dismissal as envisaged in section 186 of the LRA.'
[See
also
Mahamo
v
Nedbank Lesotho Limited
(LAC/CIV/04/11)
[2011] LSLAC 9 (04 July 2011) at para 24; and
Naidoo and Another
v
Standard Bank
SA Ltd and
Another
(J1177/19) [2019] ZALCJHB 168;
[2019] 9 BLLR 934
(LC); (2019) 40
ILJ 2589 (LC) (24 May 2019) at para 22.]
15.
Before considering the next
ground it
is
opportune
to
address
pointedly,
the
consequences
of Sasol's holding
of
disciplinary
proceedings post Lawal's retirement,
in
circumstances where it lacked jurisdiction to do so, based on its own
governance
prescripts,
and the
law
as cited above
in Toyota
SA
Motors
[7]
. In
Herbex
(Pty)
Ltd
v
Advertising Standards
Authority
[8]
where
the
applicant
was
aggrieved
by
the
respondent's conduct of
determining
complaints and issuing rulings regarding
advertisements
of the applicant, a non-member of the respondent, the court, finding
for
the
applicant
reasoned:
'The
fact is that the respondent has no jurisdiction to determine
complaints or issue rulings against non-members. The absence of
jurisdiction prohibits the granting of such rulings or orders
ab
initio.
In consequence, a decision taken absent proper
jurisdiction is void. As stated by Grosskopff JA in Todt v lpser 1993
(3) SA
577 at 589 C D:
"
According
to
our common-law authorities
judgments
are void
in
only three types
of cases
-
where
there
has
been
no
proper
service,
where
there
is
no
proper mandate or where the court lacks jurisdiction. See
Minister of Agricultura l Economics and Marketing v Virginia Cheese
and Food Co (1941) (Pty) Ltd
1961 (4) SA 415
(t) at 422E - 424H Also,
S v Absalom
1988 (3) SA 154
(A) at 163C and 164 E-G.."
16.
ln
Vidavsky
v
Body
Corporate
of Sunhill
Villas
[9]
:
'The
authorities are clear that want of jurisdiction in judicial or
quasi-judicia l proceedings has the effect of nullity without
the
necessity of a formal order setting the proceedings aside. They are
collected in Minister of Agriculture and Economic Marketing
v
Virginia Cheese and Food Co (1941) (Pty) Ltd
1961 (4) SA 415
(T). See
also S v Absalom
1989 (3) SA 154
(A) at 164E-G. Lack of jurisdiction
in arbitration proceedings renders an award invalid...' [17]
...In the first place, as
I have pointed out, the award carries no
legal force at all and does not even require to be set aside. In the
circumstances it
is hardly surprising to find that courts have
resisted attempts to confer the imprimatur of an enforceable judgment
on such a wraith
...'
17.We
conclude that the court a quo was correct in holding that the
continuation of disciplinary proceedings post Lawal's retirement
violated Sasol's disciplinary code and was unlawful. The proceedings
were in vain and amounted to a nullity. Finally, the finding
of
fraud, which Sasol relies on, as the court a quo had correctly
stated, emanates from the ill-fated disciplinary proceedings
whose
outcome is a nullity.
Lawal's application for
postponement was wrongful.
18.
As an alternative to the first ground dealing with Sasol's
cancellation of Lawal's contract post 30 June 2015, it was submitted
in the court a quo that Lawal should not be allowed to benefit from
the wrongful way in which he had sought the postponement of
the
disciplinary proceedings. Correctly so, the court a quo rejected this
submission. In reaching its conclusion, the court a quo
had canvassed
the following factors:
(i)
The alleged offence was said to have taken place during December
2013.
(ii)
By October 2014, Sasol's investigation into the matter was already
underway.
(iii)
At the time Sasol entertained Lawal's application for the VER, it was
aware
of the complaint against Lawal, yet it approved the VER in
December 2014 with full knowledge of the complaint.
(iv)
As early as February 2015, Sasol was already in possession of the
Landman Expert
report, which according to the court a quo, marked the
end of the investigation by Sasol.
(v)
It took Sasol nearly a year to investigate the case, yet Lawal was
notified
to attend the disciplinary proceedings within two weeks of
the notice, without any documents in support of the employer 's case.
19.
The court a quo concluded that Sasol should have expected that Lawal
would seek a postponement to consider the evidence on which
the
employer's case rested, the Landman report, and in that regard, Lawal
had no choice but to seek postponement on the day of
the hearing.
Before this court, it was submitted that Lawal, in fact, had a choice
on the day of the hearing and that choice was
to admit the fraud he
had committed. Counsel had completely missed the point in this
regard. The essence of the court a quo's reasoning
is that Sasol is
bound by the law and its own policies. Sasol had one year
to gather evidence and
prosecute the
case against Lawal.
Counsel
was repeatedly asked whether it was Sasol's submission that Lawal was
not entitled to the necessary information and time
for preparation to
face the employer 's case. The question was avoided several times
with counsel insisting that Lawal should have
admitted the fraud,
this without any attempt to explain Sasol's delay in charging Lawal.
We conclude that the reasoning of the
court a quo cannot be faulted
on this aspect. We agree that given the provisions of Sasol's
disciplinary policy, in particular
clause 6.4.1.10, time was of the
essence as Lawal's retirement would have to prevail where the
disciplinary processes could not
be completed prior to 30 June 2015.
Sasol cannot now seek to blame Lawal for its own tardiness. The point
must fail.
Lawal is guilty of
pre-contractual misrepresentations, the VER agreement is thus
voidable
20.
Sasol's counsel submitted that Lawal had committed material
misrepresentations, with the result that the VER agreement is
voidable.
In this regard, the submission is that Lawal had a duty to
disclose that he had committed fraud and he failed. Contrary to the
submissions by counsel before this court, the court a quo had
rejected the submissions based on the outcome of the unlawful
disciplinary
hearing. At the core of this submission that Lawal
failed to disclose a material misrepresentation is a self made
finding
by Sasol. But Sasol cannot appropriate itself the role of an
arbiter in a case where it is a participant. It was for Sasol to
investigate
the matter properly, with adherence to the law and its
disciplinary procedures. It failed. The alleged material
misrepresentation
is nothing more than another of Sasol's failed
attempts to legitimatise the unlawful hearing held post Lawal's
retirement, using
this court's authority. Lawal pleaded not guilty at
the start of the hearing. In his papers to the court a quo, he
attached emails
evidencing communication between him and his Nigerian
counterpart, one Ngozi wherein it is confirmed that there had been no
inspection
during December 2013. In our view, the court a quo
correctly rejected Sasol's attempt to usurp the role of arbiter. The
truth is,
there has never been a finding against Lawal of material
misrepresentation by any competent forum . We conclude that the
appeal
must fail.
CONCLUSION
21.
For all the reasons in this judgment, the appeal must fail.
ORDER
22.The
appeal is dismissed with costs.
NN
BAM
ACTING
JUDGE OF THE HIGH COURT
,
PRETORIA
HOLLAND-MUTER
ACTING
JUDGE
OF
HE
HIGH COURT,
PRETORIA
MABUSE
J
JUDGE
OF
HE
HIGH
COURT,
PRETORIA
APPEARANCES:
APPELLANT'S
COUNSEL: Adv
van
der
Merwe and W
lsaaks
Instructed
by:
Fluxmans Inc.
% Friedland Hart Solomon
& Solomon,
Monument
Park, Pretoria
RESPONDENT'SCOUNSEL:
Adv L Kotze
Instructed
by:
Green Attorneys
% Ramsay Wessels Baloyi
Inc
Menlyn
Woods , Faerie Glen, Pretoria
DATE
OF HEARING: 26 APRIL
2021
DATE
OF JUDGMENT:
24 MAY
2021
[1]
Act 66 of 1995
[2]
para 23 of Sasol's Heads of Argument
,
caselines
page 8. See also paragraphs 27, 28 and 29 of caselines
[3]
See paragraphs 23 and 29 of Appellant's Heads of Argument
[4]
Act
66
of
1996
[5]
clause
6.4.1.10.
[6]
[2015] ZACC 40
at paragraph 142
[7]
Paragraph 13 supra
[8]
(14/45774)
[2016]
ZAGPJHC
109;
[2016] 3 All SA 146
(GJ);
2016 (5) SA 557
(GJ) (5 May 2016) at
paragraph 36
[9]
(227/2004)
[2005] ZASCA 53
;
[2005] 4 All SA 201
(SCA) (31 May 2005)
at paragraph 14