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[2021] ZAGPJHC 489
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Mntambo v Piotrans (Pty) Ltd (2021/4397) [2021] ZAGPJHC 489 (4 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
4 October 2021
Case No: 2021/4397
In
the matter between:
VUSUMUZI
MNTAMBO
Applicant
and
PIOTRANS
(PTY)
LTD
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
WILSON
AJ
:
1
The applicant (“Mr. Mntambo”)
seeks leave to appeal against my judgment of 2 August 2021, in which
I declared that the
respondent (“Piotrans”) had
terminated his employment in breach of contract. Exercising my
well-established discretion
to decline to order specific performance,
however, I refused to order Piotrans to reinstate Mr. Mntambo.
2
Piotrans had alleged that it was
not, in the circumstances, required to tolerate Mr. Mntambo’s
reinstatement. It alleged that
Mr. Mntambo had committed a breach of
trust in signing an affidavit tendered against the company in
litigation between Piotrans
and a group of shareholders Piotrans was
seeking to restrain from unlawfully removing various directors from
its board (“the
shareholder litigation”). On the basis of
that alleged breach, Piotrans made out the case that the confidence
it was entitled
to place in Mr. Mntambo had evaporated, and that the
employment relationship was impossible to restore.
3
Mr. Mntambo’s response to this
allegation was little more than a bald denial that there was any
breach of trust, or breakdown
in confidence. It was submitted on his
behalf that he had acted perfectly properly, in his capacity as an
indirect shareholder
in Piotrans, when he deposed to an affidavit in
the shareholder litigation. Critically, however, he made no effort to
explain how
his conduct in signing the affidavit could be reconciled
with his role as a senior manager in the company that the affidavit
was
tendered against.
4
It was on that basis that I
concluded that Piotrans’ allegation that Mr. Mntambo could no
longer reasonably expect to command
its confidence was essentially
uncontested, and that I was bound to exercise my discretion against
ordering Mr. Mntambo’s
reinstatement.
5
Mr. Mkwibiso, who appeared for Mr.
Mntambo, made a series of well-structured and careful submissions. He
motivated the application
for leave to appeal on two broad bases.
The
Steenkamp
submission
6
The first depended on a very
particular reading of paragraphs 118 and 119 of the decision of the
Constitutional Court in
Steenkamp v
Edcon
2016 (3) 251 (CC). There, the
majority of the court drew a distinction between “unfair”
and “unlawful”
dismissals. An “unfair”
dismissal is a dismissal in breach of the requirement of fairness set
out in the Labour Relations
Act 66 of 1995 (“the Act”).
In the event that a dismissal is found to have been unfair, the Act
itself provides for
a discretion not to order reinstatement if it
would be inappropriate on the facts to do so. An “unlawful”
dismissal,
however, takes place in total disregard of the
requirements of the Act, and is for that reason a nullity. A court
accordingly has
no discretion but to reinstate an employee
“unlawfully” dismissed.
7
Mr. Mkwibiso submitted that Mr.
Mntambo had been “unlawfully” dismissed in breach of his
contract, and, for that reason,
I had no discretion to decline to
reinstate him.
8
As innovative as this argument is, I
do not think it stands any prospects of success on appeal. In
Steenkamp
,
the Constitutional Court did not purport to interfere with the
well-established principles applicable to the adjudication of a
claim
of dismissal in breach of contract. I dealt fully with those
principles in my judgment on the main application. Mr. Mkwibiso
did
not seriously contend that I had been mistaken about those
principles. I do not think that there is anything in
Steenkamp
that can reasonably be interpreted to call them into question.
Indeed, the distinction drawn in the two paragraphs Mr. Mkwibiso
relied upon were not directly germane to the principal issue in
Steenkamp
,
which involved the consequences of non-compliance with section 189 of
the Act. That is something very different from the issue
that arises
in this application.
9
In law, there are two routes
available to a dismissed employee: a claim under the Act, or a claim
in breach of contract. These claims
are governed by different
jurisdictional and normative regimes. If, in dealing with a dismissal
claim under the Act, the Constitutional
Court had meant to
substantially alter the principles applicable to a dismissal claim in
contract, it surely would have made that
very clear. There is no
indication that the majority in
Steenkamp
had any such intention.
10
Moreover, the concept of an
“unlawful” dismissal in
Steenkamp
was deployed in the context of unlawfulness resulting from a breach
of statute. It is well-established that acts in breach of statute
are
generally considered to be nullities. Mr. Mntambo’s dismissal,
however, took place in breach of contract. Conduct in
breach of
contract is not automatically void, which is precisely why there is a
discretion not to order specific performance as
a remedy on breach.
11
Accordingly,
Steenkamp
does not assist Mr. Mntambo.
The
equity ground
12
The second ground Mr. Mkwibiso
pursued was that Mr. Mntambo’s reinstatement would not be
“inequitable in all the circumstances”,
which is the test
articulated in
National Union of Textile
Works v Stag Packings (Pty) Ltd
1982
(4) SA 151
(T) (“
Stag Packings
”)
at 155H to 156A. As Mr. Mkwibiso parsed this test, it follows that if
there are any conceivable circumstances in which
reinstatement would
be equitable, then reinstatement is the required order.
13
On the basis of this interpretation
of the
Stag Packings
case, Mr. Mkwibiso argued that a perfectly equitable outcome that
would cause no prejudice to Piotrans, and that would vindicate
Mr.
Mntambo’s rights, would be to reinstate Mr. Mntambo in the
knowledge that Piotrans could, if it so chose, suspend and
discipline
Mr. Mntambo consistently with the contract. Mr. Mkwibiso placed heavy
emphasis on Mr. Mntambo’s right to face
a properly run
disciplinary inquiry and to answer any charges that are proffered
against him. Mr. Mkwibiso argued that the balance
of equity in these
circumstances favoured reinstatement.
14
I am not sure that
Stag
Packing
yields the interpretation that
Mr. Mkwibiso contends for. However, even if it did, it would render
superfluous a court’s
discretion to decline to order specific
performance by way of reinstatement in cases like this one. There
would, in other words,
never be any reason not to order reinstatement
if the employer could suspend and discipline the employee again.
15
For better or worse, there is a
discretion to refuse to order reinstatement after a dismissal in
breach of contract. Despite Mr.
Mkwibiso’s creative arguments,
I do not think that there is any prospect that an appeal court will
hobble that discretion
by directing that Mr. Mntambo – and by
implication employees in all like cases – ought to be
reinstated, only then
to be suspended pending a further disciplinary
inquiry.
16
The fundamental difficulty Mr.
Mntambo faces in this case is that he left Piotrans’
allegations of a loss of confidence in
him as a senior manager almost
completely unanswered. In those circumstances, unless Piotrans’
allegations of a loss of confidence
were unsustainable on their face,
I was bound to accept its case that reinstatement was not a suitable
remedy.
17
This does not leave Mr. Mntambo
without recourse. He has an action for damages, and the possibility
of pursuing a case in the Labour
Court. He may well be entitled to
remedies in those proceedings. But I do not think that there is any
prospect of him convincing
a court of appeal, on the papers before
me, that he has a right to specific performance of his contract, by
way of reinstatement.
18
For all these reasons, the
application for leave to appeal must fail. However, I am not inclined
to order Mr. Mntambo to bear the
costs of the application. The fact
remains that Piotrans has acted in breach of its contract with him.
Mr. Mntambo’s efforts
to secure a remedy for that breach were
substantially successful in the main case. Mr. Mntambo was merely
refused the particular
remedy he wanted. I do not think that I should
penalise him for seeking to challenge my decision on appeal in these
circumstances.
Order
19
The application for leave to appeal
is dismissed, with each party paying their own costs.
S
D J WILSON
Acting
Judge of the High Court
This
judgment was prepared and authored by Acting Judge Wilson. It is
handed down electronically by circulation to the parties or
their
legal representatives by email and by uploading it to the electronic
file of this matter on Caselines. The date for hand-down
is deemed to
be 4 October 2021.
HEARD
ON:
30 September 2021
DECIDED
ON: 4 October
2021
For
the Applicant: V
Mkwibiso
Instructed by Mathopo
Moshimamne Mulangaphuma Inc
For
the Respondent:
R Tshetlo
Instructed by Ningiza
Horner Inc