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[2018] ZAKZDHC 10
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Tertiary Education National Union of South Africa (TENUSA) and Another v Durban University of Technology (10802/2014) [2018] ZAKZDHC 10 (11 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 10802/2014
In
the matter between:
TERTIARY
EDUCATION NATIONAL UNION
OF
SOUTH AFRICA
(TENUSA)
FIRST
PLAINTIFF
NATIONAL
HEALTH AND ALLIED
WORKERS
UNION
(NEHAWU)
SECOND
PLAINTIFF
and
DURBAN UNIVERSITY OF
TECHNOLOGY
DEFENDANT
JUDGMENT
Delivered
on: FRIDAY, 11 MAY 2018
OLSEN
J
[1]
The defendant in this action, the Durban University of Technology,
was created by the merger with effect from 1 April 2002 of
two
technikons, Technikon Natal and the ML Sultan Technikon. (The
former of these two institutions was generally called the
“Natal
Technikon” and is referred to in the papers by the letters
“NT”, which I will use to denote it.
I will use the
letters “MLS” when I refer to the second technikon.)
When created by the merger the defendant
was named the “Durban
Institute of Technology”. Its name subsequently changed
to the present one.
[2]
The merger occurred at the instance of the Minister of Education, who
was given powers in terms of
s 23
of the
Higher Education Act 101 of
1997
, to effect such mergers by notice in the Gazette. The
notice provided for the two merging institutions to be taken over as
“going concerns”, and for all their assets to be vested
in the new entity. Existing agreements of employment
between NT
and MLS and their respective employees would be deemed to be
agreements entered into between those employees and the
defendant and
would continue to subsist. Employees would be deemed to have
served continuously under the same employer without
interruption.
[3]
The plaintiffs in this action are two trade Unions, TENUSA and
NEHAWU, who represent employees of the defendant. They
litigate
in defence of what they contend to be the rights of certain employees
and retired employees of the defendant who were
employees of MLS
prior to the merger. The employment benefits of the employees
of the two merging institutions were not identical
at the time of
merger. Certain of the employees of NT were entitled to a
post-retirement medical aid subsidy in terms of
their contracts of
employment, whereas none of the employees of MLS were entitled to
such a subsidy. Prior to the merger the post-retirement
benefit had
been restricted by NT to persons who commenced employment with NT
prior to 1 January 2000. (Other qualifications
governing
the right to the benefit are not material to this case at present.)
It is the plaintiffs’ contention that it has
come about that
employees of the defendant who were former MLS employees, and who had
been in the employ of MLS prior to 1 January
2000, are entitled to
the same post-retirement medical aid benefits as their similarly
situated colleagues in the former employ
of NT, a proposition which
the defendant rejects. The plaintiffs seek an order declaring
that those former employees of MLS
are indeed entitled to such
post-retirement medical aid benefits.
[4]
Being burdened with two categories of employees employed under
different conditions of service, the defendant embarked upon
a
process aimed at establishing new conditions of service applicable to
all employees of the defendant. This became known
as the
“harmonisation process”. Lengthy negotiations
between the Unions (three of them were involved) and the
defendant
ensued. As pleaded, the plaintiffs’ claim to a
declaratory order rests on the enforcement of what it calls
a written
agreement concluded on 4 November 2005 entitled “Conditions of
Service of the Durban Institute of Technology”.
The
document in question (which comprises 69 pages) has been referred to
by the plaintiffs and the defendant alike as an “agreement”,
despite the fact that it was and remains the defendant’s case
that not everything set out in the document was in fact agreed
to by
the defendant. For the sake of convenience I will call it an
agreement as well.
[5]
The agreement was signed by a Professor Goba ‘for the Durban
Institute of Technology (DIT)’ and by three Union
representatives, one of whom was a Mr Shakeel Ori who was called to
give evidence for the plaintiff. It is not disputed that
Professor Goba had no authority to bind the defendant when he signed
the document. The evidence reveals that, when he signed
it, he
was in fact acting in his capacity as the head of university
management. He was the vice-chancellor. From the
date of
merger the defendant was governed by the Standard Institutional
Statute published in terms of
s 33(3)
of the
Higher Education Act.
In
terms of that standard statute the council of the university
‘determines conditions of service, the disciplinary provisions
and the privileges and functions of its employees, …’.
In terms of the Standard Institutional Statute the council
could not
delegate the power to determine such conditions of service. The
first institutional statute adopted by the council
of the defendant
was published on 25 November 2005, and it too provided that the
council’s powers to determine conditions
of service could not
be delegated.
[6]
At the outset of the trial it was made clear that the parties
accepted that the real issue to be determined was whether or not
the
council of the defendant had adopted the agreement in full as its
conditions of service. It is the plaintiffs’
case that
this was indeed done at a meeting of council held on 23 November
2005. The basis upon which that proposition is
disputed by the
defendant emerges from an account of the facts.
THE
PRINCIPAL DOCUMENTARY EVIDENCE
[7]
The evidence put before the court is largely documentary. The
plaintiffs called only one witness, as did the defendant.
The
defendant’s witness was Mr RU Kumar, who is employed as the
defendant’s Director, Finance Operations and
Accounting.
[8]
Amongst the documents put up by the parties in a joint bundle is one
which was apparently prepared by the institutional forum
of the
defendant. I will call it the “forum record”.
It constitutes a history of deliberations on the subject
of
post-retirement medical aid subsidies. Some portions of the
document were referred to in evidence and in argument.
It
appears from the forum record that a Human Resources Task Team had
been formed to consider uniform conditions of service in
advance of
the date of merger. It apparently made very little progress. As
already mentioned the harmonisation process continued
after the
merger. The forum record suggests that by about September 2004 a
seventh version of the conditions of service put together
by the
negotiating parties had been produced. Whilst an eighth version
also emerged, it is the seventh version which was
ultimately put
before the council for its consideration. Neither the earlier
versions nor Version 8 were produced in evidence.
However it
appears from the minutes of the council meeting of 31 May 2005 that
at an earlier meeting on 17 March 2005 the council
had agreed that
the Human Resources Committee convene within a month to deliberate
further on the conditions of service document.
It appears that
the document in question may have been Version 8.
[9]
Be that as it may, at the council meeting of 31 May 2005 it was made
clear that ‘the Unions were adamant that Version
7 which was a
signed document and which had been agreed to between Executive
Management and the Unions should have been submitted
to Council.’
It was also recorded that Version 7 had been submitted to the
council’s Human Resources Committee
which raised issues
concerning the provisions of Version 7 relating to group life
insurance, medical aid, accumulative leave and
a housing allowance.
The minutes of the meeting of 31 May 2005 then record various views
being expressed by members of council
whereafter the following
resolution appears.
‘
(a)
APPROVED
Version 7 of the Conditions of Service document except for medical
aid, group life, leave and voluntary severance package which
are to
serve before the next Council meeting on 15 September 2005, after
further consultation with the Unions.
It
was noted that the grievance procedure was removed from the
Conditions of Service document.’
[10]
The subject of medical aid appears in the section of the document
which deals with remuneration packages and benefits.
It reads
as follows.
‘
MEDICAL
AID
3.7.1
All permanent and contract (more than one year) employees have the
option to become members of the medical aid schemes approved
and
subsidised by DIT.
3.7.2
Current DIT employees who were employees of the former Natal
Technikon or ML Sultan Technikon would enjoy similar medical
aid
benefits as agreed in the harmonisation process.
3.7.3
In respect of post-retirement medical aid subsidy this would be
applicable (as part of the harmonisation process) to staff
who are
current employees of DIT, provided they were employed by either
institution prior to 31 December 1999. And further,
post-
retirement medical aid subsidy, are subject to prevailing rules.’
The
lack of clarity in these provisions, certainly in so far as they
relate to post- retirement medical aid benefits, is not a matter
which appeared to cause concern for the parties during the trial.
In its particulars of claim the plaintiffs have sought
not only the
declaratory order already mentioned, but also an order directing the
defendant to enter into
bona
fide
negotiations with the
plaintiffs for the purpose of reaching agreement ‘on the form
and manner pursuant to which the subsidy
is to be provided to the
former MLS employees who are eligible therefor’. It is
the plaintiffs’ case that the
approval of clause 3.7 of the
Conditions of Service Agreement would have required further
bona
fide
negotiations on the
form and manner in which the subsidy would actually be provided.
As the parties presented their cases,
the real issue is whether there
was any extension at all of the post-retirement benefits to former
MLS employees.
[11]
According to the minutes of the council meeting of 15 September 2005
the vice-chancellor reported to council that the outstanding
issues,
namely medical aid, group life, leave and voluntary severance package
would be discussed between Executive Management and
the Unions via
the Labour Consultative Forum. He reported that the time frame
for resolution of these matters would be the
end of the year.
At the meeting the council agreed to rescind its previous decision
approving (in part) Version 7 of the
conditions of service because it
had not been signed correctly. Apparently the document then (in
May 2005) available had
only been signed on the signature page.
The council requested Executive Management and the Unions to sign the
entire document
and directed that there should be no further
negotiations except concerning the ‘4 issues still to be agreed
upon namely
medical aid, group life, leave and voluntary severance
package’. According to the minutes of 15 September the
council
agreed that the properly signed version would ‘serve
before the next council meeting for approval’. The same
minutes record that the next meeting of the council would take place
on 23 November 2005. What one is to make of this is not
clear,
given that the vice-chancellor had reported to the meeting that the
time frame for resolution of the outstanding issues
was the end of
the year.
[12]
The next council meeting was held on 23 November 2005. The
minutes record what had been agreed at the council meeting
of 15
September, and that at a Human Resources Committee meeting held on 13
October 2005 it was agreed that the four outstanding
issues would be
dealt with by the vice-chancellor and that if there was a need for
mediation the vice-chancellor should attend
to it; and:
‘
that
the issues that are agreed upon should be signed off by both parties
and there should be a declaration of issues in respect
of which there
is no agreement’.
The
Human Resources Committee agreed that the vice-chancellor would
report on the matter at the next council meeting.
[13]
In advance of the council meeting of 23 November the now signed
Version 7 of the agreement was distributed to members of council
as
well as a letter dated 19 October 2005 addressed to members of
council by Professor Goba.
[14]
The letter from Professor Goba has the following opening paragraph.
‘
Council,
at its last meeting on 15 September 2005 requested that the
Conditions of Service be fully signed by Executive Management
and the
Unions, except for the 4 issues (medical aid, group life,
accumulative leave and voluntary severance package) which are
still
subject to further negotiations.’
The
letter went on to report that the document had indeed been signed.
(According to the signature page it was only signed
on 4 November
2005 – ie after the date of Professor Goba’s letter.)
We know that the signed document included
the provisions previously
contained in it dealing with the four issues which were still subject
to negotiation. The opening
paragraph of Professor Goba’s
letter is not easily understood.
[15]
The letter went on to state the following.
‘
While
we are mindful that council raised 4 issues for further negotiations,
these will form the basis of further discussion together
with issues
that either parties may raise. When these discussions are
completed the Conditions of Service will be duly amended
to reflect
such agreement between management and the Unions.
Therefore
in order to ensure that we have a working conditions of service
document in place council is requested to approve the
document
circulated to all council members.’
The
one thing which appears to be clear from Professor Goba’s
letter is that, despite the fact that the original provisions
of the
agreement relating to the four issues had not been removed from the
document prior to signature, the differences between
the parties over
those issues had not been resolved.
[16]
The minute of what transpired regarding the conditions of service at
the meeting of the council on 23 November 2005 is somewhat
terse.
After recording what had been agreed at the council meeting of 15
September, and at the meeting of the Human Resources
Committee
meeting of 13 October, the following appears under the heading
“Conditions of Service for DIT”.
‘
COUNCIL
APPROVED
the final agreed Conditions of Service document as signed by
Executive Management and the Unions on 2005-11-04, copies of which
had been circulated previously with the agenda and noted.
Council
noted that there are 4 outstanding issues (therefore not contained in
the aforesaid Conditions of Service document) still
to be dealt with
by the Vice-Chancellor.’
When
considering the meaning of the second paragraph of this quotation
from the minutes it will be necessary to take account of
the
following earlier passage from the minutes which records what the
vice-chancellor highlighted from his report circulated with
the
agenda for the meeting.
‘
The
Vice-Chancellor reported that Executive Management and the Unions
have signed the conditions of service document with the exception
of
four outstanding issues.’
[17]
It is the plaintiffs’ case that the approval of conditions of
service incorporating post-retirement medical aid benefits
for former
MLS employees was given at the meeting of 23 November 2005. The
plaintiffs’ argument is that taking into
account all that had
gone before the meeting of 23 November 2005, and the defendant’s
need for a comprehensive and all embracing
harmonised set of
conditions of service, the council must be taken to have approved the
entire document before it on the basis
that if negotiations on the
outstanding issues should generate agreement on conditions at
variance with the approved document,
the conditions of service would
be amended to reflect the required changes.
[18]
As a matter of fact, if council intended on 23 November 2005 in
particular to approve the provision of post-retirement medical
aid
benefits to former MLS employees, that aspect of its resolution was
never implemented. The issue became a thorn in the
side of
labour relations.
[19]
One sees, for instance, from the forum record that at a meeting of
the Labour Consultative Forum attended by Professor Goba
on 20
September 2006 there was a difference of opinion as to the meaning of
the note in the minute that the four outstanding issues
remained to
be dealt with by the vice-chancellor and were ‘therefore not
contained in the aforesaid Conditions of Service
document’.
The meeting decided that a transcript of proceedings at the
meeting was needed to resolve the matter.
But it transpired
that once the minutes are confirmed the tapes are erased, and that no
transcript was available.
THE
ORAL EVIDENCE
[20]
It is necessary to make some introductory remarks concerning the oral
evidence. Professor Goba is deceased. The
defendant was
placed under administration in 2006 (i.e. it ceased, for a period, to
be under the control of a council). Consequently,
as Mr Ori
explained, there is something of a deficit in the defendant’s
institutional memory. In December 2013 the
council finally
decided that the disputed benefit would not be extended beyond
employees already entitled to it. In the years
which intervened
between November 2005 and December 2013 the issue served before
various committees, and at times council, in a
search for a solution
to the impasse. One of the solutions proposed was that the
defendant should “buy out” the
benefit from the former NT
employees who were entitled to it. Nothing came of these
deliberations. This action commenced in 2014
following the council’s
decision of December 2013. When the two witnesses gave evidence
they were called upon to deal
with events which had occurred some 13
years earlier. I venture to suggest that it would be surprising
to find that anyone
involved in the original process leading up to
the meeting of November 2005 would have a memory for the events
unsullied by the
debates held, and allegations and
counter-allegations made, during the intervening years.
[21]
I will start with the evidence of Mr Kumar, as he gave the clearest
explanation for why it was that the defendant was reluctant
to agree
to extend the post-retirement medical aid benefits to former MLS
employees.
[22]
Mr Kumar had been employed by MLS from March 1985 in its finance
section. At the time of the merger he served on the
Finance and
Investment Committee of MLS, and he continues to serve on that
committee for the defendant. In 2002 he was the
senior manager,
finance, and he had to deal with the financial implications of the
merger, and in particular those generated by
harmonising the
conditions of service.
[23]
Mr Kumar explained that from the institutional perspective
post-retirement medical aid benefits were a funding issue.
The
question was whether the benefit to NT employees, which was unfunded,
was sustainable. At the time an actuarial assessment
of the
liability taken over from NT was R78 million. No calculation
was done at the time of merger in order to determine
actuarially the
cost of giving the same benefit to former MLS employees. Mr
Kumar explained that this was because extending
the benefit was, from
a finance perspective, not the issue. The issue was how to
render the existing liability to NT employees
sustainable.
[24]
As I understand Mr Kumar’s concern that the post-retirement
medical aid benefits due to the affected NT employees were
“unfunded”, it amounts to this. Such a benefit is
in the nature of a pension benefit. Such benefits must
be
supported by an existing fund. If the provision of such
benefits is funded from current income, then current income is
being
expended without any return to the institution. There is no
return because the beneficiaries no longer perform any
service for
the institution. That is what distinguishes the provision of
post-retirement medical aid benefits to retirees
from medical aid
benefits provided for current employees. The fund which ought
to have been in place to meet the obligations
to NT retirees at the
time of merger was R78 million. In fact there was no fund at
all.
[25]
Concerning the implications for the defendant of extending the
post-retirement benefit to former MLS employees, Mr Kumar referred
to
a report of Arch Actuarial Consulting dated 22 February 2013.
That report contains an actuarial valuation as at 31 December
2012 of
the liability the defendant would be taking on if it then decided to
extend the benefit to former MLS employees.
The valuation was a
little over R78 million. He also referred to the valuation by
the same actuaries reflected in a report
dated 7 December 2017.
The purpose of that report was to illustrate the financial
consequences to the defendant of offering
the “buy-out option”
to former MLS employees and retirees. At that stage the
valuation was just short of R105
million. Mr
Kemp
SC
, who appeared for the
plaintiffs, pointed out quite correctly that these valuations were
not available when the council resolution
was passed in November
2005. But in my view it may fairly be said that what these
figures illustrate is that by merely having
regard to the numbers of
affected retirees and potential retirees in the ranks of former MLS
employees, the defendant’s financial
section would have had a
fair idea of the extent to which the extension of the benefits to the
MLS employees would have compounded
the problems they confronted in
dealing with the unfunded liability incurred in respect of NT
beneficiaries.
[26]
Mr Kumar’s evidence was that whilst the other issues
outstanding at the time of the November 2005 meeting had been
resolved
quite soon after the meeting, the issue of the demand of
former MLS employees to be afforded post-retirement medical aid
benefits
equal to those of similarly situated former NT employees had
not. As I understood his evidence the defendant continues to
fund these benefits for former NT employees out of current income.
[27]
It should be observed immediately that it would be surprising indeed,
if council had approved the extension of post-retirement
medical aid
benefits to MLS employees and retirees, that this would not have come
to the immediate attention of the finance committee
and in particular
Mr Kumar. I have already mentioned that it is common cause that
such benefits were never actually paid.
There was no evidence
that the finance committee had ever produced a budget incorporating
such liabilities.
[28]
Finally, Mr Kumar gave uncontested evidence to the effect that the
resolution of the other issues which had been flagged as
outstanding
in November 2005 is reflected only in Human Resources policy
documents, the conditions of service document having never
been
updated to reflect the resolution of those issues. Judging from
Mr Kumar’s evidence the conditions of service
document itself
has faded into obscurity, certainly insofar as the financial
implications of the defendant’s employment practices
are
concerned.
[29]
As already mentioned, Mr Ori, who was called by the plaintiffs, was a
Union representative at the material time. He came
to the
defendant from MLS. He was involved in the harmonisation
process and, as already mentioned, was one of the signatories
to the
conditions of service document.
[30]
Mr Ori stated more than once during the course of his evidence that
he would never have signed the document if it had not contained
the
clause in question dealing with post-retirement medical aid
benefits. He sought to advance the proposition that where
one
sees in various documents and minutes reference to the fact that
medical aid benefits remained in issue, it should not be taken
to be
a reference to post-retirement medical aid benefits. He also at times
sought to advance the proposition that the dispute
over
post-retirement medical aid benefits concerned the question as to
whether they should be extended to all employees, and not
whether
they should be extended to former employees of MLS who were similarly
situated to the former NT employees who were entitled
to the
benefit. Concerning the dispute over ordinary medical aid
benefits he said that what the Unions were after, and apparently
did
not get, was parity between senior staff and junior staff.
[31]
However under cross-examination Mr Ori accepted that when at the
council meeting of 31 May 2005 the council approved Version
7 of the
document ‘except for medical aid, group life, leave and
voluntary severance package’ the question of post-retirement
medical aid was included in the term “medical aid”.
As will be seen above, the post-retirement medical aid subsidy
featured as item 3.7.3 under the heading ‘Medical Aid’.
What is immediately apparent on a reading of item 3.7.3
is that what
the council was not approving was the extension of the NT benefit to
similarly situated MLS employees. That
is inconsistent with Mr
Ori’s attempts to convey to the court that the extension to MLS
employees was not the issue.
[32]
When referred to the minute of the meeting of the institutional forum
held on 6 September 2005, which specifically listed post-retirement
medical aid as an outstanding issue, Mr Ori claimed that it was by
then wrong to include it amongst the list of outstanding issues.
But he gave no evidence as to how and when, between May and September
2005, agreement had been reached on the extension of the
benefit to
former MLS employees. It would be surprising if that had been
done without Mr Kumar being aware of it. There
is no
documentary record of such an agreement being reached.
[33]
At one stage in his evidence Mr Ori claimed that he could not
remember it being said or reported to him that extending the
subsidy
would be too expensive. However he conceded, when referred to
the minutes of an executive committee meeting of NT
held on 25 March
1999, that he was told that NT had decided that persons employed from
1 January 2000 would not qualify for the
benefit because of the cost
issue. I consider it most improbable that Mr Ori was not fully
aware of the implications for
the defendant of taking on a further
unfunded liability, in addition to that it inherited from NT.
[34]
Concerning the meeting of 23 November 2005, Mr Ori claimed that he
could not remember anyone saying that the approval of the
document
would be subject to the same exclusions as had been minuted at the
May meeting, and added that he thought that everybody
had accepted
Professor Goba’s letter which he, Mr Ori, interpreted to convey
that everything should be accepted upon the
basis that if
negotiations justified a subsequent amendment, that could be done.
Mr Ori did not claim to have a clear independent
recollection of what
transpired at that meeting. It struck me that he chose his
words carefully. (“I think that
everybody” accepted
the letter.) I am inclined to the view that Mr Ori’s
evidence as a whole, and in particular
his evidence concerning the
council meeting of 23 November 2005, is somewhat clouded or affected
by his strong affiliation to the
Union standpoint which he has
presumably supported and defended for the last 13 years.
[35]
Mr Ori’s assertion that council approved the provision now in
dispute on 23 November 2005 is inconsistent with Mr Kumar’s
evidence and the fact that the benefit has actually never been
implemented.
OVERVIEW
[36]
In my view it is overwhelmingly probable that the costs of extending
post-retirement medical aid benefits to MLS employees
was the
defendant’s over-riding concern at the time of considering the
proposed conditions of service. That it was
proper that the
defendant should be so concerned is quite clear from Mr Kumar’s
evidence. The only proposal concerning
post-retirement medical
aid benefits which served before the council when it considered
Version 7 of the document was the extension
of them to similarly
situated former MLS employees; not that they might be extended to all
employees. I do not accept Mr
Ori’s evidence that,
apparently between May and November 2005, agreement had been reached
that the extension should be allowed.
There is no record of
that.
[37]
In my view the outcome of this case turns ultimately on a
construction of the minute of 23 November 2005, seen in context.
[38]
In construing the minute it has to be accepted that there was at
least one reason why the extension of the benefits should
be
approved, and at least one reason why it should not. As to the
former, assuming that the other flagged items were ones
with which
the council could live, approving the extension would establish final
agreement between the defendant and the Unions
on all the conditions
of service which had been debated. As to the latter, approving
the extension would involve the defendant
taking on an unfunded
liability beyond that with which it was already burdened.
[39]
In interpreting the minute one has to accept that it is imperfect.
In the opening paragraph of the letter from Professor
Goba
distributed in advance of the meeting he stated that Executive
Management and the Unions had been asked to sign the document
‘except
for the four issues … which are still subject to further
negotiations’. In his report to the council
which,
according to the minutes, was made in advance of consideration of the
conditions of service document, Professor Goba told
the council that
the Unions and Executive Management had signed the document ‘with
the exception of four outstanding issues’.
In the note to the
statement of what was approved under the heading ‘Conditions of
Service for DIT’, it is stated that
the four outstanding issues
are ‘not contained in the aforesaid Conditions of Service
document’.
[40]
We know that the four outstanding issues were indeed contained in the
document. I do not think that this contradiction
can be solved
by postulating that council’s approval included the four
outstanding conditions. In my view the minute
must be
interpreted to convey, especially where it is stated that the four
issues are not contained in the conditions of service
document, that
council did not approve them. I accept Mr
Kemp’s
argument that if this was the case, the minute could have stated that
clearly, as it was in the minute of the May meeting.
However on
the probabilities I conclude that the unclear wording in the minute
of the November meeting is the product of poor minute
taking. I
do not see why the words used
(a) in the minute to convey Professor
Goba’s report would have been employed unless the minute
constitutes an attempt to convey
Professor Goba’s statement
that there had as yet been no agreement on the four items; and
(b) in the note to the resolution, to
the effect that the four issues are not contained in the conditions,
would have appeared at
all in the minute if not to convey that the
four issues were not approved.
I
am unable to reconcile these entries in the minute with the
proposition contended for by the plaintiffs, that the document was
approved in its entirety, the only caveat being that it would have to
be amended to cater for any subsequent agreement on the four
unresolved matters. It seems to me that a conclusion in favour
of the plaintiffs involves ignoring the words in the minute
mentioned
immediately above. Nothing said in evidence, and nothing
emerging from the context in which the minute was produced,
suggests
that such an extraordinary approach to the interpretation of the
document is justified. (See
Attorney-General,
Transvaal v Additional Magistrate for Johannesburg
1924 AD 421
at 426. The rule against assuming superfluity may
well apply less vigorously in a context like the present, than it
does
in the case of statutory interpretation. There must
nevertheless be good reason for concluding that a person - in this
case
the minute taker - wrote something without intending any meaning
to be ascribed to it.)
[41]
I conclude that on the probabilities the defendant’s council
did not approve the extension of post-retirement medical
aid benefits
to former MLS employees.
I
make the following order.
The
plaintiffs’ claim is dismissed with costs, such to include the
costs of senior counsel.
____________________
OLSEN
J
Date
of Hearing:
26
FEBRUARY TO 28 FEBRUARY 2018
Date
of Judgment: :
FRIDAY, 11 MAY 2018
For
the Plaintiffs:
Mr KJ KEMP SC with Mr H S GANIE
Instructed
by:
GARLICKE & BOUSFIELD INC
PLAINTIFFS’ ATTORNEYS
7 TORSVALE CRESCENT
LA LUCIA RIDGE
LA LUCIA RIDGE
OFFICE PARK
DURBAN
(Ref.: Shamla
Pather/kp/L2394/15)
(Tel.: 031 –
570 5300)
For
the Defendant :
Mr M PILLEMER SC
Instructed by:
MATTHEW FRANCIS INC
DEFENDANT’S
ATTORNEYS
(Ref.: Y
Maharaj/MS/01D008007)
(Tel.: 033 –
9401497)
c/o PATHER
& PATHER ATTORNEYS
3 NOLLSWORTH
CRESCENT
LA LUCIA RIDGE
DURBAN
(Ref.: Gerard
Vadivalu/rg/M2247))
(Tel.: 031 –
3044 212)