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[2015] ZAGPPHC 87
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Bafokeng Rasimone Management Services (Pty) Ltd v Van Wyk (87403/2014) [2015] ZAGPPHC 87 (26 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION,PRETORIA)
CASE NO: 87403/14
In the matter
between:
BAFOKENG RASIMONE
MANAGEMENT
SERVICES (PTY)
LTD
.................................................................................................
APPLICANT
and
PAUL VAN
WYK
......................................................................................................
RESPONDENT
JUDGMENT
HEARD ON: 16
FEBRUARY 2015
JUDGMENT ON: 26
FEBRUARY 2015
KUBUSHI, J
[1]
The applicant instituted action against the respondent for payment in
the amount of R 406 981. 89 together with interest thereon
at the
rate of 9%
per
annum a tempore morae
to
date of payment. The applicant’s claim is based on a Retention
Bonus Agreement (“the agreement") in terms of
which the
applicant agreed to pay the respondent retention bonus equal to 100%
of the respondent’s annual remuneration package.
The agreement
commenced on 1 June 2012 for a period of three years with termination
date of 1 July 2015.
[2] The retention
bonus was paid in three tranches as follows:
a.
the 1
st
tranche of 50% immediately upon acceptance of the applicant’s
offer, taking cognizance of payroll run date closures, which
provided
for 16.66% paid upfront in lieu of years 2013 (16.66%), 2014 (16.66%)
and 2015 (16.66%);
b. the 2
nd
tranche of 25% exactly 12 months after payment of the 1
st
tranche, which provided for years 2014 (12.5%) and 2015 (12.5%);
c. the 3
rd
tranche of 25% exactly 12 months after payment of the 2
nd
tranche, which provided for 25% paid upfront in lieu of 2015.
[3]
The applicant was, in terms of paragraph 7 of the agreement, entitled
to the termination of the agreement for any reason provided
for in
the
Labour Relations Act, 66 of 1995
as amended from time to time. On
such termination, the respondent would be liable to repay the
applicant a
pro
rata
amount
of the gross payment made, calculated from the last day of the
respondent’s employment in lieu of any period paid for
and not
yet served.
[4] The applicant,
after a disciplinary enquiry which found the respondent to have
committed misconduct, terminated the respondent’s
employment.
The respondent appealed the termination and was unsuccessful in such
appeal. He as a result, referred the dismissal
to the CCMA seeking
re-instatement. The CCMA matter is still pending and is to proceed
during March 2015.
[5]
At the time of the termination of the respondent’s employment,
the applicant had paid the respondent 100% retention bonus
as
envisaged in the agreement. The respondent having not provided his
services for the entire period of the agreement was therefore
liable
to refund the applicant the
pro
rata
share
of the period not yet served which amounted to the amount claimed,
hence the claim in this instance.
[6] The respondent
is opposing the application and has filed an affidavit in which he
sets out his defence to the claim. The defence
is premised on three
points, namely:
(i) the prematurity
of the summons;
(ii) the incorrect
calculation of the amount claimed. The respondent’s counsel
abandoned this point on behalf of the respondent.
(iii) the contention
that the agreement has not been terminated.
[7]
In counter argument, the applicant’s counsel contends that the
respondent’s points do not constitute a defence,
let alone a
bona fide
defence
to the applicant’s claim and should be rejected.
[8]
In a summary judgment application, where the question of whether the
respondent has a
bona
fide
defence
arises, the court does not attempt to decide the issues or to
determine whether or not there is a balance of probabilities
in
favour of the one party or the other. The respondent is also not
required to persuade the court of the correctness of the facts
stated
by him or her or where the facts are disputed, that there is a
preponderance of probabilities in his or her favour.
1
[9]
However, it has been held that a court hearing a summary judgment
application may dispose of the matter if it finds that the
issues
raised in defence of a summary judgment are not arguable.
2
This in my view is such a matter. The points raised by the respondent
in his defence are not arguable and do not constitute a defence
as
will appear more clearly from my reasoning hereunder.
THE SUMMONS IS
PREMATURE
[10]
The contention by the respondent’s counsel is that the
applicant instituted a contractual claim based on the agreement
which
was terminated as a result of the termination of the respondent’s
employment due to misconduct. The respondent denies
any misconduct on
his part and has referred the matter to the CCMA. An arbitration held
under the auspices of the CCMA constitutes
a hearing
de
novo
and
since the CCMA has not pronounced on the referral the applicant is
not entitled to claim, so she argued.
[11]
It is now settled law that regardless of what happened at the
disciplinary enquiry at the workplace, an arbitration proceeding
at
the CCMA is a
de
novo
hearing.
In other words, it is not a re-hearing or re-presentation of the
employer's disciplinary procedure. It is a new hearing,
in which
decisions are made by the Commission based on evidence presented at
the arbitration hearing and not on evidence presented
at the
employer's internal disciplinary hearing.
3
[12]
It has also been held that, a decision which I am in alignment with,
the
status
quo of
an
employment relationship cannot be preserved pending finalisation of
CCMA proceedings or any further proceedings flowing from
dissatisfaction with the results of such proceedings.
4
[13]
My view is that counsel has misconstrued the meaning of
“
de
novo
hearing”
in the CCMA. It does not mean that the outcome of the disciplinary
proceedings is disregarded once the matter is
referred to the CCMA.
The dismissal, as in this instance, remains in force and effect until
overturned by the CCMA and until such
an outcome is reached by the
CCMA the respondent’s misconduct remains evidence that was
tendered at the disciplinary enquiry.
[14]
Furthermore, the terms of the agreement do not make the respondent’s
liability to pay back the
pro
rata
amount
for the period not served conditional upon any ensuing dispute or
litigation between the parties. On that premise, the applicant’s
claim cannot be said to be premature and the dispute pending in the
CCMA is not a
bona
fide
defence
as required in terms of uniform
rule 32.
TERMINATION
OF THE AGREEMENT
[15] The contention
by the respondent is that the applicant’s submission that the
agreement terminated due to the fact that
the respondent’s
employment in terms of his employment contract was terminated, cannot
be sustained. The respondent disputes
that the applicant cancelled
the agreement as provided in clause 7 as the agreement does not make
provision for automatic cancellation
on termination of the
respondent’s employment. According to the respondent, to
proceed with the claim the applicant must
show that it was entitled
to cancel.
[16] The terms of
the agreement relevant to this issue are the following:
“
7.
TERMINATION
OF EMPLOYMENT BY EITHER PARTY
7.1 The company
shall during the currency of this Agreement have the right to
terminate the Employee for any reason provided for
by the
Labour
Relations Act, 66 of 1995
as amended from time to time.
7.2...
7.3 It is expressly
agreed between the parties that should this agreement be terminated
by either party as contemplated in clause
7.1 or 7.2 during the
duration of this agreement the Employee will repay the company a pro
rata amount of the gross payment made,
calculated from the last day
of employment by the Employee in lieu of any period paid for and not
yet served, as per clause 6 above.
7.4...”
[17] These terms are
very explicit and require no interpretation. The agreement can only
be terminated as envisaged in clause 7
as stated above. It terminates
automatically. There is no additional procedure stipulated which the
applicant should have followed
before termination could occur. Once
the employment agreement is terminated due to the grounds stated in
clause 7.1 or 7.2 the
agreement is also terminated. The respondent’s
employment was terminated due to misconduct, and clause 7.1 is
applicable
and the agreement is therefore terminated.
[18] I find,
therefore, that the applicant has made out a case for a summary
judgment and should be granted the relief it seeks.
[19] Consequently,
the summary judgment application is granted with costs.
E. H. KUBUSHI
JUDGE OF THE HIGH
COURT
Appearances:
On behalf of the
applicant: Adv. A.R. VENTER
Instructed by:
WEBBER WENTZEL
C/O HILLS
INCORPORATED
107 Nicolson Street
Brooklyn Office Park
PRETORIA
On behalf of the
respondent: Adv. P. G SELEKA
Instructed by:
LOURENS
BEZUIDENHOUT ATTORNEYS
C/O EMMA NEL
ATTORNEYS
346 Rooiribbok
Streer
Waterkloof Ridge
PRETORIA
1
Sew Nair v Chandler
2007 (1) SA 44
(T) at 47B-C and Maharaj v
Barclays National Bank Ltd 1976 (1) SA418 at 426A-E
2
Once
Nought Three Craighall Park (Pty] Ltd v Jayber (Pty] Ltd
1994 (4] SA
320
(W] at 323A-B.
3
See
SA Municipal Workers Union on behalf of Petersen v City of Cape Town
& Others (2009) 30 IL] 1347 (LC).
4
See
Nchabeleng v University of Venda & Others (2003) 24 ILJ 585
(LC) at para 12.