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[2015] ZAECBHC 11
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Mlungwana v Speaker: Eastern Cape Provincial Legislature (392/2008) [2015] ZAECBHC 11 (13 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
CASE NO:
392/2008
In the matter between:
LUVUYO
MLUNGWANA
Plaintiff
And
THE
SPEAKER:
EASTERN
CAPE PROVINCIAL LEGISLATURE
Defendant
JUDGMENT
STRETCH J:
[1]
On 12 February 2001 the Eastern Cape
provincial legislature (hereinafter referred to as “the
employer”) approved the
plaintiff’s appointment as its
director of organisational development (presently known as the
director of corporate services).
According to the plaintiff his
employment in this capacity commenced on 1 March 2001, and was
confirmed upon his completion
of 12 months’ probation. The
salary scale and the benefits forming part of his employment package
(“the salary
package”) are not in dispute. It is
furthermore common cause that the plaintiff received his salary
package up until
the end of May 2006.
[2]
Thereafter the plaintiff was not paid.
[3]
The plaintiff instituted action against the
defendant during May 2008 for payment of the sum of R1 667 516,00.
It is alleged
that this amount represents the plaintiff’s
unpaid salary package calculated from June 2006 up until the date of
the issue
of summons.
[4]
The plaintiff in his particulars of claim,
does not aver that these services were terminated at any stage either
by him or by his
employer. He simply makes a bald allegation
that he was not paid from June 2006 onwards, and alleges that this
failure to
pay is in wrongful and unlawful breach of the defendant’s
obligations to do so.
[5]
The defendant in his plea, admits that the
plaintiff was appointed as claimed, but explains that his services
were in fact terminated
with effect from 31 May 2006, following
a disciplinary enquiry which was held during the months of October
and November 2005 (“the
enquiry”) relating to charges of
misconduct and complaints of inefficiency.
[6]
The defendant alleges that the plaintiff
was informed of this on 7 December 2005, and that he was advised of
his rights to pursue
an internal appeal (“the appeal”),
which appeal it is common cause was lodged on 8 February 2006.
[7]
It is also not in dispute that prior to the
scheduled date for the hearing of the appeal the plaintiff instituted
review proceedings
(“the review”) in this court against
the defendant, the executive management of the Eastern Cape
provincial legislature
(“the ECPL”) and two others,
wherein he sought the setting aside of his dismissal and subsequent
reinstatement.
[8]
The defendant alleges in its plea that the
plaintiff, in this review application, alleged that no appealable
decision had been taken
by the defendant, that any internal appeal
would have been futile and that in any event, no right to an internal
appeal was in
existence, since the defendant, who was the person
required to hear the appeal, was barred from doing so due to his
involvement
in the matter. In the premises, so the defendant
alleges, the plaintiff had abandoned his appeal, causing the ECPL to
notify
him during May 2006 that the decision to dismiss him had now
become operative, and that this culminated in the termination of his
salary package at the end of May 2006.
[9]
The defendant further pleads that on 16 May
2008 the plaintiff withdrew his review application and tendered the
respondents’
costs.
[10]
The defendant accordingly pleads that the
plaintiff’s services were lawfully terminated on 31 May 2006.
[11]
Alternatively, the defendant pleads as
follows:
a.
that the ECPL was entitled to terminate the
plaintiff’s employment on one months’ notice;
b.
that on 7 December 2005 the plaintiff was
notified of his dismissal with immediate effect subject to his rights
to an internal appeal;
c.
that because the plaintiff had initially
indicated his intention to pursue this appeal but thereafter
abandoned it prior to its
commencement, his employment only came to
an end on 31 May 2006, which means that he had in effect been given
in excess of one
months’ notice.
[12]
As a further alternative the defendant
pleads that in consequence to the further notice afforded the
plaintiff in May 2006, his
employment lawfully came to an end by no
later than 30 June 2006.
[13]
Finally, the defendant pleads that in the
event of this court finding that the plaintiff’s employment was
not lawfully terminated,
this court, in the exercise of its
discretion, should refuse the plaintiff specific performance for the
following reasons:
a.
that the plaintiff’s conduct was such
as to warrant his dismissal, and that any defects in his termination
were of a procedural
nature only;
b.
that the defendant has not enjoyed the
benefit of the plaintiff’s services since December 2005;
c.
that there has been an undue delay in the
prosecution of the plaintiff’s current action;
d.
that the plaintiff’s position has
since been filled;
e.
t hat the plaintiff had occupied a unique
position with the defendant which required a close working
relationship of the utmost
good faith, which relationship has broken
down irretrievably for various reasons including loss of confidence
in the plaintiff
due to his extended absence from the workplace;
f.
that if the plaintiff was seriously relying
on the allegations which he had set forth in his review application,
he ought to have
invoked the remedies provided for in the Labour
Relations Act 66 of 1995 (“the LRA”) which remedies he
failed to pursue.
[14]
The plaintiff, in presenting his version of
the
facta probanda
surrounding
his dismissal for the first time in reply, has denied that the
issue of one months’ notice was a term of
his contract with the
employer. He alleges that his contract was only capable of lawful
termination after a valid pre-dismissal
hearing had been held and
only after the defendant had complied with the relevant provisions of
its disciplinary code (“the
Code”), neither of which
requisites had been complied with, and in any event, that no
acceptable evidence had been presented
at the enquiry to support a
finding that the complaints against him were well founded. His
appeal had accordingly been directed
at the irregularity and the
invalidity of the enquiry which had culminated in his dismissal.
[15]
Significantly, the plaintiff denies that
his review application meant that he had abandoned his appeal. In
support of this denial,
the plaintiff contends that:
a.
His appeal had been lodged in compliance
with the Code and that it recorded that he wanted this appeal to
proceed, resulting in
the defendant’s instruction on 31 March
2006 that the appeal would in fact proceed on 20 April 2006.
b.
His review application was lodged on 10
April 2006 (before the date scheduled for his appeal) wherein he
sought relief for the disciplinary
proceedings to be reviewed and to
be set aside and for the findings which had resulted in his dismissal
to be declared unlawful,
unconstitutional, void and without any legal
force or effect.
c.
Notwithstanding the launching of his review
application on 10 April, the legal representatives of the two parties
had agreed on
19 April that the appeal would nevertheless proceed on
20 April, on which day the defendant “unilaterally, incorrectly
and
unlawfully” took the stance that the employer was not
proceeding with the appeal on the ground that the plaintiff’s
institution of the review application constituted an abandonment of
his rights of appeal.
d.
The review application was simply an
additional process available to the plaintiff for the purpose of
asserting his rights, and
that the appeal and the review were not
mutually exclusive and could quite comfortably run concurrently,
inasmuch as the appeal
was not only restricted to a finding on the
merits, but that he was also contractually entitled to a limited
appeal in terms of
paragraph H of chapter 5 of the Code which is
binding on the parties
inter se
,
and that this appeal procedure is not only still pending, but that
the outcome thereof is a condition precedent to a lawful termination
in terms of the Code. Thus it is contended by the plaintiff
that the defendant has in effect intercepted the finalisation
of the
disciplinary process by failing to afford him an appeal hearing as
contemplated by the Code, which hearing would ultimately
have
determined whether he is guilty, and (if found guilty) the
appropriate sanction which flows therefrom in terms of the Code.
e.
In addition, the plaintiff pleads in reply
that the fact that he (at the time of issue of summons) had not
worked for the defendant
for two years was due to the defendant’s
intransigent stance that his contract of employment had been
terminated, and that
it is in any event immaterial that his position
has since been filled.
[16]
The defendant, in its rejoinder, pleads
that insofar as the plaintiff has contended in his replication that
he had a right to a
pre-dismissal hearing in terms of his employment
contract (which is denied), his claim is aimed at impugning the
fairness of his
dismissal, and as such falls to be determined in
terms of the LRA, and that this court accordingly lacks jurisdiction
to hear it.
[17]
The defendant also denies that the employer
had formally adopted the Code upon which the plaintiff relies, and
contends that it
was expressly excluded from the conditions of
service applicable to the employees as from September 2002.
[18]
In his surrejoinder the plaintiff
reiterates that his claim is for specific performance based on a
contract of employment which
affords him the right to an appeal
hearing and to be informed of the outcome thereof. Pending the
conclusion of the appeal
hearing, so it is contended, he remains an
employee and is entitled to his salary package.
[19]
In essence, this 13 page response to
the defendant’s four page rejoinder, is in my view what the
plaintiff ought to have pleaded
at the outset, as it sets out for the
first time in these protracted pleadings a relatively clear and
concise statement of the
material facts upon which the plaintiff
relies, with the degree of particularity one expects to see in
particulars of claim and
as required in terms of rule 18 of the
uniform rules of this court (“the rules”). But more
about this later.
[20]
The plaintiff testified that he has been
waiting for his appeal to be heard for the past eight years. When
he was asked about
what efforts he has made to expedite the appeal,
he referred to paragraph 4 of his grounds of appeal, which reads as
follows:
‘
I
further record that because the disciplinary hearing, in my view, was
not in terms of the code of conduct binding the staff of
the
Legislature, of which I am one, an appeal thereto does not arise
and/or is premature and the “appeal” must neither
be seen
as my agreement or condonation that the disciplinary hearing was
legal, constitutional and in line with fair administrative
procedures. I accordingly ask that the appeal be proceeded with in a
manner that does not prejudice any of my legal rights including
but
not limited to bringing an application for review of the same in the
courts of law, in my plan, within the next 10 working
days or so.’
[21]
In his affidavit supporting his
review application and motivating why a High Court review is
appropriate in these circumstances,
the plaintiff says the
following:
‘
A
review is appropriate in this matter because:
1.
An appeal to the 4
th
Respondent (the defendant in the matter before me) arises only if
there is a finding and decision of the Secretariat or a properly
constituted body in terms of the code. There is none in this
case and the outcome concerned is simply a no decision, in view
of
the illegality thereof and I am seriously prejudiced thereby…
2.
The basis and core of my compliant
(sic)
is the illegality and fundamental
irregularities of the proceedings embarked upon at the 4
th
Respondent and the 4
th
Respondent’s
appeal process is not
suited to deal with that
(my emphasis)
as they focus on the outcomes of the disciplinary process and not
with the illegality of the process itself…
3.
The Speaker, as the authority entrusted to
dealing with an appeal is, with respect, not qualified to deal with
the illegalities
and irregularities forming the core of my complaint
– she being, with respect, merely a politician. The same is
true of Mr
Nkwinti …
4.
The unlawfulness complained of and which
necessitated this review application undermined the very internal or
domestic disciplinary
procedures.
5.
The rules of natural justice were not
observed from the onset and all subsequent processes are tainted
thereby.
6.
The irregularity and injustice has been
persisted upon to the final stages as even now the 3
rd
and 4
th
Respondent …
are
forcing
me to an ‘appeal’ to be chaired by a person who is not
the Speaker of the Legislature – the appeal
authority –
but a member of the executive arm of government.
This
is despite my having refused
(my
emphasis), through my attorney, that suggestion when Mr. Pretorius,
an attorney instructed by the 4
th
Respondent made such a proposal …
7.
A review to the above Honourable Court is
fitting also because … the appeal authority (the Speaker of
the Legislature), upon
receipt of my reasons and grounds of appeal,
is not going to attend thereto
(my
emphasis) … In essence that leaves me with no other authority
to appeal to, even if an appeal was the appropriate step.
Further
and of importance in view of section 7(2) of PAJA, is whether or not
I have internal remedy available or to exhaust
before I approach the
above Honourable Court. In view of the above and what is relevant to
this issue as said below,
I believe I
have no internal remedy in terms of the empowering provision
(my
emphasis).
8.
At any rate the core of my complaint, the
illegality of the proceedings and results thereof, will not be dealt
with in the ‘appeal’
as I am ordered to confine myself …
to the merits of the convictions and sanction of disciplinary hearing
chairperson and
not the illegality thereof,
let
alone that an appeal is not appropriate where the very procedure is
in issue and would be premature in the present circumstances
as the
legality or otherwise of the dismissal and all that relates to it
must first be determined
(my
emphasis).’
[22]
In my view the relevant correspondence is
of particular significance in this matter:
a.
On 17 March 2006 the employer’s
secretary wrote a letter to the plaintiff’s attorneys referring
to the plaintiff’s
“upcoming” appeal and in
particular to his reference to unfair procedures in his grounds of
appeal (the relevant extract
is set forth at paragraph 21 of this
judgment). In this letter, the writer makes it clear that not
only would the decision
to dismiss the plaintiff be suspended pending
the outcome of his appeal, but that the appeal hearing itself would
be an appeal
in the “wide sense” and that the plaintiff
would be afforded “ample opportunity” to address any
representations
which he believed he was not permitted to make at the
enquiry. The letter furthermore assures the plaintiff that the appeal
hearing
would be chaired by an independent person and not by the
Speaker, that in order for the plaintiff to be given “the
fullest
opportunity to be heard” oral representations would be
received (which is normally not permitted), and that the employer had
no objection to the plaintiff being legally represented at the appeal
hearing. The letter furthermore specifies that the
hearing
would commence on 11 April and continue to finalisation on 20 April
2006 if necessary.
b.
On 27 March 2006 the employer’s
attorneys wrote a reminder to the plaintiff reiterating the
employer’s intention to
proceed with the appeal on 11 April and
requesting an urgent response to the previous correspondence.
c.
This letter is followed up by a second
reminder on 31 March 2006, followed by a response from the
plaintiff’s attorneys which
reads as follows:
‘
Our
client will be lodging his review application before the end of next
week. It will be noted on the points raised therein,
that
[the] appeal process should be held in abeyance until such time as
the court has made its ruling on the review application
(my emphasis). However, should your client be of the view that he
requires both processes to run concurrently or simultaneously,
which
we believe to be highly unlikely, we suggest that both parties
arrange a mutually convenient date, which will suit all counsels
(
sic
)
involved, because your suggested dates are not convenient to our
counsels.’
d.
On the same day the employer’s
attorneys replied indicating that the appeal hearing must proceed as
the matter had “dragged
on for several months” and that
imminent finalisation thereof was a priority. The employer was
however prepared to
commence with the hearing on 20 April and not on
11 April as initially indicated. This letter was followed up
with a reminder
on 4 April 2006, and a further letter on 13 April
enclosing certain information which the plaintiff had requested for
purposes
of the appeal hearing.
e.
On 18 April 2006 the employer’s
attorneys acknowledged receipt of the plaintiff’s review
application, and wrote as follows:
‘
1.
We are in receipt of your client’s review
application.
2. The
telephone conversation between the writer and your Mr Lesele on 13
April 2006 refers.
3.
We confirm that your client’s stance is that he will not
proceed with the appeal for the reasons stated in the review
application
(my emphasis).
4. We
are constrained to point out the following by way of comment on
certain matters raised by your client in
the review papers (and
without attempting to deal therewith exhaustively, our client’s
rights being fully reserved in this
regard):
4.1 It is not correct
that our client’s letter dated 17 March 2006 sought to limit
your client to an appeal as to the “
outcome of the
disciplinary process”
as alleged by your client in
paragraph 30.2 of his affidavit.
For the record, your client is
free to raise on appeal any irregularity which he contends occurred
in the disciplinary proceedings
(whether it be of a substantive or
procedural nature)
(my emphasis).
4.2 It is our client’s
stance that your client’s appeal was noted late. Our client is
nevertheless willing, for purposes
of the appeal hearing, to abandon
its stance that your client requires condonation and will accordingly
allow the appeal to proceed
without the necessity for your client to
apply for condonation.
4.3 Our client denies
that any of the reasons advanced by your client for electing not to
proceed with the appeal is valid.’
f.
On 20 April 2006 the plaintiff’s attorneys wrote to the
employer’s attorneys stating the
following:
‘
We
confirm that your Mr Pretorius advised that you and your client have
reviewed your position regarding proceeding with the appeal
today and
are therefore no longer proceeding with the appeal hearing since
you
hold the view that our client has abandoned the appeal in the light
of the contents of his affidavit in the review application
(my emphasis).
We placed on record to
him as we hereby do even in this telefax that it is and was never the
stance of client to convey such a message
in his affidavit. We
informed your Mr Pretorius that the position of client is and was
clearly that the appeal should be
held in abeyance pending the
finalisation of the review application. … We must therefore
advise you that the failure for
the appeal to proceed today is at
your and your client’s instance, certainly not at our client’s.
g.
On the same day the employer’s attorneys responded as follows:
‘
1.
It is our client’s position that in the light of the
review application which has been brought by your client, the
contents of the application and the telephone conversation between
you and me on 13 April 2006 (as confirmed in our letter of 18
April
2006),
it is clear that your client has,
for his own reasons, elected not to utilise his internal remedy (the
appeal procedure provided
for in the code)
(my
emphasis).
2. At no stage during any
of our conversations did you dispute my (repeated) assertion that
your client had elected not to pursue
his appeal.
3. This morning I
telephoned you and informed you that our client had considered its
position, and that, in light of the fact that
your client had elected
not to proceed with his appeal, our client was not going to to
convene an appeal hearing and that we would
inform the chairperson
accordingly. Your response was, for the first time, to dispute
that your client had elected not to
utilise the appeal procedures
available to him. You indicated that your client’s stance was
that the appeal should be held
in abeyance pending the finalisation
of the review proceedings (This was a suggestion put forward by you
in a letter dated 31 March
2006, a suggestion which you indicated
would be echoed in your client’s review application – it
was not). I, in turn,
disputed this allegation and indicated to you
that I would confirm our client’s position in writing.
4. Insofar as it is not
clear from what is set out above, and insofar as it may be necessary
to do so (which is not admitted), our
client’s position is
that, inter alia, in the light of the review application, as well as
the contents thereof,
it is in any event not permissible for your
client to request that the appeal proceedings be held in abeyance’
(my emphasis).
[23] So much
for the correspondence.
[24] After the
plaintiff had testified, he closed his case. The defendant did
likewise without calling any witnesses.
[25]
The matter was adjourned for a number of months in order for the
plaintiff to consider his position vis-à-vis
applying to amend
his claim to include further outstanding payments of his salary
package calculated up to the date that he testified.
When the matter
resumed the plaintiff indicated that he no longer wished to pursue
the application and argument on the merits was
presented.
[26] It
is contended on the plaintiff’s behalf that his cause of action
is for specific performance formulated
in simple terms as a claim for
unpaid salary due to him in terms of an existing contract, and that
it had been formally recorded
that the defendant did not challenge
the jurisdiction of this court to determine the issues as pleaded.
[27] According to
the plaintiff, the issues to be decided (and the plaintiff despite
his scanty claim to begin with has now
introduced no less than seven
of these) are the following:
a. Whether there is any
merit in the defendant’s residual jurisdictional challenge;
b.
Whether the code of conduct constituted a contractual term which
regulated the relationship between the parties
(in this regard it is
contended that this court is bound to find that the Code has
contractual status, particularly in the light
of the fact that the
defendant did not call any witnesses to explain the nature of the
employer’s policies and the origin
of the Code to gainsay the
plaintiff’s evidence);
c. If
so, whether the Code had created rights and obligations of a
contractual nature as between the parties,
particularly in regard to
the pre-dismissal procedure incorporating the right of appeal,
suspension of the first phase of the adverse
disciplinary action and
the plaintiff’s entitlement to continue receiving a salary
package;
d.
Whether the defendant had lawfully terminated the plaintiff’s
employment and/or whether the employer
could lawfully terminate the
plaintiff’s employment by way of statutory notice contemplated
by section 37 of the Basic Conditions
of Employment Act;
e.
Whether the plaintiff, if he did have a right of appeal,
abandoned/waived that right by commencing review
proceedings (in this
regard it is contended firstly that a surgical analysis of the papers
reveals that the review is everything
but an unequivocal,
indisputable intention to abandon the appeal, and secondly, that the
plaintiff’s
viva voce
and undisputed evidence is that he
wanted to continue with the appeal, and that if the defendant wished
to rely on waiver/abandonment
the employer ought to have led evidence
to that effect);
f.
Whether this court should exercise its discretion in respect of
specific performance in this matter
and if so, in what manner it
should affect the plaintiff’s claim in respect of unpaid
salary;
g.
Whether the plaintiff’s claim is one for unpaid salary (ie for
specific performance in part) or for
damages.
[28]
The defendant (and quite correctly in my view) has contended from the
outset, that after this protracted
and voluminous exchange of
pleadings, it became apparent for the first time during the trial of
this matter, that the plaintiff
claims that his contract of
employment with the defendant remains alive because he has not been
afforded an internal appeal, which
he claims to be entitled to by
virtue of his contract of employment, despite the fact that this case
was not made out in his particulars
of claim. The defendant
contends that the plaintiff is not entitled to any relief for the
following reasons:
a.
That the plaintiff waived and abandoned any right to an appeal he may
otherwise have enjoyed, and cannot rely
on the employer’s
failure to once again convene an appeal to sustain his claim for
damages for breach of contract (despite
the fact that the claim is
wrongly dressed up as one for specific performance in that there is
no claim for reinstatement but at
best, only a “tender”
of services);
b.
That he has failed to make out a cause of action for breach of
contract which breach consists of the following
elements: (i) breach
of a material term, (ii) resulting in damages and (iii) that he has
complied with his own obligations arising
from the contract including
the obligation to prosecute an appeal timeously and correctly;
c.
That the plaintiff’s claim (that his employment contract
remains alive because the defendant has allegedly
failed to honour a
term which entitles him to an appeal before the contract can be
terminated) fails on the facts (because the
plaintiff abandoned his
right of appeal), and in law (it being contended that there is no
authority for the proposition that a
contract of employment survives
beyond its termination because the employer has failed to afford the
employee an internal appeal);
d.
That at common law a contract of employment terminates upon
repudiation by the employer, subject only to the
employee’s
right to accept the repudiation and sue for damages (which the
plaintiff has done), or to seek specific performance
(which relief
the plaintiff has abandoned), and that a damages claim not only
requires the appropriate statutory notice but that,
in the
circumstances, the plaintiff received far more than the requisite one
month’s notice pay.
e.
That although it was agreed that this court has jurisdiction to
entertain the action on the basis of the plaintiff’s
claim as
pleaded (being a contractual one), this court is bound to find that
the claim is bad in law, and that the plaintiff’s
case (as
crystalised only after a plethora of pleadings) is that the defendant
failed to permit him to appeal internally against
his dismissal.
This being an allegation that the dismissal was procedurally
unfair, it ought to have been dealt with in the
labour court under
the LRA, which provides a complete and exclusive remedy in the
circumstances.
The principles
regarding waiver as applied to the facts
[29]
The effect of the waiver of a right is to extinguish that right and
the concomitant obligation. Waiver is
a question of fact (
Laws v
Rutherford
1924 AD 261).
[30] It
is indeed so that the onus rests on the party relying on waiver (in
this case the defendant) to allege
and prove such waiver on a balance
of probabilities (
Borstlap v Spangenberg
1974 (3) SA 695
(A)),
and that clear evidence of waiver is required (
Feinstein v Niggli
1981 (2) SA 684
(A)).
[31] In
doing so the defendant must allege and prove that a decision has been
conveyed to it that the plaintiff
has abandoned the right which is
being asserted against the defendant (
Traub v Barclays National
Bank Ltd
1983 (3) SA 619
(A) at 634;
Road Accident Fund v
Mothupi
2000 (4) SA 38
(SCA)). The decision to abandon can
either be express or implied. An implied abandonment is proved by
conduct plainly inconsistent
with the intention to enforce the right
relied upon (
Hepner v Roodepoort-Maraisburg Town Council
1962
(4) SA 772
(A)). It is furthermore incumbent on the defendant to
plead and to prove that, when the waiver took place, the plaintiff
had full
knowledge of the right and elected to abandon it despite
this knowledge (
Netlon Ltd v Pacnet (Pty) Ltd
1977 (3) SA 840
(A) at 873-874). It has been held that an election generally
involves a waiver. In other words, one right is waived
when a
party chooses to exercise another right which is inconsistent with
the former (see
Administrator, Orange Free State v Mokopanele
[1990] ZASCA 69
;
1990
(3) SA 780
(A)).
[32]
Having set forth the general principles applicable to waiver, it is
necessary to consider them in the light
of the pleadings and the
undisputed facts before me.
[33] It
seems to me that the plaintiff, in pleading his case, elected to
limit his claim to nothing more than
one for specific performance for
the payment of 22 months of a salary package, partly in terms of the
employer’s letter of
appointment dated 12 February 2001. No
degree of scrupulous perusal or enthusiastic attempts at
interpretation can have the
effect of elevating the claim to anything
more than that. On the contrary, a first (and even subsequent)
reading of the particulars
of claim leaves the reader with the
distinct impression that this is a situation where the employer has
simply failed, neglected
or refused to pay an employee for no reason
whatsoever. That is what the claim says. Nothing more.
There is no
mention of a contract, a code of conduct that has
not been adhered to or even the material fact that the employer has
actually
dismissed this employee.
[34] It
is only once the material facts of this matter are introduced by the
employer in the plea and the further
pleadings (instead of excepting
or invoking any of the other appropriate rules of this court designed
to deal with such a vague
and embarrassing claim), that the suspicion
that the plaintiff pleaded in this manner simply to expedite his
matter before this
court as opposed to utilising courts having
exclusive labour law jurisdiction, is fortified.
[35] Having said that,
the employer has, on the pleadings, not only introduced the material
pertaining to the plaintiff’s
dismissal and the common cause
fact that the plaintiff, once his internal appeal had been launched,
elected to take the matter
on review before this court, but has also
pleaded that the plaintiff, in doing so has “abandoned”
or waived his internal
appeal and has failed to pursue it.
[36]
This is of course very generous and helpful pleading on the
defendant’s part, particularly when the
plaintiff is silent
regarding these common cause problems which are clearly the true
impediments to the payment of his salary.
[37] It
is common cause that the plaintiff, following upon a disciplinary
enquiry, was dismissed on 7 December
2005 subject to his right to
pursue an internal appeal against this dismissal to the defendant
(which right the plaintiff set in
motion), and that he was finally
dismissed on 15 May 2006 after he had taken the original
decision to dismiss him on review
to this court. It is also
significant that the plaintiff’s present claim for his unpaid
salary package (but not for
reinstatement) was instituted immediately
but only after he had withdrawn his review application in this court,
having quietly
endured (as an existing employee on his version) the
non-payment of these benefits for just short of two years.
[38] It
is against this background that I have formulated the view that the
answer to the question of whether
the plaintiff waived his rights to
payment of an unpaid salary package for 22 months (as this is all his
claim is limited to) is
capable of resolving this particular claim
without having recourse to the numerous other contentions and
alternative contentions
raised (which in my view not only serve to
obfuscate issues but are rather random considering the roots of and
the grounds for
this claim as described by the plaintiff in his
particulars of claim).
[39] In
considering whether the defendant has succeeded on proving waiver on
a balance of probabilities, I am
alive to the fact that the defendant
did not call any witnesses at the trial. In making this
determination it is accordingly
necessary to consider any evidence on
oath before me, as well as what is common cause on the pleadings.
The evidence on
affidavit
[40]
The evidence which I have before me on oath consists of the
plaintiff’s review affidavit and his
viva voce
evidence
at this trial.
[41]
The plaintiff made the following material averments (which I quote
verbatim and which is partly repetitive)
in his review affidavit:
‘…
The
facts deposed to herein are within my personal knowledge and belief
and I verily believe that they are both true and correct
unless the
contrary appears from the context…
The First Respondent is
Dr Palmer E … who dismissed me from my employ with the 4
th
Respondent (the Speaker)…
The above Honourable
Court has jurisdiction to adjudicate this matter because: …
·
The First Respondent acted unlawfully in
dismissing me and I seek to enforce my right to lawful,
constitutional, procedurally fair
and just administrative action; …
·
The entire subject matter of this
application is a constitutional matter, having regard to the fact
that the provisions of Section
33 of the Constitution of the Republic
of South Africa of 1996 provide that I, and all persons, have the
right to fair administrative
action which is lawful, reasonable and
procedurally fair, that constitutionally entrenched entitlement
having been afforded further
legislative effect by the provisions of
the Promotion of Administrative Justice Act of 2000 (“PAJA”)…
·
I did not agree to private arbitration and
insisted that the matter be dealt with in terms of the 4
th
Respondent’s code of conduct…
·
If the alleged offender is not satisfied
with the finding or the disciplinary penalty/sentence/action taken by
the Secretariat with
regards to the inefficiency or disciplinary
enquiry, the alleged offender
shall
have the right to appeal against either of or both the finding and
the disciplinary action to the
Speaker
of the Legislature, via the Secretary
to the Legislature who
must
submit the reasons and grounds of appeal and all documents in
relation thereto to the Speaker of the Legislature…
·
I state in paragraph 4 of “LOM”
“Appeal” that the appeal is premature, that I will be
instituting these
proceedings and that the appeal be dealt with in a
manner that does not prejudice my right to review.
·
A review is appropriate in this matter
because:
a.
An appeal to the 4
th
Respondent arises only if there is a finding and decision of the
Secretariat or a properly constituted body in terms of the code.
There is none in this case and the outcome concerned is simply
a no decision, in view of the illegality thereof and I am
seriously
prejudiced thereby…
b.
The basis and core of my compliant is the
illegality and fundamental irregularities of the proceedings embarked
upon at the 4
th
Respondent and the 4
th
Respondent’s appeal process is not sited to deal with that as
they focus on the outcomes of the disciplinary process and
not with
the illegality of the process itself…
c.
A review to the above Honourable Court is
fitting also because … the Speaker is not going to attend
thereto … In essence
that leaves me with no other authority to
appeal to, even if an appeal was the appropriate step. Further and of
importance in view
of section 7(2) of PAJA, is whether or not I have
internal remedy available or to exhaust before I approach the above
Honorable
court. In view of the above and what is relevant to this
issue as said below, I believe I have no internal remedy in terms of
the
empowering provision. If the above Honorable Court should decide
that I have internal remedy or mechanism to still exhaust, I
respectfully
allege that having regard to what has been set out in
this affidavit, there are exceptional circumstances applicable in
this matter,
such as to exempt me from the obligation to exhaust any
internal remedy, being in the interest of justice to do so…
d.
At any rate the core of my complaint, the
illegality of the proceedings and results thereof, will not be dealt
with in the ‘appeal’
… let alone that an appeal is
not appropriate where the very procedure is in issue and would be
premature in the present
circumstances as the legality or otherwise
of the dismissal and all that relates to it must first be determined…
e.
At any rate Mr Nkwinti not being the
Speaker of the Legislature has no authority in law to attend to the
appeal even if it were
to be held that an appeal is necessary…
f.
…
the purported appeal procedure has
been frustrated and I have been denied that entitlement entirely. All
the above necessitate a
review by a Court of Law.’
The viva voce evidence
on oath
[42]
The plaintiff testified that his appeal was delivered on 8 February
2006 and was accepted as a valid appeal,
but that the employer had
stopped his salary in January 2006 because he had noted an appeal.
He had complained that this
was not in the spirit of the Code
and his salary was accordingly reinstated and duly paid on the 15
th
of every month from January to June 2006. Thereafter, and after
the employer was of the view that he had abandoned his appeal,
his
salary package was no longer paid. During cross examination he stated
that he had been “waiting” for eight years
for his
appeal. He was unable to state with any degree of clarity as to
what genuine endeavours he resorted to, to take up
the internal
appeal again after he also withdrew his review in the high court. He
was however, adamant that he always intended
for his appeal to go on
but that the “legal issues” raised on review, “should
not be prejudiced” by the
appeal. This, despite the fact that
he had been advised that he was welcome to traverse all issues (both
substantive and procedural)
at his “wide” appeal hearing.
[43] I
do not intend repeating the correspondence between the parties
referred to at paragraph 22 of this judgment.
It is clear
therefrom that the employer was at all material times intent on
following the internal appeal procedure as prescribed
in its Code,
and that it was the stance of the plaintiff which eventually
persuaded it that the plaintiff was not interested in
pursuing the
appeal, particularly in that the plaintiff had not indicated in his
review application that he intended for his internal
appeal to be
held in “abeyance” pending the review outcome, but
instead had stated (despite what is contained in correspondence
between the attorneys), the following on oath:
‘
Further
and of importance in view of section 7(2) of PAJA, is
whether
or not I have an internal remedy available or to exhaust before I
approach the above Honourable Court. In view of
the above and
what is relevant to this issue as said below,
I
believe I have no internal remedy in terms of the empowering
provision
.’
(my
emphasis)
[44]
Section 7(2) of PAJA reads as follows:
‘
(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b) Subject to paragraph
(c), a court or tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph
(a) has been exhausted,
direct that the person concerned must first exhaust such remedy
before instituting proceedings in a court
or tribunal for judicial
review in terms of this Act.
(c) A court or tribunal
may, in exceptional circumstances and on application by the person
concerned, exempt such person from the
obligation to exhaust any
internal remedy if the court or tribunal deems it in the interest of
justice.’
[45] It
is clear from the aforesaid that it was incumbent on the plaintiff to
deal with his internal appeal first;
alternatively to launch a
substantive application for condonation before the reviewing court,
failing which it was mandatory for
the reviewing court to refer him
back to exhaust his internal remedy no matter what he thought of it.
The plaintiff herein
not only elected (without this Court’s
leave) not to exhaust his internal remedy, but he thereafter withdrew
his review application
in the absence of any ruling from this court
as to whether his failure to pursue his internal appeal would be
condoned.
[46] In
all these circumstances I am of the view that the plaintiff’s
own evidence on oath supports a finding
of waiver on a balance of
probabilities, and that the defendant succeeded in discharging this
onus without having to call any witnesses.
In my view the
plaintiff’s affidavit supporting his review application clearly
demonstrates his decision to abandon
his right to an internal appeal,
and is expressed in the review application in those very words. Even
if it was not expressed
in the review application, I am satisfied
that the defendant has proved an implied abandonment by relying on
the plaintiff’s
conduct (which again is common cause) of
instituting review proceedings in this court in terms of PAJA. This
is plainly inconsistent
with an intention to enforce the right to an
internal appeal on which the plaintiff rather curiously now relies,
despite it not
forming any part of the relief which he seeks, which
is payment of a salary package for 22 months, and nothing more.
[47] As
is stated in
Makopanele
(supra), an election, such as the one
expressly made by the plaintiff, generally involves a waiver in any
event, particularly when
one right (the right to an internal appeal
with all its generous trimmings conveyed in writing which is not
disputed) is waived
in favour of another right (the right to high
court review) which is inconsistent with the former in the sense that
the former
can never, under any circumstances in term of section 7 of
PAJA be exercised after the latter. At best the former can be
exercised as a result of an express referral back by the High Court,
which point was never reached as a result of the plaintiff’s
withdrawal of his review application.
[48]
To sum up, the plaintiff has sued for the non-payment of 22
instalments of what used to be his salary
package. The
defendant has successfully pleaded and proved by relying on the
plaintiff’s own evidence on oath, supported
by what is common
cause or not seriously disputed in the pleadings, that these benefits
were lawfully terminated in June 2006 for
the following reasons:
a. The
plaintiff was dismissed in December 2005 following the holding of a
disciplinary enquiry.
b. His
salary package however, was not terminated pending the outcome of an
internal appeal which he had instituted.
c. In
May 2006 his services and his salary package were finally terminated
after he had abandoned his internal
appeal and had instituted review
proceedings in the High Court instead of exhausting his internal
appeal remedy as provided for
in the employer’s code of conduct
and in section 7 of PAJA.
d.
This abandonment constituted a waiver of his rights to prosecute his
internal appeal, particularly in that
he also abandoned his premature
review thereafter and has in fact, made no attempt to prosecute the
appeal to date.
e. The
plaintiff having abandoned his right to challenge his dismissal as
provided for, has not only failed to
make out a cause of action for
the monetary relief claimed, but has no standing in law to prosecute
this claim, and his claim falls
to be dismissed.
f.
With respect to costs, it has been contended by the defendant that
the plaintiff ought to be liable
for the costs of two counsel. I
do not intend making such an order. Any complexities which may
have crept into this
matter which have escalated to protracted
pleadings and lengthy heads of argument may well have been avoided by
invoking the uniform
rules of this court to nip matters in the bud
immediately after the delivery of particulars of claim which, on the
face of it,
are at the very least, vague and embarrassing.
[49] The order
which I make is the following:
The plaintiff’s
claim is dismissed with costs.
I.T STRETCH
JUDGE OF THE HIGH
COURT
13 May 2015
Plaintiff’s
counsel:
Mr
N Schultz
Instructed
by:
Brown
Braude & Vlok Attorneys
C/o
Squires Attorneys,
King
William’s Town
Ref:
Mr C J Heunis
Defendant’s
counsel:
Mr
Buchanan S.C with Mr Grogan
Instructed
by
Wesley
Pretorius & Associates
Ref:
Mr Pretorius/md/E111
C/o
Smith Tabata Inc
King
William’s Town