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[2009] ZAGPPHC 83
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Tsoanyane v University of South Africa (12677/08) [2009] ZAGPPHC 83; (2009) 30 ILJ 2669 (GNP) (22 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:
22/05/2009
CASE
NO: 12677/08
REPORTABLE
In
the matter between:
TSOANYANE:
MPHO
PLAINTIFF
And
UNIVERSITY
OF SOUTH
AFRICA
DEFENDANT
JUDGMENT
MAVUNDLA,
J.,
[1]
In this case, the defendant applied for absolution from the instance
and dismissal
of the plaintiff’s case with costs.
[2]
The plaintiff issued simple summons claims from the defendant for
payment of an amount
of R449 634. 50 being alleged patrimonial loss
or damages she suffered as the
result of alleged
breach of contract.
[3]
After the plaintiff had completed her evidence in chief, she was
dully cross examined.
When she was about to be cross examined, Mr.
Mkhize, counsel for the plaintiff, sought leave to have plaintiff’s
particulars
of claim amended, as indicated herein below. This
application was opposed. I have since granted such amendment.
[4]
With the amendment having been taken out of the way, counsel for the
plaintiff confirmed
that there will be no witnesses for the plaintiff
and that her case will be closed. Mr. Venter, counsel for the
defendant, and
then brought the application for absolution from the
instance.
[5]
The particulars of claim, as amended paragraphs 8 and 9, now read,
inter alia,
as follows:-
“
7.
But for the wrongful and / or unlawful breach of the employment
contract by the Defendant to be referred more fully herein under
the
Plaintiff would have remained employed by the Defendant and rendered
her services to the Defendant until she reached her retirement
age of
her 60 the birth day.
8 On or about July 15,
2005 the Defendant wrongfully and /or unlawfully breached the
aforementioned contract of employment by and
between the parties by
terminating the said contract with immediate effect and, subsequently
disallowing the Plaintiff to report
for duty and ordering her out of
the Defendant’s premises.
9 On or about January 01,
2006 the [Plaintiff accepted the Defendant’s breach of the
aforesaid contract and cancelled the
said contract,
alternatively
the Plaintiff hereby accepted the said breach and cancelled the said
contract.”
[6]
In her particulars of claim, the Plaintiff has set out a breakdown of
the amount of
R449 634. 50 as follows:
3.1
uncapitalized basic salary of the plaintiff for the full year of 2006
would have been R123 000. 00 and her
salary up to June 2007 would
have been R61 500.00
3.2 The
uncapitalized fringe benefits of the Plaintiff for the year of 2006
would have been R98 237. 00and her benefits
up to June 2007 would
have been R49 163. 50;
3.3 The
uncapitalized housing allowance of the Plaintiff for the year 2006
would have been R11 738. 00 and her
allowance up to June 2007 would
have been R5869.00
3.4 The
uncapitalized 23 days paid annual vacation annual vacation leave of
the Plaintiff for the year 2006 would
have been R20 125.00 and her
vacation leave up to June 2007 would have earned her R10 062. 50:
R30187.50b
PLAINTIFF’S CASE
[7]
From the evidence, the case of the plaintiff is that she commenced
working for the
defendant in 1999, at that time her employment with
the defendant had been through an employment agency. From the year
2000 she
continued working for the defendant, but no longer through
an agent. Her employment was a fixed-term contract which was
renewable
at the end of a particular period.
[8]
She says that in January 2005 her fixed-term employment contract was
converted to
a permanent contract. The terms of this employment
contract are contained in annexure “MT1” attached to the
particulars
of claim.
[1]
[9]
The plaintiff was employed as Project Co-ordinator for a basic salary
of R123, 000, 00
per annum on job grade 9 with the remuneration scale
of R132, 796- R221, 327. There are various benefits, inter alia,
housing assistance
for an amount R11, 738.00 per annum, as well as
leave and sick leave benefits.
[10]
The plaintiff subsequently received a letter dated
20 April 2005
[2]
from the
defendant, confirming the conversionfrom fixed-term to permanent
appointment. The letter however advised that:
“
It
was subsequently discovered that errors were made and investigation
into the matter was effected.” She was warned that
her
permanent employment might be affected, but the defendant would
revert to her after completion of the investigation.
[11]
The defendant further informed the plaintiff, per letter dated 30 May
2005, that there was certain information
received from her Executive
Dean, Prof Humphrey, which needs further discussion before a
recommendation would be made to the Management
Committee and that she
would be informed of the final decision of the Committee.
[12]
The plaintiff subsequently received a letter dated 13 July 2005 from
the defendant, informing
her that the investigation reveals that the
conversion of her fixed-term employment to permanent contract was as
a result of an
error and that therefore she will revert to her
previous status of fixed-term contract, which is extended until 31
December 2005.
She was also informed that her salary and benefits she
was receiving as permanent employee would remain the same, and that
she
is given an option to continue to be a member of the Pension
Fund, Group Insurance Scheme and Medical Aid for the duration of the
extension. A scrutiny of this letter reveals that the plaintiff was
also cautioned that the extension of her contract does not
give rise
to an expectation for permanence and that it will therefore not be
renewed. The plaintiff was per this letter invited
to confirm her
acceptance in writing as well as her intention to continue with the
benefits mentioned hereon above.
[13]
The plaintiff’s response and view is contained in the her
letter dated 21 July 2005 and
marked annexure F at paginated page 8,
and reads,
inter alia
, as follows:
“
It
is my view that the University has created a reasonable expectation
that I was appointed permanently. I find it difficult and
unfair for
my employer to inform me about errors that occurred during my
permanent appointment after four months being a permanent
employee.
Furthermore your letter dated 13 July 2005 does not explain the
errors made during that process (see annexure 40 Consequently,
I feel
that the employer is discriminating against me by not giving me all
the information pertaining to my employment situation.
I also feel
that being an African woman from a disadvantaged community, the
decision has a serious economic socio bearing.
I started working for
UNISA (Technikon SA) on 1 November 2000 until 31 December 2004 as a
contract employee; this could be confirmed
by HR as they have the
information in the system. Since I accepted the offer of permanence
on 1 January 2005, I made big commitments
and expenditure was raised.
Therefore I do not accept the decision to convert my permanent
appointment to a contract.”
[14]
The applicable principle in an absolution stage has been enunciated
in the Gascoyne v Paul &
Hunter
1917 TPD 171
at 173, a case that
has been followed in many other subsequent cases, as follows:
“
At
the close of the case for the plaintiff, therefore, the question
which arises for the consideration of the Court is, is there
evidence
upon which a reasonable man might find for the plaintiff? And if the
defendant does not call any evidence, but close his
case immediately,
the question for the Court would be, “Is there such evidence
upon which the Court ought to give judgment
in favour of the
plaintiff?”.”
[15]
The same principle is stated by the Appellate Court in Oosthuizen v
Standard General Versekeringsmaatskappy
Bpk 1981 (A) at 1035H-36A as
follows:
“
If
at the end of the plaintiff’s case there is not sufficient
evidence upon which a reasonable man could find for him or her,
the
defendant is entitled to absolution.” Where there is only one
defendant, as in casu, at the close of the case for the
plaintiff,
“it can be fairly inferred that the Court has heard all the
evidence which is available against the defendant,
any further
evidence that would be forthcoming if the case continued would be
likely to operate only to the detriment of the plaintiff.
That being
so it is considered unnecessary in the interest of justice to allow
the case to continue any longer if, the plaintiff
has closed his
case, there is no
prima facie
case against the defendant”; vide Putter v Provincial Insurance
Co Ltd and Another
1963 (4) SA 771
(WLD) at 772F-G.
[16]
In
Gordon Lyod Page & Associates v Rivera & Another
2001 (1) SA 88
(SCA) at p92 par [2] where the Court said that:
“
[2]The
test for absolution to be applied by a trial court at the end of the
plaintiff’s case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4)
SA 403
(A) at 409G-H in these terms:
‘…
(W)hen
absolution from the instance is sought at the close of the
plaintiff’s case, the test to be applied is not whether
the
evidence led by the plaintiff establishes what would finally be
required to be established, but whether there is evidence upon
which
a Court, applying its mind reasonably to such evidence, could or
might (not should, nor ought to) find for the plaintiff
Gascoyne and
Hunter 1971 (TPD) 170 at 173; Ruto Flour Mills (Pty ) Ltd v Adelson
(2) 1958 (4) SA307 (T).)’
This implies that a
plaintiff has to make out a prima facie case—in the sense that
there is evidence relating to all the elements
of the claim—to
survive absolution because without such evidence no court could find
for the plaintiff (
Marine & Trade Insurance Co Ltd v Van der
Schyff
1972 (1) SA 26
(A) at 37G-38A; Schmidt Bewysreg 4
th
ed at 91-2).”
[17]
At this stage I need not concern my self with the
credibility or otherwise of the evidence of the plaintiff,
unless, of
course, it is demonstrably clear that the plaintiff and or
witnesses,( in casu there were no other witnesses either
than the
plaintiff) “palpably broke down under cross examination”
[3]
;
vide also
Ruto
Flour Mills (Pty) Ltd v Adelson
(2)
1958 (4) SA 307
(T) at 309D.
[18]
The plaintiff bears the onus to prove that she has suffered damages
and also the quantum thereof;
vide Monument Art Co v Kenston Pharmacy
(Pty)
[4]
where Rose Innes AJ, as
he then was, said:
“
The
onus
rest
upon plaintiff to prove not only that its goods have been damaged,
but also the amount of the damages thereby sustained. I
apply with
respect the
dicta
of Muller A.J.A, as he then was, in Erasmus v Davis case at 19A where
he said:
“
It
is for the plaintiff to establish not only that he has suffered
damages but also the
quantum
thereof.
Consequently it is for the plaintiff to show that the method which he
employs is appropriate to the particular circumstances;
in other
words that the evidence produced by him establishes the
quantum
of the damage which he has suffered.”
…
It
is true that once a plaintiff has proved that damages, …. And
once evidence has been adduced which constitutes prima facie
proof of
quantum of the damages sustained, then such prima facie proof may
become proof on a preponderance of probability and the
plaintiff will
succeed in proving damages if on all evidence at the end there is
nothing to refute plaintiff’s case.”
At page 118D-F Rose
Innes AJ, as he then was continued to say: “….the court
does not have to embark on conjecture
in assessing damages where
there is no factual basis in evidence or, an inadequate factual
basis, for an assessment, and it is
not competent to award an
arbitrary approximation of damages to a plaintiff which has failed to
produce available evidence upon
which an assessment of the loss clod
have been made. Mkwanazi.
[19]
For the plaintiff to succeed in her claim, she must prove the
following elements, vide
Gordon Lyod Page & Associates v
Rivera & Another
(supra)
(i)
The contract;
(ii)
Breach of the contract; or repudiation of the contract;
(iii) That
she has suffered damages;
(iv) A
causal link between the breach and the alleged damages; and
(v)
That the loss was not too remote.
[20]
It is common cause that there was an agreement, the terms of which
was accepted by the plaintiff
on 1 January 2005, vide paginated page
1to 4 of the Joint Bundle of Documents (exhibit “MT1” of
the particulars of
claim, paginated pages 1-3 thereof).
[21]
In respect of the second requirement, the plaintiff has conceded that
she was informed that because
of the error, she will revert to her
original status and continue to receive all her benefits. According
to the plaintiff, on 1
January 2006 she then cancelled the contract.
Not every cancellation of a contract gives rise to a right to cancel,
vide Alfred
McAlphine & Son v Transvaal Prov, Admin.
1977 (4) SA
310
(TPD) at 347H.
[22]
It is submitted on behalf of the defendant that the plaintiff is
prevaricating as to what action or conduct
on the part of the
defendant constitutes the alleged breach. The plaintiff alleged that
the unilateral cancellation was the change
of employment on 13 July
2005 by reverting to the permanent employment contract of fixed term
contract; alternatively the termination
of the employment on 13
December 2005 alternatively both.
[23]
It is further contended on behalf of the defendant that the alleged
unilateral revision to the fixed term
of contract is not a breach.
The plaintiff was not given any new contract. He salary and benefits
remained the same. It is contended
that she was given a notice of 5½
months that her contract of employment will terminate on 31 December
2005, and that such
is not an unlawful act on the part of the
defendant, because it is in accordance with section 37 of the Basic
Conditions of Employment
Act, N 75 of 1997.
[24]
Section 37 requires that in the case of a person who has been
employed for more that a year or
more, a contract of employment may
only be terminated on notice of not less than four weeks, subsection
(1)(c)(i). Where the employer
has given a notice which is consonant
with section 37, as is the case in casu, it cannot be said that the
subsequent termination
of service is unlawful, especially seen in the
light of the fact that the defendant did give a notice which more
than the four
weeks required by s37 is. The plaintiff has conceded
that the defendant has a right to terminate employment contract.
Consequently,
in my view, I conclude that there is merit in the
submission made on behalf of the defend ant that the plaintiff cannot
succeed
in proving the second requirement.
[25]
The letter of 13 July 2005 (paginated page 7 of the joint bundle of
documents) informed the defendant,
inter alia
, that she would
continue to receive her salary and benefits. The plaintiff has
conceded that she continued to receive he salary
and benefits until
the 31 December 2005. It is clear that she did not sustain any
damages during the period July 2005 and 31 December
2005. Besides,
she was also given, in my view, sufficient notice of termination of
employment.
[26]
In so far as the damages are concerned, I am of the view that the
plaintiff has not established
a prima facie case. I say so be cause,
under cross examination the plaintiff has conceded that she continued
to receive her salary
and the benefits as reflected in the agreement.
She further testified that after her departure from the defendant’s
employment
in January 2006, she was gainfully employed thereafter.
She said that she worked,
inter alia,
she worked for someone
for eight months, and she worked Unisa Business School she cannot
recall for how long, she worked for Home
Affairs for an amount of R10
900, 00. I am not detailing all the places she worked for and her
salary in those respective places,
including her current employment.
It suffices to state that, I am of the view and find as such, the
plaintiff has not laid a prima
facie case showing that she suffered
any damages after January 2006 consequent to her departure from the
defendant’s employment.
[27]
Further, the plaintiff conceded under cross examination that in
respect of leave days, she cannot claim
money for any leave period
she has not taken within a particular circle. She conceded that such
leave days that have not be taken
cannot be carried forward nor be
exchanged for money. She was further unable to explain how the amount
of R30 187. 50, amount of
R147 490. 00 were computed.
[28]
The plaintiff, under cross examination she conceded that she has
taken her leave. She has also conceded
that where an employee does
not take her leave, such an employee cannot carry over the leave days
she has not taken to the following
leave circle. In this regard, I
bear in mind what was said by Rose Innes AJ in the Monumental Art Co
v Kenston Pharmacy (Pty) Ltd
1976 (2) SA 111
(C) 118E:
“
it
is not competent for a Court to embark upon a conjecture in assessing
damages where there is no factual basis in evidence, or
an in
adequate factual basis, for an assessment, and it is not competent to
award an arbitrary approximation of damages to a plaintiff
who has
failed to produce available evidence upon which a proper assessment
of the loss could have been made.”
[29]
I am of the view that the plaintiff would not succeed in proving any
quantum. I am consequently
of the view that the plaintiff would not
succeed in proving any quantum. I find it not necessary to
interrogate the rest of the
other requirements that she would have
had to prove. I am consequently of the view that it would serve no
purpose to permit this
matter to continue beyond the stage it has
reached.
[30]
In the result absolution is granted with costs.
DATE
OF HEARING : 14/ 04 / 2009
DATE
OF JUDGMENT: 22 / 05/ 2009
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
PLAINTIFFS’
ATT
: MOTLANTE INCOPORATED
PLAINTIFFS’
ADV
: MR. MOTLANTE
DEFENDANT’S
ATT
: MAENETJA ATTORNEYS
DEFENDANT’S
ADV :
MR. E. VENTER
[1]
Annexure
“MT1” is a letter signed by Mr. JK Moloto, the Executive
Director; Human Resources of UNISA, on 13 January
2005. These terms
were accepted by the Plaintiff on 1 January 2005.
[2]
Paginated
page 5 of the bundle of documents.
[3]
Vide
The SOUTH African LAW OF Evidence by DT Zeffertt page 165
where the learned authors cite Solomon in Siko
v Zonsa 1908 TS
1013.
[4]
1976
(2) SA (CPD) 111 at 120C-E