Miyen v Sasol Infrechem Limited (729/2003) [2007] ZAFSHC 107 (15 February 2007)

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[2007] ZAFSHC 107
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Miyen v Sasol Infrechem Limited (729/2003) [2007] ZAFSHC 107 (15 February 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 729/2003
In
the case between:
PAPI PATRICK
MIYEN
Plaintiff
and
SASOL INFRECHEM
LIMITED
Defendant
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
31 NOVEMBER 2006
_____________________________________________________
DELIVERED ON:
15 FEBRUARY 2007
_____________________________________________________
[1] The matter came to
this court by way of action proceedings. The plaintiff acts in his
personal capacity. He sues the defendant
for damagers under three
distinct claims. The basis of each claim is mainly contractual and
alternatively delictual. The relief
sought in respect of each claim
is contested. The defendant resists each individual claim on the
selfsame fundamental basis that
no contract was concluded by its
predecessor in title Polifin with the plaintiff in his personal
capacity. On the strength of this
averment the defendant contents
that the plaintiff lacks the requisite
locus
standi
in
indicio
to bring the action. The distinction between Polifin and Sasol
Infrachem Limited is, for the purpose of this judgment, immaterial.

I refer to them collectively as the defendant.
[2] I deem it necessary
to give a cursory résumé of the pleadings. I propose to deal with
them claim by claim. It is also convenient
to dissect the plea in a
similar and corresponding manner. In this way each of the
defendant’s three pleas will be close to each
of the plaintiff’s
three claims to which each relates. I reckon such pairing makes
practical sense.
[3] The particular of
claim in respect of the first claim are set out in paragraph 4 and 5
of the summons. The plaintiff alleged
that he and the defendant
concluded an agreement at Sasolburg during August 1999. He was
employed by the defendant. He was engaged
under a service system
called Owner Driver Scheme for a five year contract period. He was
personally obliged to render certain transportation
services on
behalf of the defendant. He was also obliged to provide his own
heavy vehicle for this purpose.
[4] The defendant’s
reciprocal contractual obligations were the following: First, the
defendant was obliged to pay the monthly
instalment owing by the
plaintiff to the finance company in respect of the vehicle direct to
the finance company from the gross monthly
income due by the
defendant to the plaintiff. Second, the defendant was also obliged
to deduct a certain amount from the gross monthly
income due by the
defendant to the plaintiff and to pay it over direct to the South
African Revenue Service in respect of the plaintiff’s
income tax.
Third, the defendant was obliged to pay the surplus of the gross
monthly income direct to the plaintiff. Vide Annexure
“A”
paragraph 11 of the record. The plaintiff’s company’s identity
or number under the Owner Driver Scheme was OD189.
[5] The aforegoing were
the express terms. But there were also tacit terms and implied terms
governing the said agreement which agreement
was partly written and
partly oral. The plaintiff alleged that he complied with all the
terms of the agreement and that at all material
times he was prepared
to perform his contractual obligations.
[6] The plaintiff also
alleged that notwithstanding his performance in terms of the
agreement, the defendant wrongfully committed
a breach of the said
contract at Sasolburg on the 31 October 2001. He alleged that an
authorised agent of the defendant Carlos da
Silva prevented him from
rendering or providing further services as agreed by depriving him of
the physical possession of the truck
as well as his personal
belongings in the truck.
[7] As a result of the
aforesaid wrongful dispossession in other words the breach whereby
the defendant prevented him from removing
his property from his truck
which the defendant had wrongfully seized and grounded, the plaintiff
alleged that he suffered damages
in the sum of R5 249,00. The
alleged property was specified and itemised in paragraph 7 of the
summons. In support of this claim
“annexure a” was attached to
the summons.
[8] As regards the
plaintiff’s first claim, the defendant admitted, in its plea, that
various stakeholders, including the parties
herein entered into a
written agreement at Sasolburg during August 1999. The multiparty
agreement was described as the “operating
agreement” and was
apparently last signed on the 31
st
of August 1999. Its effective date was 1
st
September 1999 and its duration 60 months – vide page 53 of the
record. It was attached to the defendant’s plea as “annexure
S1”.
[9] The defendant
specifically denied that the rights and duties ascribed to the
plaintiff in the summons, attached to the plaintiff
personally. The
defendant stated that such rights and obligations stemmed from the
“Multiparty Operating Agreement” and pleaded
that such rights
were acquired and such obligations incurred by Midland Truck 29 CC,
the contractor, and not the plaintiff, in his
personal capacity.
The
defendant also pleaded that the plaintiff was a crew member of the
contractor, MT29CC and that he originally held a 24% membership
interest in the contractor.
[10] The
defendant further pleaded that the motor vehicle referred to in the
plaintiff’s summons was a heavy truck with registration
number
CKC982FS and that it was the same motor vehicle described in the
“Multi Party Operating Agreement”. The defendant denied
that the
plaintiff personally purchased the motor vehicle but pleaded that it
was purchased by the contractor, MT29CC, in terms of
an instalment
sale agreement which was financed by FBC Fidelity Bank Limited t/a
the Future Bank and that it was registered in the
name MT29CC and not
in the plaintiff’s name.
[11] The defendant
averred furthermore that the “Multi Party Operating Agreement”
was terminated during April 2000 consequent
upon the liquidation of
the company Professional Drivers Management & Development (Pty)
Ltd t/a Pro-Drive. Subsequent to the
demise of Pro-Drive, the
defendant and MT29CC entered into an oral bilateral agreement at
Sasolburg during April 2000. It was agreed
that the defendant would
continue with the Owner Driver Scheme; that MT29CC would continue to
participate in the Owner Driver Scheme;
that all the close
corporations which participated in the Owner Driver Scheme would
engage a new agent to manage and to develop
their operations and that
pending the engagement of such a new agent the defendant would fulfil
the role of the liquidated Pro-Drive.
[12] It was a further
averment made by the defendant in its plea that on the 21
st
November 2000 Cargo Carriers and Equity Logistics were engaged as the
new agents of the various participants of the Owner Driver
Scheme to
manage their operations and administration respectively.
[13] On the 14
th
February 2001 the Owner Driver Scheme participants, their aforesaid
agents and the defendant agreed on the standard terms and conditions
in order to regulate the transportation services. Those were set out
in a document described as “Code of Conduct” – vide annexure
S2
page 54 of the record.
[14] The defendant
specifically denied that any agreement existed between the plaintiff
and the defendant; that the defendant acted
in breach of the
agreement as the plaintiff alleged or otherwise; that the defendant
prevented the plaintiff from rendering the
agreed transportation
services or that the defendant prevented the plaintiff from removing
his property from the truck.
[15] The plaintiff’s
second claim was that he and the defendant entered into an agreement
at Sasolburg during August 1999. The
particulars of this claim are
substantially the same as those of the first claim which are set out
in paragraph 3 – 7
supra
.
However, the cause of action in this regard is different. Here the
plaintiff’s claim is based on past loss of earnings he suffered
as
result of the wrongful termination of the agreement. The loss is
confined and calculated from the date of the alleged breach
on the
31
st
October 2001 to the 30
th
January 2003. The plaintiff issued summons in this action on the 9
th
March 2003. The plaintiff’s alleged that he earned an average
income of R13 816,09 per month from the defendant. During the said
period he claimed that he lost the total sum of R207 241,00 in
respect of past loss of earnings. In support of this second claim
he
attached annexure B1 and B2 – vide page 12 – 14 of the record.
[16] As regards the
second claim the defendant denied all the allegations thereof as set
out in paragraph 8 of the summons. The defendant
specifically denied
that the plaintiff earned any income from the defendant at any time
material to this dispute. The defendant
pleaded that the plaintiff
derived income from the contractor MT29CC one of the many
participants in the said scheme.
[17] The plaintiff’s
third claim is also chiefly based on the allegations as set out in
paragraph 3 – 7
supra
.
The important difference is the cause of action. In this instance
the cause of action is future loss of earnings for the remainder
of
the contract period, that is from the 1
st
February 2003 until 31
st
August 2004. During that period of nineteen months the plaintiff
alleged he would have earned the sum of R263 504,00 from the
defendant
in terms of the employment agreement had it not been for
the defendant’s breach. The defendant denied all the allegations.
[18] From the pleadings
it is obvious that the defendant resists each of the three claims on
the fundamental ground that no agreement
was ever concluded between
the defendant and the plaintiff in his personal capacity.
Accordingly the crux of the resistance is that
the plaintiff has no
locus
standi in indicio
to bring the action against the defendant.
[19] The only relevant
contractual nexus between the parties, so argued Mr. Krigeler,
counsel for the defendant, was in terms of the
defendant’s employee
empowering economic programme called Owner Driver Scheme in which the
plaintiff participated not as an employee
of the defendant but rather
as a member of MT29CC from the 1
st
September 1999 to 31
st
August 2001. He contended that that corporate entity and not the
natural persons who were its members was engaged as an independent
contractor to perform transport services on behalf of the defendant.
Therefore, he submitted that no legal relationship of
employer-employee
or contractual privacy ever existed between the
plaintiff and the defendant.
[20] On the contrary, Mr.
Grewar, counsel for the plaintiff, argued that the plaintiff, as an
employee, instituted this action against
the defendant, as his
employer, for the damages he has suffered on account of his service
contract wrongfully terminated.
[21] Mr.
Grewar submitted that there were numerous features in the conduct of
the defendant which indicated that the relationship
between the
parties was based on employment. Since the plaintiff had made out a
case which showed just that, he urged me to grant
judgment in favour
of the plaintiff in respect of each claim.
[22] Mr. Krigeler,
disagreed. Contrary to the aforesaid submissions by Mr. Grewar he
submitted that the plaintiff had failed to establish
the employment
contract or any of its terms between him and the defendant as he
contended. He urged me, therefore, to dismiss all
the three claims.
[23] I
deem it expedient to give historical background of this dispute. The
dealings between the parties were affected by some significant
historic moments. I proceed to give a brief exposition of each era.
This is gleaned from the evidence.
[24] During August 1999
the defendant created an economic empowerment scheme for its
employees who were drivers. The defendant did
so in collaboration
with Pro-Drive, a corporate enterprise which specialised in the
business of managing Owner Driver Schemes. The
scheme was based on a
standard operating agreement as more fully set out in annexure S1
which appears on page 44 – 73 of the record.
A similar operating
agreement was concluded with each participating driver employee. In
order to participate in the scheme each
such employee had to do so
through a close corporation. The steakholders to an operating
agreement were Pro-Drive, Polifin, Future
Bank, the contractor, its
driver member, its crew member and its managing director.
[25] The relevant
participating contractor in this case was MT29CC, consisting of
Mofokeng as its driver member, Miyen, in other words
the plaintiff,
as its crew member and Heereveld as its managing member. It was a
term of the operating agreement that Polifin, in
other words the
defendant, should appoint the contractor. Pro-Drive was appointed as
a manager of the scheme as well as an authorised
agent with the power
to represent MT29CC in its business dealings with the defendant. On
behalf of Pro-Drive Heereveld held 51%
of the member’s interest in
MT29CC whereas Mofokeng held 25% and the plaintiff 24%. Only the
defendant employee qualified to become
principal members of any close
corporation participating as a contractor in the scheme. The Owner
Driver Scheme was primarily designed
for them and not outsiders.
[26] To optimize benefits
to industrious principal members, they were permitted in terms of the
operating agreement to recruit even
outsiders who were not former
employees of the defendant and to offer them some stakes as crew
members in their participating close
corporation, the contractor.
Against that backdrop the plaintiff was introduced to Mofokeng by
Mark Allen. On the recommendation
of Allen Mofokeng offered the
plaintiff a financial interest in MT29CC as a crew member. The
Future Bank financed the trucks purchased
by MT29CC in terms of the
instalment sale agreement. The plaintiff and Mofokeng as members of
MT29CC signed suretyship agreement
in their personal capacity in
favour of the Future Bank as co-principal debtors. As a surety the
plaintiff like Mofokeng in his
personal capacity undertook to pay the
balance to the bank in respect of the truck should the MT29CC fail to
pay. The defendant
was obliged to pay the monthly instalment in
respect of the trucks on behalf of MT29CC direct to Future Bank. The
Multiparty Operating
Agreement was short-lived. It was operative for
about seven months only from the 1
st
September 1999 until about the 15
th
April 2000 when Pro-Drive was liquidated. This was the first
significant era.
[27] Upon the liquidation
of Pro-Drive the Multi Party Operating Agreement automatically came
to an abrupt end. It became unable
to perform its contractual
obligations in terms of Clause 11 thereof. The void created by the
demise of Pro-Drive was a serious
blow to the Owner Driver Scheme.
During the same month, April 2000, the participating contractors
including MT29CC reached an interim
agreement with the defendant.
However, the interim agreement was not reduced to writing. Instead
an interim oral transport agreement
was concluded.
[28] The material terms
thereof were that the participating contractors would appoint a new
agent to manage their administration and
operations as soon as
possible to replace the liquidated agent; that the oral
transportation agreement and the new agency agreement
would terminate
simultaneously; that the defendant would step in the shoes of the
former agent and act as a manager of the contractor’s
businesses in
the interim in order to salvage the precarious situation of the
Owners Driver Scheme. This was the second significant
era.
[29] During November 2000
the oral transportation agreement was still in force. The mutual
relationship between the parties between
the defendant and all the
participating contractors continued to be regulated in terms of the
same oral transport agreement until
Equity Logistics and Cargo
Carriers became role players in the Owner Drivers Scheme. The two
corporate entities took over from the
defendant and became the new
agent(s). The transient role of the defendant as a manager of MT29CC
and others thereby came to an
end seven months later in November
2000. Cargo Carriers provided vital support systems to facilitate
efficient transportation of
chemical products by the participating
contractors on behalf of the defendant to the defendant’s
customers. This then was the
third significant era which lasted for
approximately 3 months.
[30] The stakeholders are
said to have adopted a code of conduct on the 14
th
February 2001. Of course that is the version of the defendant. The
document was unsigned and the plaintiff questioned its adoption
–
vide p. 8 indexed documents bundle. The code of conduct precluded
the members of the participating close corporation from removing
the
empty or unloaded trucks from the defendant’s premises. The
defendant was empowered in terms of the code of conduct to insist
that any defect in the truck rendering it unroadworthy be repaired
before any work was allocated to such a truck for the purpose
of
deliveries. The stringent procedures, standards and corporate norms
were dictated by environmental and safety considerations
since the
truck transported highly dangerous toxic chemicals. The code of
conduct represented the minimum standard of performance
required and
expected from each and every contractor. This was the forth
important era.
[31] The fifth and
undoubted the most significant era started on the 22
nd
October 2001 approximately eight months after the adoption of the
code of conduct. Towards the end of the previous era the plaintiff
as OD189 found himself on a collision course with the defendant. He
encountered numerous problems precisely because he would not
comply
with the norms and standard and procedures in other words in
accordance with the code of conduct as well as the administration
of
the finances of the participating contractors such as MT29CC. He
openly voiced out his dissatisfaction with the managing agent(s)
as
well as the defendant. On the 23
rd
October 2001 Cargo Carriers severed its business ties with MT29CC.
The cancellation of such agency or management agreement completely
paralysed the operations of truck OD189 in particular.
[32] Cargo Carriers gave
such notice to MT29CC on 22
nd
October 2001 as more fully set out on page 236 of the document
bundle. In turn the plaintiff took a retaliatory action by also
cancelling
all the MT29CC obligation in respect of truck OD189 to
Cargo Carriers. The stalemate effectively eliminated the plaintiff’s
MT29CC
from participating in the Owner Driver Scheme through OD189.
[33] In the sixth and
final instance the defendant decided to cancel the transportation
agreement with MT29CC. On the 31
st
October 2001 Da Silva gave notice to Cargo Carriers. The latter in
turn gave such notice to MT29CC.
[34] The critical issue
which has to be decided is the real nature of the relationship
between the parties. By the parties I strictly
mean the two
litigants before me. The aforegoing historical background shows that
the two litigants had a lot to do with each other
for a period of
twenty six months. Their regular and harmonious business dealings
began effectively on the 1
st
September 1999 but ended on a tempestuous note on the 31
st
October 2001. The version of the plaintiff and the version of the
defendant as to the real nature of their commercial relationship
are
mutually destructive.
[35] The plaintiff
actively participated in the Owner Driver Scheme engineered and
implemented by the defendant. Whether the plaintiff
participated in
the Owner Driver Scheme directly in his personal capacity as he avers
or indirectly as a member of MT29CC as the
defendant avers turns not
only on the simple question: Did the plaintiff sign the operating
agreement but also on the subsequent
behaviour of the parties and the
other signatories to the aforesaid operating agreement.
[36] Identifying persons
as employers or employees is not difficult in most cases. There
are, however rare fringe cases in which
the status of individuals
involved in a mutual and continuous business venture may not be
readily apparent. Sometimes it may not
be immediately obvious
whether the parties have clinched a deal which is a true contract of
employment (the
locatio
condictio operarum
)
or a true contract of work (the
locatio
condictio operis).
The
latter, although entails the autonomous provision of work or service
it does not entail the supervised provision of employment
or labour.
An autonomous provider of work or service is not an employee but an
independent contractor. A supervised provider of
labour is not an
independent contractor but an employee.
[37] John Grogan:
Workplace
Law
,
8
th
Edition on page 18 writes:
¡°
Reported
judgments in which the civil courts have struggled with these
questions indicate that the task of distinguishing employees
and
employers from parties to other contractual relationships entailing
the provision of work or services is not a matter of definition.
The
courts have frequently held that the classification of such contracts
is a matter of substance, not merely of form. The mere
fact, for
example, that the parties have given their contract a particular
label is not conclusive. The true nature of the contract
is
determined from the relationship between the parties.”
I am inclined to think
that the peculiar facts of this case dictate that the court must
pierce the corporate veil in order to take
a closer look at the
greater picture behind the scene. See
DADOO
LTD & OTHERS v KRUGERSDORP MUNICIPAL COUNCIL
(1920) AD 530
,
GAYMANS
v BEN MNGOMENI t/a WORKING WORLD PRETORIA
(2000)
9 BLLR 1042
LC. Not only the documents but also the conduct of those
involved in the entire scheme of things must be scrutinized so as to
gain
a better understanding of the puzzle. The aim is to objectively
ascertain the true character of the relationship which the parties
before me have characterised in two different ways. One of the two
labels must be fake.
[38] The defendants
pleaded that there was no direct legal nexus contractual or delictual
between the defendant and the plaintiff
in his personal capacity.
The defendant avers that whatever business dealings there were
indirectly involved the plaintiff in his
representative capacity as a
member of the close corporation by the name MT29CC. In developing
this contention further, counsel
for the defendant submitted that the
only logical inference that can reasonably be drawn upon proper
construction of the written
Multilateral and the oral agreements
which governed the Owner Driver Scheme later is that only the close
corporation as the contractor
is entitled to sue the defendant and
not the plaintiff in his personal capacity if the defendant has
committed breach of contract
by prematurely terminating it.
[39] The Operating
Agreement appears from page 28 – 53 of the record. The Operating
Agreement purports to have been signed by among
others, the defendant
as well as MT29CC. The close corporation apparently had three
members namely: MD Mofokeng whose individual
signature as a driver
member appears on page 51, PP Miyen whose individual signature as a
crew member appears on page 52, JW Heereveld
whose individual
signature appears on page 52. Notwithstanding their signatures none
of the two gentlemen are described as contractants.
On the contrary
the contractor is described as MT29CC with registration number
CK97/68002/23. On page 53 two distinct signatures
appear on a solid
line above the words:
“
For and on behalf of MT29CC
authorised thereto (the contractor)”
The first signature is
admittedly that of Mr. PP Miyen, the plaintiff. The second signature
is admitted to be that of MD Mofokeng,
the driver member. This
strongly suggest that the Operating Agreement was concluded between
the defendant and MT29CC and not its
individual members in their
personal capacity. It is clear that they signed on the solid line in
their representative capacity as
the real and authorised members of
the real contrator, MT29CC. The individual signatures of the members
of MT29CC did not per se
make them parties to the Operating Agreement
in their own right. A close corporation is a legal
persona
who acts through its members. Da Silva contradicted the plaintiff’s
version and persisted that the plaintiff signed the document
on 31
st
August 1999.
[40] The Operating
Agreement is a twenty six page document. It was singed twice and
initialled twenty four times by the plaintiff,
yet he denies
consciously signing or initialling it during or about the 31
st
August 1999. Instead he claimed in his indirect testimony that he
first saw the document during or about June or July 2000. Almost
a
year from the effective date of the 1
st
September 1999. This is hard to believe.
[41] On the 26 August
1999 MT29CC purchased a 1999 commercial heavy truck in terms of a
suspensive sale agreement through FBC Fidelity
Bank Ltd for the price
of R1 151 313,40. Four days later, on 30 August 1999 to be precise
the plaintiff and the aforesaid Mofokeng
signed a suretyship
agreement and bounded themselves in their personal capacities in
favour of the said bank in
solidum
as sureties and co-principal debtors jointly and severally with
MT29CC as the principal debtor for the due fulfilment of the
obligations
of the said close corporation in terms of the suspensive
sale agreement. Notwithstanding his apparent signature and initials
on
the suspensive sale agreement as well as the suretyship agreement
he denied the authenticity thereof. Mofokeng contradicted the
plaintiff’s insinuations that his signature and initials on both
agreements with the said bank where fraudulently affixed to the
documents.
[42] The suspensive sale
agreement is part of the indexed document bundle which appears on
page 301 and has to be read in conjunction
with the following
relevant clauses of the Operating Agreement:
It is recorded that the
contractor is purchasing the vehicle from FBC Fidelity Bank in terms
of the instalment sale agreement –
vide clause 2.1.
Polifin hereby
undertakes in favour of FBC Fidelity Bank that it shall, on the 25
th
day of each month, but only for so long as this agreement remains of
full force and effect, pay to FBC Fidelity Bank on behalf
of the
contractor on debit order the monthly instalment due by the
contractor and payable to the bank – vide clause 7.4.
FBC Fidelity Bank hereby
undertakes to send all statements of account, letters of demand,
analysis of indebted transactional document
and any other
documentation whatsoever relating to the instalment sale agreement
to Pro-Drive as the contractor’s agent and to
Polifin as the
contractor’s payer of the monthly instalment – vide clause 7.6.
After the expiration of
the instalment sale agreement provided all obligations in terms of
the Operating Agreement and the instalment
sale agreement have been
discharged by the contractor, the driver member and the crew members
the membership interest in the vehicle
shall
ipso
facto
be transferred to the three members of MT29CC, Herreveldt, Mofokeng
and Miyen on the basis 51%, 25% and 26% (sic 24%) respectively
–
vide clause 11.5.
Should MT29CC or any of
its members be provisionally liquidated or sequestrated, or enter
into any financial arrangements with its
creditors or have any of
its property attached or be convicted of reckless, negligent or
intoxicated driving Pro-Drive shall be
entitled to cancel the
appointment of the contractor – vide clause 13.3 – 13.5.
The contractor
undertakes to comply timeously and properly with all its obligations
under the instalment sale agreement and under
all other relevant
agreements – vide clause 14.
Notwithstanding anything
contained in this Operating Agreement the rights of the FBC Fidelity
Bank in terms of the instalment sale
agreement shall not be
diminished, compromised, novated or in any way prejudiced by
anything contained in this Operating Agreement
– vide clause 15.
[43] On page 169 of the
document bundle appears a memo dated 7
th
February 2001 addressed to Sascon Management, in other words, the
transport division of the defendant. It purports to have been
signed
by the plaintiff described as OD189 (P Miyen) and OD170 (D
Mofokeng)). The memo was co-signed by B Maree of Cargo Carriers
the
new agent of MT29CC and S Mkhwanazi on behalf of the defendant.
[44] The signature which
remarkably resembles that of the plaintiff of instance appears on the
founding statement of MT29CC; the Multilateral
Operaing Agreement,
the suspentive sale agreement, the bank suretyship agreement; and
the aforesaid memo, among others. The defendant
led the evidence of
Mofokeng and Da Silva on the issue. I find it difficult to believe
that these several documents, many of which
were destructive to the
plaintiff’s case, were deceitfully produced. It seems improbable
that so many people would have ganged
up against one innocent person
for no apparent ulterior motive by perpetrating such an elaborate
scam. I cannot accept that he was
unaware of this massive documents
and their contents. In sharp contrast to the plaintiff’s version,
Mofokeng’s version, with
all its imperfections, was inherently more
probable, consistent and trustworthy than the plaintiff’s version.
[45] Mofokeng’s version
was corroborated by the massive body of documents as indexed in the
documents bundle. He candidly gave
clear and logical version. His
version also drew significant corroborative and probative value from
the plaintiff’s own sworn
statement as well as may other documents
such as affidavits upon which the plaintiff relied in previous civil
proceedings, for instance,
the spoliation action he launched for the
recovery of the truck. Mofokeng confirmed that he was a member of
MT29CC. He stressed
that there were various private correspondence
and official documents as indexed in the documents bundle which
confirmed that fact
and accurately described the nature of the legal
relationship between the defendant and the various participants in
the Owner Driver
Scheme. All such participants were indirectly
connected or related to the defendant through their participating
close corporation
which was a vital component in the equation.
[46] Da Silva’s
evidence traversed correspondence, minutes of meetings and several
documents of which he had personal knowledge.
The essence of his
version was that the plaintiff knowingly signed the Multilateral
Operating Agreement; that the plaintiff, therefore,
did not sign any
contract with the defendant in his personal capacity as he claimed
and that the plaintiff participated in the Owner
Driver Scheme not as
an employee of the defendant but did so via his status as a member of
the independent contractor, MT29CC. The
various close corporations
which conducted business with the defendant did so as independent
contractors. The Owner Driver Scheme
was designed to eliminate
employees from the product transportation division of the defendant.
The close corporations were established
for that very purpose.
[47] At this juncture it
is opportune to code clause 5 of the Multilateral Operating Agreement
to which the plaintiff was a signatory
as I have already found.
“Clause
5 of the Multilateral Operating Agreement.”
¡°
It
is specifically recorded that nothing in this agreement, whether
express or implied, shall create or be deemed to create the
relationship
of master and servant or employer and employee between
Polifin (Sasol
Chemical Industries) and
the contractor (MT29CC).”
The bracketed words are
mine.
[48] Moreover clause 19
pertinently states that the Multilateral Operating Agreement
constitutes the entire agreement between the
parties and that none of
these parties shall be bound by any term or representation or
warranty or promise not recorded in that contract.
This completes my
critique of the plaintiff’s version.
[49] I now turn to
examine the defendant’s version. The parties held a pre-trial
conference on 2 August 2005. The parties recorded
the following in
paragraph 13 of the minutes of the meeting:
“
Volgens Mnr. Conradie gaan die saak
oor die eiser se skade wat gely is in sy persoonlike hoedanigheid.
Mnr. Conradie het gestel dat
dit nie die verweerder se saak was dat
die beslote korporasie die eis moes instel nie.”
To the extent that the
aforegoing extract from the minutes referred to the first claim,
there can be no serious argument about the
correctness thereof. This
is so because the particulars of claim and the evidence showed that
the property claimed preponderantly
belonged to the plaintiff and not
MT29CC. I am not certain whether the same can be correctly said
about the second and the third
claim.
[50] The floundering
fortune of Pro-Drive was a matter of great concern to the defendant.
On the 5
th
April 2000 T S Munday, the managing director of Polifin Limited, in
other words, the defendant, circulated the following letter among
the
members of the Owner Driver Scheme:
¡°
5
April, 2000
COMMUNICATION TO OWNER-DRIVERS
Owner-driver structure/Prodrive
The cash flow problems at Prodrive
(Pty) Ltd has placed the continuity of the owner-driver structure for
Plifin’s operations at
risk.
Polilfin plans to put steps in place
to:
●
protect itself in terms of
ensuring continuity of delivery of products to customers
¡Ü
protect
the owner-drivers and the concept of the owner-driver structure.
This may involve Polifin withdrawing
from the structure set up by Prodrive and setting up new structures
that may involve Polifin
initially, as a non-voting and
non-beneficial partner, participating with drivers in the structure
until alternative participating
parties can be sought.
The
owner-driver members of the present Close Corporations must be aware
that there may be adverse implications for them if the entire
Prodrive structure changes in any way, including the possibility of
it being liquidated. Polifin will endeavour to keep abreast
of such
changes, and try to assist with any reasonable steps to minimise the
impact, if any, on the owner-driver members.
Signed
_________
T S MUNDAY
MANAGING DIRECTOR”
This communication was
addressed not to the participating close corporation but to the
individual members of the Owner Driver Scheme.
This is significant
to note. The Multilateral Operating Agreement was almost dead and a
new Multilateral Operating Agreement was
contemplated.
[51] The evidence showed
that the Multilateral Operating Agreement expired in April 2000
consequent upon the liquidation of Pro-Drive.
Therefore, the
contractual relationship which until then existed between the
defendant and MT29CC came to an abrupt end at the same
time. The
liquidation of the appointed intermediary between the defendant and
the various close corporations
ipso
facto
led to the demise of the various close corporations including MT29CC
since Heereveld was a member of them all.
[52] Fifteen days later
on 20 April 2000 Carlos da Silva, transport manager of Polifin
Limited, wrote as follows to Mark Allen on
behalf of the defendant:
“
20 April 2000
Attention:
Mr Mark Allen
SUBJECT: POLIFIN / OWNER DRIVER
MANAGEMENT
This writing serves to advise that it
is our intention to award Contract to yourselves for the operational
management and administration
of the owner drivers currently
rendering a service to Polifin’s Midland Factory, Sasolburg.
We
are now in the process of drafting an agreement for your perusal and
comments and will forward such to you in due course. In the
interim
you can forward your invoice dated from 5 April 2000 to 30 April 2000
to our mrs. Marie Coetzee for processing.
Yours
faithfully.
Signed ___
Signed
________________
C
DA SILVA L JANSE VAN RENSBURG
TRANSPORT
MANAGER CONTRACT OFFICER
”
[53] Some interesting
things emerged from this letter. First, it was the intention of the
defendant to award to Mark Allen an operational
agreement and
administration contract in respect of the individuals and not the
close corporations. By then the close corporations
no longer
existed. Again the letter of intent intimated that a new
Multilateral Operating Agreement was in the drafting process
to
replace the old Multilateral Operating Agreement. It also emerges
from this letter that Mark Allen had already taken over the
functions
of Herreveldt practically from 5 April 2000. However, unlike
Herreveldt, Mark Allen was concerned with the individual
owner-drivers and not the close corporations as such.
[54] On 4 Mary 2000
Miyen, the plaintiff, addressed the following letter to the
defendant:
“4
May 2000
Polifin Limited
PO
Box 321
SASOLBURG
9570
Attention:
Mr Carlos da Silva / Mr Mark Allen
APPOINTMENT OF POLIFIN LIMITED AND
MARK ALLEN TO MANAGE ON BEHALF OF THE POLIFIN OWNER DRIVERS IN THEIR
PERSONAL CAPACITY
We,
collectively known as the Polifin Owner Drivers, hereby appoint
Polifin Limited and Mark Allen as of 1 April 2000, to manage our
transport business on our behalf for an interim period only. This
appointment is valid until such time as we, along with Polifin
Limited, can appoint a new management company or other body to assist
us in the management of our owner driver scheme.
This
appointment is limited to the following and is given by the Polifin
Owner Drivers in our personal capacities to ensure that our
interest
in our transport business are maintained and well looked after
1. Mark Allen
Mark Allen will be responsible for
- the day to day management of our
business, this includes the scheduling of the work, arranging
maintenance and insurance for our
vehicles, liaising with all our
service providers such as Mastertreads, Johandre, Sasolburg Taxi’s
and all other service providers
who directly supply us with their
services.
- liaising
with Polifin on the payment of all our accounts, this includes
accounts such as the maintenance, insurance, medical aid,
provident
fund, all our service providers’ invoices and our Nu-Bank accounts,
cellphones and our own salaries.
- keeping
records of the work done by the Owner Drivers for Polifin and
invoicing Polifin on a monthly basis for such work.
- and all other services as set out in
an agreement still to be signed between ourselves, Polifin and Mark
Allen.
2. Polifin
Polifin
will be responsible for
the financial management of our
business in co-operation with Mark Allen.
issuing the Owner Drivers with
monthly statements of our financial affairs.
and all other services as set out in
agreement still to be signed between ourselves, Polifin and Mark
Allen.
The
Owner Drivers will pay to Polifin and Mark Allen the management fee
as was previously paid to ProDrive for similar services rendered
and
all other rights and obligations of the Owner Drivers will be as set
out in an agreement still to be signed between ourselves,
Polifin and
Mark Allen.
The
above is only an interim appointment and does not constitute any
master / servant relationship between any of the parties mentioned
herein.
Herewith
signed by Papi Miyen in his personal capacity as part of the Polifin
Owner Driver team rendering a transport service to Polifin.
Signed_____________
SIGNATURE”
[55] The letter makes it
abundantly clear that the plaintiff was writing on behalf of the
owner-drivers in their personal capacities
and not in their indirect
capacities as members of the close corporations which previously
participated directly in the Owner Drivers
Scheme during the era of
Herreveldt’s Pro-Drive. The issue of personal capacity was
stressed by highlighting it in the heading
of the letter. On page 1
of the letter the plaintiff reiterated that the appointment of Carlos
da Silva and Mark Allen was an interim
measure given by
“the
Polifin owner-drivers in our personal capacities to ensure that our
interest in our transport business are maintained and well
looked
after”.
He
concluded the letter by once again emphasizing that he signs the
letter in his personal capacity as part of the owner-driver
team.
[56] The Multilateral
Operating Agreement was never replaced with another Multilateral
Operating Agreement. Instead it was replaced
with the code of
conduct. Mr. Carlos da Silva admitted during cross-examination that
the code of conduct was really not a binding
agreement. Mr. Grewar
argued that in the workplace environment documents such as code of
conduct or code of good practice are customarily
used to regulate the
employment relationship.
Vide
p. 3 indexed document bundle.
[57] The plaintiff and
apparently all the individuals who rendered the transport service to
the defendant in terms of the Owner Drivers
Scheme were personally
identified by means of company identity cards. The name of the
defendant was printed bold on the face and
at the back of such a
company identity card. The name of the plaintiff was likewise
printed on the back as was the registration
number of his truck.
However the name of the participating close corporation MT29CC
appeared nowhere on the company identity card.
The dominant
impression created
ex
facie
the card was that the bearer whose name and indeed whose photograph
appeared thereon was an employee of the defendant.
Vide
p. 1 – 2 of the indexed document bundle.
[58] The plaintiff
received in his personal capacity monthly payments in respect of his
income directly from the defendant and not
from the MT29CC. No
reference of any sort was made to this close corporation. It seems
to me the same applied to all operating
driver participants.
Vide
p. 27 and 111 of the indexed document bundle.
[59] The defendant made
out cheques in favour of the plaintiff in his personal capacity and
not in the name of the close corporation
MT29CC.
Vide
p. 109
– 110 indexed document bundle. Such cheques were described as
salaries. Also
vide
p. 98 of the indexed bundle.
[60] The transactions
incurred in respect of the running expenses of truck JPH146GP owned
by the plaintiff, driver OD189 were debited
against the plaintiff’s
personal account and not that of MT29CC, if it ever existed.
Vide
p. 139.
[61] Several meetings
were held between the defendants and the owner-driver participants in
their personal capacity and not in their
representative capacities as
members of the close corporations before Pro-Driver was liquidated.
Vide
pp. 113, 119, 127, 131, 149, 198, 216 and 248 of the indexed document
bundle.
[62] The plaintiff paid
some creditors such as Garden City Motors in his personal capacity
and not out of the coffers of MT29CC for
the repairs done to his
truck.
Vide
p. 229, 231 and 235. Equity Logistics and Cargo Carriers, the
supposed facilitators of the defendants’ scheme were aware but
unable
to intervene.
[63] These then are some
of the strange features of the defendants’ conduct which tend to
blur the real nature of the relationship
between the parties.
[64] On 24 May 2001 the
founding statement was amended by way of form CK2. The form shows on
p. 2 thereof that by then the close
corporation had only two members,
D.M. Mofokeng - 50% and P.P. Miyen – 50%. The former majority
stakeholder J.B. Heereveld had
in the meantime been removed in terms
of an arbitration award by Adv. K. Moroka of Johannesburg.
[65] What emerges from
the massive documentary evidence and oral evidence presented in this
case clearly shows that Pro-Drive, as
well as the defendant itself,
exercised extensive powers of control in the general affairs of the
close corporations participating
in the Owner Driver Scheme. Mr.
Grewar contended that the participating close corporations appeared
as if they were independent
entities in theory only and that numerous
factors indicate, that they were practically deprived of their
corporate autonomy, particularly
MT29CC.
[66] The following
factors tend to give credence to counsels contention. The members
never held one simple meeting, according to
Mofokeng; the two
drivers, Mofokeng and Miyen, were paid salaries by the defendant; the
income due to the close corporation by the
defendant was never
channelled to MT29CC as the independent contractor for the mutual
benefit of its members; instead such income
which was strangely
described as salaries and directly deposited into the bank accounts
for the credit of the individual members
of the close corporation;
substantial amount of money due to the close corporation was buried
or statched away in a trust account
according to the whims of the
defendant; the members of the close corporation, especially the
plaintiff, is still in the dark as
to how such trust funds were
utilised or invested; the two minority members of MT29CC had separate
business creditors; such creditors
were separately paid by the
defendant and not their supposed corporative enterprises; the income
generated by one member of MT29CC
could not be utilised to defray the
business debts incurred by another member of the same close
corporation; no annual financial
statements of MT29CC were ever
prepared; after the liquidation of Pro-Drive the relationship between
the defendant and its natural
transport providers or chemical
distributors became even more blurred; the defendant drafted what
became known as a code of conduct
to regulate its business dealings
with its chemical distributors in the individual and personal
capacities; soon after the defendant
had terminated its contract with
MT29CC on 31 October 2001 the plaintiff’s truck was simply recycled
and quickly allocated to someone
else at the specific request of the
defendant. The new buyer participated in the aforesaid scheme of the
defendant. On 1 November
2001, a day after such termination Da Silva
wrote to Nedcor Bank:
“Mr.
J Budeli
Snr. Manager credit
Nedcor
Johannesburg
1/11/01
SASOL’S OWNER DRIVER SCHEME
Dear
Sir
I
herewith wish to inform you that we have terminated our relationship
with two of the CC’s as per the attached letter.
Be
advised that said vehicles are secured at Sasol and Cargo Carriers
respectively. In terms of the original agreement said vehicles
remain an integral part of the scheme and attachment procedures
should proceed so that said vehicles can be re-allocated to other
CC’s
Our
business will peak towards the end of November and said vehicles are
critical to our operation. I would appreciate your urgent
attention
on this matter.
Yours
faithfully
Signed__
________
C Da Silva
Manager
Sascon
cc: T.L. Smith”
[67] The following
passage by the author: Boberg:
The
Law of Delict,
p.1 is worth quoting:
“
A delict is a civil wrong. It is
an infringement of another’s interest that is wrongful irrespective
of any prior contractual undertaking
to refrain from it. It entitles
the injured party to claim compensation in civil proceedings. A
single act may give rise to both
delictual and contractual, ....
liability. The existence of concurrent contractual liability is no
bar to action in delict, provided
that the requirements of delictual
liability are also satisfied.”
See
PILKINGTON
BROTHERS SA (PTY) LTD v LILLICRAP, WASSERMAN & PARTNERS
1983 (2) SA 157
(W).
[68] Mr. Kriegler
submitted that the cancellation by Cargo Carriers of MT29CC strikes
at the heart of the plaintiff’s case that
the defendant through its
breach of contract, or alleged commission of delict, has caused the
plaintiff’s loss. In developing
this argument further he contended
that any wrongful conduct by the defendant, as alleged by the
plaintiff, must have been committed
on 31 October 2001 and
thereafter. He argued that the real cause of its decision on 31
October 2001 was precipitated by the cancellation
by Cargo Carriers
of its management agreement on 22 October 2001 which cancellation was
accepted by the plaintiff on 22 October 2001.
He submitted that it
was the mutual cancellation of the management agreement by the
plaintiff and Cargo Carriers which precluded
the plaintiff or MT29CC,
for that matter, from carrying out any chemical transport work on
behalf of the defendant and thus rendered
it impossible for the
plaintiff or MT29CC to perform the contractual obligations it owed to
the defendant. He submitted that on
this premise any unlawful
conduct on the part of the defendant, if any, subsequent to the
plaintiff’s own decision to dismiss Cargo
Carriers coupled with
Cargo Carriers cancellation of its management agreement with the
plaintiff and its withdrawal of the plaintiff’s
petrol card, was
causally irrelevant to any loss of income by the plaintiff. The
contention that the plaintiff, alternatively Cargo
Carriers, was to
blame for the loss suffered by the plaintiff, is not without
substance.
[69] The defendant relied
on two grounds to justify its contention that it lawfully terminated
the transport agreement it had concluded
with MT29CC. In the first
place it contends that MT29CC itself repudiated the transport
agreement as the defendant pleaded in par.
5.2.2 of its plea. In the
second place it contends that the cancellation of the maintenance
agreement by Cargo Carriers
ipso
facto
terminated the transport agreement between the plaintiff and the
defendant and since the transport agreement and the maintenance
agreement were co-extensive and symbiotic. Therefore the defendant
relies on the repudiations pleaded in par. 5.2.1 and 5.2.2 of
its
plea to justify the summary termination of the transport agreement
between itself and the plaintiff. Such repudiations were
material
breach as pleaded in par. 5.2.3 read with par. 4.3.2.4. In essence
the contention of the defendant is that the plaintiff
and not the
defendant was in breach of the transport agreement.
[70] The decision to
terminate the transport agreement between the defendant and MT29CC
was taken by Da Silva on behalf of the defendant
and communicated to
Cargo Carriers by written notice dated 31 October 2001. In turn
Cargo Carriers gave notice to MT29CC of the
defendant’s decision.
It seems to me that the plaintiff was an assertive individual and an
outspoken critic of the Owner Drivers
Scheme. He was increasingly
becoming frustrated by the domineering practices, procedures and
systems which virtually deprived MT29CC
from running its affairs as
an autonomous corporate entity. It is clear to me that he was
regarded as a troublesome outsider. In
his frustrations he found
himself on a collision course with some powerful individuals in the
mighty empire of Sasol Infrachem Limited.
He too behaved in a manner
which adversely affected the operations of the defendant. He
perceived the entire owner-drivers system
as a cunning device
designed to exploit the unwary owner-drivers who participated in it
and not as a genuine vehicle designed for
the true economic
empowerment of the employees of this top corporate entity. He paid
dearly in the end.
[71] He lost his truck,
he lost the money he had already paid to FBC Fidelity Bank, he lost
his share in the sum of R249 459,75 held
in a certain trust account
for the credit of MT29CC. The bank statement by Future Bank, in
other words FBC Fidelity Bank Limited,
prima
facie
shows that the outstanding balance due by MT29CC as in November 2001
was R136 189,52. Yet the defendant was held liable by the same
bank
on 14 November 2001 for R1 044 628,54. He was later sued for that
staggering amount in the Free State High Court under case
no.
4140/2001. He lost in the end. No wonder he cried in the witness
box during the course of this trial. However his credibility
was
seriously dented by the discrepancies between affidavits he made in
support of his opposition to the summary judgment in that
case and
his court testimony in these proceedings.
[72] The plaintiff’s
version that he was prevented from performing his duties by the
defendant on 31 October 2001 was denied by
Vosloo. Vosloo denied
that a trailer was hooked to the plaintiff’s truck. This was in
contrast to the plaintiff’s version that
he was about to leave the
defendant’s factory to deliver a load to a customer on behalf of
the defendant. The plaintiff could
not drive out of the defendant’s
premises. His electronic booth card had been deactivated. A
security guard at the gate told
him to contact defendant’s
management about the matter. Vosloo became involved and ordered the
plaintiff to leave the truck since
it was contrary to company policy
for a truck to drive out at that time without a load. The plaintiff
obeyed the instructions.
[73] It seems to me that
the version of the plaintiff was more probable than that of Vosloo.
Vosloo’s behaviour once again demonstrates
the dominant control the
defendant exercised over the plaintiff. Following the cancellation
of the Multilateral Operating Agreement
in April 2000 the defendant
had no binding agreement with MT29CC. Therefore the defendant had no
right to prevent the plaintiff
from removing the truck. The
plaintiff did not voluntarily leave the truck there as Vosloo would
want me to believe. He was forced
to leave the truck there. He
parked the truck, locked his personal belongings inside and left the
truck there in accordance with
the defendant’s orders. It is clear
that he did so under protest. It is also clear that the defendant
wanted to retain the truck
in its operations as was evidenced by the
letter to Nedcor Bank soon after this indicent.
[74] The contention that
the defendant lawfully instructed the plaintiff to return the truck
to his premises, as the code of conduct
required, is a thin argument.
The code of conduct in question was never signed by the plaintiff.
Therefore it was not a binding
agreement on which the defendant could
rely. If the plaintiff removed the truck from the defendant’s
premises it was the business
of FBC Fidelity Bank to take the
necessary steps to recover it from the plaintiff. The defendant had
no business to repossess the
truck from the plaintiff on behalf of
FBC Fidelity Bank. At any rate Vosloo did not claim to act in terms
of such a code of conduct.
I therefore find that the defendant
indeed despoiled the plaintiff of his truck. However, such a finding
is of no real consequence
since the plaintiff had abandoned it and
his application at the commencement of his proceedings to
re-introduce it was turned down.
It is now water under the bridge.
[75] The question is
whether it can be said that the defendant despoiled the plaintiff and
unlawfully deprived him of his lawful possession
of his property
other than the truck itself. In my view, the answer has to be in the
negative. The defendant prevented the plaintiff
from removing the
truck and the truck only. The plaintiff on his own chose to leave
his personal belongings in the truck. He was
at liberty to remove
his personal property from the truck and take it away from the
defendant’s premises. The defendant had no
interest in the
plaintiff’s personal property.
[76] The evidence shows
that the plaintiff himself locked his property inside the truck and
left it there. Moreover, he retained
the key of the truck. The
truck remained on the defendant’s premises until it was repossessed
by FBC Fidelity Bank about three
weeks later on 20 November 2001. I
did not hear the plaintiff during the course of his evidence to say
that during that period he
returned to the defendant’s premises,
attempted to remove his personal property but was prevented from
doing so by the defendant.
In the circumstances I find that the
defendant did not dispossess the plaintiff of his personal property.
I am therefore inclined
to turn this first claim down.
[77] As regards the
second claim, the version of the plaintiff and the version of the
defendant are mutually destructive. The second
relief sought is the
recovery of accrued loss of earnings allegedly owning by the
defendant to the plaintiff arising from a breach
of employment
agreement.
“
Eiser stel ‘n eis teen sy
voormalige werkgewer vir skade wat hy gely het uit hoofde van s
diensbeëindiging.”
This
was the principal submission made by Mr. Grewar on behalf of the
plaintiff. The whole foundation of the plaintiff’s case
was
therefore based on an alleged employment relationship. This is the
gist of the plaintiff’s claim.
[78] The alleged
employment relationship was denied by the plaintiff.
“
The contractor’s appointment was
expressly not the individual members of MT29CC, but confined to the
contractor or corporate entity,
as paragraph 1.2.1 read with
paragraph 8 makes it plain. Consistently with that proviso,
Polifin’s obligations to make payment
extended to the contractor
and not to the individual close corporation members themselves.”
So submitted Mr.
Kriegeler. This is the crux of the defendant’s defence.
[79] Writing on behalf of
the owner drivers in their personal capacities on the 4
th
May 2000 P.P. Miyan himself described the nature of the relationship
between Polifin Limited in the following unambiguous terms:
“
The above is only an interim
appointment and does not constitute any master and servant
relationship between any of the parties mentioned
herein.”
Vide p. 85 of the
documents bundle. This strongly militates against the plaintiff’s
contention that his entire claim was based
on employment agreement.
The particulars of precisely when and where the alleged
employer-employee relationship came into existence
after the 4
th
May 2001 are nowhere to be found upon examination of the plaintiff’s
evidence. Although the above quotation suggests that he regarded
himself as a an independent contractor, that is not the cause of his
action according to his summons.
[80] The defendant
heavily relied on numerous documents in support of its contention
that no employment agreement ever existed between
itself and the
plaintiff. Perhaps the most important of such documents is the
multilateral operation agreement which effectively
came into
operation on the 1
st
September 1997. Paragraph 5 thereof states:
¡°
It
is specifically recorded that nothing in this agreement, whether
express or implied, shall create or be deemed to create the
relationship
of master and servant, or employer and employee, between
Polifin and the contractor.”
The
word contractor is defined in paragraph 1.2.1 as the MT29CC and the
definition implicitly excludes the natural members of this
corporate
entity of which the plaintiff is one. I have to mention that the
document bears the signature of the plaintiff.
[81] I have previously
highlighted several unsatisfactory features contained in the
defendant’s documents. The domineering of the
close corporation
and their individual members by the defendant and its spoliation of
the plaintiff, however, all this negative
aspects should not blind
us to the salient principle of our civil law.
[82] It is trite that the
plaintiff bears the overall onus to prove, on a balance of
probabilities, that the defendant was his employer
as on 31 October
2000. The enquiry at the conclusion of the case remains whether the
plaintiff has on a balance of probabilities
discharged the onus of
establishing the foundation of his claim and that there was a factual
connection between the damages he has
suffered and the wrongful
breach of the alleged contract of employment which breach is
attributable to the defendant.
Vide
STACEY
v KENT
1995 (3) SA 344
(ECD) at 352 i per Kroon J.
[83] In an enquiry of
this nature the explanation given by the defendant will have to be
tested by considerations of probability and
credibility. I have
already pointed out that as regards the merits the versions put
forward by the plaintiff and the defendant are
virtually
irreconcilable. In such circumstances the approach which the court
should adopt has recently been stated as follows:
¡°
The
hard case, which will doubtless be the rare one, occurs when a
court's credibility findings compel it in one direction and its
evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the latter. But
when
all factors are equipoised probabilities prevail.”
STELLENBOSCH
FARMERS' WINERY GROUP LTD AND ANOTHER v MARTELL ET CIE AND OTHERS
2003 (1) SA 11
(SCA) at par. 5 per Nienaber JA who spoke for the
majority.
[84] In the instant case
the credibility of the plaintiff was seriously dented by serious
contradictions between his oral court testimony
and his previous
inconsistent affidavits as well as his previous correspondence.
Moreover, the general probabilities significantly
favour the
defendant’s version. It is highly improbable that so many
documents bearing the plaintiff’s signature and the signatures
of
many other people could have been contrived and produced without the
plaintiff’s knowledge and conscious collaboration. It
is highly
improbable that the plaintiff could have been so involved in the
owner-drivers scheme for almost a year before he became
aware of the
fraud perpetrated in his name. As regards the credibility
considerations the scale tilts in favour of the defendant.
Similarly
as regards the probability considerations the score is still in
favour of the defendant. The two criteria are not at
all equiposed.
Both move me in one direction. The direction in which I am convinced
to move is that, on a balance of probabilities,
there was no
relationship of employment between the parties.
[85] On the facts the
distinction between MT29CC and its members must be acknowledged.
Similarly a distinction between MT29CC plus
its members on the one
hand and Polifin Limited on the other hand must also be acknowledged.
There is a lot in the plaintiff’s
own version that gives credence
to the defendant’s version, notwithstanding its negative and
unsatisfactory aspects. Among others
he wrote as follows on the 4
th
May 2000:
“
The above is only an interim
appointment and does not constitute any master/servant relationship
between any of the parties mentioned
herein.”
See
p. 85 of the indexed document bundle.
Therefore in the absence
of any proven agreement of employment between the parties the
plaintiff could not have suffered any past
loss of earnings
recoverable from the defendant. It follows, therefore, that even
if the defendant was in breach, the plaintiff
had no legal basis on
which to sue the defendant. The premature cancellation of the
agreement was a contractual matter between the
defendant and MT29CC
of which the plaintiff was a member. He would not have derived from
such agreement any direct personal right
to sue the defendant. In
such a scenario he would not have had
locus
standi
to enforce it. Therefore I would dismiss the second claim.
[86] As regards the third
claim which relates to future loss of earnings the same views I
expressed and the same findings I made in
respect of the second
charge, are as valid here and now as they were then and there. They
apply equally well here. Therefore, I
would also dismiss this third
claim as well. In all these three claims I could find no causal
connection, contractual or delictual
between the plaintiff’s loss
and the defendant’s act.
[87] The Owner Drivers
Scheme was created with good intentions but it was horribly managed
and administered. The intended beneficiaries
were never trained and
developed to understand the intricacies of running their own
business. The distinction between their close
corporations and its
members appears to have being a strange legal concept which the
plaintiff and apparently his fellow owner-drivers
never really
understood. The defendant’s dominant involvement in the business
affairs of the close corporations created a great
deal of confusion,
suspicion and perception that the plaintiff and other owner-drivers
were treated like glorified employees. This
meddling by the
defendant precipitated this conflict. In the light of this, I am of
the view that the defendant, though successful,
is not entitled to
the fruit of its success. Therefore I would make no order as to
costs.
[88] Accordingly I make
the following order:
88.1 The plaintiff’s
three claims are dismissed.
88.2 There
is no order of costs.
______________
M.H. RAMPAI, J
On behalf of
plaintiff: Adv. D.M. Grewar
Instructed
by:
Cobus
le Roux Attorneys
BLOEMFONTEIN
On behalf of
defendant: Adv. M. Krigeler
Instructed
by:
Naudes
BLOEMFONTEIN
/em