IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J07/2024
In the matter between:
VANGILE MASISI Applicant
and
AFGRI POULTRY (PTY) LTD t/a DAYBREAK FARMS Respondent
Heard: 4 January 2024
Delivered: 5 January 2024
JUDGMENT
MAKHURA, J
[1] The applicant approached this Court on an urgent basis seeking an interim order
interdicting the respondent from continuing with the disciplinary process initiated
on 27 December 2023 and ordering the respondent to comply with the provisions
of its Disciplinary Policy. It is common cause between the parties that the
disciplinary policy is incorporated into the contract of employment.
[2] The facts relevant to the application for the above relief are not in dispute. Briefly,
the applicant was employed as the Chief Financial Officer of the respondent ,
effective from January 2022. On 6 October 2023, following discussions with
Richard Manzini, the respondent’s Chief Executive Officer, the applic ant
tendered her 3 months’ notice of resignation. Her resignation was to take effect
on Saturday, 6 January 2024.
[3] From 4 December 2023, the applicant was off duty due to ill -health. She returned
to work on 27 December 2023. On this day, she met the CEO. The CEO
presented her with a letter setting out seven allegations of misconduct. The letter
called upon the applicant to provide written representations in response to the se
allegations and to set out why she should not be found guilty and dismissed. The
written representations were to be submitted on 2 January 2024.
[4] Some of these allegations are formulated in broad terms and relate to conduct
prior the applicant’s employment .1 This prompted the applicant, through her
attorneys, to transmit a letter to the respondent on 30 December 2023. In this
letter, t he applicant denied the allegations and argu ed that the disciplinary
process embarked on by the respondent was unfair, unlawful and in breach of
her contract of employment. She questioned a process where she was required
to submit her representations to the CEO, who also acted as the initiator of the
disciplinary process against her. She further complained that she was not
provided with evidentiary material on which the allegations are based and that
she was deprived of the opportunity to challenge the evidence presented by the
respondent. She then sought clarity on whether an independent chairperson
would be appointed, whether she would be afforded an opportunity to cross
examine the witnesses and call her own witnesses or to be informed on how
disputes of facts would be resolved in the absence of cross examination. In
conclusion, the applicant requested extension to submit her written submission in
the event the respondent failed to respond timeously to her letter.
1 For example, the applicant was required to respond to the allegations that (1) she failed to adhere to
Daybreak’s procurement policy and acted in contravention thereof in the appointment of Blue Apple Tree
for the integrated brand marketing communications proposal plan, (2) between 7 June 2021 to 7
November 2022, she authorised, effected and/or approved payment and/or permitted payments or did not
prevent payment of invoices to Blue Apple Tree and (3) she failed to timeously effectively manage
creditors in relation to the working capital crisis, including by failing to engage them regarding modified
payment terms.
[5] On the same day, 30 December 2023, the respondent addressed a letter in
response to the applicant’s letter. The respondent, without addressing the issues
raised in the applicant’s letter, simply extended the time period from 2 to 4
January 2024 at 12h00 for the applicant to submit her written representations.
[6] On 2 January 2024, the applicant, through her newly appointed attorneys of
record, addressed a letter to the respondent demanding, inter alia that the
respondent abandons the disciplinary process initiated on 27 December 2023,
failing which she would approach this court on an urgent basis. The respondent
did not adhere to the demand.
[7] On 3 January 2024, the applicant filed this application and enrolled it for hearing
on 4 January 2024. She argued that the respondent breached her contract of
employment and sought an order that the respondent complie s with the
disciplinary policy. As already stated above, the disciplinary policy is incorporated
into the applicant’s contract of employment . In response, t he respondent served
a notice of intention to oppose the application on the same day, and later issued
a notice of summary dismissal to the applicant. The dismissal letter or notice is
signed by the CEO. It would appear that the CEO acted as the chairperson.2
[8] As a result, when the matter came before court on 4 January 2024, the applicant
no longer enjoyed the status of an employee of the respondent. T his is also
raised as one of the respondent’s grounds of opposition of the relief. Referring to
this intervening event of summary dismissal, the respondent argues that the
application is moot and academic and that the relief sought is incompetent
because the conduct sought to be interdicted has already occurred.
2 Clause 7.4.6 of the Disciplinary Code and Procedure provides that if an employee is found guilty of the
alleged misconduct, ‘the chairperson must decide on an appropriate sanction’. Clause 7.4.8 provides that
the ‘decision to dismiss should be taken with considerable care and the chairperson must be able to
justify his/her decision. The decision to dismiss is the decision of the chairperson alone .’ Clause 7.4.9
provides that the chairperson should advise the employee of his por her decision in writing. [Own
emphasis].
[9] The crisp question is therefore whether this application is academic and moot.
The applicant’s legal representative did not dispute that the relief sought in its
notice of motion is moot. Having considered the arguments, I agree that since the
disciplinary process sought to be interdicted has been concluded, there is no live
controversy. The matter is indeed moot and academic.
[10] However, the applicant argued that she has now sought, in her supplementary
affidavit, an order that ‘the dismissal notice be set aside ’. She therefore argued
that this court should set aside her dismissal. It is plain that the supplementary
affidavit introduced a new cause of action.
[11] No order was sought to declare the dismissal notice to be in contravention of the
contract of employment. In addition, the applicant did not file an amended notice
of motion, nor did she move for an amendment of the notice of motion during the
hearing of the matter. Therefore, the court had to determine the matter based on
the relief sought in the notice of motion. Even if I am to a ccept that the applicant
has properly introduced the new cause of action, she did not make out a case for
the setting aside of the dismissal notice. I deal with this below.
[12] In support of this new relief, the applicant stated the following in her
supplementary affidavit:
‘The respondent and specifically Mr Manzini have sought to usurp the
powers of this Honourable Court to enforce the Contract and its terms and
have acted contemptuously in doing so.
I respectfully submit that if parties are allowed to act as the respondent
has, while legally represented and whether acting on legal advice or not,
then the entire basis of our legal system would be irretrievably
undermined.
I further submit that the Court should jealously guard their right to exercise
oversight in matters such as these and not allow a delinquent employer to
act as the respondent seeks to.’
[13] The applicant sought to rely on Booysens v Minister of Safety and Security and
others (Booysens),3 and argued that this court has the power to exercise
oversight of disciplinary hearings. In Booysens, the Labour Appeal Court held
that this Court has jurisdiction to interdict unfair conduct by the employer,
including disciplinary action. However, so said the LAC, this should be limited to
exceptional circumstances.4 I do not understand the LAC to suggest that courts
have unfettered and inherent powers, even where no case has been made out,
to intervene in disciplinary hearings.
[14] The challenge facing the applicant is that in her case, the disciplinary process
was concluded – whether the process followed was in accordance with the terms
of the contract is a question that has been overtaken by the dismissal notice .
Therefore, the relief sought in the notice of motion is academic and moot. Her
introduction of the new cause of action in the supplementary affidavit is not
substantiated. She has not pleaded the applicable terms of contract, the breach
and/or legal basis for this court to set aside the dismissal notice. She has also
not pleaded exceptional circumstances. Even if she had pleaded exceptional
circumstances, the matter has since progressed beyond that stage and entered a
different terrain. Therefore, the application falls to be dismissed because it is
moot. The new case the applicant sought to introduce failed to take off and
equally falls to be dismissed.
[15] Regarding costs, t he applicant sought to convince this court that regardless of
the outcome of her application, she should be entitled to costs. The respondent
opposed this a rgument. It did not however seriously pursue costs. I am aware
3 (2011) 32 ILJ 112 (LAC).
4 Ibid para 54.
that this is a contractual dispute. I do not agree with the applicant’s submission
that this matter is brought partly in terms of the Labour Relations Act5. That this is
a contractual claim is clear from the relief sought in terms of the notice of motion.
[16] The respondent argued that the applicant should have, after receipt of the
dismissal notice, reflected and reconsidered her approach and should have
known that the application has become moot. Whilst it may be so that the
applicant perhaps should have considered withdrawing the application after she
was summarily dismissed , I do not believe that the application before me was
misguided.
[17] The respondent is not without fault in this matter. It waited for a period of two
months, discounting the period when the applicant was off duty, before charging
her and asking her to submit representations. Despite the allegations purportedly
emanating from a forensic investigation report, the respondent did not provide
this report to the applicant, nor did it provide a single evidentiary record to enable
her to meaningfully respond thereto. The respondent’s flippant approach to that
disciplinary process led to the applicant , with justifiable reasons in my view,
approaching this court. After approaching this court, the respondent, despite
granting the applicant extension to file written submissions at 12h00 on 4
January 2024, terminated that process and dismissed her.
[18] Having considered all the factors above, I am of the view that despite success,
the respondent should not be entitled to costs. Fairness dictates that no costs
order should be made.
[19] In the premises, the following order is made:
Order
1. The application is dismissed.
5 No. 66 of 1995, as amended.
2. There is no order as to costs.
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. M Lennox
Instructed by: Schindlers Attorneys
For the Respondent: Adv. R Itzkin
Instructed by: Webber Wentzel