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[2024] ZALCJHB 83
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Solidarity obo Members v Sahara African Aviation Operations (Pty) Ltd (JS720/21) [2024] ZALCJHB 83; (2024) 45 ILJ 1084 (LC); [2024] 6 BLLR 601 (LC) (22 February 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No: JS720/21
In
the matter between:
SOLIDARITY obo MEMBERS
Applicant
and
SAHARA
AFRICAN AVIATION OPERATIONS (PTY) LTD
Respondent
Heard:
7 to 11 August 2023 and 1 December 2023
Delivered:
22 February 2024
Summary:
Supervening impossibility – consequent to COVID-19 regulations
– not self-created or due to fault or foreseeable
–
employer absolved from contractual obligations – reciprocity of
employment contracts – lay-offs resulted in
‘no work - no
pay’.
Contractual
claim – any contention based on fairness requirements in terms
of the LRA is misplaced.
Shifren
principle -– electronic consent meets the requirement of
Shifren principle. Tacit agreement – unequivocal conduct,
the
parties gave rise to the inescapable inference that there was in fact
consensus ad idem
– since the enquiry is fact-specific,
there could be a period of time in the chain of events where the
conduct of the parties
does not evince an unequivocal assent to the
prevailing conditions so as to support an allegation that there was a
tacit agreement
or acquiescence.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
In 2020 and
2021, the dominant content of the news channels was the apprises on
the outbreak and spread of the coronavirus disease
2019 (COVID-19),
which wreaked havoc across the globe, causing death and disruption on
a scale that could not have been anticipated,
resulting in a global
pandemic. The global disaster that was brought about by the COVID-19
pandemic could be aptly summed up by
the famous aphorism attributed
to Lenin: “
there
are decades where nothing happens; and there are weeks where decades
happen
”.
[1]
There were momentous humanitarian, health and economic challenges
that emerged. The resultant impact of the COVID-19 pandemic offered
many unique challenges in the labour market globally. This litigation
epitomises the aftermath of some of those challenges.
[2]
The applicant (Solidarity) is acting on behalf of its members,
alleging that the respondent (Sahara) breached their contracts
of
employment by unilaterally reducing their salaries and placing them
on an indefinite lay-off during the period of mandatory
lockdown and
the period thereafter, consequent the COVID-19 pandemic. It seeks an
order directing Sahara to comply with its members’
contracts of
employment and make payment of what it claims are the outstanding
salary amounts owed.
[3]
Initially, there were ten of its members in this action.
However, seven of them have since pulled out. Persisting with
the
claim are Messrs Clinton Berry (Berry), Marcel Dieter Ortmann
(Ortmann) and John Abraham van der Merwe (van der Merwe) jointly
referred to as the applicant employees.
[4]
Mr Berry is still employed by Sahara. Mr Berry signed a new contract
of employment with Saraha on 25 September 2021. Similarly,
Mr van der
Merwe signed a new contract of employment with Sahara on 17 December
2021, the remuneration terms of which were implemented
from 1
September 2021. However, he resigned in February 2023. Up until 1
September 2021 when the new contracts of employment took
effect,
Sahara paid Messrs Berry and van der Merwe a reduced
(“
COVID-19-impacted
”) salary. Mr Ortmann resigned
on 8 June 2021. Up until the time of Mr Ortmann’s resignation,
Sahara, likewise, paid
him a COVID-19-impacted salary.
Factual
background
[5]
Sahara is a specialist aviation leasing company that leases aircraft
to airlines, non-governmental organisations and foreign
state
departments, particularly in Africa and the Middle East. Since its
contracts are based outside of South Africa, Sahara provides
a full
crew of pilots, flight attendants and engineers to its clients.
Ordinarily, a crew would spend a month or two on-tour in
another
country and a month off-tour back in South Africa.
[6]
Mr van der Merwe was employed by Sahara on a permanent basis since
June 2014. He held the position of a pilot captain
in terms of a
written contract of employment. At the beginning of 2020, as a senior
captain, he was earning a fixed monthly salary
in the amount of
$8 000.00, irrespective of whether he was on-tour or off-tour.
[7]
Mr Ortmann was employed in December 2017 on a permanent basis and
held the position of a pilot first officer, grade 11,
in terms of a
written contract of employment. At the beginning of 2020, as a first
officer, he was earning an on-tour salary of
$3 800.00 and an
off-tour salary of $2 000.00, calculated
pro rata
according to the number of days worked on-tour or off-tour in a given
month.
[8]
Mr Berry was employed on 3 October 2016 on a permanent basis; holding
the position of an aircraft maintenance engineer
per the written
contract of employment. At the beginning of 2020, as an aircraft
maintenance engineer, he was earning an on-tour
salary of R30 000.00
and an off-tour salary of R40 000.00, calculated
pro rata
according to the number of days worked on- or off-tour in a given
month. In addition, Sahara also paid Mr Berry $150.00 per day
as
subsistence whilst on-tour.
[9]
All the applicant employees’ contracts of employment contain
similar terms with the following pertinent clauses:
‘
This
contract shall be the entire agreement between the parties and no
alteration, variation and/[or] addition shall be of any force
and
effect unless it is placed in writing and signed by both parties.
The
Company reserves the right to review the contract through a process
of consultation as may be required. The Company further
reserves the
right to implement workplace policies and procedures which are to be
recognised by the Employee.’
[2]
[10]
In March 2020, the spread of COVID-19 took the global stage and most
countries began to close their borders and suspend
international and
domestic flights. South Africa was not spared. On 15 March 2020, the
COVID-19 pandemic was declared a national
disaster and a compendium
of extraordinary measures to combat this grave public health
emergency were unveiled.
[11]
On 23 March
2020, a nationwide lockdown for 21 days was declared in terms of the
Disaster Management Act
[3]
(National Disaster Act) which was effective from midnight on 26 March
2020. During the hard or level 5 lockdown, all South Africans
were
required to stay at home and businesses shut down, except for the
categories of businesses and employees who were regarded
as necessary
and essential in the response to COVID-19. The national borders and
points of entry, including airports, were closed
and international
and domestic flights were suspended. Only emergency international
travelling was allowed per the National Disaster
Act and related
regulations.
[12]
While the government was enjoined to take drastic measures in
response to the global health catastrophe, it was alive
to the
consequent economic downturn and its adverse effect on business and
job security. In response, the government introduced
economic
measures and interventions. These included a special dispensation for
companies that were in distress because of COVID-19
that allowed
employers to claim, on behalf of their laid-off employees, salary
payment through the Unemployment Insurance Fund’s
(UIF)
Temporary Employer-Employee Relief Scheme (TERS) to avoid
retrenchments. The Minister of Employment and Labour issued various
COVID-19 TERS directives which set out the requirements to access the
COVID-19 TERS benefits.
[13]
On 9 April 2020, the announcement was made that, per the advice of
the National Coronavirus Command Council, the national
lockdown would
be extended for a further two weeks and the lockdown measures would
remain in force until the end of April 2020.
Given the reality that
hard lockdown could not be sustained indefinitely, given its adverse
effect on the economy and labour market,
the lockdown restrictions
were eased gradually and in a phased manner. On 1 May 2020, the
country was placed on level 4 alert,
which allowed some businesses to
resume operations under specific conditions, including that they
would not be able to return to
full production and the workforce
would only be able to return in limited batches. On 1 June 2020, the
country moved to level 3
alert and the restrictions were
significantly relaxed.
[14]
It is within this context that the impugned decision by Sahara to
reduce the applicant employees’ salaries and/or
place them on
an unpaid lay-off is interrogated.
[15]
It is common cause that on 20 March 2020, Sahara sent a communication
to the crew, in which it was stated that the crew
would receive their
full salary for March 2020, however from the next pay cycle starting
on 26 March 2020, on-tour salaries would
be reduced by 30% and
off-tour salaries would be reduced by 20%.
[16]
On 23 March 2020, some employees received telephone calls from
Sahara, indicating that employees would be placed on temporary
lay-off. That was followed by a communication to that effect to the
affected employees, indicating that the lay-offs would take
place as
of 26 March 2020 and would be for an indefinite period, until further
notice.
[17]
On 24 March
2020, Sahara sent out Air Maestro
[4]
notifications to its engineers and crew, respectively. The engineers
were notified that on-tour salaries would be reduced by 25%
for
senior engineers and 24% for the other engineers, with effect from
the end of the March 2020 salary pay-run. The crew was notified
that
a 30% reduction for on-tour salaries, and a 20% reduction for
off-tour salaries would take effect from the end of March 2020
and
not from April as was previously communicated. The crew was further
notified that the off-tour salaries would be reduced to
50%, down
from 80%, for the payment period of 26 March 2020 to 26 April 2020.
[18]
On 26 April
2020, an Air Maestro notification was sent to all employees, stating
that all the employees who had not been temporarily
laid-off would
only receive 50% of their salaries whilst on-tour and 50% of the
normal subsistence allowance whilst on contract,
for April 2020.
[5]
Sahara registered the laid-off employees for the COVID-19 TERS
benefits. Subsequently, they never received any salaries from
Sahara.
[19]
On 22 October 2020, a grievance was submitted to Sahara on behalf of
the pilots in relation to the changes in their terms
and conditions
of employment. On 11 February 2021, Solidarity intervened and sent a
letter to Sahara on behalf of its members regarding
the changes in
their salaries and the indefinite period of the lay-off without
consultation and in contravention of their contracts
of employment.
On 9 August 2021, Solidarity instituted the present action.
Issues
to be decided
[20]
The issues to be decided are outlined in the pre-trail minute as
follows:
‘
5.1 Whether
the Respondent breached the members’ employment contracts.
5.2 Whether the
Respondent must comply with the employment contracts and make payment
of outstanding salaries.
5.3 …
5.4 In addition
the Respondent contends that the Court is required to determine:
5.4.1 Whether
the Respondent’s payment obligations in terms of the
Applicant’s members’ contracts
of employment became
impossible, alternatively partially impossible to fulfil, before
performance has been made and, if so, whether
the Respondent is
excused from liability for the period of impossibility; and
5.4.2 Whether the
Applicant’s members agreed to an amendment to their terms and
conditions of employment.’
[6]
[21]
Sahara’s defences are that:
21.1 Total
performance by the applicant employees and Sahara in terms of the
employment contracts became temporarily impossible,
alternatively
partially impossible;
21.2 Mr van der
Merwe and Mr Ortmann expressly, alternatively tacitly, agreed to
changes to their terms and conditions of
employment; and
21.3 Mr Berry
tacitly agreed to the changes to his terms and conditions of
employment.
Supervening
impossibility of performance
[22]
Ms Lisa Constable (Ms Constable), the only witness called by Sahara,
testified that she holds the position of a Responsible
Person
Operating (RPO). Sahara’s services comprise aircraft, crew,
maintenance and insurance leasing. Sahara employs pilots,
engineers,
administrative staff, hangar staff, four managers and there are two
executives. In March 2020, they had a 87-person
staff complement and
by June 2021, there were 56 employees as 31 people had resigned.
Currently, there are 80 employees.
[23]
Sahara’s aircraft fly outside of South Africa. Before the
COVID-19 pandemic (pre-COVID) they were flying in Gabon,
Iraq,
Mozambique, Sudan and the Comoros. Consequent to COVID-19, four
contracts ended. Currently, they are flying in Iraq, Mozambique,
Zimbabwe, Haiti/Dominican Republic and the DRC. During the contract
with the client, the aircraft stays at the base of operations,
which
is outside of South Africa.
[24]
Sahara has a hangar at Kruger Mpumalanga International Airport
(Kruger). The scheduled maintenance of 500 hours of A&C
checks
(heavy maintenance) usually takes place at Kruger. Currently, this
maintenance is being performed at the bases in Iraq and
Haiti/Dominican Republic. Line maintenance consists of pre and
post-flight snag and defect rectification. It is scheduled weekly
or
every 75 hours and is performed by engineers on the base daily.
[25]
It is not contested that COVID-19 made global news as early as
January 2020. Ms Constable testified that Sahara started
to see
dramatic changes around mid-March 2020 when it received a travel
advisory published by the Department of International Relations
&
Cooperation (DIRCO) referring to the closure of borders. Sahara
accordingly notified its crew. There was a dramatic
drop in flights
as clients were cancelling flights because no one was buying tickets.
Even though they were not sure what was happening
at that time, they
anticipated a severe impact.
[26]
On 20 March 2020, an Air Maestro notification was sent to Sahara’s
pilots, crew and engineers regarding a cut in
their salaries from the
upcoming payroll. On 24 March 2020, Sahara was in talks with its
clients about
force majeure
and the cancellation of contracts
was threatened with immediate effect as they were seeing similar
restrictions on international
and local travel in their own
countries.
[27]
On 24 March 2020, further notice to staff was posted to say that the
salary cuts would be implemented retrospectively.
Therefore, from 26
February 2020 in the case of the flight crew and 1 March 2020 in the
case of the engineers. The off-tour salaries
were cut to 50% for the
next payment period.
[28]
On 1 April 2020, all non-essential staff were temporarily laid off,
including crew and engineers who were off-contract
in South Africa.
From 26 April 2020, on-tour salaries were cut to 50%. Only the
cleaners at Sahara did not have their salaries
cut. Also, there was a
young couple who worked for Sahara, the husband was a junior engineer
on a fairly low salary and the wife
was an admin clerk, earning about
R12 000.00 per month. Sahara decided to pay the wife her full salary
when the husband was off-tour
around mid-June 2020 because he was
laid off and not earning a salary.
[29]
According to Ms Constable, Sahara’s operations were negatively
impacted by the COVID-19 pandemic as the countries
where it operates
implemented movement and air service restrictions. The applicant
employees readily conceded during cross-examination
that South Africa
promulgated the various regulations in terms of the National Disaster
Act, pertinently the national lockdown
that shut down the country and
prohibited movement of people, save for the essential and permitted
services with effect from 26
March 2020.
[30]
Consequently, the Minister of Transport issued related directives,
prohibiting all domestic and international flights.
On 31 March 2020,
evacuation flights commenced, subject to the Minister of Transport’s
special authorisation. Yet, commercial
international flights were
still prohibited. It was only in August 2020 that limited commercial
international flights were allowed,
subject to the Minister of
Transport’s authorisation. The flight ban on international
flights was only lifted on 1 October
2020 in South Africa.
[31]
Ms Constable was adamant that Sahara’s clients stopped paying
it and there was a danger of the contracts being
cancelled from one
day to the next. The clients had stopped paying Sahara because they
were not generating any income. On the mining
contract, there were
discussions regarding
force majeure
. The scheduled airlines in
Sudan, Comoros and Mozambique had to stop selling tickets because
there were no flights. Most of the
flights in those countries were
wound down. In Gabon, it was the commencement of the contract. In
starting a contract there was
typically a massive cash outlay for the
client. There was a need to start operating as quickly as possible
and obtain approvals
for the two aircraft. However, the whole
operation was disrupted by the COVID-19 pandemic. This evidence was
not contested.
[32]
Ms Constable conceded during cross-examination that the decision to
reduce salaries and lay-off employees was not preceded
by a formal
consultation with the affected employees. However, she was clear that
the drastic changes were dictated by circumstances
which were
unprecedented and uncertain. Nonetheless, the employees were kept in
the loop and allowed to raise their concerns which
they did not, up
until October 2020.
[33]
Solidarity disputes that there were travel restrictions in Gabon,
Sudan, Mozambique, the Comoros and Iraq where Sahara
operates. That
is so despite the evidence of Ms Constable and documentary evidence
that these countries, like all other countries
globally, implemented
COVID-19 restrictions on the movement of people and international
flights. Moreover, the applicant employees
readily conceded during
cross-examination that the operations of Sahara were impacted by the
travel restrictions, particularly
in countries where they were posted
while on-tour between March 2020 and September 2020.
[34]
It is common cause that during that period, Sahara could not perform
a crew swap and, as a result, Messrs van der Merwe
and Berry were
stuck in Gabon and Iran, respectively. Mr Ortmann could not be
rostered on-tour as he was off-tour during the hard
lockdown and ban
on international flights in South Africa. Indeed, as contended by
Solidarity, Ms Constable conceded that Sahara’s
operations did
not completely cease notwithstanding the lockdown regulations in
respective countries where the respondent operated
for the period
between March 2020 to September 2020. She was however steadfast that
the work was seriously reduced, a fact conceded
by both Messrs Mr van
der Merwe and Berry. Ms Constable’s evidence on the travel and
movement restrictions in other countries
can summarised as follows:
34.1
In
Mozambique, from March 2020 there were government-imposed
restrictions in terms of the various Presidential Decrees which
declared,
inter
alia
, a
state of emergency, suspension of the issuance of entry visas, the
cancellation of visas already issued and the partial closure
of
national borders. Travel across the border was permitted only for
“
matters
of State interest
”,
humanitarian support, health and cargo transportation.
[7]
34.2
In Comoros,
on 30 March 2020, the President announced the closure of the borders
of that country in the face of the COVID-19 pandemic.
[8]
34.3
In Gabon,
on 11 May 2020, the Government lifted the state of emergency which
was enforced since April 2020. However, the following,
inter
alia
,
continued: a curfew; a ban on both national and international
passenger flights; and a ban on interprovincial commuters.
[9]
On 30 June 2020, most of the lockdown measures were lifted which
resulted in the restoration of interprovincial commuting and limited
movement of international flights, the easing of the night curfew
hours and the re-opening of hotels and restaurants.
[10]
34.4
In Iraq,
incoming and outgoing flights were suspended between 17 March 2020
and 24 March 2020, a curfew was declared and strict
movement
restrictions were implemented. These were extended on several
instances up until 10 August 2020. On 23 July 2020, international
airports in Baghdad were opened for commercial flights.
[11]
34.5
In Sudan,
on 31 March 2020, there were movement restrictions implemented,
including a curfew and a lockdown up until 7 July 2020.
As of 23 July
2020, Khartoum International Airport was partially opened for
international flights which included scheduled cargo
flights;
humanitarian aid and technical and humanitarian support flights and
flights of companies operating in the oil fields.
[12]
[35]
Mr van der Merwe testified that he was on-tour in Gabon in March 2020
when COVID-19 struck. Gabon was placed on a lockdown
and consequently
was stuck on-tour in Gabon for five months. He conceded that he could
not dispute the accuracy of the reports
on the travel ban in all the
countries where Sahara had its operations. He could also not dispute
the accuracy of the Sahara’s
evidence that, whilst in Gabon, he
flew not more than 11 hours from 26 March 2020 up to and including 30
June 2020 as opposed to
the required 80 hours per month. The 11 hours
were made of the flights that took place in June 2020 which means
there were no flights
in April 2020 and May 2020. In June 2020, he
flew less than 14% of the hours he would otherwise have flown under
normal circumstances.
Yet, he was remunerated 50% of his on-tour
salary, each month, up until his return to South Africa.
[36]
Equally, Mr
Berry testified
[13]
that, in
March 2020, he was in Sudan when COVID-19 struck and the world went
on lockdown. He was stuck in Sudan until August 2020
as travel
between countries was prohibited. After two months, only local
flights were permitted and the situation changed between
August or
September 2020. He could not dispute the correctness of the
information presented by Sahara detailing the extent of the
mobility
restrictions in Sudan. In fact, he admitted that Sahara could not get
him out of Sudan earlier, even when his mother passed
away. While he
was expected to work five to six days per week in terms of per the
contract with the client, he was constrained
to concede that he
worked reduced hours between 26 March 2020 to 31 July 2020. He could
not dispute Sahara’s record showing
that he worked a total of
40/41 days in 4 months.
[37]
Mr Ortmann testified that he finished a four-week tour in Mozambique
on 26 March 2020. Towards the end of the month,
he received the first
notice of salary cuts with no prior consultation process, nor was
there an attempt to engage with him. His
salary was “docked”
for work done whilst he was in Mozambique. On 2 April 2020, he was
served a notice to place him
on a temporary layoff for an indefinite
period without pay.
[38]
He was next rostered on-tour from 30 June 2020 in Mozambique for a
crew swop to relieve the crew that stuck in Mozambique
since the end
of March 2020. He crossed through the land border on 30 June 2020 and
flew to Maputo on 1 July 2020. Normally he
would have flown
commercially to Maputo; however, due to ban on international flights,
he could not fly from South Africa to Mozambique.
[39]
His tour in Mozambique came to an end on 7 August 2020. He thereafter
ferried an aircraft back to the Comoros on 21 September
2020. He was
on-tour in Comoros until the end of November 2020. He conceded during
cross-examination that he was aware that he
would be earning a
COVID-19-impacted salary whilst on-tour. He received a subsistence
allowance from Sahara’s clients.
[40]
It is not disputed that Sahara had received permission from DIRCO to
successfully conduct the crew swaps between June
2020 and September
2020 because international flights were still prohibited.
[41]
The essence of Sahara’s first defence is that the COVID-19
pandemic and the consequent restriction of movement
of people and the
ban on international flights in South Africa and in all of the
countries it operated in 2020 rendered it impossible
or partially
impossible for it to honour its employees’ contracts of
employment.
[42]
It is well
accepted that, as a general rule, the impossibility of performance
brought about by
force
majeure
or
casus
fortuitus
will excuse the performance of a contract.
[14]
As observed by the Supreme Court of Appeal (SCA) in
Transnet
Ltd t/a National Ports Authority v Owner of MV Snow Crystal
[15]
,
“…
[t]he
rule will not avail a defendant if the impossibility is self-created;
nor will it avail the defendant if the impossibility
is due to his or
her fault
”.
[16]
The enquiry is fact-specific and entails delving into the nature of
the contract, the relationship between the parties, the context
of
the case and the nature of the impossibility invoked by the
defendant, in order to decide whether a case has been made to justify
the application of the rule.
[17]
[43]
The test is
objective or absolute and not relative. Impossibility must be and it
must be applicable to everyone and not personal
to the defendant.
Moreover, to be successful, the defendant must show that the change
of circumstances which resulted in the impossibility
was neither
foreseeable nor foreseen.
[18]
In
Frajenron
(Pty) Ltd v Metcash Trading Limited and others
[19]
,
Vally J aptly expounded the thesis behind this doctrine as follows:
‘
The
reasoning underlying the doctrine is that
the need or demand for
justice requires that the law excuses non-performance because not to
do so would effectively be punishing
a party that wants to, but
cannot, perform its obligations through no fault or neglect of its
own, and in conditions whereupon,
by exercising reasonable and
prudent care
ab initio
it could never
have foreseen that circumstances preventing it from performing would
come to prevail. It is a valuable rule.
It demonstrates that the law
is alive to the fact that not every future fact, circumstance or
eventuality is foreseeable even by
the most prudent and cautious of
persons (the officious bystander).
Importantly though, the future
fact, circumstance or eventuality must not result from the default or
neglect of the party failing
to perform as per the terms of the
contract. After all, the law is unquestionable that no person should
be allowed to benefit from
his own wrongful act or omission.’
[Own emphasis]
[44]
In the present instance, the defence of supervening impossibility
relates to the period between 26 March 2020 and 30
September 2020, at
least. Sahara disavowed reliance on financial inability to pay full
salaries for the period between 23 March
2020 and 30 September 2020.
It concedes, though, that it was under financial pressure. The main
thrust of Sahara’s defence
is that it was legally impermissible
and consequently impossible for the employees to render services in
terms of their contract
of employment. The impossibility was not
created by the COVID-19 pandemic, but rather by the restrictions
placed on the movement
of people and the ban on international flights
in South Africa and all the other countries where it operated.
[45]
As mentioned above, Mr Ortmann, who was off-tour, accepted that he
could not exit South Africa to be rostered on-tour
due to the ban on
international flights. While Messrs van der Merwe and Berry, who were
on-tour, equally accepted that their movement
was affected and could
not be relieved due to the international travel ban in Gabon and
Sudan. They also conceded that the workload
was reduced significantly
due to COVID-19 restrictions up until Sahara was able to perform a
crew swap in June 2020 and August
2020, respectively.
[46]
Granted, the applicant employees may have been ready and willing to
work per their contracts of employment, like all
the employees in
South Africa and elsewhere globally, their tender could not be
effected due to the COVID-19 stringent regulations
that restricted
the movement of people and air travel, both local and international.
[47]
It is not Solidarity’s case that there were other commercial
aviation companies that were allowed to fly to and
out of South
Africa, save for those permitted by the Minister of Transport to
attend to evacuation or deliver essential cargo.
Equally, there were
country-specific COVID-19 regulations in Mozambique, Comoros, Iran,
Sudan and Gabon that were promulgated,
inter alia
, curfews,
and temporary bans on international flights. Consequently, the tender
and performance of their duties in the respective
countries by
employees on-tour were significantly curtailed. Thus, in my view, the
impossibility was not peculiar to Sahara.
[48]
The COVID-19 pandemic could not have been anticipated by Sahara or
other employers globally. Likewise, the responses
by the respective
countries in closing the borders, limiting movement and enforcing
travel bans on international flights from 26
March 2020 to 30
September 2020 were unforeseeable. At that stage, operations that
were not essential were debarred per the relevant
regulations and
resulted in performance in terms of the applicant employees’
contracts of employment being rendered impossible
by operation of
law.
[49]
In
Glencarol
(Pty) Ltd v National Bargaining Council for the Clothing
Manufacturing Industry (Northern Chamber) and another
[20]
(
Glencarol
),
referred to by Sahara, Van Niekerk J, as he then was, confronted with
a case of supervening impossibility in the context of employment
contracts, made the following observations:
‘
[11]
In his contribution to
Liber Amicorum Manfred Weiss
(eds.
Olivier, Smit and Kalula, Juta 2021) entitled ‘Termination of
employment due to supervening impossibility of performance’
Prof (now Judge) Avinash Govindjee reflects on the challenges
presented by the Covid pandemic to employment relationships. He notes
that ‘[t]he declaration of a national state of disaster and
promulgation of regulations to address the coronavirus pandemic
initially resulted in performance in terms of the vast majority of
employment contracts being “impossible” to some
extent’,
and that ‘the situation was probably best understood as a form
of temporary (subjective) impossibility of
performance based on the
temporary incapacity of certain employees to attend work safely to
fulfil their contractual obligations
while the Covid – 19
situation persisted’ (at 291). He submits that it is at least
arguable that for the period of
incapability, employers were not
obliged to pay wages or, put another way, since the affected
employees could not tender their
services lawfully, the employer’s
obligation to pay wages was effectively suspended. Judge Govindjee
makes reference to
Macsteel Service Centres (Pty) Ltd v National
Union of Metalworkers of SA and Others
[2020] ZALCJHB 129 at para
82, where this court said the following:
‘
The
reality in law is that the employees who rendered no service, albeit
to no-fault of their own or due to circumstances outside
of their
employer’s control, like the global Covid-19 pandemic and
national state of disaster, are not entitled to remuneration
and the
Applicant could have implemented the principle of ‘no work no
pay’
.’
The
principle may be different where the employer may have been permitted
to trade in some form during the national lockdown, but
elected not
to do so on account of anticipation that trading would not be
profitable (see
Matshazi v Mezepoli Melrose Arch (Pty) Ltd &
another
[2020] ZAGPJHC 136). That was not the case in the present
instance.
…
[15]
…
The employees’ contracts of employment were thus
suspended for the period of the hard lockdown. That relieved the
applicant,
for that period, of any obligation to remunerate any
employee, or to implement any terms and conditions of employment that
were
dependent on physical presence in the workplace
. It follows
that clause 4 of the collective agreement, as well as clause 14, both
of which establish levels of remuneration and
other conditions of
employment and incorporated as they are into the relevant contracts
of employment, were suspended. The applicant
cannot therefore be said
to have breached the collective agreement by refusing to bring into
account the period of absence occasioned
by the lockdown into the
calculation of bonus payments or accrued annual leave.’ [Own
emphasis]
[50]
The impossibility and/or partial impossibility could not be
attributed to any of Sahara’s actions. By the same
token, as
stated in
Glencarol,
the employer’s obligation to pay
wages was effectively suspended consequent to COVID-19 restrictions
between 26 March 2020
and 30 September 2020, at most, in terms of
relevant regulations. To the extent that contracts of employment
involve reciprocity,
the applicant employees’ readiness or
willingness to render their service does not assist their case
because they could not
make good on their tender during the COVID-19
lockdown. Sahara could, therefore, not be faulted for the decision to
lay-off the
affected employees and implement a ‘no work - no
pay’ principle.
[51]
Solidarity
takes issue with the fact that Sahara’s operations did not shut
down completely. True, but that only relates to
Messrs van der Merwe
and Berry. They both conceded that due to the partial impossibility
in Sudan and Gabon, they worked significantly
reduced hours and were
paid 50% of their salaries. The notion of partial impossibility is
succinctly explained in
Christie’s
Law of Contract in South Africa
[21]
,
relied
on by Sahara, as follows:
‘
The
effect of partial impossibility depends on whether an obligation that
is divisible from the rest of the contract has become
altogether
impossible of performance or whether an obligation forming an
indivisible part of the contract has become impossible
of full
performance. In the former case the divisible contract must be
divided, the impossible part being discharged and the rest
remaining
in operation; in the latter case the creditor may have the option of
cancelling the contract or accepting the reduced
performance in
exchange for a reduced counter-performance.’
[22]
[52]
Messrs van der Merve and Berry did not challenge the reduction of
their salaries through internal procedures for the
intervening
period. Instead, they both rendered limited services, to the extent
permitted in terms of the regulatory framework
in Gabon and Sudan,
respectively. Sahara could not have allocated more work as the
restrictions were legally imposed and consequently
made performance
in terms of the contacts of employment partially impossible. The same
applies to Mr Ortmann who had agreed to
be rostered on-tour in
Mozambique to attend to a crew swap. It is not disputed that, in June
2020, the travel bans were still operative
in that country which made
it partially impossible to render his services.
Hearsay
evidence and section 210 of the LRA
[53]
I deem it
appropriate to quickly dispose of Solidity’s contention that
Sahara’s evidence in relation to COVID-19 regulations
in
Mozambique, Comoros, Iran, Sudan and Gabon is hearsay and should be
rejected. This, in my view, is a late attack that is mooted
in
Solidarity’s heads of argument, instead of being properly
traversed during trial, a conduct that was discouraged by the
LAC in
Exxaro
Coal (Pty) Ltd and another v Chipana and others
[23]
.
Nonetheless, as mentioned above, the evidence in question was readily
conceded by the applicant employees during cross-examination.
Thus,
this impugn is untenable and stands to be rejected.
[54]
Moreover,
there is no merit in Solidarity’s alternative argument that
section 210 of the Labour Relations Act
[24]
(LRA) finds application in this matter.
[25]
The applicant employees’ claim, as I understand, is contractual
in terms of the common law. This Court is duly exercising
its
concurrent jurisdiction with the civil court in terms of section
77(3) of the Basic Conditions of Employment Act
[26]
(BCEA). It, therefore, stands to reason that, by contending that
Sahara’s conduct in unilaterally amending the applicant
employees’ contracts of employment offended its obligation to
act in a procedurally and substantively fair matter in terms
of the
LRA, Solidarity clearly conflates the legal principles applicable.
[55]
Solidarity’s
reliance on the dictum
in
Staff Association for the Motor and Related Industries (SAMRI) v
Toyota
of
SA
Motors (Pty) Ltd
[27]
is an
obvious misdirection. In that matter, the employees who
were alleging a unilateral change to their terms and conditions
of
employment had availed themselves to the provisions of section 64(4)
and (5) of the LRA
[28]
.
Revelas J aptly observed that:
‘
What
is relevant in this matter before me, is that the applicant has
declared a dispute which has not yet been resolved and which
is
pending at the CCMA. Section 64(4) precluded the employer from
continuing with the conduct complained of, which the employees
have
referred to the CCMA. The employees are therefore entitled, if this
conduct amounts to a variation of the terms and conditions
of their
employment, to request the employer to refrain from doing so or to
restore the situation in terms of this section. If
this request is
not adhered to, the employees are entitled to approach the Labour
Court to compel the employer to adhere to the
request.’
[29]
[56]
In essence,
the court’s intervention was limited to granting an interim
order that reinstated the status
quo
ante
pending the outcome of the CCMA conciliation. In the event that the
dispute remained unresolved after conciliation, the employees
would
have been free to embark on a strike
[30]
;
alternatively, to pursue a contractual claim. It follows Solidarity’s
reliance on LRA is misplaced.
Shifren
principle/Tacit agreement/ acquiesce
[57]
The next enquiry pertains to Sahara’s defence that the
applicant employees tacitly agreed to the changes to their
terms and
conditions of employment. Alternately, that they acquiesced.
Solidarity, on the other hand, argued that Sahara is bound
by the
Shifren principle.
[58]
It is common cause that as from 1 October 2020, the restrictions on
movement and air travel were slowly uplifted. In
South Africa,
international flights were permitted for the first time. Still,
Sahara did not adjust salaries to reinstate the pre-COVID-19
salaries. As a result, on 22 October 2020, the pilots lodged a
collective grievance about the persistent salary reduction and
lay-offs that were implemented without consultation with affected
employees.
[59]
On 9 November 2020, Sahara conducted a survey on the Air Maestro
system to establish which pilots were willing to be
rostered to fly
on-tour on the COVID-19-impacted salary and/or be rostered on-tour to
Iran, Blad Air Base. Messrs Ortmann and van
der Merwe gave an
affirmative answer to the first question, indicating a willingness to
be rostered on a COVID-19-impacted salary.
Mr Ortmann was not
agreeable to being rostered to Iran.
[60]
Mr Ortmann testified that he agreed to be rostered on a
COVID-19-impacted salary because of financial reasons after he
had
been laid off for about four months. Had he refused, he would have
been laid-off. Thus, he had no option but to agree. Similarly,
Mr van
der Merwe, testified that he had no option but to accept being
rostered on a COVID-19-impacted salary rather than risk being
laid
off and not earn a salary at all. Thus, absent a consultation, the
survey was nothing but an ultimatum.
[61]
Sahara disputes that it pressured the pilots to agree to
COVID-19-impacted salaries. Ms Constable testified that the
survey
was for the purposes of planning the roster since it was understood
from the grievance that there were people who were not
willing to
work for 50% of their salaries. So, they were trying to plan
accordingly. She denied that it was an ultimatum. Instead,
it was a
choice whether the pilots were willing to work on a reduced salary or
wait and hope that things would change.
[62]
Mr Berry was not part of the survey since he is an engineer. He was
adamant that he did not agree to a COVID-19-impacted
salary hence he
joined Solidarity which then represented him in all the discussions.
Sahara, on the other hand, contends that Mr
Berry’s conduct in
accepting to be rostered on-tour on a COVID-19-impacted salary
constitutes a tacit agreement to the changes
to his terms and
conditions of employment. The same is contended in respect of Messrs
Ortmann and van der Merwe, that for the period
between 1 October 2020
and 9 November 2020, that the tacitly agreed to the COVID-19-Impacted
salary.
[63]
On 11 February 2021, Solidarity addressed a letter of complaint to
Sahara on behalf of the members who were pilots. It
is clear from the
letter that reduction of salaries and extended layoffs were the main
issues as they were effected without consultation
and allegedly
breached the provisions of their members’ employment contracts.
Following a virtual meeting between Solidarity
and Sahara on 1 March
2021, Solidarity consulted with its members and gave feedback to
Sahara on 16 March 2021. The following concerns
were communicated:
63.1 While members
were prepared to accept a draconian reduction in their salaries and
lay-offs cooperatively due to the
COVID-19 pandemic, they never
anticipated them to be permanent as they had been in place for 11
months at that time.
63.2 On 24 March
2020, the members’ salaries were unilaterally and
retrospectively reduced by 30% despite their entitlement
to full
salaries because of the services rendered.
63.3 The placing
of members on lay-off was not acceptable, even though the members had
accepted the position cooperatively,
Sahra failed to adjust their
position despite the fact that it was a material breach of the
employment contracts.
[64]
Solidary proposed the following measures to correct the breach of the
employment contracts of its members:
64.1 Sahara pays
its members the shortfall of the March 2020 salaries by the end of
March 2021.
64.2 Sahara pays
its members a full salary while on-tour with effect from March 2021.
64.3 Sahara
terminates the temporary lay-offs with immediate effect and
implements no less than 50% of members’ contractual
salaries
while off-tour.
64.4 Sahara
sources economical training opportunities for their members.
[65]
On 18 March 2021, Sahara responded as follows:
‘
We
continue to suffer significant financial impact to our business and
to date we have not secured any new contracts. Our situation
remains
as it was on 1 March 2021.
Those
employees who have indicated that they are willing to work on a
reduced salary will continue be rostered to work per our operational
requirements. Those employees who are not on duty will continue to be
laid off.
We
reiterate that all employees continue to be free to seek alternative
employment whether freelance or permanent.
We
will review the situation on month-to-month basis and provide
feedback where relevant and in the event the circumstances change.
We
cannot predict how long these measures will remain in force.’
[31]
[66]
It is clear from Sahara’s response that it was alive to the
fact that, as from 1 October 2020, its conduct was
not covered by the
COVID-19 regulations. In fact, it was no longer the travel
restrictions that informed its decision to persist
with salary cuts
and lay-offs therefrom. In the words of Ms Constable, it was due to
financial reasons and to avoid retrenchments.
The upshot of this
assertion is that Sahara concedes that it failed to comply with its
contractual obligations due to operational
requirements.
Shifren
principle
[67]
Solidarity
contends that the employment contracts at issue are subject to a
non-variable clause and that, without a written agreement
to amend
the terms therein and signed by the parties, any changes effected
unilaterally constitute a breach of contract. Based
on the principles
outlined in
SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren en andere
[32]
,
the standard non-variation clause is referred to as “
the
Shifren clause
”.
Solidarity contends that the applicant employees’ contracts of
employment could not be amended unilaterally by Sahara
on the basis
of the Shifren principle.
[68]
The
following cautionary remarks by the SCA per Cachalia JA, in
Spring
Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and another
[33]
,
referred
to with approval in
Schloemann v Goldstone Resources Ltd
[34]
,
holds true:
‘…
that
when parties impose restrictions on their own power to vary or cancel
a contract… they do so to achieve certainty and
avoid later
disputes. The obligation to reduce the cancellation agreement to
writing and have it signed was aimed at preventing
disputes regarding
the terms of the cancellation and the identity of the parties
authorised to effect it. Our courts have confirmed
the efficacy of
such clauses.’
[35]
[69]
Yet,
despite the Shifren principle, the SCA accepted, with reference to
the provisions of the Electronic Communications and Transactions
Act
[36]
(ECTA), the
cancellation of the agreement by way of electronic signatures,
stating that:
‘
The
approach of the courts to signatures has therefore been pragmatic,
not formalistic. They look to whether the method of the signature
used fulfils the function of a signature – to authenticate the
identity of the signatory – rather than insist on the
form of
the signature used.’
[37]
[70]
There is no reason why a pragmatic not a formalistic approach to
signature should not be adopted in the present instance,
especially
since electronic communication is now a primary medium of
communication in the wake of the COVID-19 pandemic.
[71]
Sahara is
adamant that Messrs Ortmann and van der Merwe consented in writing
when they participated in the 9 November 2020 survey.
This evidence
was not seriously contested. As mentioned above, Messrs Ortmann and
van der Merwe testified that they accepted the
reduced salary in
order to avoid being laid off. In my view, they made a conscious
election to continue to be rostered and earn
a reduced salary. To the
extent that their election was communicated in writing, I agree with
Sahara that it must be accepted that
it met the requirements of the
Shifren principle.
[38]
[72]
In any
event, in my view, the application of the Shifren principle in the
context of employment contracts is open to question. I
say so
because, generally, an inflation-related salary increase is effected
without a written amendment to the contract of employment.
That is,
in essence, what transpired in the present instance. The applicant
employees conceded that all the salary adjustments
prior to 2020 were
effected without amending their contracts of employment in writing.
To my mind, to insist on rigid construction
of the Shifren clauses as
contended by Solidarity is unbusinesslike and would definitely lead
to absurdity.
[39]
Tacit
agreement or acquiesce
[73]
A
tacit
agreement
is
defined as an implied contract or a contract by conduct or
a
contract implied from the facts and circumstances.
[40]
In order to establish a tacit agreement, it is necessary to allege
and prove unequivocal conduct which is capable of no other reasonable
interpretation and that the parties intended to and did in fact
contract on the terms alleged.
[41]
The test is succinctly explicated in
Standard
Bank of South Africa Ltd and another v Ocean Commodities Inc and
others
[42]
as follows:
‘
In
order to establish a tacit contract it is necessary to show, by a
preponderance of probabilities, unequivocal conduct which is
capable
of no other reasonable interpretation than that the parties intended
to, and did in fact, contract on the terms alleged.
It must be proved
that there was in fact
consensus ad idem
.’
[74]
Otherwise
stated, since a party that invokes a tacit agreement bears the onus,
that party is enjoined to produce evidence of the
conduct of the
parties which justified a reasonable inference that the parties
intended to, and did, contract on the terms alleged,
in other words,
that there was, in fact,
consensus
ad idem
.
[43]
[75]
In the present instance, Sahara asserts that Messrs Ortmann, van der
Merwe and Berry acted in such a way as to lead a
reasonable person to
the conclusion that they temporarily agreed to the reduction in their
salaries. All the work they performed
from April 2020, when they were
able to perform, was undertaken knowing that they would receive
COVID-19-impacted salaries. When
given instructions by the employer
or their managers they responded positively. For example, in WhatsApp
conversations, Mr Ortmann
and Mr Berry replied by sending “
thumbs
up
” messages. Also evidenced from the screenshots of
WhatsApp conversations, they followed up on being rostered. Mr Berry,
in
fact, participated in organising who should be rostered. This
evidence was not disputed.
[76]
The applicant employees readily conceded that, when the changes were
introduced in March 2020, they were positive and
did not complain,
although they were unhappy with the salary reduction. They accepted
that the drastic measures were necessary
in the wake of the COVID-19
pandemic. According to Messrs Ortmann and van der Merwe, the reason
they lodged the grievance in October
2020 was because Sahara was not
reverting to pre-COVID-19 salaries.
[77]
Notwithstanding lodging the grievance, in November 2020, Messrs
Ortmann and van der Merwe went ahead and consented to
being rostered
on COVID-19-impacted salaries. They were rostered accordingly and
never challenged the turn of events up until Solidarity’s
intervention on their behalf on 11 February 2021. Notably, in
Solidarity’s letter of 16 March 2021, it was conceded that
the
applicant employees “
had accepted the position
cooperatively
”, that is, the changes in their terms and
conditions of employment.
[78]
In fact, as correctly contended by Sahara, Solidarity accepted that
there was an agreement on the COVID-19-impacted salary,
hence it
directed its efforts on the period from March 2021, save for the
salary deductions in March 2020. The applicant employees
were
constrained to concede that Solidarity acknowledged, on their behalf,
that they had agreed to the temporary changes. As a
result, it
proposed a return to the pre-COVID-19 salaries with effect from March
2021.
[79]
Mr Ortmann resigned on 8 June 2021, alleging that he could not live
on the reduced salary as he ran out of savings. He
conceded during
cross-examination that he had agreed to the reduced salary. While, Mr
Berry’s conduct clearly evinced an
assent to the changed terms
and conditions of employment. Throughout 2020, he continued to avail
himself to be rostered on-tour
on a COVID-19-impacted salary.
[80]
In my view,
the evidence and the probabilities considerably favour Sahara’s
version that after the introduction of COVID-19-impacted
salaries and
lay-offs in March 2020 and, particularly, from October 2020 to March
2021, the applicant employees conducted themselves
in a manner that
gave rise to the inescapable inference that there was, in fact,
consensus
ad idem
to the temporary implementation of COVID-19-impacted salaries and
lay-offs. The fact that the applicant employees were unhappy
with the
turn of events is inconsequential because, in determining whether a
tacit contract was concluded, a court has regard to
the external
manifestations and not the subjective workings of minds.
[44]
[81]
The converse is true when it comes to the period commencing from
March 2021 until September 2021, consequent to the intervention
of
Solidarity. It is clear from Solidarity’s letter that the
applicant employees were no longer prepared to assent to the
changes
and proposed a reinstatement of the pre-COVID salaries with effect
from the end of March 2021.
[82]
While it is true that the claim before this Court is purely
contractual, it is important to interrogate the context that
prevailed at the time. When the COVID-19 pandemic first hit,
employers had no choice but to urgently make difficult decisions to
shut down operations completely or partially and lay-off some or all
employees. Government intervention through TERS COVID-19 benefits
was
introduced to alleviate the financial impact of COVID-19 on employees
who had suffered a loss of income due to temporary lay-offs.
It was
expected that employers would benefit from the relief that was
extended and to re-call the employees to work when time allowed,
without terminating their employment. Nonetheless, TERS COVID-19
regulations did not absolve employers from their contractual
obligations in terms of the common law.
[83]
It is common cause that Solidarity subsequently referred a dispute to
the CCMA, challenging the unilateral change to
terms and conditions
of employment of their members. As a result, Sahara commenced a
retrenchment process which resulted in the
retrenchment of the
surplus crew. The applicant employee survived the retrenchment.
[84]
Sahara’s efforts to avoid retrenchment by implementing salary
cuts and lay-offs were obviously unsuccessful. Consequent
to the
retrenchment of the surplus crew, it is not inconceivable that
Solidarity and the applicant employees expected that the
status
quo ante
would be reinstated because the extra burden had been
discharged.
[85]
Based on
the evidence for the period commencing in March 2021 until September
2021 (in relation to Messrs Berry and van der Merwe;
and March 2021
to June 2021, Mr Ortmann’s date of resignation), I am persuaded
that the probabilities do not support Sahara’s
version that the
applicant employees tacitly agreed to the protraction of the
unilateral changes to their terms and conditions
of employment. Also,
since there is no incontrovertible evidence that the applicant
employees accepted the turn of events by acting
in a manner that
evinced an intention to waive their rights to avail themselves to
contractual recourse, Sahara’s defence
of acquiesce is
untenable.
[45]
[86]
Lastly, there is no evidence before this Court to justify the
decision by Sahara to unilaterally dock the applicant employees’
salaries for the services they had duly rendered before 26 March 2020
when COVID-19 regulations took effect.
Conclusion
[87] In all the
circumstances, Solidarity failed to make a case to sustain the relief
sought on behalf of the applicant employees,
only in relation to the
period between 26 March 2020 to February 2021. Accordingly, its claim
in this regard stands to be dismissed.
Even so, Solidarity’s
claim in relation to the docking of the applicant employees’
salaries for the period before 26
March 2020 and the reduction of
salaries for the period between 1 March 2021 to 31 August 2021 must
succeed. In essence, Sahara
should pay the pre-COVID-19 salaries per
the applicant employees’ contracts of employment for the period
26 March 2020 and
the period between 1 March 2021 to 31 August 2021.
To the extent that the applicant employees did receive the COVID-19
impacted
salaries and TERS benefits, where applicable, Sahara should
accordingly pay the shortfall in salaries due to the applicant
employees
for the relevant periods.
Costs
[88]
Given the fact that both parties are partially successful, it follows
that each party should pay its own costs.
[89]
In the circumstances, I make the following order:
Order
1. Solidarity’s
claim in relation to the period between 26 March 2020 to February
2021 is dismissed.
2. Solidarity’s
claim in relation to the docking of the applicant employees’
salaries for the period before 26
March 2020 and the reduction of
salaries for the period between 1 March 2021 to 31 August 2021 is
upheld.
3. Sahara shall pay
the shortfall in salaries due to the applicant employees for the
periods mentioned in paragraph 2 above
within 20 days of this order.
4. There is no
order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate C Dames
Instructed
by:
Serfontein, Viljoen & Swart Attorneys
For
the Third Respondent:
Advocate JD Withaar
Instructed
by:
Richard Spoor Inc
[1]
See:
K
D Ewing
,
Lord
Hendy
, “
Covid-19
and the Failure of Labour Law: Part 1”
QC
Industrial
Law Journal
2020 49 (4) at pp 497–538.
[2]
See: applicant employees’ respective contracts of employment,
respondent’s
bundle pp 8, pp 22 and pp 170.
[3]
Act 57 of 2002.
[4]
Air Maestro is the software system that is used by Sahara for a
variety of functions such as flight logs, safety alerts,
communicating
with staff, etc.
[5]
See: Pre-trial minute, pleadings bundle pp 53 para 3.10;
Respondent’s
document bundle pp 195.
[6]
See:
Pre-trial minute,
pleadings
bundle, pp 68 para 5.
[7]
See
respondent’s
document bundle pp 275, 303-305.
[8]
See
respondent’s
document bundle p 275.
[9]
See
respondent’s
document bundle p 291.
[10]
See
respondent’s
document bundle p 296.
[11]
See
respondent’s
document bundle pp 287-288.
[12]
See
respondent’s document bundle p 340.
[13]
Mr Berry testified
virtually
over Microsoft Teams per the agreement between the parties as he was
on-tour abroad. Even though his connection was
not the best, he was
able testify and be cross-examined to the extent practicable.
[14]
Herman
v Shapiro & Co
1926
TPD 367
at 373;
Transnet
Ltd t/a National Ports Authority v Owner of MV Snow Crystal
[2008] ZASCA 27
;
2008 (4) SA 111
(SCA) (
Transnet
)
at para 28.
[15]
Transnet
supra.
[16]
Id; see
also
King Sebata Dalinyebo Municipality v Landmark Mthatha
(Pty)
Ltd
[2013]
ZASCA 91
;
[2013] 3 All SA 251
(SCA) at para 28;
South
African Forestry Co Ltd v York Timbers Ltd
[2004] ZASCA 72
;
2005 (3) SA 323
at para 23;
Unibank
Savings and Loans (formerly Community Bank v Absa Bank
2000 (4) SA 191
(W) at subpara 9.2;
Frajenron
(Pty) Ltd v Metcash Trading Limited and others
[2019] ZAGPJHC 428;
2020 (3) SA 210
(GJ) (
Frajenron)
at
para 13.
[17]
Id.
[18]
Frajenron
supra
at
para 14.
[19]
Id.
[20]
[2022] ZALCJHB 353; (2023) 44 ILJ 563 (LC) (
Glencarol
)
at paras 11 and 15.
[21]
R H Christie, G B Bradfield, ‘
Christie’s
Law of Contract in South Africa
’,
7
th
ed
LexisNexis, at p 550 .
[22]
Id; see
Joubert
v Bester
1977 (4) SA 560
(T) at 568B;
Cave
t/a The Entertainers and The Record Box v Santam Insurance Co Ltd
1984 (3) SA 735
(W) at 747B–H;
Bob’s
Shoe Centre v Heneways Freight Services
(Pty)
Ltd
[1994] ZASCA 158
;
1995 (2) SA 421
(A) at 428F–431C.
[23]
[2019] ZALAC 52
; (2019) 40 ILJ 2485 (LAC) at paras 23 - 24.
[24]
Act 66 of 1995, as amended.
[25]
Section 210 of the LRA provides:
‘
If
any conflict, relating to the matters dealt with in this Act, arises
between this Act and the provisions of any other law save
the
Constitution or any Act expressly amending this Act, the provisions
of this Act will prevail.’
[26]
Act 75 of 1997, as amended
[27]
1997 (18) ILJ 374 (LC).
[28]
Section 64(4) and (5) provides:
‘
(4)
Any employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions or employment
to a council
or the Commission in terms of subsection (1) (a) may, in the
referral, and for the period referred to in subsection
(1)(a) —
(a)
require the employer not to implement unilaterally the change to
terms and conditions of employment; or
(b)
if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions
of
employment that applied before the change.
(5)
The employer must comply with a requirement in terms of subsection
(4) within 48 hours of service of the referral on the employer.’
[29]
Id
at para 378E-G.
[30]
See:
Macsteel
Service Centres SA (Pty) Ltd v National Union of Metalworkers of SA
and others
[2020] ZALCJHB 129; (2020) 41 ILJ 2670 (LC), where the court refused
to interdict a strike consequent to the employer’s
unilateral
action to reduce salaries during the COVID-19 lockdown period.
[31]
See:
Applicants ‘reduced bundle, p88.
[32]
1964 (4) SA 760.
[33]
2015
(2) SA 118
(SCA) (
Spring
Forest Trading
).
[34]
[2018] ZALCCT 40; [2019] JOL 42240 (LC)
[35]
Id at para 75 - 77;
Spring
Forest Trading supra
at
para 13.
[36]
Act 25 of 2002.
Section
12 of the ECTA provides:
‘
A
requirement in law that a document or information must be in writing
is met if the document or Information is –
(a)
in the form of a data message; and
(b)
accessible in a manner usable for subsequent reference.’
Section
1 of the ECTA defines a data message as “
data generated,
sent, received or stored by electronic means
”.
Section
13(1) of the ECTA provides:
‘
Where
the signature of a person is required by law and such law does not
specify the type of signature, that requirement in relation
to a
data message is met only if an advanced electronic signature is
used.’
[37]
Spring
Forest Trading
at
para 26.
[38]
See:
Sihlali v SA Broadcasting Corporation Ltd
[2010]
ZALC 1
; (2010) 31 ILJ 1477 (LC).
[39]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) at para 18.
[40]
See;
Christie’s
Law
of Contract
5ed
at pp 81 - 90; and D Hutchison, C Pretorius, et al, ‘
The
Law of Contract in South Africa
’
at pp 240 - 241.
[41]
See:
Triomf
Kunsmis (Edms) Bpk v AE & CI Bpk en andere
1984 (2) SA 261
(A) at 267;
Butters
v Mncora
2012 (4) SA 1
(SCA) at para 18;
Festus
v Worcester Municipality
1945
CPD 186 (C).
[42]
1983 1 SA 276
(A) at 292B.
[43]
See:
Gordon
Lloyd Page & Associates v Rivera
2001 1 SA 88
(SCA) 95J-96A.
[44]
Golden
Fried Chicken (Pty) Ltd v Sirad Fast Foods CC and others
2002
(1) SA 822
(SCA) at 825D - F.
[45]
See:
BMW
(SA) (Pty) Ltd v National Union of Metalworkers of SA and another
(2019) 40 ILJ 305 (LAC) at para 41;
Legal
Aid SA v Theunissen
(2020) 41 ILJ 625 (LAC);
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector
Including Organs of State and Others
[2021] ZACC 28
;
2021 (11) BCLR 1263
(CC) at paras 101 and 102.