University of Cape Town v Heyde (CA11/00) [2001] ZALAC 5 (4 January 2001)

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[2001] ZALAC 5
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University of Cape Town v Auf der Heyde (CA11/00) [2001] ZALAC 5; [2001] 12 BLLR 1316 (LAC); (2001) 22 ILJ 2647 (LAC) (28 September 2001)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case No. CA 11/00
UNIVERSITY OF CAPE TOWN
Appellant
and
THOMAS AUF DER HEYDE
Respondent
JUDGMENT
DU PLESSIS AJA
In
1995 the appellant appointed the respondent as a senior lecturer for
a period of three years. When the contract expired in 1998,
the
appellant did not renew it. The respondent alleges that the
appellant thereby dismissed him. He also alleges that the dismissal
was unfair. In the alternative the respondent alleges that the
appellant’s actions pertinent to the renewal of the contract
constituted an unfair labour practice. The respondent instituted
action in the Labour Court for orders aimed at declaring that
he was
unfairly dismissed, that the appellant’s actions constituted an
unfair labour practice, at his reinstatement and, as an
alternative
to the latter, at the payment by the appellant of compensation.
The
Labour Court held that the respondent had been dismissed and that
the dismissal was only procedurally unfair. It ordered
the
appellant to pay to the respondent compensation equivalent to 12
months’ remuneration.
The
appellant now appeals against the finding that the respondent had
been dismissed. The respondent, supporting the finding
that he had
been dismissed, cross-appeals against the finding that the
dismissal was only procedurally unfair. The respondent
still
maintains that the dismissal was substantively unfair and that the
appellant’s actions constituted an unfair labour practice.
The
appellant’s “Equal Opportunity Employment Policy” (the
Policy) is central to the issues. The Policy is generally aimed
at
appointing to its staff, in context, the best persons available.
The Policy also identifies a need to develop the careers
of black
persons and women in order to enlarge the traditional pool of
available candidates. In terms of the Policy the appellant
commits
itself to affirmative action in the sense of doing everything in
its power to help prepare black persons and women to
become equal
competitors for every post. While not stated in so many words, the
Policy is also aimed at seeking a more balanced
staff component
consisting of the best available white and black women and men.
Mr
DF Molteno, the appellant’s Equal Opportunity Officer, testified
that the appellant has an equal opportunity fund. There
are
essentially two categories of equal opportunity posts. The first
is that of contract development posts. Persons who have
potential
but are not yet developed are appointed in such posts, generally
for a period of three years. During the first year
these persons’
salaries are paid out of the equal opportunity fund. The further
years are paid out of the budget of the relevant
faculty. Mr
Molteno explained that those charged with the implementation of the
Policy try to ensure that the faculties do not
abuse these posts by
using the individual for the contract period, having the advantage
of payment from the fund, and by then
simply not renewing the
relevant contract. The appellant wants faculties to make every
effort to ensure that such persons are
appointed, if possible, for
further periods or permanently. Strategic appointments comprise
the second category. This applies
to fully qualified persons for
whom there are at a specific point in time no posts available.
Such a person may then be appointed
against a future vacancy. The
latter procedure is also followed where the candidate is not an
affirmative action candidate,
but one whose services the appellant
considers in context to be important to it. I now turn to the
facts.
In
the course of 1994 a senior lectureship in the appellant’s
department of chemistry became vacant. Due to financial
constraints,
such a vacancy was not filled automatically. However,
in the course of 1994 the chemistry department had succeeded in
obtaining
from SASOL Ltd the promise of funds which would pay, over
a five year period, part of the salary for a senior lecturer. The

department received the necessary approval to fill the vacant post
for three years. After that, the situation was to be reviewed.
At
the time Ms Lahusen-Thompson was the appellant’s staffing
committee officer. She testified that the post was “released”
only for three years because financial requirements, and many other
factors, could change in the three year period. As it turned
out,
the funds from SASOL were not paid over to the appellant.
In
November 1994 the post was advertised in the following terms:
“This is a contract post, initially for three years, with a
possible extension to five years”.
The respondent submitted what he termed an “application for
temporary senior lectureship”. Dr K Naidoo, a black person, also
applied.
The
selection committee sat on 8 February 1995. Both Naidoo and the
respondent were rated “appointable”. The committee resolved
to
interview the respondent for possible appointment as a senior
lecturer and Naidoo for possible appointment as a lecturer.
After
the interviews, the committee resolved to appeal to Prof Martin,
the deputy vice chancellor responsible for the implementation
of
the Policy, for “an additional supernumerary post in terms” of
the Policy. The committee resolved that, if such a post
were
approved for Dr Naidoo, they would recommend the appointment of the
respondent to the post as advertised. It further resolved
that,
should a post in terms of the Policy not be approved for Dr Naidoo,
they would meet again “in order to decide whether
to offer the
advertised post to Auf der Heyde or to Naidoo”. The desired
approval for a supernumerary post was not obtained.
The committee
resolved to offer the respondent “a three year contract
appointment”. It further recommended that a further
post that
was to become vacant, that of a Dr Marais, be advertised. They
resolved not to appoint Dr Naidoo to that post in terms
of the
Policy. This recommendation was later reviewed, and on 26 April
1995 the committee resolved to offer to Dr Naidoo a three
year
contract post against the one to be vacated by Marais. This was a
contract development post in terms of the Policy.
Two
days earlier, on 24 April 1995, the appellant had offered to the
respondent “a three year contract appointment”. It was
pointed
out to the respondent that he was to become a member of the
Temporary Employees’ Pension Fund. It was also pointed
out to
him that the appointment “is for the period specified and does
not carry any commitment to a permanent appointment ...”.
In
September 1995 another post in the chemistry department was
advertised. One of the applicants was Dr K Chibale, a black person
but not a South African. Interviews were held and certain
candidates were asked to present seminars, including Dr Chibale.
On 8 February 1996 the selection committee recommended that a Dr
Egan be appointed to the post. The committee also recommended
that
every effort be made to offer an additional post to Dr Chibale.
Following the committee’s recommendation, the head of
the
chemistry department wrote to the dean of the science faculty
seeking his support for a request that Dr Chibale be appointed
on a
three year contract on the understanding that the appointment would
be against the first appropriate post to be vacated
in the
department. The letter identifies the post as that of one Dr
Torrington who was to retire on 31 December 1996. Dr Chibale
was
appointed in October 1996 on a three year contract. For the first
three months his salary was, as a bridging measure, paid
out of the
equal opportunity fund. The appellant’s witnesses who testified
about Dr Chibale’s appointment were unanimous
in their view that
his was not truly an affirmative action appointment. The fact that
he is a black person played a role to
the extent that he was
regarded as a positive role model for black students, but the
witnesses were equally unanimous in their
view that Dr Chibale is
an outstanding academic.
The
narrative now moves on to the middle of 1997. The respondent, who
by then had been in the appellant’s employ for more than
two of
the three year contract period, learnt that a Dr Campbell was to
vacate his post in the chemistry department. On 18 June
1997 he
(respondent) wrote to Prof Moss, then the head of chemistry, and
enquired about the “status of the post” to be vacated.
Moss
replied that the post had been unfrozen and was to be advertised
soon. The post, that of lecturer, was advertised on 21
July 1997.
The respondent, Naidoo and Chibale, and also other candidates
applied.
On
4 August 1997, before he applied for the post, the respondent wrote
to the dean of science. The exact purpose of the letter
is
unclear. However, having made reference to certain relatively long
term projects in which he was involved, the respondent
wrote that
Prof Moss had suggested that “I continue pursuing funds for the
M-projects I envisdaged - notwithstanding the university’s
view
of contract posts. I must say I also believe I should continue,
since the alternative is to sit back, do nothing and wait
until the
contract ends. This would do my soul little good”. The dean
advised the respondent to discuss the matter of contract
appointments with Prof Moss as he (respondent) needed “to be
appraised of developments so that (he could) ... plan accordingly”.
The respondent testified that he spoke to Moss who told him that
the appellant could not commit itself either way: to renew
or not
to renew the respondent’s contract.
In
the meantime Dr Chibale had also made enquiries about his future
with the appellant. He implied that he would seek other

employment, should his position at the university not be made more
secure. Prof Moss, who regarded Chibale as an asset to the
appellant, requested the dean, Prof Moran, to set up a selection
committee to consider the appointment of Dr Chibale without
an
advertisement. Prof Moran agreed as did Prof Martin. It must be
pointed out that the witnesses were agreed that filling
posts
without advertisement was a procedure used in exceptional
circumstances and after strong motivation. On 23 September 1997
a
selection committee met to consider the appointment of Dr Chibale
without advertisement. During the discussions, it was pointed
out
to the committee that there were three persons in contract posts
who were desirous of being appointed permanently: Chibale,
Naidoo
and the respondent. Persuaded by an argument that the process was
flawed, the committee did not make the appointment but
resolved to
“motivate to advertise the post”.
The
motivation did not carry the day. Two days later, on 25 September
1997, the acting dean of sciences (Prof Thomson), Prof
Martin, Prof
Moss and Molteno, the Equal Opportunity Officer, met. The four of
them decided that both Drs Chibale and Naidoo
should be appointed
without advertisement. Prof Moss explained in evidence that this
decision was taken after discussion with
the members of the
selection committee, and that they were persuaded of the need to
follow such a course. He testified that
particularly Prof Aschman,
one of the selection committee members, was strongly opposed to
appointments without advertisement.
Strong motivation was
necessary to persuade him otherwise. A request by the chemistry
department to fill the respondent’s
post permanently was to be
discussed at the following meeting of the dean’s advisory
committee.
On
29 October 1997 the selection committee met. Drs Chibale and
Naidoo were interviewed. As regards Dr Chibale, the committee
was
very positive. They unanimously resolved that he be offered a
permanent appointment. The committee’s evaluation of Dr
Naidoo
was not so positive. The committee resolved to offer him a two
year extension of his contract, and that he could at any
time
during that period submit a motivation for a permanent appointment.
On 2 and 6 November Dr Naidoo wrote letters to Prof
Moran and to
Prof Martin. In the letters he complained about the fact that he
had been offered an extension of his contract
and not a permanent
post.
The
selection committee met again on 10 November 1997 to discuss the
candidates for the advertised post (Dr Campbell’s post).
I have
pointed out that Drs Chibale, Naidoo and the respondent had
applied. As it had by then been decided to offer to Dr Chibale
a
permanent post, his application was not considered. The
committee’s evaluation of the respondent was not positive. It

was resolved not to appoint or even interview him. As for Dr
Naidoo, the committee members were not unanimous in their
evaluation
of him: Some felt that his research output was
insufficient. Others felt that he had potential. The committee
resolved not
to invite him for an interview as he had been
interviewed recently. The post was ultimately offered to another
candidate, but
it must be taken into account that, as will appear
later, Dr Naidoo had by then been appointed permanently.
On
17 November 1997 the respondent wrote to Prof Martin. He referred
to earlier communications when he had been informed that
the
appellant was not willing to commit itself to converting his post
or extending his contract. “Since then”, he wrote,
“two
further contract positions in this department - those of Drs
Chibale and Naidoo - have been reviewed with the result that
one
has been made permanent, the other extended by two years. ... From
the above it would therefore appear that the circumstances
surrounding contract appointments in this department had changed
since I initially made my inquiry, and that the university is
now
in a position to reach a decision on whether to make such
appointments permanent or not”. In the letter the respondent
proceeds to request that his “contract be reviewed in the same
way as those of Drs Chibale and Naidoo were”. Prof Martin
advised the respondent to discuss the matter with the dean. He,
somewhat obliquely, explained that Chibale and Naidoo were

appointed in terms of the Policy. The respondent took the matter
up with Prof Moran. Moran’s reply was unequivocal: Due to
financial constraints the respondent’s contract could not be
renewed. In cross-examination prof Moran said that, after the
appointment of Chibale and Naidoo, there were no funds for further
appointments.
In
the meantime Dr Naidoo had appealed against the decision not to
appoint him permanently. The appeal was heard on 17 December
1997
by a selection committee under the chairmanship of Prof Martin.
Naidoo was offered a permanent appointment.
The
first issue to be decided is whether the respondent had been
dismissed. Section 186(b) of the Labour Relations Act, 66 of
1995
(the Act) provides
“‘Dismissal’ means that -
...
an employee reasonably expected the employer to renew a fixed term
contract of employment on the same or similar terms but
the
employer offered to renew it on less favourable terms, or did not
renew it.”
For
the respondent, Mr Janisch submitted that the respondent reasonably
expected the appellant to renew his fixed term contract
either by
extending it to five years or by appointing him permanently. In
Dierks v University of South Africa [1999] 20 ILJ 1277 (LC)
it was held that an expectation of renewal in terms of section
186(b) does not include an expectation to be appointed permanently.
In
McInnes v Technicon Natal [2000] 21 ILJ 1138 (LC)
it was
held that section 186(b) covers a reasonable expectation of a
permanent appointment (1143B to F). It is not for present
purposes necessary to resolve this difference of opinion. I shall
assume, without finding, that a reasonable expectation of
a
permanent appointment falls within the ambit of section 186(b).
In
order to determine whether the respondent had a reasonable
expectation, it is first necessary to determine whether he in fact
expected his contract to be renewed or converted into a permanent
appointment. If he did have such an expectation, the next
question
is whether, taking into account all the facts, the expectation was
reasonable.
The
respondent testified that, when he saw the advertisement, he
understood it to mean that, if his application was successful,
his
position would be secure for three years with a “very good
chance” that the contract would be extended to five years.
He
rationalised this understanding as follows: He knew that funding
was a problem. The appellant would therefore not have expressed
the possibility of an extension to five years if it did not already
have the funds for such an extension. That meant, he further
rationalised, that an extension was dependent on his own
performance. He performed well, and therefore he expected the
contract
to be renewed. The respondent’s assertion that a
“possible extension” to him meant “a very good chance” does
not bear
any scrutiny. The words of the advertisement were clear,
and there is no basis to read them as the respondent says he did.

That is clear from the respondent’s own terminology that the post
is a temporary one. In any event, the facts belie the respondent’s
rationalisation. Ms Lahusen-Thompson’s evidence, which was not
contradicted, shows that funding for five years was in itself
not
more than a possibility. As it turned out, the SASOL grant did not
eventuate.
Mr
Janisch submitted that, in view of the appellant’s flexible
staffing policy, it (appellant) did not send out a strong enough
message that the contract would not be extended or converted into a
permanent appointment. The appellant unequivocally stated
in the
letter of appointment that the appointment “does not carry any
commitment to permanent appointment”. It is difficult
to think
of a stronger message. To counter this letter, Mr Janisch argued
that the words implicitly convey a commitment to extend
the
contract to five years. The letter must be read in the context of
the advertisement. I have dealt with the wording of the
advertisement. The “possibility” was dependent on many
factors, and the respondent knew it.
The
respondent set up a Science Advice Unit. This was a relatively
long term project with the object of creating an interface
between
the university’s resources and historically marginalised
communities. Some of the appellant’s senior personnel encouraged
this work. Mr Janisch submitted that this is a further indication
that the respondent had the expectation and that it was reasonable.
The mere fact that the respondent embarked on a project which
could extend beyond the three years is evidence of no more than
that he did his work. The encouragement in itself indicates no
more than that the relevant people also thought so. Had the
evidence been that the project had at all costs to continue beyond
the three years and that only the respondent , and nobody
else, was
able to continue it, the submission may have carried more weight.
Those are not the facts.
The
respondent testified that on two occasions Prof Bull, at the time
head of chemistry, said that there was no difference between
contract appointees and permanent staff. That, the respondent
testified, contributed to what he alleges was his reasonable

expectation. In his evidence the respondent was vague as to
exactly when and how this was said. He reconstructed that it was
said during departmental staff meetings. In his evidence, Prof
Bull denied having said what was alleged. At best, he said,
the
respondent misunderstood him. I shall proceed on the assumption
that words to the effect testified to by the respondent
were said
during departmental staff meetings. The respondent clearly could
not reasonably have understood the words to mean
that, in terms of
permanency, there was no difference. To the respondent’s
knowledge, Prof Bull had no authority to extend
fixed term
contracts. The respondent could therefore not have understood the
words to imply a promise of permanent employment.
In any event,
the more probable and reasonable interpretation of such words would
have been that, in terms of what was expected
of them and of how
they are treated while in the appellant’s employ, no distinction
is made between the two categories.
In
summary, the facts show that, from the outset, the appellant made
it clear that the contract was for three years, and that
extension
to five was only a possibility. In no manner did the appellant
hold out even the possibility of a permanent appointment.
When, in
the middle of 1997, the respondent, as he put it, “gently
prodded” the authorities by inquiring about Campbell’s
post,
the reaction made it clear that he could expect nothing other than
to be considered for the post if he applied for it.
The terms of
the respondent’s inquiries during September 1997 leave little
doubt that he had no expectation. The reply unequivocally
informed
him that his contract would not be renewed.
It
was not the respondent’s case, and it was not argued, that the
treatment of Drs Chibale and Naidoo created a reasonable

expectation on his part.
I
am not convinced that the respondent has proved that he had an
expectation that his contract would be renewed. It is unnecessary
to decide this question because, even if he had such an
expectation, it was, for the reasons set out above, not a
reasonable
expectation. In my view, the respondent did not
reasonably expect the appellant to renew his fixed term contract.
It follows
that the respondent was not dismissed. Therefore, the
question of unfair dismissal does not arise.
That
brings me to the respondent’s reliance on an alleged unfair
labour practice. At the relevant time item 2(1)(a) of Schedule
7
to the Act defined, relevant to the present case, an unfair labour
practice as “any unfair act or omission that arises between
an
employer and an employee, involving ... the unfair discrimination,
either directly or indirectly, against an employee on arbitrary
ground, including, but not limited to, race, gender, sex, ethnic or
social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, political opinion, culture, language,
marital status or family responsibility”.
Mr
Janisch submitted that the following act on the part of the
appellant constituted unfair discrimination based on race: “The
granting to Chibale and Naidoo of access to a process that would
eventually (and inevitably) lead to their appointment to permanent
positions, while the respondent’s position was relegated to be
considered in accordance with the ordinary staffing policy,
a
process which was destined to be unsuccessful at least for
financial reasons”.
In
essence the appellant’s defence to the contention that the
appointments constituted racial discriminations is to contend
that
they were affirmative action appointments made pursuant to the
Policy for which appointments the respondent did not qualify.
Mr
Janisch did not argue that, by allowing for affirmative action
appointments, the Policy was unfair. His argument was first,
that
Dr Chibale is not a South African citizen. As such he cannot in
law benefit from affirmative action. In the second place
he argued
that, if the Policy allows for a non-South African to benefit from
affirmative action, then the Policy is, to that
extent, unfair. In
the third place Mr Janisch argued that the Policy, in its own
terms, does not allow for permanent affirmative
action appointments
to be made in terms thereof.
I
shall assume that, for the reasons contended for, the appointments
did not qualify as affirmative action appointments in terms
of the
Policy. Does it follow that the appointments constituted an unfair
labour practice? The facts pertaining respectively
to Drs Chibale
and Naidoo differ, and I shall consider each appointment
separately.
In
the case of Dr Chibale the evidence shows that he is a person of
conspicuous merit. He was regarded as an asset to the appellant.

The fact that he is black and was to serve as a positive role model
for black students was a factor in the overall evaluation
of Dr
Chibale. That is part of Dr Chibale’s merit in context. By
reason of his merit, it was decided to consider his appointment
without advertisement. The evaluation committee, taking into
account the positions of both Dr Naidoo and the respondent, first
decided to recommend that Dr Chibale should not be appointed
without advertisement, but that a post should be advertised.

Later, the committee was persuaded that there was sufficient
motivation for Dr Chibale’s appointment without advertisement to
be considered. Among those persuaded was Prof Aschman who,
according to the evidence, was in principle strongly opposed to

appointments without advertisement. A conspectus of the evidence
thus shows that Dr Chibale was ultimately appointed without
advertisement not simply because he is black, but because of his
merit. There is no evidence that the respondent was held in
similar esteem by his colleagues or by those responsible for
appointing the appellant’s staff. The evidence shows that he
was
not rated as highly. The appointment of Dr Chibale and the fact
that the respondent was not appointed did not result from
discrimination on an arbitrary ground. It resulted from the fact
that Dr Chibale was regarded as having more merit than the
respondent. It follows that the appointment of Dr Chibale and the
failure to appoint the respondent did not constitute an unfair
labour practice.
As
regards Dr Naidoo, the evidence is not that he was of exceptional
merit. His appointment has to be considered as an affirmative
action one, albeit not made regularly in accordance with the
Policy. The question is whether his appointment without
advertisement
constituted an unfair labour practice between the
appellant and the respondent.
As
a legal concept unfairness cannot exist in abstraction . A
person’s act or omission is unfair if it unfairly affects the
rights or expectations (reasonable or legitimate) of another.
There must be a causal connection between the act or omission
complained of and an adverse effect on the rights or expectations
of the person complaining of the unfair labour practice.

(
Woolworths (Pty) Ltd v Whitehead 2000(3) SA 529 (LAC)
per
Zondo AJP at p 540, para [24]).
I
have already concluded that the respondent had no reasonable
expectation to be appointed by the appellant. He clearly had no
right to such an appointment. The fact that Dr Naidoo (on the
assumption made in paragraph [32] above) was appointed as a result
of an irregular application of the Policy, could not have caused
the respondent to expect that he would similarly be appointed.

Moreover, Dr Naidoo was appointed to a supernumerary post specially
created for him. There is no evidence that, had Dr Naidoo
not been
appointed, a post would have been advertised for which the
respondent could have applied. Absent Dr Naidoo’s appointment,
there is still no post to which the respondent could have been
appointed. Mr Janisch submitted that the evidence of Prof Moran
showed that, after the appointments of Drs Chibale and Naidoo,
there were no funds left to appoint the respondent. Prof Moran
testified that, having taken Drs Chibale and Naidoo “on board”
there were no funds left for further posts. The evidence
does not
mean that, had there been funds, the respondent would have been
appointed. Had there been funds, it may well have been
used for
other purposes. Even if one assumes that such funds would have
been used to release a post in the chemistry department,
there is
no evidence that the respondent would have been appointed to such a
post.
Mr
Janisch submitted that the differentiation between Drs Chibale and
Naidoo on the one hand and the respondent on the other,
impaired
the respondent’s dignity and his good name, and thus constituted
an
iniunia
. As regards Dr Chibale, the differentiation was
on the grounds of justifiably perceived merit and cannot be an
actionable wrong.
As regards Dr Naidoo, his appointment, on the
assumption made earlier, resulted from an irregular application of
the Policy.
The respondent is and has always been aware thereof.
He certainly did not expect to be similarly appointed by an
irregular
application of the Policy. That being so, his dignity
could not have been affected by the appointment. A reasonable
member
of society will not think less of the respondent because he
was not also appointed irregularly. (As to the appropriate test,

see
Mohamed and Another v Jassiem 1996(1) SA 673 (AD)
at
706H to I;
Neethling et al: Deliktereg (3
rd
ed)
at 331 to 332).
To
sum up: The respondent had no right or legitimate or reasonable
expectation to be appointed. He certainly had no such right
or
expectation to be appointed by an irregular application of the
Policy. The appointments of Drs Chibale and Naidoo did not
have
any effect on the appointment or otherwise of the respondent. The
respondent did not prove that he was dismissed nor that
he was
affected by an unfair labour practice.
The following order is made:
1 The appeal is allowed.
2 The cross appeal is dismissed.
3 The order of the Labour Court is set aside and the following order
is made in its stead.
“The claim is dismissed with costs”.
4 The respondent is ordered to pay the costs of the appeal.
DU PLESSIS AJA
I agree
ZONDO JP
I agree
DAVIS AJA.
Date of hearing: 14 March 2001
Date of
judgement:
Attorneys
for the Appellant: Deneys Reitz Attorneys, Cape Town
Counsel
for the Appellant: A.C Oosthuizen
Attorneys
For the Respondent: Cliffe Dekker Fuller Moore Inc., Cape Town
Counsel
for the Respondent: M.W. Janisch