Moila v Shai NO and Others (JA 26/04) [2007] ZALAC 1; [2007] 5 BLLR 432 (LAC); (2007) 28 ILJ 1028 (LAC) (10 January 2007)

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Moila v Shai NO and Others (JA 26/04) [2007] ZALAC 1; [2007] 5 BLLR 432 (LAC); (2007) 28 ILJ 1028 (LAC) (10 January 2007)

27
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG.
Case No. JA 26/04
In
the matter between
MODISI JOHANNES MOILA Appellant
And
PIET
SHAI N.O First Respondent
COMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION Second Respondent
UNIVERSITY
OF THE NORTH Third Respondent
___________________________________________________________
JUDGMENT
­­­­­­­­­­­­­­­­­­­­___________________________________________________________
ZONDO JP
Introduction
[1] This is an appeal from a judgment and order of the
Labour Court in a review application that had been brought to that
Court by
the appellant to have a certain decision of the Commission
for Conciliation, Mediation and Arbitration (“
the CCMA
”),
the second respondent herein, reviewed and set aside. The CCMA’s
decision was made by the first respondent, a commissioner
of that
body. In terms of that decision the first respondent dismissed an
application that had been brought by the appellant to the
CCMA for
the condonation of his delay in referring to it for arbitration a
dispute between himself and the third respondent concerning
his
allegedly unfair dismissal by the University of the North (now the
University of Limpopo) the third respondent. The Labour Court,
through Landman J, dismissed the appellant’s application for
review. With the leave of the Labour Court, the appellant now appeals
to this Court against that order.
Is the third respondent before Court?
[2] Before going any further, it is necessary to first
deal with a preliminary point raised by the appellant. The appellant
has taken
the point that the third respondent is not properly before
this Court. As at the time of the hearing of this appeal by this
Court
a firm of attorneys, namely Hlatshwayo Du Plessis Van der Merwe
Nkaiseng purported to represent the third respondent in this matter
and had delivered a document purporting to be a power of attorney
authorising them to represent the third respondent and authorising
the Vice-Chancellor to sign all the necessary documents. They had
also filed Heads of Argument to oppose the appeal and had briefed
Counsel to appear in this Court and argue for the dismissal of the
appeal.
[3] By consent of all parties concerned on the day of
the hearing of this appeal, Counsel who had been briefed to represent
the third
respondent was allowed to present argument and the
attorneys instructing him were to file proof by a given date that the
third respondent
had authorised the opposition of the appellant’s
appeal and that the attorneys had authority to represent the third
respondent.
In due course the aforesaid attorneys delivered a
substantive application for the condonation of the late delivery of a
power of
attorney and a “
resolution”
purporting to give
the required authority. The affidavit filed in support of the
condonation application was deposed to by one Susan
Du Toit who is an
attorney and a professional assistant in the firm Hlatshwayo Du
Plessis Van der Merwe Nkaiseng.
[4] Du Toit annexed to her affidavit a document
purporting to be a resolution of the Council of the third respondent
signed by Prof
N.M. Mokgalong, the Vice-Chancellor of the third
respondent. The document is dated 22
nd
September 2006. A
document purporting to be a power of attorney authorising Hlatshwayo
Du Plessis Van der Merwe Nkaiseng to represent
the third respondent
was also annexed to the affidavit. It was also signed by Prof
Mokgalong. In the document purporting to be a
resolution of the
council Prof Mokgalong stated that that document was a resolution of
the council of the third respondent that had
been passed by the
University Council on the 21
st
September 2006.
[5] The appellant filed an opposing affidavit to oppose
the application for condonation and to challenge the “
resolution
”
and the power of attorney. The appellant said in his affidavit that
the University council had not held any meeting on the 21
st
September 2006 where it could have passed the resolution attached to
Du Toit’s affidavit. He said that the document signed by Prof
Mokgalong purporting to be a resolution of the university council was
a “
fake
”. He said that he had “
called some members of
university who are all not aware of an urgent Council meeting that
was held on Thursday 21
st
September 2006
.”
He gave dates for scheduled meetings of the university council. The
21
st
September 2006 was not one of them.
[6] The appellant stated that Prof Mokgalong was aware
that no council meeting had been held on the 21
st
September 2006 and that the document he presented as a resolution
passed by the council was not a resolution of the council and had
not
been passed by the third respondent’s council. If the document
purporting to be a resolution passed by the third respondent’s
council is not such a resolution because the third respondent’s
council never passed such a resolution, it will follow that the
document also signed by Prof Mokgalong and presented as a power of
attorney authorising Hlatslwayo Du Plessis Van der Merwe Nkaiseng
to
represent third respondent as attorneys is also unauthorised. This is
because Prof Mokgalong is supposed to have been authorised
by the
resolution to sign such power of attorney.
[7] Hlatshwayo Du Plessis Van der Merwe Nkaiseng
thereafter filed a replying affidavit deposed to by Prof Mokgalong.
In the replying
affidavit he conspicuously avoided dealing head-on
with the appellant’s allegation that no meeting of the council took
place on
the 21
st
September. If, indeed, the university
council had met and or passed the resolution, one would have
expected Prof Mokgalong to repeat
the version that the “
resolution
”
he had signed was not a fake but was genuine. He did not do so but
went on to advance a different basis to show that the opposition
of
the appeal had been authorised. In the replying affidavit he put up
another document and said that it showed that he had delegated
authority to oppose the appeal. He did not take the Court into his
confidence to explain why he had signed a document earlier on
in
which he had said that the University Council had passed a resolution
if, indeed, no such resolution had been passed by the council
and why
such a resolution would have been necessary if he had delegated
authority to oppose the appeal anyway. The document that
Prof
Mokgalong annexed to the replying affidavit also has not been shown
to be authentic. It seems that Prof Mokgalong made copies
of a few
pages from some document. Even if that document was authentic, it
would still not prove authority to oppose the appellant’s
appeal in
this Court. It refers to proceedings in certain Courts which it
identifies but does not refer to proceedings of any kind
in this
Court.
[8] I have no hesitation in upholding the appellant’s
contention. The opposition of the appellant’s appeal has not been
authorised
and Hlatshwayo Du Plessis Van der Merwe Nkaiseng have not
been authorised as attorneys to act for the third respondent and to
oppose
the appellant’s appeal. I also uphold the appellant’s
contention that no meeting of the university council was held on the
21
st
September 2006 and that no resolution was passed by
the University Council to authorise the opposition of the appellant’s
appeal
.The document purporting to be a resolution of the council is
not authentic.
[9] It is a matter of grave concern that Prof Mokgalong
appears to have signed a document to the effect that the University
Council
had passed a resolution on the 21
st
September 2006
authorising the opposition of the appellant’s appeal when in fact
nothing of the sort had happened. That such an
untrue statement has
been made is very bad. That it was made by a person occupying such a
high position in an institution of higher
learning is totally
unacceptable. It is hoped that somebody will bring this matter to the
attention of the university council to
consider investigating it
further to establish whether he has an acceptable explanation for
this.
[10] In the light of the above it seems to me that it
would be appropriate either to strike out the documents purportedly
filed on
behalf of the third respondent in this appeal including the
Heads of Argument filed by the attorneys purporting to act on the
third
respondent’s behalf or to disregard those documents including
the Heads of Argument. I shall disregard those documents in
considering
this appeal. That, however, does not extend to the
affidavits and other documents that were filed on behalf of the third
respondent
in the CCMA and in the Labour Court in opposition to the
application for condonation filed by the appellant in the CCMA and
those
filed in the Labour Court in opposition to the appellant’s
review application. In the CCMA and the Labour Court no ruling was
made
that those who purported to act on behalf of the third
respondent were not authorised and that such opposition was not
authorised.
Accordingly, in deciding whether the Labour Court was
right or wrong in making the decision that it did and whether the
first respondent
committed any reviewable irregularity in dismissing
the appellant’s condonation application, the Court must have regard
to all
the affidavits and other documents that were legitimately
before those fora. With the above background, I now proceed to set
out
the facts of this case.
The facts
[11] The
appellant entered the third respondent’s employ as a lecturer in
1987. On the 15
th
August 2000 the third respondent
extended an offer to its employees to accept a voluntary retrenchment
package. On the 21
st
August 2000 the appellant accepted
that offer. In terms of that voluntary retrenchment package the
appellant’s resignation or the
termination of his employment would
take effect on the 30
th
November 2000.
[12] Subsequent to the appellant’s acceptance of the
offer and that of other staff members the third respondent purported
to withdraw
the offer and refused to give effect to the acceptance
thereof. This attitude was persisted in beyond the 30
th
November 2000. Indeed, it seems to have been abandoned only some time
in 2002. This was after the third respondent had lost cases
before
the Labour Court and this Court on the question whether it was
obliged to give effect to the acceptance of its offer of a
voluntary
retrenchment package.
[13] The appellant did not leave the third respondent’s
employ on the 30
th
November 2000. He nevertheless,
informed the third respondent that the latter was obliged to give
effect to his acceptance of the
offer of the voluntary retrenchment
package and to pay him in accordance therewith. The appellant
maintained that his permanent employment
with the third respondent
had come to an end on the 30
th
November 2000 in terms of
his resignation and acceptance of the third respondent’s offer of a
voluntary retrenchment package and
that from the 1
st
December 2000 there was a temporary contract of employment between
himself and the third respondent.
[14] The appellant stated in his condonation affidavit
that in December 2000, January and February 2001 he was paid a salary
that
was less than the salary that he had been paid prior to the
termination of his original contract of employment. It would appear
that
during December 2000, January and February 2001 although the
appellant was, on his version, in a temporary employment with the
third
respondent, he refused to perform any duties. On the 28
th
February 2001 the appellant wrote a letter to the third respondent in
which he said that he was resigning from the third respondent’s
employ with effect from the 1
st
March 2001. The body of
that letter reads as follows:
“
WITHOUT
PREJUDICE
RE: RESIGNATION FROM THE EMPLOY OF THE UNIVERSITY –
MJ MOILA:
PERSONNEL
NUMBER 9910484.
The above matter refers.
This letter serves to notify you of resignation from
the University of the North, without prejudice to any of my rights,
effective
from Thursday 1
st
March 2001.
I have refused to take any duties allocated to me
for this academic year due to the retrenchment offer initiated by
the University
and accepted by myself on the 21
st
August
2000. I therefore need NOT tender another resignation letter with a
notice of three Months.
I therefore instruct your Office to expedite the
release of my pension funds with immediate effect.”
[15] The importance of the appellant’s letter of the
28
th
February lies in the fact that in his condonation
affidavit he made it clear that the dismissal dispute that he sought
to pursue
related to what he alleged was a temporary contract of
employment between himself and the third respondent. The appellant’s
case
was that with effect from the 1
st
December 2000 there
was a temporary contract of employment between himself and the third
respondent and that the appellant dismissed
him from such temporary
employment. It is that alleged dismissal which he regarded as unfair
and sought to pursue in the CCMA.
[16] The appellant’s case was that around the 15
th
March 2001 he had been informed by an official or employee based in
the third respondent’s financial division that his salary had
been
stopped. The appellant said that on learning this he had then assumed
that, as he had not resigned, the stoppage of his salary
meant that
he had been dismissed. He wrote to Prof Fitzgerald, who had been
appointed by the Minister of Education as administrator
of the third
respondent, to ask why his salary had been stopped. On the 26 March
2001 Prof Fitzgerald had responded by a letter to
the effect that it
was because he, that is the appellant, had resigned and the third
respondent had accepted that resignation. The
appellant says in his
condonation affidavit that he wrote back to Prof Fitzgerald asking
him where he derived the authority from
to terminate his services and
challenging his “
interpretation
”. In this regard it must
be pointed out that Prof Fitzgerald had not said that the third
respondent had terminated the appellant’s
services but had said
that the third respondent had accepted a resignation received from
the appellant.
[17] On or about 23 March 2001 the appellant referred
his alleged dismissal dispute relating to the alleged temporary
employment contract
to the CCMA for conciliation. On 17 May 2001 the
CCMA issued a certificate to the effect that the dispute remained
unresolved. From
the 17
th
May 2000 the appellant had 90
days within which to request the CCMA to arbitrate the dispute if
that was what he wanted. If he failed
to make that request within
that period, the CCMA could only arbitrate his dispute if he applied
for the condonation of his failure
to make the request timeously and
he showed good cause. If the CCMA condoned his failure, the dispute
would then be arbitrated. It
was only on the 10
th
September 2002 that the appellant requested the CCMA to arbitrate his
alleged dismissal dispute. This means that he was late by a
period of
about one year and 22 days in requesting the CCMA to arbitrate the
dispute. That period is calculated from the expiry of
90 days since
the issuing of the certificate of outcome.
[18] Before I can conclude the setting out of the facts,
it is important to also observe that about mid-2001 the appellant
brought
an urgent application to the Pretoria High Court against the
third respondent for a spoliation order. The third respondent had
evicted
him from its campus against his will without an order of
court. The third respondent handled this eviction in a totally
unacceptable
manner. The appellant was apparently put on the back of
a truck when it was raining. It also seems that his belongings were
damaged.
It is not clear why the appellant had to be treated in such
an undignified manner. This was completely unacceptable and it should
not have happened.
[19] The appellant’s application to the Pretoria High
Court resulted in a rule nisi with an interim order being granted.
However,
the third respondent had allowed the appellant back on
campus before the Pretoria High Court could issue the rule nisi and
grant
the interim order. On the return or extended return day the
third respondent opposed the confirmation of the rule. Bertlesmann J,
who heard the matter, ultimately delivered a judgment in terms of
which he discharged the rule nisi. He granted a counter-application
that was brought by the third respondent for the eviction of the
appellant.
[20] In dealing with the issues before him Bertlesmann J
inquired into whether there was a temporary contract of employment
between
the appellant and the third respondent after 30 November
2000. He found that there was none. He further concluded that, even
if there
had been one, it had come to an end when the appellant
resigned by way of the letter of the 28
th
February 2001
referred to above. Attempts by the appellant to take Bertlesmann J’s
judgment on appeal were unsuccessful.
[21] Before the appellant referred the dispute to
arbitration and filed his condonation application, he and the third
respondent signed
a settlement agreement in terms of which the
dispute relating the voluntary retrenchment package was settled.
The commissioner’s ruling
[22] In dealing with the appellant’s condonation
application, the commissioner considered the degree of lateness, the
reasons for
lateness, the prospects of success and the prejudice to
the parties. With regard to the degree of lateness he approached the
matter
on the basis that the appellant was one year and 26 days late.
The appellant had said in his affidavit that he was late by one year
and twenty two days. Whether the correct period is one year and 22
days or one year and 26 days does not make any material difference
in
this case. The commissioner found this period of delay to be
excessive. I can find nothing wrong with that conclusion.
[23] As to the reason for the delay, the commissioner
stated that the appellant’s case was that the late referral was
solely and
exclusively caused by the third respondent. The
commissioner said: “
He goes a long way blaming the management
style and qualifications or lack thereof of the third respondent’s
administrator, Prof
Fitzgerald.”
The commissioner observed that
the appellant did not describe in any detail how the third
respondent’s management’s style and
the absence of proper
qualifications on the part of the third respondent’s administrator
caused the delay. He also referred to
the fact that the appellant
accused the third respondent of having taken this dispute to the
Pretoria High Court and yet the appellant
was the one who had
instituted the application that was heard by the Pretoria High Court.
Although the commissioner did not say so
expressly, it is quite
implicit from the way he dealt with the reasons for the delay that he
regarded the reasons advanced as unacceptable.
[24] The commissioner then proceeded to deal with the
prospects of success. In this regard the commissioner concluded that
the appellant
had resigned by way of his letter of the 28
th
February 2001. He came to the conclusion that, because of this, the
appellant’s prospects of success were, to say the least, very
slim.
Proceedings in the Labour Court
[25] The
Labour Court considered the appellant’s review application and
concluded that there was no basis to interfere with the
ruling of the
commissioner. Indeed, it, too, concluded that there had been no
temporary contract of employment between the appellant
and the third
respondent after the 30
th
November 2000 but, that, even if
there had been one, the appellant had resigned from such temporary
employment by way of his letter
of the 28
th
February 2001.
The appeal
[26] In order to try and persuade the CCMA that there
was good cause for his delay in referring his alleged dismissal
dispute to arbitration,
the appellant dealt in his condonation
affidavit with:
(a) the
degree of lateness
(b) the
reasons for the lateness, and,
(c) the
prospects of success
The
period of delay
[27] In terms of the Labour Relations Act, 1995 (Act 66
of 1995) (“
the Act”
) the appellant was required to have
made his request to the CCMA to arbitrate the dispute within a period
of ninety (90) days from
the date of the issuing of the certificate
of outcome. In this matter the certificate of outcome was issued on
17 May 2001. Ninety
days from that date expired around 17 August
2001. It was only on the 10
th
September 2002 that the
appellant requested that the dispute be arbitrated. In his
condonation affidavit the appellant says that
he was late by a period
of one year and twenty two days in requesting that the dispute be
arbitrated. He certainly was late by, without
any doubt, a period
exceeding a year. In a case where a dispute is one which is required
to be dealt with expeditiously and the request
that the dispute be
arbitrated is required to be made within 90 days from a certain
event, a delay of over a year – that is over
three times the
prescribed period is, without doubt, an excessive delay. The
commissioner was right in concluding that the period
of delay was
excessive.
The reasons and explanation for the delay
[28] In par 6.1 of his condonation affidavit the
appellant submitted that “
the Respondent has conducted itself
in a manner contrary to this agreement, and has indeed gone above the
tribunal with jurisdiction
in this dispute misrepresented the facts
and the law, by referring this dispute in a mala fide fashion to a
white Judge of the TPD
….”
The agreement referred to in this
statement was not any agreement giving the appellant an extension of
time within which to request
the CCMA to arbitrate the dispute. The
appellant also did not substantiate this statement. In paragraph 8.3
of his condonation affidavit
the appellant states that “
the
referral to arbitration”
was late
“due to misfortune and
no fault on my part.”
He does not substantiate this statement
either.
[29] In paragraph 7.2 of his condonation affidavit the
appellant states that “
… my intention to refer this dispute to
arbitration has been frustrated by Respondent (lead (sic) by a white
man
Mr
Patrick Fitzgerald) and its racially
motivated Judges of the TPD”.
The appellant also did not
substantiate this statement. In the first sentence in par 9 of his
condonation affidavit the appellant
states that Prof Fitzgerald “
is
the sole and exclusive cause of the late referral to arbitration.”
In par 11 the appellant states that “
the conduct of the
so-called ‘Professor’ Patrick Thomas Fitzgerald
wholly,
solely and exclusively
lead (sic) to the delay in
referring this dispute to arbitration, and the late filing of this
application for condonation
.”
[30] In
paragraph 17 of his condonation affidavit the appellant made a
submission that “
due
to this ill-preparedness and inappropriate claim to various fields of
management of public institutions, Mr Patrick Fitzgerald
used
underhanded (sic) techniques and methods of delaying, to my
prejudice, the referral of this dispute to arbitration
.”
Either nothing is said to substantiate this statement or the
appellant says certain things about Prof Fitzgerald which are
completely
irrelevant.
[31] In
paragraph 18 the appellant says in part that his condonation
application should succeed “
on
the reasons of Mr Patrick Fitzgerald’s inappropriate experience to
lead and give direction in terms of the laws and the Constitution
of
this country as shall be evident from what is stated further
hereunder.”
Later
on in the condonation affidavit the appellant once again blames his
delay in requesting the CCMA to arbitrate
the
dispute on the third respondent.
[32] It is clear from the above that the appellant
blames everyone except himself for his delay of over a year in
requesting that
his dispute be arbitrated. At some stage he blames
the delay on some Judges of the Transvaal Provincial Division of the
High Court.
At another stage he blames the delay on misfortune and
says that there was no fault on his part. On many occasions he blames
the
delay on Prof Fitzgerald. On some occasion he blames the third
respondent.
[33] The appellant’s statements putting the blame on
misfortune, Prof Fitgerald, certain Judges of the Transvaal
Provincial Division
and on the third respondent are completely
without any foundation. The appellant does not say why the only
person who could have
decided to request the CCMA to arbitrate his
dispute when conciliation failed did not do so over a period going
beyond a year nor
does he blame that person for not taking the
necessary steps to communicate the request that the dispute be
arbitrated. He does not
explain why that person was able to deal with
the litigation in the TPD, and in the Labour Court but did not take
the simple step
of writing a one sentence letter to the CCMA
requesting that his dispute be arbitrated. Of course, that person is
the appellant himself
and the appellant is not prepared to accept
responsibility for his failure or omission in this regard but prefers
to blame everyone
else instead.
[34] I do not have the slightest hesitation in
concluding that this is a case where the period of delay is excessive
and the appellant’s
purported explanation for the delay is no
explanation at all. I accept that the case is very important to the
appellant. However,
the weight to be attached to this factor is too
limited to count for anything where the period of delay is as
excessive as is the
case in this matter and the explanation advanced
is no explanation at all. If ever there was a case in which one can
conclude that
good cause has not been shown for condonation without
even considering the prospects of success, then this is it. Where, in
an application
for condonation, the delay is excessive and no
explanation has been given for that delay or an “
explanation”
has been given but such “
explanation”
amounts to no
explanation at all, I do not think that it is necessary to consider
the prospects of success.
[35] In
Melane v Santam Insurance Co Ltd 1962(4) SA
531 (A)
at 532 C-F Holmes JA set out the factors that need to be
taken into account in considering an application for condonation
where sufficient
cause – which is the same as good cause – must
be shown before condonation can be granted. One of the principles he
set out is
that, although the factors he set out therein are
interrelated and are not individually decisive, “
if there are no
prospects of success there would be no point in granting
condonation
.” In
Chetty v Law Society, Transvaal 1985(2) 756
(AD)
Miller JA, on behalf of a unanimous Court, dealt with the
term “
sufficient cause
” or “
good cause
” when
used in the context of an application for rescission of a judgment.
At 765 D-E he said: “
For obvious reasons a party showing no
prospect of success on the merits will fail in an application for
rescission of a default judgment
against him, no matter how
reasonable and convincing the explanation of his default.
And
ordered judicial process would be negated if, on the other hand, a
party who could offer no explanation of his default other than
his
disdain of the Rules was nevertheless permitted to have a judgment
against him rescinded on the ground that he had reasonable
prospects
of success on the merits
.”
(My underlining).
[36] Although the underlined part of this passage was
said in respect of an application for the rescission of a judgment, I
can see
no reason why as a matter of principle it cannot or should
not hold good in respect of an application for condonation such as
the
one the appellant made to the CCMA in this case. Although I do
not think that it can be said that the reason for the appellant’s
failure to timeously request that his dispute be arbitrated was his
disdain for the relevant provisions, I do not think that Miller
JA
meant to lay down disdain for the rules or statutory provisions as an
essential requirement before the principle he enunciated
could apply.
I think that was simply an example he used to illustrate the point. I
am sure it would apply in a case where there was
no disdain but
negligence or carelessness. Indeed, it is clear
from PE Bosman
Transport Wks Com v Piet Bosman Transport 1980(4)SA 794(4)
at 799
D that in a case such as this one, it is not necessary to consider
the prospects of success and that condonation could be
refused no
matter how strong the prospects of success are in a case such as the
present one. PE Bosman was a case where the appellant
had failed to
note the appeal and deliver the appeal record timeously and there
were periods of delay for which there was either
no acceptable
explanation or no explanation at all and the breach of the rules was
serious.
[37] In the light of all the above I would dismiss the
appellant’s appeal without even considering the prospects of
success. However,
even if I were to consider the prospects of
success, it seems to me that it was shown that there are no
reasonable prospects of success.
I proceed to consider the prospects
of success for what such an exercise is worth. I shall do so within
the context of considering
whether the commissioner dealt with it in
any manner that renders his finding reviewable.
Does the appellant have reasonable prospects of
success in the alleged dismissal dispute?
[38] The question whether or not the appellant has
reasonable prospects of success must be answered in relation to the
dispute that
he wants the CCMA to arbitrate. He has made it clear in
his condonation affidavit that that dispute relates to the
termination of
what he contends was a temporary contract of
employment that he says existed between himself and the third
respondent with effect
from the 1
st
December 2000. The
Pretoria High Court found in the spoliation matter that there was no
such contract between the parties during
the relevant time. However,
I am prepared to assume in the appellant’s favour, without
deciding, that there was such a contract.
[39] If the appellant was given a chance of having the
dispute about his alleged dismissal arbitrated by the CCMA, in terms
of sec
188 of the Act he would bear the onus of showing that he was
dismissed from that temporary employment with the third respondent.
His case is not that his dismissal occurred before the 28
th
February 2001.His case is that about the 15
th
March 2001he
was informed by an employee of the third respondent who was employed
in the finance division that his salary had been
stopped. He goes on
to say that he then “
assumed
” that he had been dismissed
because he knew that he had not resigned. I assume that his
contention is that an employee’s salary
would only be stopped if he
had resigned or had been dismissed and that he thought that, as he
had not resigned, the stoppage of
his salary meant that he had been
dismissed. The fact that his case of dismissal is, on his own
version, based on an assumption that
he made when his salary was
stopped renders his case a very week one.
[40] There is also the question whether or not the
appellant’s letter of the 28
th
February 2001 can be
taken into account since the appellant had marked it “
without
prejudice
”. Bertlesman J considered this issue in his judgment
between the parties in the spoliation matter and came to the
conclusion that
it could be taken into account. I have considered the
reasons that he gave for that conclusion and am persuaded that he was
right.
Accordingly, I would adopt those reasons. I do not consider it
necessary to repeat them herein. The parties are in possession of
copies of that judgment and will only need to read the judgment to
know the reasons.
[41] It is apparent that the appellant would face two or
three problems at arbitration. The first is that by way of his letter
of
28 February 2001 which he addressed to the third respondent he
resigned from the third respondent’s alleged temporary employment.
The letter is crystal clear in this regard. Another problem is that
nobody ever told him that he was dismissed. On his own version
he
“
assumed
” that he had been dismissed. He made this
assumption when he was told that his salary had been stopped in
circumstances when he
says that he knew that he had not resigned. Of
course that he knew that he had not resigned is untrue. He knew that
he had resigned
because he had written the letter of the 28
th
February expressly saying that he was resigning with effect from the
1
st
March 2001. He feigned ignorance of the reason why his
salary was being stopped when he knew the reason full well.
[42] In his condonation affidavit the appellant says
that he wrote to Prof Fitzgerald to ask why he had been dismissed or
why his
salary had been stopped. This was at some stage after 15
March 2001. He says that Prof Fitzgerald wrote to him in reply on the
26
th
March and told him that his salary had been stopped
because he had resigned and the third respondent had accepted his
resignation.
If the appellant knew nothing about having resigned or
if he had never intended to resign when he wrote the letter of the
28
th
February, one would have expected that, when he
learnt that Prof Fitzgerald said that he had resigned, his immediate
reaction would
have been to write back or telephone him or to go and
see him and ask him what resignation he was talking about or to
explain that,
although he had written the letter of the 28
th
February, he had never intended to resign. That was not the
appellant’s reaction. His reaction was to write a letter asking
Prof
Fitzgerald, not what resignation he was talking about, but where
he derived the authority from to dismiss him and to challenge his
“
interpretation
”. In other words he chose to continue to
ignore the fact that he had written the letter of the 28
th
February.
[43] The above the appellant did not anywhere in his
condonation affidavit explain the circumstances in which he wrote the
letter
of the 28
th
February which he thought called for
that letter not to be taken as a resignation letter. This is
particularly important because
the appellant prepared that affidavit
after the Pretoria High Court had found that by way of that letter he
had resigned even if
there had been a temporary employment contract
between himself and the third respondent. I see that in his heads of
argument filed
in this Court in regard to this appeal the appellant
suggests that in writing that letter he did not intend to resign but
wrote it
because he was asked to submit such a letter in order to
facilitate the processing of the payment of his voluntary
retrenchment package.
[44] The first answer to this is that, as he did not say
this in the condonation affidavit, it cannot be legitimately
considered.
The second answer is that, even if it could be
considered, it cannot help him because, if he was told what he says
he was told, all
he needed to do was to give a copy of his letter of
the 21
st
August 2000 in terms of which he accepted the
offer of a voluntary retrenchment package. His letter of the 28
th
February said that he was resigning with effect from 1 March 2001. A
person like the appellant - who appears to be a relentless fighter
for what he perceives to be his rights – would not have agreed to
such a suggestion from people representing an institution with
which
he already had a dispute. The third answer is that, if the appellant
had been misled into writing a letter of resignation,
he would have
said this in his affidavit in the spoliation matter in the Pretoria
High Court. Indeed, he would also have said so
in his condonation
affidavit before the CCMA. He would also have said it to Prof
Fitzgerald when in March 2001 the latter told him
that his salary had
been stopped because he had resigned. It is very difficult to accept
that, without anybody putting a gun to the
appellant’s head, the
appellant could have agreed to write a letter to the effect that he
was resigning when he had no intention
of resigning.
[45] Even if it is true that some or other official of
the third respondent had asked the appellant to submit a letter of
resignation
so as to facilitate the payment of his severance package
in terms of the offer of a voluntary retrenchment package, and the
appellant
had written the letter of the 28
th
February to
comply with such request, that would not necessarily mean that he did
not intend to resign his so-called temporary employment
when he wrote
the letter of the 28
th
February. In fact resignation for
such a reason would be consistent with two things. First, the offer
of a voluntary retrenchment
package had as its purpose that those
staff members who accepted the offer would not continue to be
employed by the third respondent.
Secondly, there was a clause in the
document containing the offer which was to the effect that staff
members who accepted such offer
would not in the future be employed
by the third respondent except in exceptional circumstances.
[46] In this case the third respondent’s officials
knew that in terms of the offer of a voluntary retrenchment package,
the appellant
should have left the third respondent’s employ on the
30
th
November 2000 but that this had not happened. They
could have been concerned that, if in February - which was three
months after
the date when the appellant should have left - they paid
the appellant his severance pay, he could, after accepting his
severance
package, turn around and want to continue working for the
third respondent on the basis that a new contract of employment had
arisen
after the 30
th
November which is exactly what has
happened. It would, therefore, have been understandable if officials
of the third respondent had
asked the appellant to provide a further
letter of resignation. Second, if the appellant was asked to provide
a further letter of
resignation so as to facilitate the payment of
his severance package, for him to provide such a letter and to intend
it as a letter
of resignation would be consistent with the fact that
the reason why he had not left on the 30
th
November 2000
was because he had not been paid his severance benefits. Accordingly,
he would have been prepared to resign as soon
as he could be paid his
severance pay. The appellant’s attempt to try and pursue an alleged
dismissal dispute even after he was
paid his severance benefits must
simply have been an attempt thought out at some stage in order to try
and get as much out of the
third respondent as possible.
[47] In all of the above circumstances it seems to me
that there is no room for any conclusion that the appellant did not
resign but
was dismissed. Indeed, the probabilities that the
conclusion would be that he resigned are just too overwhelming.
Accordingly, the
commissioner’s conclusion that the prospects of
success were slim was not only justifiable but correct. The Court a
quo was also
correct in coming to the same conclusion.
[48] In the premises the appeal falls to be dismissed.
As the appeal was unopposed, the issue of costs does not arise.
[49] In the result the appeal is dismissed.
_____________
Zondo
JP
I
agree.
_____________
Mc
Call AJA
I agree.
_____________
A
Kruger AJA
Appearances:
For
the appellant : Mr Moila
For
the respondent : Mrs Moyses
Instructed
by : Hlatshwayo Du Plessis Van der Merwe
Date
of judgment : 10 January 2007