About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2007
>>
[2007] ZALAC 33
|
|
University of KwaZulu-Natal v Nicholas (DA 15/06) [2007] ZALAC 33 (8 November 2007)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: DA 15/06
In the matter between
The University of KwaZulu-Natal
.............................................................
Appellant
And
Professor Lionel John Nicholas
..............................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO JP
[1] The appellant in this appeal is the University of
Kwazulu-Natal which is the entity which resulted from the merger of
the University
of Natal and the University of Durban-Westville in
Kwazulu-Natal. The respondent was employed by the University of the
Western
Cape from January 1982 to February 2003. In that University
he occupied the post of professor and director of the Institute for
Counselling.
[2] On the 25
th
February 2003 the respondent
and the University of Durban-Westville concluded a fixed-term
contract of employment in terms of which
the respondent would be
employed by that University as a Deputy Vice-Chancellor (Strategic
Development) for the period 1 March
2003 to 31 December 2003. The
contract of employment which the two parties signed was in the form
of a letter dated 25 February
2003 from Dr S Cooper, the then
Vice-Chancellor of the University of Durban-Westville, addressed to
the respondent. The respondent
signed that letter to signal his
acceptance of the terms and conditions thereof. The appointment was
on a full-time basis and “
in accordance with the
University’s standard conditions of service
” but
subject to certain specific terms and conditions which were spelt out
therein.
[3] Clause 1.3 was to the effect that the contract was
non-renewable and that the respondent warranted that he had no
expectation
that it would be renewed and that he waived any right of
renewal “
howsoever acquired
”. Clause 4.1 of the
contract read thus:
“
1.4 Upon termination of
this appointment, unless otherwise precluded, you may assume a
substantive academic / administrative post
at the level of Director
on the terms and conditions applicable to the said post at the time
of resumption, provided that you shall
have no further right to the
remuneration, benefits, allowances or privileges applicable to the
Deputy Vice-Chancellor. You are
encouraged to apply for any post that
may become available in the new institution arising out of the
merger.”
[4] On the 30
th
May 2003 an agreement was
concluded between the University of Natal and the University of
Durban-Westville. At that time the two
Universities were planning to
merge in January 2004 and this agreement was entered into in order to
facilitate the merger. On the
23
rd
December 2003 –
that is eight days before the expiry of the contract of employment
between the respondent and the University
of Durban-Westville –
a contract was concluded between the respondent and the Executive
Council of the University of Durban-Westville
which purported to act
on behalf of the University. Dr Cooper purported to act on behalf of
the Executive Council. I assume that
the Executive Council was the
senior managment of the University or the Executive Committee of the
Council of the University. That
agreement was concluded to extend the
contract of employment then existing between the respondent and the
University of Durban-Westville
“
until the new council of the
University of KwaZulu Natal finalises the organogram for the UKZN and
accordingly makes substantive
appointments
.” The contract
that was sought to be extended was that of the respondent’s
appointment as Deputy Vice-Chancellor of
the University of
Durban-Westville.
[5] On the 31
st
December 2003 the contract of
employment concluded in February 2003 expired if the extension of the
same which was sought to be
effected by the agreement of the 23
rd
December 2003 was not valid or effective in law but did not expire if
the extension was valid or effective in law.
[6] On the 31
st
December 2003 attorneys
acting on behalf of the respondent addressed a letter to Prof M.W.
Makgoba, then Vice-Chancellor of the
University of Natal – now
Vice-Chancellor of the University of KwaZulu Natal, in which they,
among other things, made the
point that “
in terms of a
resolution of the Executive Council of the University of
Durban-Westville held (sic) on the 11
th
December 2003 our client’s employment contract, in
particular, his appointment as Deputy Vice-Chancellor (Strategic
Development
and Planning) was extended until the new Council of the
University of KwaZulu-Natal (UKZN) finalised its organogram and
accordingly
was in a position to make substantive appointments in
terms thereof
.” In another paragraph of the letter the
respondent’s attorneys informed Prof Makgoba that, apart from
the issue of
the extension of the respondent’s contract of
employment, they were instructed that it was envisaged in terms of
the respondent’s
“
existing contract of employment,
that [the respondent] would be employed in the new structure of the
University of KwaZulu-Natal
at a position similar to that occupied by
him during his tenure at the University of Durban-Westville
.”
What this meant was that the respondent expected to continue in the
position of Deputy Vice-Chancellor in the merged entity
because he
had been Deputy Vice-Chancellor at the University of Durban
-Westville. They threatened legal action if there was any
attempt to
give effect to paras (i) and (ii) of Prof Magoba’s email to Dr
Cooper which had preceded 31 December 2003. Prof
Makgoba seems to
have previously expressed the view therein that the extension of the
respondent’s contract that was effected
by way of the agreement
concluded on the 23
rd
December 2003 was not valid because
the Executive Council of the University of Durban-Westville had had
no authority to enter into
such extension contract and that the
contract would expire on the 31
st
December 2003.
[7] In a letter or memorandum dated 9 January 2004
addressed to Prof Makgoba the respondent stated that his status was
still that
of Deputy Vice-Chancellor. He said that he was on leave at
the time. By a letter dated 23 January 2004 Prof Makgoba responded to
the respondent’s memorandum or letter of the 9
th
January 2004. In the letter he pointed out that a legal opinion
obtained by the appellant was that to the effect the Executive
Committee of the University of Durban-Westville had no authority to
extend the respondent’s contract of employment as Deputy
Vice-Chancellor. He further pointed out that the contract of
employment that the respondent and the University of Durban-Westville
had concluded in February 2003 had expired on the 31
st
December 2003.
[8] A deadlock seems to have been reached between the
parties about the end of January 2004 or in February 2004 about
whether there
was any contract of employment that was in existence
then between them. In March 2004 the respondent launched an
application in
the Labour Court for an order declaring that “
the
purported termination of the [respondent’s] employment by the
[appellant] is unconstitutional and unlawful
”, directing
the appellant “
to pay the [respondent’s] salary and to
comply with the [respondent’s] terms and conditions of
employment which ensued
(sic) prior (sic) to the purported
termination
” and for further and alternative relief and
costs. The appellant opposed the application.
Proceedings in the Labour Court
[9] In his founding affidavit the respondent’s
case was that his contract of employment as a Deputy Vice –
Chancellor
of the University of Durban-Westville, which had initially
been intended to expire on the 31
st
December 2003, had
been extended by the Executive Committee of the University of
Durban-Westville by way of the agreement of the
23
rd
December 2003 and that, beyond the 31
st
December 2003, he
was still employed by the appellant – pursuant to the merger of
the two Universities and that the appellant
was required to comply
with its obligations in terms of that extended contract. He in effect
said that the appellant had purported
to terminate his contract of
employment. This explains why he sought an order declaring that the
purported termination was unconstitutional
and unlawful. The
appellant’s attitude was simply that the respondent’s
contract had not been validly extended because
the Executive
Committee of the University of Durban- Westville had lacked authority
to extend the contract and that there was,
therefore, no contract of
employment between itself and the respondent after the 31
st
December 2003.
[10] In the Labour Court the matter came before Broster
AJ. He found that Dr Cooper or the Executive Committee of the
University
of Durban-Westville had no authority to extend the
respondent’s contract of employment as he and the committee had
purported
to do by way of the letter of the 23
rd
December
2003. However, he found that the contract of employment signed in
February 2003 between the respondent and the University
of
Durban-Westville survived beyond the 31
st
December 2003
and was still of full force and effect as at the time of the
judgment. This was as at 31 March 2006. By virtue of
the merger the
agreement was now between the respondent and the appellant.
[11] Broster AJ then issued an order declaring “
that
the termination of the [respondent’s] contract of employment
concluded on 25
th
February 2003 is unlawful
”
and ordered the appellant to pay the respondents’ costs. That
was substantially the order that the respondent had
asked for in
paragraphs (a) and (d) of his notice of motion. Broster AJ refrained
from granting the respondent the order that he
sought in par (b) of
his notice of motion. That was the prayer for an order that the
appellant be ordered to pay the respondent’s
salary and to
comply with the respondent’s terms and conditions of employment
“
which ensued prior (sic) to the purported termination.”
I have no idea what “
ensued prior to the purported
termination
” means but I suppose that the respondent meant
terms and conditions of employment which existed prior to the
purported termination.
The Labour Court did not give any reasons why
it did not grant the order which the respondent had also asked for to
the effect
that the appellant pay his salary and comply with all his
other terms and conditions of employment. I shall deal with this
later.
The appellant subsequently sought and was granted leave to
appeal to this Court against that order of the Labour Court.
The appeal
[12] The Labour Court examined certain provisions of the
February 2003 agreement and concluded that that contract did not
expire
on 31 December 2003 but what expired was the respondent’s
appointment as Deputy Vice - Chancellor and “
not his
contract of employment with the University”.
Later, it went
on to say: “
The right conferred upon the [respondent] to
assume a position at the level of director contained in clause 1.4 of
the first contract
of employment is one which is not extinguished by
the fact that the merger occurred on 1
st
December 2003 and does not in itself require that the [respondent]
should have previously occupied a post at the level of director
at
UDW as suggested by the Respondent. In my view clause 1.4 merely
identifies the post which the [respondent] may assume and provides
that his employment in that post will be subject to the terms and
conditions applicable at the time that he assumes that position.
”
[13] The Labour Court took the view that the word
“
assume
” in clause 1.4, where the clause says “….
You may assume a substantive academic/administrative post at the
level of director ….”
means “
undertake (an
office or duty)”.
It also said that the use of the word
“
may
” gave to the respondent “
the right
to choose whether to occupy a post at the level of director
.”
Broster AJ later said: “
I think the word ‘may’
is used in the sense of affording the [respondent] an opportunity to
take up a position at the
level of director if he so wishes. This is
an opportunity afforded to him
.”
[14] With regard to the contract of the 23
rd
December 2003 purporting to extend the February 2003 contract of the
respondent, the Labour Court found that the Executive Council
or
Executive Committee of the University of Durban-Westville had no
authority to extend the respondent’s contract and that,
therefore, that contract was not extended. On appeal the respondent
did not challenge the correctness of this finding. What the
respondent contended on appeal was that the February 2003 contract of
employment had survived beyond the 31
st
December 2003 and
continued to exist but that the respondent no longer occupied the
post of Deputy Vice-Chancellor which he occupied
at the University of
Durban-Westville prior to 31 December 2003. In pursuing this line of
argument Counsel was supporting the line
of reasoning that had been
adopted by the Labour Court in support of the order that it made.
[15] I cannot agree that the February 2003 contract
between the respondent and the University of Durban-Westville –
now the
appellant – survived beyond the 31
st
of
December 2003 if the contract of 23 December 2003 which purported to
extend it was not valid. The terms and conditions of that
agreement
were clear. They were to the effect that that agreement was for a
fixed term. A fixed term agreement is called a fixed
term agreement
because it operates for a fixed term only and, unless it is extended,
it comes to an end at the end of the fixed
term by the mere
effluxtion of time. In this case it was common cause on appeal that
the matter had to be decided on the basis
that there had been no
valid extension of the February 2003 agreement. Save with regard to
clause 1.4 of that agreement all the
contents of that agreement
relate to the appointment of the respondent as Deputy Vice-Chancellor
“
for a period commencing March 2003 and terminating on 31
December 2003 …”
[16] The Labour Court did not attempt to reconcile its
finding that the February 2003 agreement continued after 31 December
2003
with the clear terms of clauses 1 and 1.3 of the agreement nor
did Counsel for the respondent during argument. I am of the view
that, upon a proper reading of the respondent’s founding
affidavit, the Court a quo was not entitled to find in the
respondent’s
favour on the basis that the February 2003
agreement continued beyond 31 December 2003 once it had found that
the purported extension
of the 23
rd
December 2003 was not
valid. This is so because it was not the respondent’s case that
his continued employment by the appellant
beyond 31 December 2003 was
as anything other than as Deputy Vice-Chancellor. The respondent’s
case in his founding affidavit
was that his contract of employment of
February 2003 had been extended on 23 December 2003 beyond 31
December and that his position
after the 31
st
December was
still that of Deputy Vice-Chancellor. That he took that attitude is
understandable because his case was based on the
extension of his
contract of employment as Deputy Vice- Chancellor being valid. The
case that he was still employed after 31 December
2003 but not as
Deputy Vice Chancellor was never his case.
[17] The difficulty which Counsel for the respondent had
in the contenting that the respondent’s contract of employment
of
February 2003continued beyond 31 December 2003 but with him no
longer being Deputy Vice Chancellor was that he had to rely on clause
1.4 of the February 2003 agreement. The Court a quo dealt with this
issue in a manner that appears to me to be contradictory. On
the one
hand the Court a quo said that clause 1.4 afforded the respondent “
an
opportunity to take up a position at the level of director if he so
wishes
” but, on the other, it said that this was a right
conferred upon the respondent “
to assume a position at the
level of director contained in clause 1.4
…”
[18] An opportunity to occupy a certain position is not
the same thing as a right to occupy that position. When you have
applied
for a certain vacant position and you are called for an
interview, such interview presents you with an opportunity to occupy
that
position if you are ultimately appointed but you do not have a
right to occupy that position. Where a contract of employment has
been concluded between you and a certain employer in terms of which
you have been appointed to a certain position, you have a right
to
occupy that position. Because you have a right to occupy that
position you may not be prevented from occupying it or be removed
from it in breach of your contract of employment or some other law.
But if you have an opportunity as opposed to a right, and you
are
prevented from occupying such a position it cannot be said that your
right to that position, has been infringed because you
have none. At
best for you, you may have a right to be considered for appointment
to that position but not a right to the position.
[19] In my view clause 1.4 sought to ensure the
accommodation of the respondent in an academic or administrative post
after the
31
st
December 2003 once such a post was
identified and he indicated his wish to be appointed to it. In a way
clause 1.4 sought to give
the respondent an election whether to be
appointed to such a post or to pursue another post. This is
understandable when regard
is had to the fact that the last sentence
of clause 1.4 was to the effect that the respondent was free to apply
for other positions.
What this means is that at the end of the fixed
term contract on the 31
st
December 2003 the respondent was
required to communicate to the appellant or the University of
Durban-Westville whether he sought
to be given a post as provided for
in clause 1.4 or whether he wished to pursue other avenues. It is not
the respondent’s
case that he communicated to the appellant or
the University of Durban-Westville that he sought to be given a post
as contemplated
in clause 1.4. That he did not do so is
understandable because he believed at the time that his February 2003
contract of employment
as Deputy Vice-Chancellor had been validly
extended on 23 December 2003 beyond 31 December 2003. Probably, the
position of Deputy
Vice-Chancellor was higher than the position that
he could get under clause 1.4.
[20] Since the respondent did not communicate to the
University authorities his wish to be given a post such as was
contemplated
in clause 1.4, he could not complain that he was not
given a post contemplated by clause 1.4. On that ground and on the
ground
that his case was not based on clause 1.4 but on the extension
of the agreement on 23 December 2003 the respondent’s
application
should have been dismissed.
[21] In any event, as I have said above, clause 1.4
envisaged the assumption of “
a
” post and such post
could be an “
academic/administrative
”. Contrary to
what the Labour Court said, clause 1.4 did not identify the post that
the respondent could take up after 31
December 2003. Nor did it
specify what his duties would be. Clause 1.4 only identified the
level at which such a post would be.
In my view the post was to be
identified once the respondent had told the University authorities
that he wished to take a post
envisaged in clause 1.4. Once the
University identified it and he knew what his duties would be, he
might have liked it or he might
not have liked it. Whether he
explored other avenues might also have depended on whether he liked
it or not.
[22] In any event Counsel for the respondent conceded
that as things presently stand the duties which the respondent would
have
to carry out once he was given a post contemplated in clause
1.4. are unknown. However, he submitted that that fact did not have
the result that there was no contract of employment between the
appellant and the respondent. He said that the duties would still
be
discussed later between the parties but that this did not derogate
for the existence of a valid contract. He submitted that
there could
be a contract of employment between parties even if they have not yet
agreed on what the employee’s duties will
be. In my view this
can simply not be correct in law. You cannot have a contract of
employment without the duties which the employee
must perform. In my
view this is as clear as saying that you cannot have a sale agreement
without an agreement on the thing that
the seller sells and the buyer
buys. If in law one could have a contract of employment when the
parties to such contract do not
know what the duties of the employee
are, that would mean that that is a contract which the employee could
never be in breach of.
The question arises: would the employee be
entitled to be paid any remuneration in terms of a contract of
employment which did
not oblige him to perform any specific duties?
[23] I said earlier on that the Labour Court did not
give any reasons why it did not grant the order, sought by the
respondent,
that the appellant pay the respondent his salary and
comply with his terms and conditions of employment. It is difficult
to resist
the temptation to think that it is because it realised that
there were no duties that had been agreed and no terms and conditions
had been agreed. In this regard clause 1.4 said that the terms and
conditions would be the terms and conditions of the post concerned.
Without the post having been identified, there could be no certainty
about what the terms and conditions of employment would be
or were.
[24] I have no hesitation in concluding that after the
31
st
December 2003 the respondent had no contract of
employment with either the University of Durban-Westville or the
appellant. Accordingly,
the appellant did not terminate any contract
of employment between itself and the respondent in January 2004 or at
any time thereafter
as the February 2003 agreement expired by the
effluxion of time on the 31
st
December 2003, was not
extended and no new contract was entered into between the parties.
[25] In those circumstances the Court a quo should have
dismissed the respondent’s application. With regard to costs
the attorney
for the appellant, very properly, indicated that he
would leave the issue of costs in the hands of the Court. In the
light of the
test for the granting of costs in these types of matters
I am of the opinion that this Court should exercise its discretion
against
making any cost order.
[26] In the result I make the following order:
The appeal is upheld.
There is no order as to costs.
The order of the Labour Court is hereby set aside and,
for it, is substituted the following order:
“
The application is
dismissed.
There is to be no order as to costs
.”
Zondo JP
I agree
Waglay JA
[27] I agree that the purported extension on 23
rd
December 2003 of the contract entered into between parties on 25
th
February 2003 was invalid. I am not sure, however, that the contract
of 25
th
February 2003 did not survive after 31
st
December 2003 and that the respondent did not have the right to be
retained at the level director if he made such an election.
Nevertheless, in the application before the court a quo the
respondent nowhere alleged that he had elected to be retained at the
level of director. He could not as this would have been inconsistent
with the case which he brought.
Broster AJ was therefore wrong to have come to the
respondent’s assistance. For slightly different reasons, I
agree with the
order of Zondo JP.
Willis JA
Appearances
On behalf of the Appellants: Mr R Pemberton
Instructed by : Garlicke & Bousfield Inc
Durban
On behalf of the Repondents: Mr V Soni SC
Instructed by : Naidoo Maharaj Inc
Durban
Date of judgment : 08 November 2007