About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2019
>>
[2019] ZALAC 71
|
|
Legal Aid South Africa v Theunissen (CA14/18) [2019] ZALAC 71; (2020) 41 ILJ 625 (LAC); [2020] 4 BLLR 370 (LAC) (25 November 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Labour
Appeal Court case no: CA14/18
Labour
Court case no: C297/17
In the matter between:
LEGAL AID SOUTH
AFRICA
Appellant / Respondent
a quo
and
DANIEL
CORNELIS THEUNISSEN
Respondent/Applicant
a quo
Heard:
30 August 2019
Delivered:
25 November 2019
Summary: Breach of
contract – specific performance – employee contending
that employer unlawfully terminating his contract
when he reached the
retirement age of 60 – employer amending terms and conditions
that set the retirement at 60 - employee
submitting that in
terms of his terms and condition of employment the retirement age is
65- court holding that the determination
of the dispute revolves
around the interpretation of the employer’s terms and condition
governing the employment –
court finding that: In the absence
of any express entitlement to retire at the age of 65 years in
employee’s letter of employment,
the position applicable to him
was governed by Legal Aid SA’s terms and conditions, as
amended. Once the 2007 terms and conditions
had been revised,
employee no longer had any entitlement to retire at 65 years.
Instead, the retirement age was set at 60 years
in the revised terms
and conditions. It follows that employee’s retirement age is 60
years, as governed by the 2009 and subsequent
terms and conditions,
as his individual contract of employment does not fall within the
narrow ambit of the savings clause. In
the light of employee’s
failure to object, and the extensive consultative processes that
Legal Aid SA undertook in putting
in place the 2009, 2012 and 2015
terms and conditions, the contention that the retirement age was
altered unilaterally lacks foundation.
Appeal upheld and Labour
Court’s judgment set aside.
Coram: Davis JA, Murphy
and Kathree-Setiloane AJJA
JUDGMENT
KATHREE-SETILOANE AJA
[1]
This is an appeal against the judgment and order of the Labour Court
(Prinsloo J)
reinstating the respondent, Mr Daniel Cornelis
Theunissen (“Mr Theunissen”), on the grounds that his
employment was
prematurely terminated by the appellant, Legal Aid
South Africa (“Legal Aid SA”) when he reached 60 years of
age.
[2]
The appeal concerns the question whether the retirement age of
Mr Theunissen
who was employed by Legal Aid SA is 65, rather
than 60.
Background
[3]
Legal Aid SA is an independent public entity, established by section
2 of the Legal
Aid South Africa Act.
[1]
The objects of Legal Aid SA are to make available legal aid and
advice, to provide legal representation to persons who otherwise
would not be able to access such representation, and to provide
education and information on legal rights and obligations.
[2]
The board of Legal Aid SA is empowered to appoint employees in light
of these objects, “on such conditions and at such remuneration
… to assist in the performance of its functions”.
[3]
[4]
Mr Theunissen was appointed by Legal Aid SA as a High Court Unit
Professional Assistant
on 1 May 2008. His letter of employment, dated
7 April 2008, provides for a range of employment conditions
including a provision
for termination of employment.
[5]
Mr Theunissen’s letter of employment is, however, silent on his
retirement age.
At the time of his appointment, Legal Aid SA had in
place the Human Resources Policy and Procedure Manual 2007, which
included
terms and conditions of employment (“2007 terms and
conditions of employment”). Clause 3.7.1 of these terms and
conditions
provided that the retirement age for all employees of
Legal Aid SA is 65 years. The 2007 terms and conditions are
generalised.
They applied, in terms of clause 1, to all employees of
the Legal Aid Board (the predecessor of Legal Aid SA), irrespective
of
their position within the organisation, their seniority or the
length of their service with the organisation.
[6]
In terms of clause 3.7.1 of the 2007 terms and conditions, the
“[r]etirement
age for all employees was sixty-five (65) years”.
[7]
In addition, clause 3.11 of these terms and conditions refers to
“
flexibility
”
as an “inherent requirement” and records, in this
context, that Legal Aid SA will
“
consult
appropriately if there is a need to vary conditions of employment due
to operational needs”.
[8]
The core value of flexibility is also referred to in paragraph 16 of
Mr Theunissen’s
letter of employment which emphasises that:
‘
In
order to achieve the professional service excellence to which [Legal
Aid SA] is committed it is consequently necessary that employees
undertake to accept and adapt to changes in working conditions with
the appropriate degree of flexibility indicated by an acknowledgement
that the needs of [Legal Aid SA’s] clients are paramount. By
accepting this offer of employment you agree that you will be
flexible in adapting to change in your working conditions.’
[9]
The Minister of Justice and Constitutional Development, in
consultation with the Minister
of Finance, approved the 2009, 2012
and 2015 terms and conditions.
[10]
The 2009, 2012 and 2015 terms and conditions provide for a retirement
age of 60 years of age,
rather than 65 years. Clause 3.8.1
of the 2009 terms and conditions provides:
‘
Retirement
age for employees is sixty (60) years save in respect of employees
(i)
expressly entitled to retire at 65 in terms of their individual
contracts of
employment with the Legal Aid SA; or
(ii)
who had reached the age of 55 years on or before 1 August 2009 whilst
being in the
permanent employment of the Legal Aid SA, in respect of
whom the retirement age shall be 65…”.
(“the savings
clause”)
[11]
Clause 3.8.2 of the 2009 terms and conditions provides that “when
employees reach the age
of 60 they will be compelled to retire”.
Clauses 3.8.1 and 3.8.2 of the 2012 terms and conditions, and clauses
3.9.1 and
3.9.2 of the 2015 terms and conditions are identical to
clauses 3.8.1 and 3.8.2 of the 2009 terms and conditions.
[12]
Clause 3.9.2 of the 2015 terms and conditions is unambiguous: “
When
employees reach the age of 60 they will be compelled to retire
”.
The exceptions to this position are captured in the savings clause
(clauses 3.9.1(a) and (b).
[13]
Legal Aid SA took the position that because Mr Theunissen did not
fall within the ambit of either
the first or the second part of the
savings clause, his retirement age is 60 years. Accordingly, on
29 August 2016, it wrote
to Mr Theunissen advising him that he was
due for retirement on 30 June 2017, when he turned 60 years of age.
[14]
Mr Theunissen’s services were duly terminated on 30 June 2017.
[15]
Aggrieved by what he claimed to be the early termination of his
contract of employment, Mr Theunissen
launched proceedings in the
Labour Court in terms of section 77(3) of the Basic Conditions of
Employment Act
[4]
(“BCEA”).
Mr Theunissen contended that Legal Aid SA breached his
employment contract when it terminated
his employment on turning 60
years old.
In
the Labour Court
[16]
On 20 June 2018, the Labour Court handed down its judgment and order.
It ordered the reinstatement
of Mr Theunissen on the grounds that he
was entitled to retire at the age of 65, and that Legal Aid SA
breached his contract of
employment by terminating his employment on
turning 60 years old.
[17]
The Labour Court records as “common cause” that Mr
Theunissen’s
“
written agreement
… as supplemented by [Legal Aid SA’s] policies and
procedures” was regarded by Legal Aid SA
as Mr Theunissen’s
“individual contract of employment”. It then held that
“the terms and conditions contained
in [Legal Aid SA’s]
‘Human Resources Policy and Procedure Manual 2007’ …
were incorporated and formed
part of the Applicant’s individual
contract of employment”.
[18]
The Labour Court furthermore found that Mr Theunissen’s
individual contract of employment
comprised both his letter of
employment (which contained specific, individual terms of employment)
as well as the 2007 terms and
conditions. It, therefore, held that Mr
Theunissen’s contract of employment falls within the ambit of
the first part of the
savings clause in the 2009, 2012 and 2015 terms
and conditions respectively, and he was therefore specifically
entitled to retire
at the age of 65 years. Lastly, the Labour Court
found that Legal Aid SA “
unilaterally”
changed
Mr Theunissen’s contract of employment. It accordingly
made the following order:
‘
1.
[Mr Theunissen’s]
retirement age in terms of his contract of employment with [Legal
Aid
SA] is declared to be 65 years;
2.
[Legal Aid SA’s] decision to terminate [Mr Theunissen’s]
employment on
30 June 2017 upon his attaining the age of 60 years
constituted a breach of the terms of [his] contract of employment;
3.
The termination of [Mr Theunissen’s] employment is set aside;
4.
[Mr Theunissen] is reinstated in [Legal Aid SA’s] employ on the
same terms
and conditions which applied as at 30 June 2017,
retrospectively with effect from 1 July 2017;
5.
[Legal Aid SA] is to pay the costs.
[19]
The appeal lies against this order with leave of the Labour Court.
The Appeal
Legal Aid SA’s
submissions
[20]
Central to the determination of the issue on appeal is the
interpretation of the savings clause
which is expressed in identical
terms in the 2009, 2012 and 2015 terms and conditions. Legal Aid SA
argues that in interpreting
the savings clause, the Labour Court
erred in three respects.
(a)
First, it incorrectly interpreted the term “individual
contracts of employment”
as used in the 2009, 2012 and 2015
terms and conditions respectively, as applying to all existing
employees (i.e. as at 2009).
It argues that this interpretation
effectively renders the word “
individual
” as well
as the entire savings clause superfluous. In other words,
notwithstanding the purpose of the savings clause which
was to
provide for two narrow exceptions to the compulsory retirement age of
60, on Mr Theunissen’s interpretation it is
regarded as
redundant.
(b)
Second, its erroneous interpretation also renders the second part of
the savings clause
pointless, as all existing (i.e. at the time of
the 2009 terms and conditions) employees are excluded from the
60-year retirement
age, whether or not they had reached the age of 55
in 2009. This interpretation of the savings clause bears no relation
to its
wording, read plainly or contextually and undermines its core
purpose; and
(c)
Thirdly, the Labour Court failed to take account of its contractual
right to terminate
Mr Theunissen’s contract of employment
on at least one month’s notice, which it had given him.
Mr Theunissen’s
submissions
[21]
Mr Theunissen does not contest the lawfulness or contractual
permissibility of the successive
revisions of the terms and
conditions. Rather, he contends that on its express wording, the
savings clause makes the new retirement
age of 60 years inapplicable
to him thus entitling him to retire at the age of 65. In addition, he
contends that properly interpreted,
his individual contract of
employment includes both his letter of employment and the generalised
2007 terms and conditions, through
express reference and
incorporation by virtue of the introductory words to clause 3.8.7.1
of the 2009 terms and conditions which
reads:
“
[U]nless
specifically otherwise agreed in an individual contract of employment
with a specific employee, the same terms and conditions
apply in
respect of both permanent employees and employees on a fixed term
employment contract”.
[22]
He furthermore contends that the letter of
appointment and the 2007 general terms and conditions together
reflected the terms of
his individual contract of employment, and the
reference is to “their contracts of employment as individuals”
in the
employment of Legal Aid SA. The term “individual
contracts of employment”, he points out, was specifically
included
in order to preserve individual employees’ existing
rights of retirement at the age of 65.
Interpretation of the
savings clause
[23]
In interpreting the savings clause, the Court is required by
Endumeni
[5]
to
apply a purposive, contextual, interpretation that takes account of
the objects sought to be achieved by the creation and approval
of the
2009 terms and conditions, and all subsequent terms and conditions.
It is required to interpret these terms and conditions
in a manner
that is consistent with the plain and unambiguous wording of the
clauses, and ensure that all words used have a functional
meaning,
and none is rendered superfluous or obsolete.
[6]
[24]
The Labour Court correctly concluded that the
Endumeni
approach
applies but unfortunately erred in failing to apply this indicated
approach to its interpretation of the 2009 terms and
conditions, as
well as its successive 2012 and 2015 terms and conditions.
[25]
The core purpose of the 2009, 2012 and 2015 terms of conditions was
to change the generalised
2007 terms and conditions; in particular
the age of retirement of 65 years that applied to all employees of
Legal Aid SA regardless
of their seniority, length of service etc due
to its operational needs. This is common cause. However, the
interpretation adopted
by the Labour Court runs counter to this
purpose.
[26]
Further, the interpretation adopted by the Labour Court rendered
words contained in both clauses
3.8.1 (i) and (ii) of the 2009 terms
and conditions as well as both clauses 3.8.1 (a) and (b) of the 2012
terms and conditions
and clauses 3.9.1(a) and (b) of the 2015 terms
and conditions, entirely superfluous.
[27]
Properly construed, the term “their individual contracts of
employment” as used in
the 2009, 2012 and 2015 terms and
conditions suggests a document extraneous to the terms and
conditions. Interpreted as such, both
clauses 3.8.1 (i) and (ii) of
the 2009 terms and conditions (and its counterpart in clause 3.8.1(a)
and (b) of the 2012 terms and
conditions and clauses 3.9.1(a) and (b)
of the 2015 terms and conditions) have a functional meaning. The
savings clause in all
three versions specifically limits its ambit to
employees who expressly are entitled to retire at 65 years of age in
terms of their
individual contracts of employment.
[28]
Since Mr Theunissen’s letter of employment is silent on his
retirement age, it cannot be
said that he is expressly (or tacitly
for that matter) entitled to retire at the age of 65 in terms of his
individual contract
of employment with Legal Aid SA. In the absence
of any express entitlement to retire at the age of 65 years in Mr
Theunissen’s
letter of employment, the position applicable to
him was governed by Legal Aid SA’s terms and conditions, as
amended. Once
the 2007 terms and conditions had been revised, Mr
Theunissen no longer had any entitlement to retire at 65 years.
Instead, the
retirement age was set at 60 years in the revised terms
and conditions.
[29]
The savings clause contained in clause 3.8.1(i) of the 2009 terms and
conditions and 3.8.1(a)
of the 2012 terms and conditions and 3.9.1(a)
of the 2015 terms and conditions, only apply to employees whose
individual contracts
of employment expressly provide for their
retirement age to be at 65 years of age. It is common cause that at
no point during the
consultative processes did Mr Theunissen indicate
any objection to the proposed changes to the 2007 terms and
conditions or otherwise
seek to conclude an agreement with Legal Aid
SA specifying that his individual retirement age would be 65 years.
[30]
It follows that Mr Theunissen’s retirement age is 60 years, as
governed by the 2009 and
subsequent terms and conditions, as his
individual contract of employment does not fall within the narrow
ambit of the savings
clause as provided by clause 3.8.1(i) of the
2009 terms and conditions and its counterparts in the subsequent 2012
and 2015 terms
and conditions.
[31]
Clause 3.8.1(ii) of the 2009 terms and conditions and its
counterparts in the 2102 and 2013 terms
and conditions are also
instructive. They provide as follows:
‘
Retirement
age for employees is sixty (60) years save in respect of employees
who had reached the age of 55 years on or before 1
August 2009 whilst
being in the permanent employment of the Legal Aid SA, in respect of
whom the retirement age shall be 65
.’
[32]
Prior to the changes effected by the 2009, 2012 and 2015 terms and
conditions, all employees
of Legal Aid SA were required to retire on
reaching 65 years of age in terms of the generalised 2007 terms and
conditions. Clause
3.8.1(ii) of the 2009 terms and conditions (and
its counterparts in the 2012 and 2015 terms and conditions) provided
a second category
of employee, additional to the category envisaged
in clause 3.8.1(i), permitting permanent employees, who were 55 years
or older
on 1 August 2009, to retire at 65 years of age.
[33]
On the interpretation contended for by Mr Theunissen, clause
3.8.1(ii) would be rendered entirely
superfluous. The effect of
this would be that those employees who were 55 years or older on
1 August 2009 would already
have the right to retire at 65 years
of age (by virtue of the 2007 terms and conditions being incorporated
into their “individual”
contracts of employment). Were
this to be the position, then there would be no need for clause
3.8.1(ii) specifically to regulate
the position with respect to this
category of employee. Thus, given the presumption against the
inclusion of superfluous words,
I am unable to conclude that
Mr Theunissen’s individual contract of employment
incorporated the provisions of the 2007
terms and conditions.
[34]
The consequence of the interpretation favoured by the Labour Court
would be that all employees
who worked for Legal Aid SA, when the
2007 terms and conditions came into effect, would also have
incorporated into their “
individual contracts of employment
”
the 2007 terms and conditions. But this is a flawed construction as
it renders incomprehensible and obsolete a number of
clauses in the
2009, 2012 and 2015 terms and conditions; most significantly the two
parts of the savings clause (in all three versions
respectively)
which were unambiguously drafted to avoid this implication.
[35]
If the position advanced by Mr Theunissen was intended, then one
would have expected the inclusion
of a clause in the 2009, 2012 and
2015 terms and conditions respectively, expressly stipulating that
the 60-year retirement age
only applies prospectively, or that all
persons employed prior to the date of coming into force of the 2009
terms and conditions
are entitled to work until 65 years of age. In
other words, if the intention was to save the retirement age for all
existing employees
as at 2007, the clause would have expressly said
so, but it did not. This failure is edifying.
[36]
The reference in the first part of the savings clause (in all three
versions of the terms and
conditions) to “
individual
contracts of employment
” is not a reference to letters of
employment read with the 2007 terms and conditions (that is, with
those terms and conditions
necessarily incorporated into the letters
of employment). Instead, the first part of the savings clause in all
three versions of
the terms and conditions makes it clear that all
Legal Aid SA’s employees – both existing and future –are
subject
to the new retirement age of 60 years, subject only to them
not falling into one of two narrow exceptions. Since Mr Theunissen
does not fall into either of these exceptions, he is outside the
ambit of the savings clause and is not entitled to retire at the
age
of 65 years.
[37]
Additionally, the Labour Court erred in recording that Mr
Theunissen’s
“
written agreement
… as supplemented by [Legal Aid SA’s] policies and
procedures”
was regarded by Legal Aid
SA as Mr Theunissen’s “individual contract of
employment”. This error is repeated in
the third paragraph of
the judgment, where it is recorded as common cause that “the
terms and conditions contained in [Legal
Aid SA’s] ‘Human
Resources Policy and Procedure Manual 2007’ … were
incorporated and formed part of the
Applicant’s individual
contract of employment.” Again, this was never common cause.
The evidence makes clear that Legal
Aid SA’s stance throughout
was to the contrary i.e. that only the written agreement between Mr
Theunissen and Legal Aid SA
was his “individual contract”,
not the 2007 terms and conditions.
Retirement age not
changed unilaterally
[38]
I agree with the contention advanced by Legal Aid SA that the Labour
Court erred in concluding
that Legal Aid SA “unilaterally”
changed Mr Theunissen’s contract of employment, for two primary
reasons. First,
this conclusion ignores the extensive consultative
processes that occurred prior to the approval and publication of the
2009, 2012
and 2015 terms and conditions. Second, it fails to account
for Mr Theunissen’s failure to object to the amendments during
the consultative processes.
[39]
Mr Theunissen does not dispute that Legal Aid SA possessed the power
to vary the general conditions
of employment in line with operational
requirements, after appropriate consultation with relevant
stakeholders (including employees)
has occurred. Significantly, the
2007 terms and conditions included a flexibility provision in clause
3.11. This provision is reproduced
in its entirety as clause 3.12 and
clause 3.14 respectively in the 2009, 2012 and 2015 terms and
conditions. Properly interpreted,
this provision empowered Legal Aid
SA to vary employees’ conditions of employment where there was
a need to do so, provided
it consulted with employees in advance.
[40]
The core value of flexibility is also referred to in Mr Theunissen’s
individual letter
of employment as clause 16, in terms of which it is
recorded that—
‘
In
order to achieve the professional service excellence to which the
Legal Aid Board is committed it is consequently necessary that
employees undertake to accept and adapt to changes in working
conditions with the appropriate degree of flexibility indicated by
an
acknowledgement that the needs of the Legal Aid Board’s clients
are paramount. By accepting this offer of employment
you agree
that you will be flexible in adapting to change in your working
conditions.’
[41]
Legal Aid SA was contractually entitled to change the terms and
conditions of employment, and
employees were obliged to accept and
adapt to these changes. Mr Theunissen accepted as much when he signed
the employment contract.
Moreover, before the 2009, 2012 and 2015
terms and conditions were put in place, a comprehensive and extensive
consultation process
was followed. It involved circulating a draft
policy to all employees, provisional approval by the board, and
recirculation to
all employees for comments. The board then took
those comments into consideration before approving the terms and
conditions. Following
this, the Minister of Justice and
Constitutional Development (as he then was), in consultation with the
Minister of Finance, approved
the terms and conditions.
[42]
Thus, contrary to the Labour Court’s finding, this process was
not unilateral, but rather
multilateral and consultative, with
employees afforded numerous opportunities to participate in the
process and to safeguard their
individual interests.
[43]
The consultative process followed by Legal Aid SA is consistent with
the value of flexibility.
It is not in dispute that the consultative
process was implemented prior to the introduction of the 2009, 2012
and 2015 terms and
conditions.
[44]
Section 18(2) of the Legal Aid South Africa Act 39 of 2014 provides
that when the Legal Aid SA
terms and conditions of employment are
determined, the provisions of the
Labour Relations Act 66 of 1995
relating to collective bargaining are applicable. Mr Theunissen was
represented by his union. Although in a position to do so,
his union
did not declare a dispute or resort to industrial action. What it
did, however, was to provide an initial objection to
the proposed
change to the retirement age.
[45]
In response, Legal Aid SA proposed the inclusion of the second part
of the savings clause which
provides that employees who reach the age
of 55 years on or before 1 August 2009 whilst in the permanent employ
of Legal Aid SA
may retire at 65 years”. No further objections
to retain the retirement age as 65 years were made by either Mr
Theunissen
or his union. In the light of Mr Theunissen’s
failure to object, and the extensive consultative processes that
Legal Aid
SA undertook in putting in place the 2009, 2012 and 2015
terms and conditions, the contention that the retirement age was
altered
unilaterally lacks foundation.
[46]
Accordingly, I see no fault in the conduct of Legal Aid SA. It put in
place the revised terms
and conditions in furtherance of its
statutory objectives, and only did so after an extensive consultation
process. The approved
terms and conditions further accommodated
comments received by Legal Aid SA’s employees and the
representative trade union,
and were only made effective pursuant to
ministerial approval. As far as Mr Theunissen is concerned, he was
given notice well in
advance of the termination of his employment as
a result of reaching the retirement age of 60 years.
Acquiescence
[47]
In my view, Mr Theunissen acquiesced to the changes to his retirement
age pursuant to the 2009,
2012 and 2015 terms and conditions. In
McWilliams v First Consolidated Holdings
,
the Appellate Division observed:
‘
I
accept that ‘quiescence is not necessarily acquiescence’
and that a party’s failure to reply to a letter asserting
the
existence of an obligation owed by such party to the writer does not
always justify an inference that the assertion was accepted
as the
truth. But in general, when according to ordinary commercial practice
and human expectation firm repudiation of such assertion
would be the
norm if it was not accepted as correct, such party’s silence
and inaction, unless satisfactorily explained,
may be taken to
constitute an admission by him of the truth of the assertion, or at
least will be an important factor telling against
him in the
assessment of the probabilities and in the final determination of the
dispute. And, an adverse inference will the more
readily be drawn
when the unchallenged assertion had been preceded by correspondence
or negotiations between the parties relative
to the subject matter of
the assertion.’
[7]
[48]
Notably, Legal Aid SA commenced the consultation process in relation
to the 2009 terms and conditions
by emailing a version to staff in
which “revisions, changes or new inclusions are indicated in
bold italic font, strike through
and a line in the right hand
margin”. It was thus expected of him to speak up, had he any
objections to the altered retirement
age. He, however, elected not to
object, thereby acquiescing to the revised retirement age of 65. He
must be held to this election.
Entitlement
to terminate the Employment Contract
on
notice
[49]
Legal Aid SA was entitled to terminate its contract of employment
with Mr Theunissen. Clause
12.1 of Mr Theunissen’s letter of
employment deals with termination of employment, and provides:
‘
One
(1) calendar month’s written notice of termination of service
is required from either [Mr Theunissen] or the Legal Aid
Board.’
[50]
All that Legal Aid SA was required to do to lawfully terminate Mr
Theunissen’s employment
contract was to give him at least one
month’s notice, which it did. It, in fact, provided Mr
Theunissen with 10 months’
notice; well in excess of the
minimum period contractually stipulated to terminate his employment.
This constituted an exercise
of Legal Aid SA’s contractual
rights under the letter of employment.
[51]
I accordingly, consider the Labour Court to have erred in ordering Mr
Theunissen’s reinstatement.
This order effectively amounts to
specific performance which is not readily granted by our courts in
the context of an employment
contract.
[8]
[52]
For all these reasons, I conclude that the appeal must succeed.
Costs
[52]
This is not an unfair dismissal claim brought under the Labour
Relations Act 66 of 1995, but
rather a civil claim for breach of
contract. In the ordinary course, costs would follow the result in
both proceedings in the Labour
Court and in this Court. However,
Legal Aid SA does not seek a costs order against Mr Theunissen in the
appeal and in the Labour
Court.
Order
[53] In
the result, I order that:
1.
The appeal is upheld with no order as to
costs.
2.
The order of the Labour Court is set aside
and replaced with the following order:
“
The
application is dismissed with no order as to costs”.
_____________________
F.
Kathree-Setiloane AJA
DM Davis JA and J Murphy
AJA concurring.
APPEARANCES:
FOR THE APPELLANT:
A Dodson SC with A Finn
Instructed by Legal Aid
South Africa
FOR THE RESPONDENT: RGL
Steltzner SC
Instructed
by Arlene Duval Attorneys
[1]
39
of 2014.
[2]
Section 3 of the Legal Aid South Africa Act.
[3]
Section 18(1) read with section 17(3)(b) of the Legal
Aid South Africa Act 39 of 2014.
[4]
No.
75 of 1997.
[5]
Natal
Municipal Pension Fund v Endumeni
2012 (4) SA 593 (SCA).
[6]
In
Wellworths
Bazaars Limited v Chandlers Limited and Another
1947
(2) SA 37
(A) 43
,
the
Appellate Division quoted with approval the following passage from
Ditcher
v Denison
:
“
It
is a good general rule in jurisprudence that one who reads a legal
document, whether public or private, should not be prompted
to
ascribe – should not, without necessity or some sound reason
impute – to its language tautology or superfluity,
and should
rather at the outset be inclined to suppose every word intended to
have some effect or be of some use.
”
[7]
McWilliams
v First Consolidated Holdings
1982 (1) All SA 245
(A) at 10E-G.
[8]
Masetlha
v President of the Republic of South Africa
2008
(1) BCLR; 2008
(1) SA 566 (CC) para 88;
Seloadi
v Sun International (Bophuthatswana) Ltd
[1993]
3 All SA 21
;
1993 (2) SA 174
(BG) 186I-190E.