About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2008
>>
[2008] ZALCJHB 1
|
|
Babeligi Motor Vehicle Testing Station t/a Tshwane East Testing Station and Another v Labuschagne (J2608/08) [2008] ZALCJHB 1 (19 December 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
NOT
REPORTABLE
CASE
NO:
J2608/08
DATE:
2008-12-17
In
the matter between
BABELEGI
MOTOR VEHICLE TESTING
STATION First
Applicant
T/A
TSHWANE EAST TESTING
STATION
D
C
LUYT Second
applicant
And
M
H A
LABUSCHAGNE Respondent
J
U D G M E N T
VAN
NIEKERK J
This
is an urgent application in which the applicants seek an order
declaring that the respondent was dismissed by the first applicant
on
13 November 2008, pursuant to a disciplinary hearing into allegations
of misconduct. The applicants also seek orders interdicting
the
respondent from attending at the first applicant’s premises and
from being involved in or interfering in the business,
and from
intimidating employees and members of the first applicant.
The
application was initially launched as an application for interim
relief. When the matter was argued, a full set of affidavits
had been filed and the matter was dealt with as an application for
final relief. That being so, it is incumbent on the applicants
to establish a clear right to the relief they seek, the absence of
any alternative remedy, and that the harm they apprehend will
be
irreparable should relief not be granted.
The
applicants explained the primary purpose of their application as
being to interdict the respondent from attending at the business
of
the first applicant, until such time as a competent tribunal has
ruled that he should be reinstated or as afforded him some
other
relief.
Mr Van
As, who appeared for the respondent, submitted that the applicants
effectively seek an eviction order, relief that falls
outside of the
scope of this court’s jurisdiction. And on that basis he
questioned the court’s jurisdiction to
entertain the
application.
This
court is of course a creature of statute and has no inherent powers
beyond those conferred on it by Section 157(1) of the Labour
Relations Act. While these powers do not, on the face of it,
extend to certain of the consequential relief sought by the
applicants, it is competent for this court, in my view, to grant
orders in relation to the existence or otherwise of a dismissal
as
defined by Section 188(1) of the Labour Relations Act; effectively
the primary declaratory relief sought in terms of paragraph
A of the
Notice of Motion, I intend therefore to deal with the merits of the
application on that basis.
A
dismissal is a termination of an employment contract by an employer
with or without notice. This requires proof of some
overt act
by the employer that is the proximate cause of the termination of the
employment contract. It goes without saying
that this is a
factual enquiry and that the existence of any dismissal is to be
objectively determined.
In
the present instance, it is common cause that an independent
chairperson, Advocate Jan Hiemstra SC, was appointed to chair a
disciplinary enquiry into allegations of misconduct levelled against
the respondent, who is described as the manager of the first
applicant. It is also common cause that at the relevant time
the respondent’s son, Eugene Labuschagne, effectively
owned 50 percent of the member’s interest in the first
applicant, and that the second applicant and his son owned 19 percent
and 17 percent of that interest respectively. It is also common
cause that the relationship between the Labuschagnes and
the Luyts
was fraught and remains so, to the extent that their business
relationship was a subject of litigation in the High Court.
Advocate
Hiemstra convened the disciplinary enquiry on 30 October 2008.
The respondent was represented by counsel
who requested a
postponement of the proceedings pending the finalisation of certain
matters in the High Court and challenged the
first applicant’s
authority to institute the enquiry. Advocate Hiemstra ruled
against the respondent on both issues.
The respondent then
withdrew from the enquiry which continued in his absence.
On
9 November 2008, Advocate Hiemstra furnished written findings in
which the respondent was found guilty on all charges.
Advocate Hiemstra recommended that the respondent be dismissed
with immediate effect.
There
was some suggestion that Advocate Hiemstra’s findings
constituted more than a recommendation but the terms of
Advocate Hiemstra’s
findings are clear; he did not regard
himself as having a brief to impose a disciplinary sanction himself,
he was to conduct an
enquiry and in the light of his factual findings
to recommend an appropriate disciplinary penalty.
On
13 November 2008, a meeting of members of the first applicant was
held. The second applicant tabled Advocate Hiemstra’s
findings and recommendation and informed the respondent that he was
dismissed with immediate effect. The second applicant
did so in
his capacity as chairperson of the first applicant and as the member
of the management committee. The second applicant
holds these
positions by virtue of the terms of the members’ agreement.
The
respondent’s son, Eugene Labuschagne, then tabled 17
resolutions, one of which proposed the reappointment of the
respondent
as manager of the first applicant. The second
applicant avers that at this point, he and his son exercised the
right afforded
them in terms of the member’s agreement and
vetoed the reappointment of the respondent. On this basis, the
applicants
aver that the respondent remains validly dismissed and
that they are entitled to the declaratory orders that they seek.
The
existence of any dismissal of the respondent is to be determined by
reference to the events at the meeting held on 13 November
and
the validity of the actions taken by the Luyts and Labuschagnes
respectively.
The relevant provisions
of the membership agreement read as follows, I refer to paragraph 3:
“
Tinus
Labuschagne will be the manager in charge of all operations.
D C Luyt will be chairman. The chairman
and the
manager will form the management committee in charge of all financial
affairs and all decisions will be taken by consensus.
The
management committee will not hold formal meetings but any
disagreement will be referred to a members’ meeting for
discussion
and resolution. A members’ meeting may
overrule prescribed or limit the scope of decisions taken by the
management
committee.”
Paragraph
6.6 of the member’s agreement provides:
“
Resolutions
at meetings. Members shall be decided on a simple majority (51%
of members’ interest) and all resolutions
of the corporation
will be properly recorded in a minute book.”
Paragraph
7 provides:
“
A
member of the corporation present in person at any meeting of the
members shall, whether of show of hands or by a poll, have the
number
of votes that corresponds with the percentage of his member’s
interest.”
And
finally, paragraph 6.12 which provides:
“
The
present lessor may veto any resolution that threatens his
investigation. The present lessor is obliged to supply his
reasons in writing if requested to do so by the members which reasons
will then be included in the minute book.”
I
refer further to the heads of agreement annexed to the members’
agreement and in particular paragraph 16 thereof, that paragraph
provides:
“
DCL
and CJL (being the second applicant and his son)
sal
nie deelneem aan die daaglikse bedryf van die besigheid nie maar sal
ʼn wete reg hê ten opsigte van die finansies,
uitbreiding
en of kapitaal aankope van die organisasie.”
The
reference to the “present lessor” should be read together
with the definitions clause, and in particular clause
1.2.12 of the
members’ agreement which provides as follows:
“
Lessor
means the member of Branderstraat 284 BK duly authorised by its
members to transact business with the corporation.
“Present
lessor” means the lessor who is also a member of the
corporation.”
While
there can be doubt, as the applicants submit, that an employer is
entitled to take action against an employee who has committed
serious
misconduct and that the employer is ultimately entitled to terminate
that employee’s employment, I am not persuaded
that in the
present instance, the applic`nts have established that the respondent
has been dismissed, a fact on wiich their claim
to a cldar right is
predicated.
The
second applicant max well be t(e chair of the firct ap0licant "ut
it does not follow dHat he has the right to unilaterally
terminate
the respondent’s employment. The same observation extends
to the second applkcant’s wearing thu hat
of the`management
committee of which he was at the relevant`time the sole member.
The
respondent’s version is 4hat at the meeting the second
applicant simply informed the respondent that he was dismissed
and
that Advocate Hiemstra’s recommendation was not put to the
members’ meeting for discussion nor for a vote.
This
version is supported by the minutes of the meeting annexed to the
applicants’ founding affidavit. On this basis
alone,
there must be significant doubt as to whether the respondent was
validly dismissed.
I
say this because the terms of the members’ agreement and those
paragraphs to which I have referred, clearly subordinate
both the
chairperson and the management committee to the members’
meeting. The minutes record further that after the
second
applicant’s announcement of the respondent’s dismissal,
the member with the majority interest, i.e. Eugene Labuschagne
tabled
and voted in favour of a resolution that effectively reappointed the
respondent to the position of manager. Insofar
as any right of
veto is concerned, it seems to me that on a reading of the members’
agreement no member enjoys any general
right of veto, and that the
threat to the lessor’s “investment” referred to in
paragraph 6.12 of the member’s
agreement is a reference to the
lease agreement concluded between the first applicant and the
landlord of the premises on which
it conducts business, an entity in
which the second applicant clearly has an interest.
Similarly,
in paragraph 16, the heads of agreement do not equivocally establish
a right of veto in respect of the appointment of
staff or the
termination of their employment.
In
coming to these conclusions, I do not purport to make any definitive
findings in regard to the interpretation and application
of the
members’ agreement. Like the relationship between the
Montagues and the Capulets, the feud between the Labuschagnes
and the
Luyts that underlies this matter may well have further consequences
in another forum.
I
refer to these provisions only in the context of the present enquiry
into the existence or otherwise of a dismissal as defined
by Section
188 of the Labour Relations Act and as an integral part of an enquiry
into all of the relevant facts, ultimately to
determine whether, for
the purposes of this application, the applicants have established a
clear right in the form of the dismissal
of the respondent.
In
my view, for the above reasons, the applicants have failed to
establish on a balance of probabilities that the respondent has
been
validly dismissed. Their application for a declaratory order to
that effect must accordingly fail.
My
conclusion on this aspect of the application has the consequence that
it is unnecessary for me to consider the alternative arguments
advanced by Mr Van As, as to why the application should not
succeed. I have assumed for the purposes of this judgment
and
without making a ruling to that effect that the applicants have the
necessary authority to bring this application but given
my finding on
the merits of the application, it is not necessary for me to express
a view on this issue and refrain from doing
so.
In
the result,
the application is dismissed with costs
.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 17 December 2008
Date
of Judgment: 19 December 2008
Appearances:
For
the applicant Adv R Venter
Instructed
by Hannelie Basson Attorneys
For
the Respondent Adv M Van As
Instructed
by Macrobert Inc.