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[2010] ZALCJHB 360
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Makumu v Board of Sedibeng Water and Another (J1655/10) [2010] ZALCJHB 360 (2 August 2010)
Not
reportable
Of
interest to other judges
Delivered
020810
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO J 1655/10
In
the matter between:
MAKUMU
FANI UBISI
APPLICANT
And
THE
BOARD OF SEDIBENG WATER
FIRST RESPONDENT
MINISTER
OF WATER AND
ENVIRONMENTAL
AFFAIRS
SECOND RESPONDENT
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicant seeks an interim
order declaring that the first respondent’s refusal
to renew
the applicant’s employment contract is unlawful, and to compel
the first respondent to renew the contract.
[2]
I will assume for the purposes of this judgment that the application
is urgent, and that the applicant’s failure to comply
with the
time periods set out in the Rules of this court is justifiable. That
being so, it is incumbent on the applicant to establish
a prima facie
right to the relief he seeks, an apprehension of irreparable harm,
the absence of an alternative remedy and that
the balance of
convenience lies in his favour.
[3]
The applicant was employed as the chief executive of the first
respondent, with effect from 1 August 2005. The right on which
the
applicant relies to claim that he is entitled to the renewal of his
contract is derived from the terms of the contract
itself.
Clause 2 of the contract reads as follows:
The
employee’s employment shall commence on 1 August 2005 and the
employment contract will expire on 31 July 2010 and
(sic)
renewable for five (5) years, save for
gross misconduct and or non-performance. The employer will start
contract extension negotiation
with the employee six months before
expiry of contract.
[4]
Clause 10 of the contract is headed “Termination of
Employment”, and reads as follows:
Either
the EMPLOYEE or the EMPLOYER may terminate the EMPLOYEE’S
service by giving 30 (thirty) days written notice, effective
immediately.
Either
party may summarily terminate this contract for any cause recognised
by the law as being sufficient, subject to this being
reduced to
writing. The EMPLOYER may terminate this agreement without any notice
in the case of gross misconduct or dishonesty
on the part of the
EMPLOYEE. The EMPLOYER will in such event follow the procedure laid
down in the disciplinary code and procedure.
[5]
On 28 June 2010, a little more than a month from the date of expiry
of the applicant’s fixed term of employment, the first
respondent’s acting chairperson wrote to the applicant to
notify him that the first respondent wished to commence negotiations
regarding a possible extension of the applicant’s contract.
This was followed up with a letter dated 22 July 2010, when the
applicant was requested to provide reasons why he believed that his
contact should be renewed. On 26 July 2010, the applicant wrote
to
the first respondent’s acting chairperson, pointing out that
the terms of his contract obliged the first respondent to
renew the
contract for a further five year period. On 28 July 2010, the acting
chairperson responded to the applicant, stating
that he did not agree
with the applicant’s interpretation of the contract, and
notified him that the contract would not be
renewed.
[6]
The high-water mark in the applicant’s contention in these
proceedings is that the word “
renewable
”
in clause 2 of the contract means that the applicant was guaranteed a
further five year extension of his contract, provided
that he had not
been guilty of gross misconduct or had not failed to meet the
required performance standards. In other words, ‘renewable’
was qualified by the exceptions of misconduct and poor performance,
and since these did not apply, ‘renewable’ carried
no
qualification and imposed an obligation on the first respondent to
renew the contract for a further five year period.
[7]
The applicant’s interpretation of the contract requires the
following reading: “The contract shall be renewed
for a
further five (5) years, save for gross misconduct or poor
performance.” In my view, this is not an interpretation that
can be sustained by the plain meaning of the word “
renewable
”.
Black’s Legal Dictionary (7
th
ed., Garner
et al
)
defines “
renewal
”
as “
The re-creation of a legal
relationship or the replacement of an old contract with a new
contract, as opposed to the mere extension
of a previous relationship
or contract
.” The Oxford
Dictionary of English (2
nd
ed., 2003) defines “
renewable
”
to mean “
capable of being
renewed
”. Clause 2 means no more
than that the contract was capable of being renewed, i.e. the renewal
of the contract was not intended
to be automatic; the consensus of
both parties would be a prerequisite to it being renewed. This
reading of clause 2 is reinforced
by the requirement that
negotiations on the extension of the contract be initiated six months
prior to its expiry. If the applicant
had a right to automatic
renewal, there would be nothing to negotiate. While the first
respondent initiated negotiations much later
than it was required to
do, this is a question of implementation rather than interpretation.
[8]
Mr Sibuyi, who appeared for the applicant, submitted further that
clause 2 of the contract should be read with clause 10 –
the
contention being, as I understood it, that the first respondent could
terminate the contract only by giving notice of its intention
to do
so (which it had not done) or by terminating the agreement summarily
in the event that the applicant committed gross misconduct
(which he
had not). Clause 2 is indeed qualified by clause 10, but Mr Sibuyi’s
contention begs the question of the fixed
term nature of the contract
and the agreed termination of the contract, by the effluxion of time
rather than by reason of any proximate
act by the employer, on 31
July 2010.
[9]
For these reason, in my view, the applicant has failed to establish a
prima facie right, even one open to some doubt, and for
this reason,
the application must fail. It is not necessary therefore for me to
consider the remaining requirements for the obtaining
of interim
relief.
[10]
In these proceedings, the applicant has confined himself to an
assertion of what he claims are his contractual rights –
he
disavows any reliance on those rights established by the LRA. Of
course, nothing in this judgment precludes the applicant from
claiming that the first respondent’s refusal to renew his
contract constituted a dismissal as defined in s 186(1) of the
LRA,
and from claiming that in the circumstances, his dismissal was
unfair.
[11]
In so far as costs are concerned, Mr Vally, who appeared for the
first respondent, very fairly did not press for a costs order,
and I
do not intend to make one.
I
accordingly make the following order
1.
The application is dismissed.
2.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 30 July 2010
Date
of judgment: 2 August 2010
Appearances:
For
the applicant: Adv Sibuyi, instructed by Eversheds
For
the first respondent: Adv B Vally, with him Adv C Ascar, instructed
by Sunil Narian Attorneys