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[2011] ZALCD 27
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Langeni v SA Women & Mining Investment Holdings (Pty) Ltd (SAWIMIH) (D633/11) [2011] ZALCD 27 (29 July 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: D633/11
In the matter between:
NOLUTHANDO LANGENI
.....................................................................................
Applicant
and
SOUTH AFRICAN WOMEN AND MINING
INVESTMENTS HOLDINGS (PTY) LTD (“SAWIMIH”)
...................................
Respondent
JUDGMENT
FRANCIS J
1. The applicant approached this Court on an urgent basis for the
following relief:
“
1. That the rules of the above
Honourable Court relating to the forms and manner of service are
hereby dispensed with and this matter
is dealt with as one of
urgency;
2. That the purported dismissal of the Applicant from her position
as Chief Executive Officer of the Respondent is declared to be
invalid, unlawful and no legal force and effect; alternatively
3. That the purported dismissal of the Applicant be set aside
pending compliance by the Respondent with the substantive and
procedural
requirements of law that would have application in regard
to any enquiry into allegations of misconduct or that would have
application
to any termination on the basis of “no fault”;
4. That the Applicant is permitted to resume her duties as the
Chief Executive Officer of the Respondent, such to include the
functions normally performed by the Applicant as well as the
Applicant’s representation of the Respondent on the Board of
any other entity;
5. That, in the alternative to paragraphs 2, 3 and 4 above, such
paragraphs operate as a rule nisi with interim effect pending the
return date thereof;
6. That the Respondent show cause on the day of 2011 as to why it
should not be found to be in contempt of the Court order dated
the
1st July 2011 under case number D554/2011; and
7. That the Respondent pay the costs of this application on the
attorney and client scale.”
2. The application was instituted by the applicant on 21 July 2011
and was set down for a hearing on 25 July 2011. On 25 July
2011 the
application was postponed to 28 July 2011 to enable the applicant to
file a replying affidavit. The respondent had filed
an answering
affidavit on 25 July 2011. The parties were ordered to file heads or
arguments which they duly did.
3. Mr Lawrence who appeared for the applicant informed the Court
that the applicant was no longer proceeding with the prayer
to hold
the respondent in contempt of court since this would be dealt with
in the proceedings that she had launched under case
number
D554/2011.
4. The application was opposed by the respondent on several basis.
It was contended that the applicant should have brought the
application earlier and could not approach this court on an urgent
basis for the relief that she is seeking. It was further contended
that the applicant has adequate remedies available to her either in
terms of her contract of employment and in terms of the Labour
Relations Act 66 of 1995 (the Act).
5. The applicant was employed by the respondent as the Chief
Executive Officer (CEO).
6. The respondent is the South African Women and Mining Investment
Holding (Pty) Ltd (“SAWIMIH”) and is an investment
holding company specifically created to empower black women and
serve as a vehicle for them to invest and hold shares in the
mining
and energy sector of industry. The respondent exist side by side
with a section 21 Company, the South African Women in
Mining
Association (SAWIMA) which was created around 1999 at the suggestion
of the then National Minister of Minerals and Energy.
The applicant
is a director of SAWIMA and has been the chairperson of the local
Kwazulu-Natal chapter thereof since 2006. The
respondent was created
in 2003 to operate in a similar environment to that of SAWIMA but to
also enable women to invest privately
in the mining and energy
sector. From 2007 the applicant held a non-executive directorship in
the respondent and in November
2009 she was requested to take up the
position of CEO. She was employed by the respondent as the CEO and
signed a contract of
employment. Her date of employed is from 17
November 2009 to 28 February 2013.
7. The applicant was suspended on 21 June 2011. She challenged her
suspension and on 1 July 2011 the court set aside her suspension.
A
board meeting was held by the respondent on 8 July 2011. The
applicant availed herself for a telephone conference with the
board
on the same day. The board decided that her contract of employment
should be summarily be terminated. She received a letter
dated 11
July 2011 informing her that her fixed term contract was being
terminated and that the respondent had elected to pay
her notice and
that her last working day would be 8 July 2011. She was also
informed that the Board of Directors had unanimously
decided to
terminate her membership of the Board of Directors with effect from
8 July 2001.
8. The applicant instructed her attorneys to deal with the matter.
Her attorney sent the respondent a letter on 13 July 2011
calling
upon them to withdraw their letter of 11 July 2011 and to restore
her to her position as CEO. Her attorney pointed out
that the “no
fault” termination was a disingenuous invention that was
clearly and inextricable linked to the intentions
that had
surrounded her suspension as was apparent from the Board minutes of
23 June 2011. The respondent’s attorneys responded
on 13 July
2011 denying any link between the suspension and the unprocedural
dismissal and that it would resist any application
that the
applicant would bring.
9. The applicant instructed her attorney to launch these
proceedings. The application was filed with this Court on 21 July
2011 and was set down for a hearing on 25 July 2011.
10. The applicant relies on the following grounds of urgency.
“
7.1 The grounds of urgency that
prompted me to approach this Honourable Court after my suspension in
June 2011 bear similar relevance
in regard to the present
application.
7.2 In this regard I submit that the wholly unlawful and
calculated termination of my contract of employment has resulted in
the
affairs of the Respondent being left to a Board of non-Executive
Directors who have no accountability as employees and who it is
abundantly clear are not beyond acting with complete and flagrant
disregard to the law.
7.3 My dismissal without even the slightest token attendance to
procedural safeguards imposed upon an employer by the
Labour
Relations Act has
left the Respondent leaderless and prone to the
same abuse that occured prior to my appointment as Chief Executive
Officerf.
7.4 In my absence the shareholders will again fall prey to the
maladministration that previously existed and which appear to have
re-emerged during and after my suspension and will I fear be
perpetuated with greater intensity during this period after my
dismissal.
7.5 In this regard the unlawful removal of my powers, as a
Director of the Board and in contravention of the Companies Act
reinforces
my concerns about the mischievous intentions of the
current Board and the risk that shareholders will be exposed to
without my
presence.
7.6 My continuing unlawful dismissal undermines my credibility
and integrity with the Boards on which I sit, both in my personal
capacity and as a representative of the Respondent.
7.7 The longer such an unlawful dismissal endures the more
difficult it will be to repair the damage done when I am eventually
vindicated.
7.8 I have sought to avoid undue resort to this Honourable Court
by having my attorneys first correspond with the Respondent and
its
attorneys so as to implore them to uplift the purported dismissal.
7.9 It was only after the intransigence of the Respondent that my
attorneys sought to prepare the present application papers.
7.10 I was only able to secure a consultation with my attorneys
about the basis of the present application on the 19th July 2011
as
the Respondent’s attorneys had only responded on Friday, the
15th July 2011.
11. Rule 8 of the Rules of this Court permits an applicant to bring
an urgent application. It requires an applicant to set out
the
reasons for urgency and why urgent relief is necessary and why the
requirements of the rules were not complied with.
12. It is common cause that the respondent invited the applicant to
take part in a teleconference of a Board meeting on 8 July
2011
where a decision was taken to terminate her contract of employment.
This was followed up by the respondent in a letter dated
11 July
2011 where the Board’s decision was confirmed. The applicant
approached her attorney but it is not stated when
she did so. Her
attorney sent the respondent a letter on 13 July 2011 challenging
her dismissal. The respondent responded on
the same day and pointed
out that it stood by its decision and that any challenge that the
applicant would be bring would be
opposed. The applicant’s
attorney sent a further letter on 14 July 2011 clarifying a few
issues and pointed out that the
applicant was considering
approaching this Court on an urgent basis. The respondent responded
on 15 July 2011. The applicant
on 21 July 2011 launched these
proceedings.
13. The applicant has given no explanation why after the respondent
had made it clear to her on 13 July 2011 that it would challenge
any
court action that she wanted to bring, she did not proceeded with
the application. No explanation is given why again after
15 July
2011 after the respondent made its attitude known to her, she did
not launch the application on 16 July 2011. No explanation
is given
why it took her another seven days to launch this application.
14. The applicant has brought this application on short notice to
the respondent. It was also brought during the court recess.
No
special circumstances exist why this application should have been
brought on an urgent basis. The grounds of urgency advanced
by the
applicant are hardly and grounds for urgency where this court would
allow an applicant to be heard on an urgent basis.
The applicant
contended that the termination of her contract of employment has
resulted in the affairs of the respondent being
left to a Board of
non-executive directors who have no accountability as employees and
who may act unlawfully. In my view the
responsibility for running a
company such as the respondent vests on its Board of Directors which
has a fiduciary duty to run
the affairs of the company properly on
behalf of the shareholders. Should it turn out that the directors of
the company have
failed to run the affairs of the respondent in an
efficient and proper manner, the shareholders do have legal remedies
against
such a Board.
15. The applicant has contended that her dismissal has left the
respondent leaderless and prone to abuse. Once again the
shareholders
do have legal remedies against the Board. In any event
the chairperson of the Board has indicated that the affairs of the
respondent
are under control and that the Board has put in place all
the necessary measures to ensure the smooth running of the
respondent.
16. The applicant has failed to make out a proper case for this
Court to grant her the relief that she is seeking on an urgent
basis. It becomes unnecessary to consider the merits of the
application.
17. The application stands to be struck from the roll for lack of
urgency.
18. I do not believe that this is a matter where costs should the
result. I have taken into account how the applicant was treated
by
the respondent and as a mark of this court’s displeasure make
no order as to costs.
19. In the circumstances I make the following order:
19.1 The application is struck from the roll.
19.2 There is no order as to costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT : I LAWRENCE OF EDWARD NATHAN SONNENBERGS
FOR RESPONDENT : P ZILWA INSTRUCTED BY KWINANA & PARTNERS INC
DATE OF HEARING : 25 AND 28 JULY 2011
DATE OF JUDGMENT : 29 JULY 2011