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[2014] ZALCJHB 128
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Motaung v Wits University (School of Education) (JS1034/2010) [2014] ZALCJHB 128 (14 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: JS 1034/2010
In
the matter between
:
FIKILE MOTAUNG
Applicant
And
WITS
UNIVERSITY (SCHOOL OF EDUCATION)
Respondent
Considered
In Chambers.
Delivered
on: 14 April 2014
JUDGMENT
TLHOTLHALEMAJE AJ
Introduction:
[1]
The Applicant brought a claim in terms of which she had sought an
order that the Respondent had committed a breach of contract.
The
Applicant further sought payment equivalent to 48 months’
salary. That claim, following a successful application for
absolution
from the instance was dismissed in a judgement handed down on 25
October 2013. The Applicant has since filed an application
for leave
to appeal, which the Respondent had opposed.
The
legal framework in respect of applications for leave to appeal:
[2]
In considering whether to grant or refuse leave to appeal, the
question a court has to answer is whether there are reasonable
prospects that another court may come to a different conclusion. In
Minister
of Safety and Security and Another v Madyibi
[1]
, Petse, ADJP considered the
approach in this regard as follows;
“
In
giving consideration to the issues at hand I am enjoined by judicial
authority to take due cognisance of the test which is of
application
in matters of this nature. Judicial authority requires of a Judge
considering an application for leave to appeal to
reflect
dispassionately upon the decision sought to be appealed against and
decide whether or not there is a reasonable prospect
that the Appeal
Court may come to a different conclusion. This necessarily requires
of me to disabuse my mind of the fact that
I was of the view when I
delivered my judgment that it was supportable both on the facts of
the case and the law applicable thereto”.
Grounds
for appeal and evaluation:
[3]
The Applicant listed twenty (20) grounds upon which the application
for leave to appeal is based. These grounds mainly pertain
to factual
findings made, and as correctly pointed out by the Respondent, were
not grouped into categories of leave to appeal in
any discernible
order. There is a repetition in some of the grounds, and there is no
subststantiation in others. Notwithstanding
these difficulties and
for the sake of completeness I will state all of these grounds, and
deal with each individually or collectively
where appropriate.
[4]
The crisp issue before the court was whether the Applicant was
entitled to the relief she sought in circumstances where her
fixed
term contract was prematurely terminated, and where she had
unreasonably rejected the Respondent’s offer to reinstate
the
contract unconditionally and to make good on all payment due to her
for the period that she was unemployed having. This offer
was made
after the applicant had initiated court proceedings.
[5]
Ground 1, 2 and 3
:
5.1
“
The court erred in not
recognizing the applicant’s right’s to acept or reject
the offer as offers can be rejected or
accepted”.
5.2
“
The court disregarded the
provisions of the LRS as the employee has a right to choose to return
to an employer and no conditions
are attached to such right”.
5.3
“
The court erred in not
recognizing that by claiming damages despite the offer on the table,
the employee accepted the repudiation
of her employment contract and
she chose not to hold the employer to the contract”.
Ground
13:
“
Applicant
cannot be forced to return to an employer she was not happy with when
her contract was terminated and the court erred
in finding for the
respondent in this regard”.
Ground
14:
“
The court
erred in finding that the applicant failed to mitigate on the basis
of her refusal to accept the respondent’s offer”.
Ground
15:
“
The court
failed to take into account that more than two months had elapsed
before the respondent made the offer and the court erred
in finding
that this was a reasonable time”
Ground
17:
“
The court
erred in not finding that the offer made by the respondent was just
to save face and to avoid having to pay for the remainder
of the
applicant’s contract.”
Ground
18:
Whether or not
the offer was made in good faith is neither here nor there as the
applicant made here election not to return to the
respondent
.
(Sic)
[7]
In response, the Respondent’s contention was that the court did
not err as there is no suggestion that the Applicant could
not, as a
matter of law, reject the offer made to her by the Respondent to
return to work. The issue that arose from the election
according to
the Respondent is whether the Respondent would be entitled to any
damages as a result of the Applicant’s election,
and whether
the election was reasonable in the circumstances.
[8]
The Respondent placed reliance on
Technicon
SA v Mojela and other
[2]
,
which in turn relied on
Mkonto
v Ford and others
[3]
for the principle that a refusal of an offer of unconditional
reinstatement must be reasonable. The Respondent reiterated that
the
Applicant’s refusal of the unconditional offer of reinstatement
was to keep alive a claim of contractual damages which
would allowed
her, if successful, to claim payment of the balance of the
contractual period without having to tender any services.
[9]
In Mkhonto, Conradie JA lamented the fact that in that case, the
Applicant not only failed to proffer
any
reason for having refused the offer of reinstatement but
that her evidence concerning the reinstatement offer, the
only
factual issue in the case, was patently false
[4]
.
In
this case, at paragraph 35 of the judgment I expressed similar
sentiments by pointing out that the Applicant had out-rightly
and
unreasonably rejected the offer that would have placed her in exactly
the same position she would have been but for the pre-mature
termination of the contract, and further expressed the view that the
choices she made were to be exercised reasonably, which she
had
failed to do. Reliance in this regard was placed on
Dr.
DC Kemp t/a Centralmed v Rawlins
[5]
.
That
decision was confirmed by the Supreme Court of Appeal
[6]
.
In the light of these decisions, I fail to appreciate how any other
court may come to a different conclusion on this issue.
Ground
4
: “
The
court erred in not taking into account the admissions made by the
respondent that the contract was terminated prematurely as
a result
of failure in its Human resources framework
.”
Ground
16
: “
The
court erred in not taking into account that when the Human Resources
found that applicant was still on their system after the
contract was
terminated on 30 September 2010, the respondent took no action to
rectify its mistake”.
[10] In my view, this
ground is baseless in that this factor was taken into account, and it
was pointed out that the Respondent
immediately apologised and made
the offer to the Applicant to return to work.
Ground
5
: “
The
court erred in not finding that the termination was deliberate,
although the respondent might have shown remorse later, as the
respondent acted through Prof Adler when applicant was appointed and
who should have known that the contract was for five years
and the
applicant had no reason to believe what Prof Adler did was not
sanctioned by the respondent”.
[11]
I fail to appreciate how in ground 4 it can be said that the court
erred in not taking into account the admissions made that
the
contract was terminated pre-maturely, and yet in the same breath it
is alleged that the court also erred in not finding that
the
termination was deliberate, although the Respondent might have shown
remorse at a later stage. This ground is merely spurious
and
ill-conceived. At no stage was it suggested or evidence led that Prof
Adler acted on her own in advising the Applicant that
her contract
was to be terminated. There was further no evidence to indicate that
Prof Adler had not acted in good faith in her
belief that the
contract should be terminated.
Ground
6:
“
The
court erred in finding that there was insufficient evidence upon
which a reasonable man may find for the applicant.”
[12]
This ground is vague and it is not clear as to which aspect of the
judgment the applicant is really attacking. If a claimant
fails to
make out a case to support her claim, absolution from the instance
should follow where there are grounds supporting such
an application.
The Applicant had in this case failed to make out a case to justify
the granting of the relief she sought.
Ground
7:
“
The
court erred in not finding that the conduct of the respondent during
the termination was descriptive of conduct heralding non
or
mal-performance on the part of the respondent”.
[13]
In circumstances where the Respondent had become aware of its error,
and where it had sought to immediately remedy the error,
I fail to
appreciate how such conduct can be said to be descriptive of non- or
mal-performance on its part. There was no suggestion
that the
Respondent had not made its offer in good faith, and that aspect was
sufficiently dealt with in the judgement at paragraphs
24, 31 and 36.
Ground
8:
“
The
court erred in finding that up to the stage when the respondent held
a farewell for the applicant it just had an intention to
terminate
the employment contract”.
[14] At paragraph 27 of
the judgment I had stated that “….In the face of
conflicting messages from the respondent,
it is apparent that even
though there was intention to prematurely terminate the contract,
that intention cannot be said to be
deliberate, unequivocal and
descriptive of conduct heralding non-or mal-performance on its
part….”
Ground
9:
“
The
court erred in finding fault with applicant for not raising a
complaint or grievance after she was informed of the termination.”
Ground
10:
“
The court
erred in concluding that the applicant was obliged to bring the
termination to the respondent’s attention and to
put the
respondent on terms”.
[15]
I again fail to appreciate how it can be said that the court erred
when there is a responsibility on an employee to bring any
unfairness
she endured to the attention of the employer instead of simply
running to court. In this regard, I had pointed out that
the court
process is not there for the taking, and it is indeed incumbent upon
an employee to raise grievances if she was of the
view that she was
being unfairly treated.
Ground
11:
Whether or not
intention was deliberate is neither here nor there, what remained was
whether or not the respondent’s actions
were deliberate,
applicant suffered damages and the court erred in finding for the
respondent and allowing the respondent an excuse
in this regard.”
[16] This ground appears
to be a repetition and was dealt with under paragraph 13 of this
judgment as above. Furthermore, rather
than place the Respondent on
terms, the Applicant simply and unreasonably rejected the offer of
reinstatement.
Ground
12:
“
The court
erred in finding that the applicant did not make an election to
accept repudiation as the repudiation of the offer evidence
such an
election”.
[17]
This ground is equally flawed in that it was up to the Applicant to
make an election and convey same to the Respondent, instead
of simply
persisting with litigation.
Ground 19:
“
The honourable court erred in ordering costs to be paid by
the applicant, after the applicant had been wronged and is a victim
of
unlawful termination of a fixed terms contract”.
(Sic)
[18]
An order of costs was made having taken due regard to considerations
of law and fairness, and I exercised my judicial discretion
in that
regard.
Conclusion:
[19]
Having reflected dispassionately upon the decision sought to be
appealed, and further having considered all of the grounds
advanced
by the Applicant in this regard, on the whole, I am satisfied that
she has failed to establish any basis upon which another
court could
or may come to a different conclusion. There are no reasonable
prospects on either the facts of this case or in law
that the Labour
Appeal Court may come to a different conclusion. To this end, there
is further no reason in law or fairness why
a cost order should not
again follow in respect of this application.
Order
:
i.
The application for leave to appeal is
dismissed with costs
Tlhotlhalemaje AJ
Acting Judge of the
Labour Court of South Africa
[1]
(1034/2004)
[2008] ZAECHC 180
(30 October 2008) at para 20
[2]
(2013)
JOL 11390 (LC)
[3]
[2000]
BLLR 786 (LAC)
[4]
[at
para 12].
[5]
[2009]
11 BLLR (LAC).
[6]
DR
B M Rawkins v DR D C Kemp t/a Centralmed
.
Case No: 483/09