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[2014] ZALCJHB 226
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Wasa v KwaZulu-Natal Tourism Authority and Others (J1374/2012) [2014] ZALCJHB 226 (25 June 2014)

REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO. J1374/2012
In
the matter between:
NALELI
WASA

Applicant
and
KWAZULU-NATAL
TOURISM AUTHORITY

First
Respondent
THOLAKELE
DLAMINI

Second
Respondent
NDABEZITHA
KHOZA

Third
Respondent
Heard
:           08
January 2014
Delivered:
25 June 2014
Summary:
Unlawful termination of contract. Applicant entitled to claim damages
in respect of remuneration she should have earned
for the remaining
period of the contract had the contract not been unlawfully
terminated.
JUDGMENT
BALOYI
AJ
Introduction
1.
The present dispute concerns the lawfulness and validity of the
termination of Applicant’s fixed-term contract on account
of
misconduct prior to the expiry of the agreed 5 year period. In her
founding affidavit the Applicant sets out the cause of action
upon
which she relies. She relies upon the relevant provisions of her five
year-fixed contract of employment, sections 77(3) and
77A (e) of
Basic Conditions of Employment Act 75 of 1997, (the “BCEA”),
the Public Finance Management Act 1 of 1999
(the “PFMA”),
the PFMA Treasury Regulations (‘the Treasury Regulations’),
First Respondent’s delegation
of authority and First
Respondent’s disciplinary code and procedure, and KwaZulu-Natal
Tourism Act of 1996.
2.
In summation of her lengthy notice of motion, the Applicant is
essentially seeking an order declaring the decision of the First

Respondent to terminate her contract to be invalid and in breach of
contract and unlawful. Secondly, ordering the First Respondent
to pay
the Applicant damages in the amount of R1 159 132.34. Thirdly, to
refund her the amount of R40 057.89 unlawfully deducted
from her May
2012 remuneration plus interest at 15.5% per annum from 04 May 2012.
Finally, the Applicant sought costs of the application
in the event
of opposition. This application is opposed. The late filing of the
answering affidavit is with Applicant’s consent
hereby
condoned.
The
facts
3.
On  1 July 2008, the First Respondent and the Applicant
concluded a five-year contract of employment in terms of which the

First Respondent employed the Applicant as its Chief Operating
Officer for a period of five years commencing on 1 August 2008 to
30
July 2013. First Respondent’s conditions of service were part
of the said contract. Her main job description was to provide

strategic leadership to the Tourism Information Services, Marketing &
Communications and Tourism Development functions at the
First
Respondent, by devising, implementing and controlling systems and
procedures, supervising subordinates, developing and driving

initiatives reporting on key issues to the CEO and management in
order to ensure that these departments are positioned to support
the
First Respondent in accomplishing its strategic tourism objectives
through the effective implementation.
4.
In terms of First Respondent’s employment hierarchy of
authority, almost all Managers were the Applicant’s
subordinates
and reported to her including the HR & Admin
Manager, (M P Shinga). The Applicant reported to Chief Executive
Officer. The
Chief Executive Officer reported to the Board. First
Respondent’s revised disciplinary policy and procedure
recognizes the
employment hierarchy of authority and seniority
both in terms of the grade and delegations of authority. According to
First
Respondent’s revised delegation of authority prepared in
terms of the
Public Finance Management Act 1 of 1999
and First
Respondent’s policies and procedures, the authority to appoint
Chief Operating Officer and to institute disciplinary
action against
the Chief Operating Officer, is vested upon the Board of the First
Respondent.
5.
There is an existing memorandum of agreement between the First
Respondent and Comrades Marathon Association which, inter alia,

provides for or sanctions Comrades, an ultra-marathon event organized
under the auspices of the Comrades Marathon Association.
Prior to
February 2010, the survey or research regarding Old Mutual Two Oceans
Marathon was already one of the First Respondent’s
planned
research projects to be undertaken. During February 2010, the
Applicant registered as a runner in Two Ocean Marathon scheduled
for
the Easter weekend of 01 April 2010 to 04 April 2010.
6.
On Applicant’s request for approval of the trip event during
March 2010, the Chief Executive Officer (Third Respondent)
approved
or authorized the trip and its associated costs of flights,
transport, food and accommodation to Cape Town for the Old
Mutual Two
Oceans Marathon in question. The trip was eventually undertaken by
the Applicant and Ms T S Dlamini, First Respondent’s
Public
Relations and Communications Manager. The purpose of the said trip
event was to conduct a research or survey on Two Oceans
Marathon with
a view of undertaking a project of starting First Respondent’s
own annual comrade marathon in TKZN. The purpose
of the research fell
within scope of Applicant’s job description of Marketing and
Communications under promotional activations
and contracts such as
the Memorandum of Agreement between the First Respondent and Comrades
Marathon Association. During the marathon,
the Applicant also ran the
race and was one of the finishers, during which she was also
conducting surveys. The Applicant together
with Ms Dlamini returned
to work on  5 April 2010.
7.
On 6 April 2010, the Third Respondent received a complaint from the
Research Manager, Ms Karen Kohler complaining inter alia
that;
7.1
She had not been informed by the Applicant of the survey that was to
take place
at the Two Oceans Comrades Marathon event, or,
7.2
The Research team and the Information Officer in First Respondent’s
Cape
Town office had not been involved in the planning and the
execution of the activation at the Two Oceans comrades marathon event

or,
7.3
That the Applicant had given instructions to Kohler’s staff to
perform
certain activities which purported to be an
activation/commissioning of a survey of the Old Mutual Two Oceans
Marathon of which
Kohler was not informed nor involved as the Manager
responsible for the Unit, or
7.4
The Applicant did not involve Kohler in some survey or research of
her Unit
staff who got involved without her knowledge, or,
7.5
The Applicant gave instructions to Kohler’s staff to do certain
activities
which purported to be  activation for a survey of the
Old Mutual Two Oceans Marathon of which Kohler was not informed nor
involved as the Manager responsible for the Unit.
8.
As a result, the Third Respondent requested the Applicant to submit a
research report which would be tabled and discussed at
the First
Respondent’s Marketing and Tourism Development Board Committee
meeting that was scheduled to take place in July
2010. On  2
August2010, the Third Respondent appointed the internal audit unit of
the First Respondent’s Provincial
Treasury to investigate the
Applicant for allegations relating to abuse of First Respondent’s
resources. On  25 August
2010, the Third Respondent informed the
Applicant that he had not yet received the research report from her.
In response on  26
August 2010, the Applicant informed the Third
Respondent that she had already prepared the research report and
submitted it for
the last Marketing & Tourism Development Board
meeting. The Third Respondent however, alleged that the first time
that any
report of her trip to Cape Town was ever produced by the
Applicant was during her disciplinary enquiry.
9.
The forensic investigation report dated August 2011 was only
distributed to the Third Respondent in approximately September 2011

about a year after the appointment. According to the report, the
investigator(s) recommended that disciplinary proceedings be
instituted against the Applicant for the alleged misconduct and that
recovery proceedings be instituted against the Applicant for
the
amount of R21 049.31 incurred by the First Respondent in respect of
the costs of the Cape Town trip. On  17 January 2012,
MP Shinga
instituted disciplinary action against the Applicant thereby issuing
and serving the Applicant with notice to attend
a disciplinary
hearing scheduled for 2 February 2012. On  23
March
2012, the disciplinary chairperson found the Applicant guilty as
charged.
10.
On  30 March 2012, the Board held a meeting during which the
disciplinary chairperson’s findings were apparently
discussed.
It was thereafter resolved that Human Resources and Compensation
Committee should after receiving a sanction decide
on the appropriate
course of action in consultation with the Corporate attorneys and a
labour representative Board member. On  13
April 2012, the HR &
Admin Manager, the Corporate attorneys and the members of the Human
Resources and Compensation Committee,
together with labour
representative Board member recommended that;
10.1
The members of the Board approve on a round robin basis, the
disciplinary chairperson’s
finding;
10.2
The members of the Board approve through a special Board meeting or
on a round robin basis, the
sanction issued by the disciplinary
chairperson;
10.3
The Board delegate its authority to the Third Respondent to enable
him to draft, sign and issue
a letter dismissing the Applicant with
immediate effect and thereafter conclude the disciplinary process
(this approach was regarded
by the corporate attorney to be legally
sound taking into account that the Applicant reported to the Third
Respondent and a possibility
that the Applicant might lodge an appeal
with the Board); and
10.4
The Third Respondent submitted a final report on the conclusion of
the disciplinary enquiry to
the Board for ratification by the Board
at its meeting scheduled for June 2012.
11.
On  19 April 2012, the Third Respondent issued a letter
terminating the Applicant’s services wherein the Third
Respondent
informed the Applicant that she would be paid her last
remuneration by 15 May 2012 and that R21 049.31 termed the fruitless
and
wasteful expenditure resulting from her trip to the Two Oceans
Marathon in Cape Town would be deducted from her remuneration. The

Applicant’s payslip dated 04 May 2012 reflected a deduction of
R21 049.31 from her remuneration under the banner of being
staff
account.
12.
On  12 May 2012, Ms Tholakele Dlamini, the chairperson of the
Board (Second Respondent) signed a report stating that the
members of
the Board considered and approved, on round robin basis the
disciplinary chairperson’s finding. On  12 June
2012, the
Applicant filed this application after having served it on  1
June 2012 on the First Respondent. On  18 June
2012, the
Respondents’ attorneys of record filed a notice of appointment
as attorneys of record as well as notice of opposition
by fax.
13.
Prior to the Respondents’ filing of their opposing papers, on
19 June 2012, an unidentified person signed a document
with a
heading ‘extract from the minutes of the Board of Tourism
Kwazulu-Natal meeting held on 08 June 2012 at the Durban
Hote
l’
.
In the said document it is stated amongst others that on 08 June 2012
the Board members ratified the decision taken on around
robin basis
to dismiss the Applicant for misconduct, to delegate authority to the
Third Respondent to draft, sign and issue a letter
dismissing the
Applicant with immediate effect. Further that he must thereafter
conclude the disciplinary process, and to submit
a final report on
the conclusion of disciplinary enquiry to the Board for ratification
at its meeting scheduled for June 2012.
This document formed part of
annexures to the answering affidavit filed on  22 June 2012.
Cause
of action
14.
The Applicant alleges that the charges for which she was dismissed,
the disciplinary process and her dismissal are unlawful
and void on
two or more grounds listed below :
14.1
The reasons for dismissal are merely repetition of baseless
allegations of misconduct as incorrectly
set out in the unsigned
forensic investigation report made by a person referred to as Mr
Mente Mollo, who was never called as a
witness at the disciplinary
hearing, nor made any representations to give some credence and
authenticity to such report. Notably
so, in the HR & Admin
Manager’s report signed on 13 April 2012, it is confirmed that
the allegation of misconduct against
the Applicant was based upon the
findings of the said forensic investigation.
14.2
The HR & Admin Manager who happened to be the Applicant’s
subordinate and not part
of First Respondent’s senior
management as defined in regulation 24.1 of the Treasury Regulations,
did not have the requisite
authority to charge and to institute
disciplinary action against her.
14.3
The Third Respondent did not have the requisite authority to dismiss
the Applicant for the alleged
misconduct.
14.4
The Third Respondent’s contract was to expire at the end of
April 2012 and that she was
likely to act in the Third Respondent’s
position and ultimately be appointed as such.
15.
The Respondents in opposition contended that Applicant’s case
has no merits
because of the following reasons;
15.1
The First Respondent was entitled to terminate the Applicant’s
five-year-contract before
its expiry on account of misconduct.
15.2
The Board through the Third Respondent was responsible for and dealt
with the disciplinary process
up to a decision to dismiss the
Applicant.
15.3
The application should be dismissed with costs on the ground that the
Applicant should have realized
when launching her application that a
serious dispute of fact, incapable of resolution on the papers, was
bound to develop.
15.4
The Applicant had failed to mitigate the damages and she is not
entitled to the damages claimed.
The Applicant’s response to
this point was that the First Respondent gave negative references on
her attempts to secure employment
after termination of her
employment.
Evaluation
Dispute
of Facts
16.
The
underlying issue requiring determination is whether this application
can properly be decided on affidavit and if so, whether
the Court
should dismiss the application or make such other order with a view
of ensuring that a just and expeditious decision
is made
(See
Moosa
Bros and Sons (Pty) Ltd v Rajah and Nkwentsha v Minister of Law and
Order and Another)
[1]
.
Under the circumstances the Court hereby examines the disputes of
fact as raised by the Respondents in their opposing papers and
Heads
of Argument as pointed herein below;
16.1
Whether the Applicant’s trip to Cape Town could be considered
to fall under her obligations
as Chief Operating Officer, was not in
dispute at the time the Third Respondent approved the trip. In his
own version, the Third
Respondent approved the trip because he
trusted that the Applicant was undertaking the trip for the benefit
of the First Respondent
having worked with her for more than two
years. He approved it because he knew it fell under her contractual
obligation.
16.2
Whether the disciplinary code applies to the Applicant is not in
dispute. It is common cause
between the parties that the disciplinary
code applied to her.
16.3
Whether the internal Audit Report is ‘unfounded’ and not
properly authorized, is
not a dispute of fact, but is merely
Applicant’s submission to be considered in the light of
relevant and material facts
placed before this Court.
16.4
Whether she was charged by the Human Resources Manager, and who was
not properly authorized,
can properly be decided on affidavit, read
with Human Resources Manager’s notice to attend disciplinary
enquiry and the First
Respondent’s delegation of authority.
16.5
Whether the disciplinary process and her ultimate dismissal were
properly authorized, can properly
be decided on affidavit read with
Board chairperson’s report signed on  12 May 2012, Board
and Committee Co-ordinator’s
extract signed on  19 June
2012 and all other applicable annexures incidental to this issue.
16.6
Whether her representations at the disciplinary enquiry ‘fell
on deaf ears’
,
whether the report she handed in at the
disciplinary enquiry was previously brought before the Marketing
Committee, and whether
the report was a proper activation report,
evidencing a fruitful trip to Cape Town, can properly be decided on
affidavit, read
with applicable annexures incidental to these issues.
16.7
Whether the Board’s round-robin decision was flawed and
unlawful, and whether round-robin
decisions of the Board are
permitted, are both question of fact which are neither serious nor
incapable of resolution on the papers
and question of law to be
decided by this Court after having considered all relevant material
concerning such round-robin decision.
16.8
Whether the conspiracy allegations leveled against the Third
Respondent by the Applicant have
any merit, can properly be decided
on affidavit, especially having regard to Third Respondent’s
bald denial of these allegations.
16.9
Whether Dlamini should have been charged, is not a question of fact,
but is a question of law,
and it is even common cause between the
parties that Dlamini went to Cape Town on Applicant’s
instruction or request and
that Dlamini was not disciplined.
16.10   Third
Respondent’s allegation that it was only in Cape Town that
Dlamini realized the real reason for the
Applicant’s visit
there, contradicts Dlamini’s confirmation during forensic
investigation that she travelled with Applicant
for the Old Mutual
Two Oceans Marathon and that there was minimal discussion around what
was to happen for the Two Oceans Marathon.
16.11   Whether
the Applicant ‘performed (her) duties in terms of her contract,
can properly be decided on affidavit,
especially having regard to the
fact that the Applicant was not dismissed for poor work performance,
but for the alleged misconduct.
16.12  Whether
charges leveled against her amounted to ‘unfounded allegations
of an alleged misconduct’
,
is not a dispute of fact, but
Applicant’s submission based on the facts contained in
annexures attached to the affidavits.
16.13   With
regard to proof of damages, there is clearly no material dispute of
facts as the Applicant is claiming R1
103 427.10 being an equivalent
of the unexpired portion of her contract period calculated on her
rate of remuneration on the date
of dismissal, R55 705.24 thirteenth
cheque payable on 15 December 2012. The same goes with R40 057.89
refund of deductions made
by the Respondents from her May 2012
remuneration. These amounts are not in dispute. Whether or not she is
entitled to be paid
such amounts, is a question of law to be decided
by this Court on papers.
17.
In this
regard any bare denial of the Applicant’s allegations in her
affidavit will not in general be sufficient to generate
a genuine or
real dispute of fact, the Court shall take ‘a robust,
common-sense approach’ to a dispute on motion and
not hesitate
to decide an issue on affidavit merely because it may be difficult to
do so
[
See
Peterson
v Cuthbert and Co Ltd
[2]
;
Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[3]
and Soffiantini v Mould
[4]
].
After having examined the alleged dispute of facts, I am satisfied
that in truth there is no real dispute of facts which cannot
be
satisfactorily determined without the aid of oral evidence. In the
absence of a serious dispute of facts, incapable of resolution
on
papers, there is no need for the Court to dismiss the application, or
to order the parties to go to trial, or to order oral
evidence to be
heard on any of specified issues as listed by the Respondents.
Was
there any compliance with the Law?
18.
It is not in dispute that within a week after the Easter weekend of 1
to 4 April 2010, the Third Respondent discovered the misconduct.
The
Third Respondent however, instituted the investigation on  02
August 2010 in Contravention of Regulation No 33.1.2 of
Ministerial
Treasury Regulations of March 2005 issued in terms of Section 85
(1)(b) of PFMA and which provides that ‘the
accounting
authority must ensure that the investigation is instituted within 30
days from the date of discovery of the alleged
financial misconduct’.
19.
The Third Respondent’s explanation that the delay of four
months to institute investigation was attributed to Applicant’s

delay in producing a research report is under the circumstances
unsatisfactory. This is in view of the fact that as early as 06
April
2010 the alleged financial misconduct had already been discovered and
that its nature and extent were limited by the Third
Respondent to
Applicant’s undertaking of a personal trip to Cape Town to
participate in the 2010 Old Mutual Two Ocean Marathon
under the guise
of a business trip. On  26 August 2010, the Applicant informed
the Third Respondent that she had already prepared
the research
report and submitted it for the previous Marketing and Tourism
Development Board meeting and during forensic investigation
held in
August 2010. I am therefore unable to find merit in the Third
Respondent’s statement that the first time that the
Applicant’s
report was ever produced by the Applicant was during her disciplinary
enquiry.
20.
On the other hand, I find merit in Applicant’s point that the
HR and Admin Manager took almost 21 months to institute
disciplinary
proceedings as supported by documentation before me. The investigator
in the unsigned forensic investigation report
distributed in
September 2011 does not confirm the Third Respondent’s
allegation that the reason for the delay since August
2010 until
September 2011 was because during its compilation its author resigned
and had to be replaced by a senior Manager in
the unit. The names of
the previous author and the replacement senior Manager were not
disclosed in Third Respondent’s answering
affidavit. Despite
the Third Respondent having received a copy of the forensic
investigation report in approximately September
2011, it was only on
17 January 2012 that HR and Admin Manager charged and
instituted disciplinary action against the Applicant.
In their
opposing affidavit the Respondents did not provide any explanation
for this unreasonable delay.
21.
Undoubtedly so, the Respondents did not comply with regulation No
33.1.2 of Treasury Regulations. No good reason for deviation
from
this standard was given. A reasonable impression is that from
discovery of the alleged misconduct the First Respondent had
no
intention of investigating the Applicant for the alleged misconduct.
This in fact gives credence to the Applicant’s claim
that the
Third Respondent was insecure about the renewal of his contract. The
timing of institution of disciplinary action and
dismissal of
Applicant by him was of essence.
22.
In short,
the Third Respondent dismissed the Applicant two years after
commission of the alleged offence. The cumulative effect
of the
above-mentioned undue delays is that the decision to dismiss the
Applicant has been vitiated with such unreasonable delays
likely to
make a reasonable person to believe the Applicant’s allegation
that the Third Respondent’s dismissal decision
of 19 April 2012
may have been precipitated by the fact that his contract was due to
expire in April 2012. The dismissal was probably
executed by him on
fear that his contract might not be renewed and that the Applicant
may have had to act in the vacant position
of Chief Executive Officer
with a likelihood of being promoted and ultimately appointed as Chief
Executive Officer on or before
her contract expired in July 2013. In
his opposing affidavit, the Third Respondent did not meet the
substance of Applicant’s
aforesaid allegation, save having
vaguely pleaded that all alleged acts of impropriety leveled against
him are denied. Therefore,
it is not known what his defence is [See
Department
of Public Works, Roads and Transport v Motshoso and Others
[5]
and Riekert v CCMA and Others
[6]
]
.
Did
the Third Respondent have authority to dismiss the Applicant?
23.
The gist of the Applicant’s case concerning this issue is that
a decision to dismiss her, so she said, is invalid because
on
17 January 2012, the HR and Admin Manager charged and instituted
disciplinary action against her without having the Board’s

requisite authority or delegated authority to do so. Furthermore on
19 April 2012, the Third Respondent dismissed her for
alleged
misconduct without having the Board’s requisite authority or
delegated authority to do so. On the other hand the
Third Respondent
contends that despite the delegation given to the Board chairperson,
the Board, through him was responsible for
and dealt with the
disciplinary process.
24.
Section 56(1)(a) of PFMA provides that the accounting authority for a
public entity may in writing delegate any of the powers
entrusted or
delegated to the accounting authority in terms of PFMA, to an
official in that public entity.
What
follows is that where the Applicable body of the employer is vested
with authority to make a decision in terms of a statute,
but such
decision is made by another person who has no authority to do so
under such statute, and the applicable body of the employer
purports
to ratify the decision, such ratification is invalid and the decision
is liable to be set aside. While the employer’s
applicable body
can ratify decisions (to charge, discipline or dismiss an employee)
with retrospective effect, this would not reverse
the legal
consequences of such decisions and unless and until such decisions
are ratified by the competent Body, the employee cannot
be regarded
as dismissed.
(See
Mathipa v Vista University and Others
[7]
and NEHAWU v University of Transkei and Others
[8]
).
25.
In terms of Section 17 of KNTA the meetings of the First Respondent’s
Board must be held on such dates and at such times
and places as may
from time to time be determined by resolution of the Board. The
quorum for such meeting must be a simple majority
of the total number
of members appointed at that time. A decision of majority of members
present at a meeting of the Board shall
be a decision of the Board.
In the event of an equality of votes the chairperson shall have a
casting vote in addition to a deliberative
vote. Section 19 of KNTA
requires First Respondent’s Board to cause minutes to be
compiled of the proceedings of every meeting
of the Board and of any
Committee
established by the Board and of cause copies of such minutes to be
circulated to all the members. The minutes prepared
in terms of
Section 19 (1) of KNTA when signed at a subsequent meeting of the
Board by the chairperson, shall in the absence of
proof of error
therein be deemed to be a true and correct record of the proceedings
which they purport to minute. Such minutes
shall at any proceedings
in terms of KNTA or before a court of law, tribunal or commission of
inquiry, constitute
prima facie
evidence of the proceedings of
the Board and the matters they purport to minute.
26.
In
Wessels
and Smith v Vanugo Construction (Pty) Ltd
[9]
it was held that an invalidly constituted board (improperly convened
and without a quorum) cannot take a valid decision and nothing
exists
in law to ratify, where the decision maker is incompetent to make the
decision (at 638D). Furthermore in
Schierhout
v Union Government (Minister of Justice)
[10]
it was held as follows
‘
When several
persons are appointed to exercise judicial powers, then in the
absence of provisions to the contrary, they must all
act together,
there can only be one adjudication,and that must be the adjudication
of the entire body. And the same rule would
apply whenever a number
of individuals were empowered by statute to deal with any matter as
one body, the action taken would have
to be the joint action of all
of them…for otherwise they would not be acting in accordance
with the provisions of the Statute’.
27.
A similar
approach was also adopted in
Yates
v University Bophuthatswana and Others
[11]
wherein the following was said;
‘…
This
implies that there must be full attendance and participation by all
the members of the committee and that they must reach their
decisions
unanimously or by the requisite majority. They have been selected for
a purpose and that purpose would be defeated if
one or more of them
were not present at the time of adjudication. The fact that they may
have conveyed their views to the chairman
of the committee
individually is irrelevant. What is important is that they should all
have the opportunity to discussing and considering
their respective
views in the presence of each member of the committee. The fact that
one or two were unavoidably absent does not
cure the position. A time
should have been fixed for all of them to be present in order to
consider what were very serious and
strong allegations against the
applicant’.
28.
This
position was restated in
Disciplinary
Committee for Legal Practitioners v Makando and Anotherr, Makando v
Disciplinary Committee for Legal
Practitioners
and Others
[12]
where it was
held at paragraph 32 that;
‘
[32] Indeed, in my
opinion, that a binding decision of the applicant can be taken by the
applicant only at the applicant’s
meeting is put beyond doubt
if regard is had to the abovementioned sections on quorum. What
majority carries a vote, and the chairperson’s
casting vote in
addition to his or her deliberate vote. If, for example, one or two
members can take a decision in the privacy
of their home, office, or
chambers or suchlike places and approach the rest individually for
their endorsement of such decision-
not at a meeting of the applicant
where the issue could have been openly discussed and deliberated on
by members who are present
and form a quorum - why should the
Legislature go into the trouble of prescribing a quorum and what
majority carries a vote, and
also provide for the chairperson’s
casting vote in addition to his or her deliberative vote? Any
argument that where there
is a consensus there is no need to take the
decision at a meeting is, with the greatest deference, illogical: it
misses the point.
The question that arises is this: who decides –
and at which venue – whether there is or there has been a
consensus?
A consensus can only be reached at a meeting after the
issue at hand has been openly discussed and deliberated on..’.
29.
Since the First Respondent’s existence and operations are
founded on the statutes its activities should by large be executed
in
compliance thereof. The round robin method relied upon cannot be
outrightly said to be defective for not being sanctioned by
the
empowering legislation. Existence of a rule creating application of
the round robin process could have permitted members of
the Board to
take decisions other than at meetings requiring a quorum. In the
absence of the rule, it is however, of prime importance
to have
compelling reasons why it was applied ahead of the conventional
method set out in the legislation.
30.
In
Norval
and Others v Consolidated Sugar Investments (Namibia) (Pty) Ltd and
Others
[13]
a round-robin decision was defined as a written decision or
resolution made in accordance with a round-robin procedure for
Executive
Authority’s decisions created by a regulation, rule,
article, or policy of the applicable body and such decision must be
signed by all members of the Executive Authority or, if such
regulation, rule, article or policy provides that a round-robin
resolution
need not be unanimous, it would still be sufficient if the
signatories constitute a quorum, even though all the directors did
not
sign the resolution. In this instant case none of the above
prevailed nor appearance of any sign of compliance with such relevant

regulations nor any explanation for deviation to a prescribed
process. In any event, for reasons set out below there is no evidence

that the First Respondent had a round-robin procedure for its Board’s
decisions in April 2012.
31.
Nevertheless, I will assume that even if there was no regulation,
rule, article or policy of the First Respondent creating a

“round-robin” procedure of Board members’
decisions, there was nothing in law which precluded the First
Respondent’s
Board from making a ‘round-robin’
decision. Based on this assumption I will now deal with validity of
these decisions
pertinent to the controversy. It is not in dispute
that it is the responsibility of the Board to discipline the
Applicant which
can be delegated. What requires scrutiny is the
Respondents’ contention that the charging and dismissal of the
Applicant
were done by the Board through the Third Respondent. Under
Section 56 of PFMA the powers and duties of the First Respondent’s

Board may be delegated by the Board in writing to any official in the
First Respondent. Therefore, the Third Respondent’s
contention
that Board’s authority may be delegated is correct. However,
there is no sufficient evidence showing that such
authority was
delegated to him to charge and/or dismiss the Applicant. There is no
evidence showing that on or before  17
January 2012, the Board
delegated its authority either to HR and Admin Manager or the Third
Respondent to charge the Applicant
and to institute any disciplinary
action against her.
32.
Where the
First Respondent’s Board is vested with authority to charge and
institute disciplinary action against the Applicant
in terms of the
aforesaid statutes, but such acts were performed by HR and Admin
Manager who had no authority to do so under such
statutes, and the
Board purports to ratify the acts, such ratification is invalid and
the acts are liable to be set aside. (See
Mathipa
v Vista University and Others)
[14]
.
33.
It is therefore clear that such HR and Admin Manager acted unlawfully
and breached Applicant’s contract and that his action
is a
nullity because there is no Board’s ratification of authority
showing that later the Board ratified his acts of  17
January
2012. It is absolutely improper for the HR and Admin Manager who was
a subordinate to and reported to the Applicant to
have charged and
instituted disciplinary action against the Applicant, without the
Board’s delegated powers. This is certainly
not consistent with
the First Respondent’s internal hierarchial
system/relationship. Even if the Applicant was charged by
the Third
Respondent on  17 January 2012, there is no Board’s
approval or delegation of authority showing that
before or on
17 January 2012, the Board authorized or delegated its
authority to the Third Respondent to discipline and institute

disciplinary action against the Applicant. There is also no Board’s
ratification of authority showing that later the Board
ratified the
Third Respondent’s decision or acts of  17 January 2012.
Consequently such decision is a nullity because
it was taken before
the authority was delegated to the Third Respondent by the Board and
it was later never ratified by the Board.
34.
It goes without saying that the finding of the disciplinary
chairperson does not automatically mean the decision to dismiss.

A disciplinary hearing decision is normally threefold.  First,
the chairperson decides whether or not an accused employee
is guilty
as charged or otherwise. If he/she is found not guilty, the accused
is free to go and cannot be tried again on the same
charge. However,
if the accused is found guilty, the parties are given an opportunity
to lead evidence of mitigating factors and
aggravating factors.
Thereafter the chairperson decides whether or not an offence for
which the accused has been convicted is serious
and of such gravity
that it justifies dismissal. If such offence is found to be a
dismissible offence, then the disciplinary chairperson
will make a
decision imposing a penalty of dismissal or if he/she is not
authorized to make final decision, he/she will make a
recommendation
that the convicted employee be dismissed.
35.
The Respondents do acknowledge the difference between the
disciplinary chairperson’s finding of guilt and the decision
to
dismiss. In the HR and Admin Manager’s report signed on 13
April 2012 HR and Admin Manager stated that ‘the Board
at its
meeting held on 30 March 2012 discussed the findings of the
Chairperson of the disciplinary enquiry. It was thereafter resolved

to mandate the Human Resources and Compensation Committee to deal
with a report to be submitted by the Chairperson of the disciplinary

enquiry comprising a sanction relating to this cas
e’
. It
is worth noting that the Third Respondent contended that the
Applicant was found guilty as charged and that, thereafter, the

disciplinary chairperson recommended that she be dismissed, and that,
each and every Board member approved the finding and dismissal

recommendation of the disciplinary chairperson. Even if it may be
assumed (in favour of the Respondents) that the finding of the

disciplinary chairperson referred to in the Second Respondent’s
report signed on  12 May 2012, was a finding that the
Applicant
was guilty of a dismissible offence, or, that the dismissal was
appropriate, or that, it was a recommended decision of
the
disciplinary chairperson to dismiss the Applicant, the Respondents
have failed to prove that on or before 19 April 2012, the
Board
approved such decision and that the Board consequently delegated
authority to the Third Respondent to dismiss the Applicant.
36.
Once again the Third Respondent’s version that from 11 April
2012 to 18 April 2012 each and every board member, by e-mail,

approved the finding and recommendation of the disciplinary
chairperson, contradicts HR and Admin Manager’s report signed

on 13 April 2012. The report was essentially requesting approval by
the Board of the disciplinary chairperson’s sanction
through a
special Board meeting or on a round robin basis that the Applicant be
dismissed with immediate effect. It also asked
members of the Board
to delegate Board’s authority to the Third Respondent for him
to draft, sign and issue a letter dismissing
the Applicant with
immediate effect and thereafter conclude the disciplinary process.
Furthermore that the Third Respondent should
submit a final report on
the conclusion of the disciplinary enquiry for ratification by the
Board at its meeting scheduled for
June 2012. It does not seem
probable that from 11 April 2012 to 18 April 2012 each and every
Board member did approve the finding
and recommendation of the
disciplinary chairperson by email while on  13 April 2012 the
recommendations were still being made
to the Board for such approval
through a special Board meeting or on a round robin basis. The
reasonable inference to be drawn
from the aforegoing is that from 11
April 2012 to 18 April 2012 none of the Board members approved the
finding and recommendation
of the disciplinary chairperson by email.
The round robin approval could not have been made before or on  13
April 2012.
37.
Furthermore, there is no evidence placed before this court showing
that subsequent to  13 April 2012 each and every member
of the
Board was provided with such recommendations for their perusal and
consideration, that they did peruse and consider such
recommendations
and they approved such finding and recommendation by email. The
Respondents do not explain the exact dates on which
after 13 April
2012, did each and every Board member approve disciplinary
chairperson’s finding and recommendation. Since
this approval
forms crux of the Respondents’ case in respect of the Third
Respondent’s authority to execute the Applicant’s

dismissal, certainly the Respondents would have ensured that copies
of emails from the Board members were attached to its papers
to deal
with this in the light of the Applicant’s denial of the
allegation. I accordingly do not find any reason to accept
that from
the 11 April 2013 until Applicant’s dismissal on  19 April
2013 each and every Board member approved disciplinary
chairperson’s
finding and recommendation. More so, the Board Chairperson’s
report of  12 May 2012 is silent about
details relating to the
exact dates on which the board members acted on the finding and
recommendation in question.
38.
The Third Respondent’s allegation that from 11 April 2012 to 18
April 2012 each and every Board member, by e-mail, approved
the
finding and recommendation of the disciplinary chairperson, certainly
appears to be a well-calculated move to cover up the
fact that on  19
April 2012, he dismissed the Applicant without Board’s
approval. The Board chairperson’s report
on 12 May 2012 does
not even confirm that he was delegated by the Board to convey the
dismissal decision to the Applicant. The
only reasonable conclusion
in this regard is that on or before  19 April 2012, the Board
never approved the disciplinary chairperson’s
recommended
dismissal sanction nor did the Board delegate any authority to the
Third Respondent to dismiss the Applicant nor convey
such decision to
her. The purported ratification of the round-robin decision signed by
a Board and committee co-ordinator on 19
June 2012 almost seventeen
(17) days after the Respondents had received the present application
on  01 June 2012, appears
to be a creation of a defence in
response to Applicant’s challenge of validity of HR and Admin
Manager’s decision to
charge her and the decision of the Third
Respondent to dismiss her, without Board’s approval or
delegated authority. I am
therefore not persuaded to accept that a
validly-constituted Board was properly convened with a quorum on 08
June 2012 to ratify
Third Respondent’s dismissal decision of 19
April 2012.
39.
Faced with
Applicant’s challenge to the Third Respondent’s claim of
having Board’s authority to dismiss her, the
Third Respondent
should have, at least, attached to his answering affidavit both
purported ratifications, copies of notice to attend
such a Board
meeting on 08 June 2012, an agenda for such a meeting and a signed
attendance register showing the total number and
names of Board
members present and entitled to vote at such meeting, and the
presence of the requisite quorum for such meeting
to show that on 08
June 2012 during the alleged meeting there was full attendance and
participation by all the members of the Board
(or the quorum for such
meeting of a simple majority of the total number of members appointed
at that time) and that an unanimous
decision or a decision of the
majority of the members present at a meeting of the Board was reached
as required by Section 17 of
KNTA. In the absence of sufficient
evidence showing that on 18 June 2012 a valid decision was reached at
a validly constituted
meeting of the First Respondent’s Board
with a requisite quorum, the Third Respondent did not have authority
to dismiss the
Applicant.
[15]
The Respondents’ failure in complying with the law read with
terms of the Applicant’s contract of employment establishes
a
breach and unlawfulness thereof. On this point alone the relief
sought by the Applicant cannot be denied.
Merit
of the misconduct
40.
The
Respondents contended that the First Respondent was entitled to
terminate Applicant’s five-year-contract before its expiry
on
account of misconduct. Precisely there is nothing in the Applicant’s
fixed-term contract affecting the right of the First
Respondent to
terminate a fixed-term contract of employment for any cause
recognized by law e.g misconduct. Dismissal will be appropriate
if
such misconduct is serious and of such gravity that it makes a
continued employment relationship intolerable. This is however,

subject to the rule that each case should be determined on its own
merits. There is no evidence before the Court showing why and
how the
disciplinary chairperson found the Applicant guilty as charged or,
otherwise. The names and material evidence of the witnesses
who might
have testified and cross-examined during the disciplinary hearing
were not disclosed by the Respondents in their answering
affidavit.
Since the report containing findings and recommendation leading to
the conclusion about Applicant’s misconduct
and dismissal was
challenged by the Applicant, the findings of the forensic
investigator(s) who did not even depose to any confirmatory

affidavits to confirm the allegations in Respondents’ answering
affidavit are unconfirmed hearsay evidence which remain
inadmissible
[16]
. The senior
manager in the unit who replaced the author of the said report was
also not called as witness at the disciplinary hearing
to give some
credibility to the unattested findings contained in such report. In
other words the author(s) of such report were
not subjected to any
cross-examination by the Applicant. It was thus impermissible and
inappropriate for the Respondents to have
relied on them.
41.
From the above, it is clear that insufficient evidence was placed
before this Court on whether the Disciplinary Chairperson
had
sufficient evidence before him to prove the commission of the alleged
offences. No evidence to prove any offence was placed
before this
court. The findings of the investigator(s) were hearsay evidence,
regarding the implication of the Applicant in the
commission of
whatever offence. According to the Third Respondent, he approved the
trip after having been misled by the Applicant.
He does not however,
specify the factual basis upon which he claimed to have been misled
by the Applicant. From the perusal of
his affidavit, it appears that
when he approved the trip on 30 March 2010 the Applicant misled him
by not disclosing to him and
any member of the staff that in February
2010 she had registered as a runner in the marathon and that she
would be participating
as a runner in the marathon in April 2014.
42.
No facts were placed before me to prove any existence of any conflict
of interest on the part of the Applicant or any form of
legal duty on
the Applicant to disclose her registration and participation in the
marathon. It is not in dispute that prior to
February 2010 the survey
or research regarding Old Mutual Two Oceans Marathon was already one
of the First Respondent’s planned
research projects to be
undertaken. Before February 2010, a survey of the Two Oceans Marathon
was conducted previously. The Third
Respondent’s statement that
on 30 March 2010, he approved the trip because he trusted that the
Applicant was undertaking
the trip for the benefit of the First
Respondent, is a safe indication that he knew that the trip was the
First Respondent’s
pre-arranged business trip. Furthermore when
the Applicant made a request for his approval, the First Respondent
had already planned
a survey or research to be done regarding Old
Mutual Two Oceans Marathon. It appears that the Respondents were
upset by the Applicant’s
participation in the marathon than
whether the Applicant did what was expected of her in discharging her
duties. There is no indication
that the Respondents ever deliberated
on her report to establish whether she genuinely pursued the First
Respondent’s interests
in Cape Town. If she really lacked
integrity and wanted to cheat, lie or act fraudulently, the Applicant
would not have facilitated
staff involvement and management
involvement in one and same event in which she could be seen by her
fellow managers and staff
members publicly and openly participating
as a runner. I do not see any dishonesty on the part of the
Applicant.
[43]
Consequently, on  19 April 2012, the First Respondent repudiated
the contract by terminating it without Board’s
authorization or
delegated authority and without any cause recognized by law. Such
action entitled the Applicant to accept the
repudiation and to claim
damages. Therefore, the Applicant is entitled to relief because the
Respondents did not prove that she
had breached or repudiated the
contract. The allegations of misconduct were not established.
Relief
44.
The Applicant is claiming the balance of her fixed-term contract
being 15 months at R73 561.81 per month calculated as R 1 159
132.34
consisting of R1 103, 427.10 (i.e R73 561.81 monthly salary x 15
months = R1 103, 427.10) plus R55 705.24 thirteenth cheque
payable on
15 December 2012 as agreed in clause 3, paragraph 2 of the contract.
The total amount is, therefore, R 1 159 132.34
(i.e R1 103, 427.10 +
R55 705.24 = R 1 159 132.34).
45.
The
Applicant was dismissed on  19 April 2012. Her fixed-term
contract expired on 30 July 2013. In
South
African Football Association v Mangope,
[17]
the Labour Appeal Court held that the unlawfully dismissed employee
is under duty to mitigate damages. In my view
Mangope
case is distinguishable from the present matter. In that matter the
Labour Appeal Court held that the Labour Court’s reasoning
that
the appellant had repudiated the contract by failing to follow the
evaluation procedure in clause 5 and that such entitled
the
Respondent to damages in the amount of R1, 777 000
,
was unsustainable. The LAC at paragraph 40 further held that;
‘
40…The
procedural flaws alone may not directly have resulted in damages and
would have been immaterial from a contractual
perspective if it was
established on the evidence before court that the respondent had not
performed satisfactorily in terms of
the contract..’.
46.
In the present matter the dismissal is not only unlawful because the
First Respondent did not follow a fair procedure. In
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile Others
[18]
the Constitutional Court held that unfairly dismissed employees are
under no obligation to try to mitigate loss by seeking alternative

employment – Failure to prove such attempts do not affect
quantum of back pay. The Constitutional Court at paragraph 41 further

held:
‘
[41] To talk in
legal terms of a burden on an employee to mitigate loss in the
context of an unfair dismissal strikes one as decidedly
off, if not
somewhat perverse. In real life, dismissed employees will seek
alternative means of income in order to sustain their
own survival
and that of their dependants. It requires little imagination to
appreciate that for many people in South Africa obtaining
employment
is, at best, a very difficult task. Equitable considerations militate
against transforming this practical necessity
of life into a legal
burden on employees to mitigate their loss in dismissal cases. To do
so might even serve to undermine their
claim to the primary statutory
remedy of reinstatement available under the provisions of the LRA’.
47.
There is no reason why the Constitutional Court’s reasoning
should not find application in the present matter. There is
no
unreasonable period of delay that was caused by the Applicant in
initiating or prosecuting her present proceedings. Save denying

indebtedness to the Applicant, the Respondents did not prove any
failure by the Applicant to mitigate her accrued damages. There
is
nothing to suggest that the amount claimed by the Applicant does not
represent the true amount because of a failure to take
reasonable
steps to mitigate. Bad references from the First Respondent on
Applicant’s attempts to find alternative employment
were
undisputed. Faced with adverse disciplinary record that she was
dismissed,
inter alia,
for gross dishonesty, there is
likelihood that it has been a very difficult task for her to have
mitigated her damages when seeking
alternative employment.
48.
In the exercise of my discretion in terms of Section 77(A) of the
BCEA, to make a determination that I consider reasonable,
I hereby
conclude that the Applicant is entitled to be paid the remuneration
payable for the balance of her fixed-term contract,
together with her
December 2012 thirteenth cheque.
Furthermore,
the Respondents have failed to prove that R21 049.31 (deducted from
her remuneration) was a fruitless and wasteful
expenditure. This was
clearly the total costs or expenditure in relation to business trip
duly authorized by the third Respondent.
Therefore, this expenditure
was not made in vain and would not have been avoided subsequent to
the Applicant having exercised reasonable
care by having first
obtained Third Respondent’s approval before such business trip
could be undertaken. Despite recommendation
of forensic
investigator(s) that recovery proceedings be instituted against the
Applicant for recovery of R21 049.31, the First
Respondent opted to
self-help by having deducted R21 049.31. The First Respondent clearly
violated Regulation 12.7 of March 2005
Treasury Regulations which
outlines legal means to be undertaken for recovery of losses or
damages through acts committed or omitted
by officials.
49.
Third Respondent’s allegation that the Applicant was paid the
bonus that was owed to her which was correctly calculated
in the
amount of R19 615.05, contradicts First Respondent’s pay slip
issued to Applicant on 04 May 2012 and showing R19 008.58
deduction
under the banner of advance payment. In the absence of the
Respondents having shown that R19 008.58 was deducted from

Applicant’s May remuneration with her written consent or, that
such deduction was required or permitted in terms of a law,

collective agreement, court order or arbitration award, the First
Respondent acted unlawfully by having made such R19 008.58 deduction

from Applicant’s remuneration. She is accordingly entitled to
be refunded R19 008.58 unlawfully deducted from her remuneration.
50.
In conclusion, the Applicant has succeeded in establishing her case
against the Respondents and is entitled to the relief sought.

Regarding costs, there is no reason why awarding of costs should not
follow the result. There is no longer any continuing relationship

between the parties which may be strained by the cost order. It
appears that the Applicant only engaged attorneys after close of

pleadings in this matter, meaning that her costs are limited to
attendances after appointment of her attorneys and disbursements

incurred by the trade union prior to the appointment of attorneys.
51.
In the result, the following order is made;
51.1
The decision of the First Respondent to terminate the Applicant’s
contract on 19 April
2012 is declared to be invalid and in breach of
contract and unlawful;
51.2
The First Respondent is ordered to pay the Applicant damages in the
amount of R1 159 132.34 within
ten (10) days of this order;
51.3
The First Respondent is ordered to refund R40 057.89 to the Applicant
within ten (10) days of
this order.
51.4
The First Respondent is ordered to pay Applicant interest at
rate of 15.5% per annum from
date of this order to date of full
payment in respect of amounts in 51.2 and 51.3 above.
51.5    The
First Respondent is ordered to pay the costs of this application,
subject to paragraph 50 above.
___________________________
Baloyi A.J
Acting
Judge of the Labour Court of South Africa.
APPEARANCES:
For
the Applicant:
Mr M.S
Sebola
Instructed
by:

Nchupetsang Attorneys, Johannesburg
For
the Respondents:
Mr T E Seery
Instructed
by:

Ndwandwe & Associates, Durban
[1]
1975 (4) SA (D) at 91A;
1988 (3) SA 99
(A)  at 117C
[2]
1945 AD 420
at 428-9
[3]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634I – 635A.
[4]
1956 (4) SA 150
(E) at 154G-H.
[5]
(2005) 10 BLLR 957 (LC).
[6]
(2006) 4 BLLR 353 (LC).
[7]
2000 (1) SA 396 (TPD).
[8]
(1999) 3 BLLR 244 (LC).
[9]
1964 (1) SA 635 (O).
[10]
1919 AD 30
at 44.
[11]
1994 (3) SA 815
(BGD) at 848G-I.
[12]
(A 216/2008,A 370/2008)
[2011] NAHC 311
(18 October 2011)
[13]
2007 (2) NR 689 (HC).
[14]
2000 (1) SA 396 (TPD).
[15]
Wessels
& Smith v Vanugo Construction (Pty) Ltd; Schierhout v Union
Government (Minister of Justice);  YATES v University
of
Bophuthatswana and Others; Disciplinary Committee for Legal
Practitioners v Makando and another, Makando v Disciplinary

Committee for Legal Practitioners and Others
supra.
[16]
Rema
Tip Top (Pty) Ltd v Osman N.O and Others
Case
No: JR2024/2008 at paras 6 and 19.
[17]
(2013) 34
ILJ
311 (LAC) at para 40.
[18]
[2010] 5 BLLR 465
{CC} at paras 39 to 44.