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[2017] ZALCJHB 309
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Mesha v Department of Local Government and Housing and Another (JS162/13) [2017] ZALCJHB 309 (24 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/Not Reportable
Case no: JS 162/13
In
the matter between:
THABO JUBED MESHA
Applicant
and
DEPARTMENT OF LOCAL
GOVERNMENT &
HOUSING
DIRECTOR-GENERAL:
LABOUR RELATIONS (R
HLONGWANE)
First Respondent
Second Respondent
Heard:
01
August 2017
Delivered:
24 August 2017
JUDGMENT
MAMOSEBO
AJ
Introduction
[1]
The
applicant, Mr Thabo Mesha, seeks an order in terms of s77(3) of the
Basic Conditions of Employment Act, 75 of 1997 (BCEA), declaring
the
first respondent, Department of Local Government and Housing (the
Department), in breach of an employment contract, damages
and
compensation equivalent to 24 months’ salary at the agreed
level of R750 000.00 per annum, from February 2011 or any
other
suitable relief. The Department has in the meantime altered its name
to the Department of Human Settlement but nothing revolves
on this
alteration.
[2]
The
question that falls for determination is whether there was a salary
adjustment agreement in existence and, if so, was Mr Mesha
entitled
to damages and or compensation as claimed as a result of the alleged
breach of that agreement?
[3]
The
Department advertised a vacant position of Deputy Director: Corporate
Communication in the Directorate of Communication Services
which Mr
Mesha applied for. He received an appointment letter dated 05
February 2008 in terms of which he was offered a salary
notch of R311
358.00 per annum (level 11); while the salary range was between R311
358.00 – R360 909.00 (maximum). He accepted
the offer by
signing the letter of acceptance on 08 February 2008. That was the
only written piece of evidence pertaining to his
salary that was
binding on the parties.
[4]
Mr
Mesha claims that the Chief Director in his line function, Mr Victor
Moreriane, telephonically advised him to accept the offer
at level 11
and allegedly promised to have the salary grade reviewed to level 12
within 12 months. He also claimed that one of
the panellists who
remained unnamed also commented that he was better suited for level
12 as he had performed well in the interview.
However, the salary has
never been reviewed nor upgraded to date.
[5]
Mr
Mesha completed an application wherein he motivated for his salary
upgrade in 15 April 2011. The format applied was such that
provision
was made for hierarchical levels for the recommendation and/or
approval of the application. Mr Mesha’s immediate
supervisor,
Ms Morongwe Mashoko, Director: Corporate Communications reluctantly
recommended the application on 05 May 2011. In
her oral evidence, she
however clarified the position to the effect that she was asked by Mr
Moreriane, her Chief Director and
also her immediate supervisor, to
sign the recommendation. She did so on condition that Mr Mesha
fulfilled the stipulation in this
clause in the application for
performance review:
‘
Moreover,
Mr Mesha’s competencies and ability to help contribute towards
the success of the Corporate Communications Unit
would have been
tested and assessed to warrant a higher salary level
.’
She was not satisfied
with Mr Mesha’s performance and hence not convinced that he
qualified for an upgrade.
[6]
According
to Ms Mashoko, his performance in 2008/2009 and 2009/2010 was not up
to standard. This assertion was corroborated by Mr
Moreriane who
stated that he was disappointed to learn of Mesha’s poor
performance because he was aware of Mesha’s
capabilities.
Notwithstanding Mr Moreriane still convinced Ms Mashoko to sign the
application on the same date the upgrade was
recommended.
[7]
According
to Mr Moreriane, he recruited Mr Mesha to apply for the advertised
post because they worked together previously and was
au
fait
with his competencies and capabilities. Mr Moreriane recruited four
candidates, inclusive of Mesha, who all interviewed for and
appointed
to the level 11 posts, Deputy Directors. Mr Moreriane chaired the
interviews and disclosed to the interviewing panel
in advance that
the candidates were known to him. All four signed employment
contracts.
[8]
According
to Mr Moreriane, when Mr Mesha applied for this position, he was
unemployed and in dire need of an income. No sooner had
he been
appointed Mr Mesha approached him in his office and discussed his
grim financial and domestic situation and clamoured for
the
possibility of an upgrade. Mr Moreriane advised Mr Mesha that in
government departments the practice is to conduct annual performance
reviews with a possibility of an upgrade and that he must bide his
time. He strenuously denied having made any promises to Mr Mesha
as
alleged by him. Mr Moreriane stated that in any event performance
reviews fall outside the scope of his responsibilities.
[9]
Ms
Motjatji Manong, occupied the position of Acting Chief Business
Officer: Corporate Services, the equivalent of a Deputy Director
General. She was substantively the Chief Director: Human Capital
Management (commonly known as Human Resources). When Mesha’s
application for an upgrade reached her, she requested a portfolio of
evidence from Mr Moreriane to support the application. It
is then
that Mr Moreriane realised that Mesha’s performance was not on
par with required standards and expectations. He convened
a meeting
which was attended by Ms Mashoko and Mr Mesha to address not only an
impasse between them but to deal with the issues
relating to his
application.
[10]
Mr
Moreriane stated that Mr Mesha stormed out of that meeting in the
midst of discussions. He then came to the realisation that
the
upgrade sought could not be justified and the information required by
Ms Manong was lacking. Nevertheless, no written communication
was
furnished to either Mr Mesha or Ms Manong by Mr Moreriane to this
effect. Despite Ms Manong’s letter of reminder to Mr
Moreriane
nothing was forthcoming. As a result, the application never reached
Mr Job Mnguni, The Chief Financial Officer, for his
recommendation
nor the Head of Department, Mr Mongezi Mnyani, for his approval. I
interpose to point out that Mr Tawana, appearing
for the respondents,
had indicated earlier that he intended calling Ms Manong as the
Department’s witness. To avoid a piecemeal
approach I allowed
him to lead her evidence which was not covered when she was led by Mr
Mesha. She had been at court from the
previous day waiting to testify
hence an additional reason for her interposition.
[11]
The
last witness called by Mr Mesha was Ms Dineo Gomba, the Senior Legal
Advisor and Deputy Information Officer for the Department.
She had
generated an e-mail addressed to both Mr Mesha and Mr Tawana on 14
May 2014 which reads:
‘
Mr Mesha,
the Department intends to settle this matter internally and
consequently you are hereby requested to remove this matter
from the
roll and provide us with proof thereof.’
[12]
Ms
Gomba stated that she wrote the aforementioned e-mail at the request
of the Head of Department who at that stage had not been
briefed on
what had transpired concerning this matter. She advised the HOD of
the inconsistencies that she had observed in the
Department on issues
involving employees. She says she was in a meeting with other
colleagues when Mesha’s matter was discussed.
She acknowledged
that she had not familiarised herself with the documents or the
contents in Mesha’s file. During cross-examination
she also
expressed the following:
‘
I think
they are in breach of a promise or agreement’
She also said: “
if
there is a process it must be followed through. A memorandum must be
signed whether approved or not approved.”’
This, she conceded, was
said without having established what the query by Ms Manong involved.
Her criticism of the delay by Ms Manong
was unjustified because,
evidently, the unavailability of supporting documentation for
submission to Ms Manong by Mr Mesha and
his immediate supervisors was
to blame.
[13]
Mr
Mesha claims that internal remedies had been exhausted by April 2012
when he lodged a grievance with the Department, which grievance
remained unresolved. He approached the General Public Service
Sectoral Bargaining Council (GPSSBC) which referred the matter for
conciliation on 10 September 2012 and still remained unresolved as at
12 November 2012. Consequently, it was referred for arbitration.
However, based on a jurisdictional point
in
limine
raised by the employer representative, Mr Mesha intimates that his
only option was to approach this Court for the appropriate relief.
[14]
The
crux of Mesha’s case revolved around Moreriane’s impugned
undertaking which, according to him, amounted to an oral
contract
which was breached and justified his claim for damages and
compensation. Mesha created a very strong hype around this
aspect
even though it was not backed up by any evidence written or oral;
except perhaps, the hope appended around the e-mail by
Gomba which
made reference to the settlement of the matter internally.
[15]
Ms
Gomba as a witness did not strike me as open-minded and objective.
She levelled an unwarranted scathing accusation against Manong
that
she unduly kept this application in abeyance without processing it
for approval based on conjecture as she had no intimate
knowledge of
the matter. As the department’s legal advisor she should have
been more circumspect.
[16]
Returning
to the conversation between Mesha and Moreriane. Mesha alleged the
following in his statement of case:
‘
I
realised when presented with the employment contract that the salary
notch presented to me during negotiations differed to what
was
promised. I raised my concerns with the Chief Director Moreriane and
we reached a verbal agreement to upgrade the salary to
the next level
12 upon completion of my probation after February 2009.’
[17]
This
assertion cannot be correct and it was not supported by any of his
witnesses who were his seniors at the time. They provided
a different
perspective on how the process works as well as who the authorised
functionaries were relative to appointments and
salaries. I am not
persuaded that there was an oral agreement that varied the terms of
the appointment contract which Mesha accepted
on 08 February 2008.
Clearly, as stated by Moreriane and Manong, Moreriane also had no
authority to vary the terms of that contract.
Moreriane testified
that he never promised nor did he enter into an oral agreement with
Mesha.
[18]
I
perceived Moreriane as a credible witness who stated that he knew
Mesha before the interview that led to the appointment; in fact,
he
recruited him. He advised Mesha to wait for the review process and
was adamant that no promises were made to him. Moreriane
repeatedly
emphasised how he actually empathised with Mesha who was in financial
dire straits. He even remarked that he seemed
to gain the impression
that Mesha’s poor performance could have been ascribed to his
domestic challenges. Moreriane stated
that this was an aspect
normally overlooked by supervisors and seniors which is why he became
the peacemaker between Mesha and
Mashoko, his immediate senior.
[19]
Notwithstanding
the fact that all the four witnesses seemed to state that a person
could negotiate a better salary after the interview
but before the
formal appointment, Mashoko, Moreriane and Manong emphasised that the
negotiation for a better offer of the salary
had to be with the Human
Capital Unit (HR) and must precede the written offer. The Head of the
Department was the accounting officer
authorised in terms of
prescripts to approve the final offer which would be followed by a
written offer to the successful candidate.
None of the other
superiors could vary the terms of the written offer except when a
candidate qualified for a revised salary based
on his or her annual
performance review which followed a specific process.
[20]
There
was no dispute raised concerning the validity of the employment
contract that Mesha signed. He seems to have contrived the
basis for
his grievance on an informal telephonic conversation he had with
Moreriane: that a promise was made to upgrade his salary
level from
Grade 11 to Grade 12. Be that as it may, how an informal discussion
of a future uncertain event could be perceived to
trump a written
contract with concrete incontrovertible terms is difficult to fathom.
Scott JA in
HNR
Properties CC and Another v Standard Bank of SA Ltd
2004 (4) SA 471
(SCA) at 479C reiterated the following:
‘
In SA
Sentrale Ko-op Graanmaatskappy Bpk v Shifren en Andere
1964 (4) SA
760
(A) this Court held that a term in a written contract providing
that all amendments to the contract have to comply with specified
formalities is binding. The principle has been consistently
reaffirmed, most recently by this Court in Brisley v Drotsky
2002 (4)
SA 1
(SCA). (A non-variation clause is not necessary in a contract of
suretyship by reason of the provisions of s 6 of Act 50 of 1956
–
Tsaperas and Others v Boland Bank Ltd …– but that does
not detract from the legal force of such a clause where
it exists.)
Courts have in the past, often on dubious grounds, attempted to avoid
the Shifren principle where its applications
would result in what has
been perceived to be a harsh result. Typically, reliance has been
placed on waiver and estoppel. No doubt
in particular circumstances a
waiver of rights under a contract containing a non-variation clause
may not involve a violation of
the Shifren principle, for example,
where it amounts to a pactum de non petendo or an indulgence in
relation to previous imperfect
performance. (For an interesting
discussion on the topic, see Hutchison ‘Non-variation Clauses
in Contract: Any Escape from
the Shifren Straigtjacket’
(2001)
118 SALJ 720.)
”
It must be borne in mind
that Mesha’s appointment was made in 2008 and the application
for the salary upgrade was only launched
in 2011 without challenging
the validity of the existing contract.
[21]
Mesha
brought his dispute under s77(3) of the BCEA which stipulates:
‘
The
labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment,
irrespective of whether any basic condition of employment constitutes
a term of the contract.’
[22]
As
pronounced by Ngcobo J in
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at 343C (
Barkhuizen
)
(para 65):
‘
[65]
Indeed, many people in this country conclude contracts without any
bargaining power and without understanding what they are
agreeing to.
That will often be a relevant consideration in determining fairness.’
[23]
I
am not persuaded that the applicant has made out a case for a claim
of damages and compensation as prayed for. The application
must
therefore fail.
[24]
The
general principle is for costs to follow the event. It remains within
the discretion of this Court whether to award costs depending
on the
circumstances. Mr Mesha was unrepresented in these proceedings.
Taking cue from the pronouncements by the Constitutional
Court in the
Barkhuizen
’s
judgment at para 90 (para 22 above) in respect of costs the following
is paramount:
‘
The
determination of these issues is beneficial not only to the parties
in this case but to all parties involved in contractual
relationships. In these circumstances justice and fairness require
that the applicant should not be burdened with an order for
costs. To
order costs in the circumstances of this case may have a chilling
effect on litigants who might wish to raise constitutional
issues. I
consider therefore that the parties should bear their own costs.’
[25]
In
the premises, the following order is made:
1.
The
application is dismissed;
2.
Each
party is ordered to carry his or its own costs.
_______________
MC Mamosebo
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE
APPLICANT:
Mr TJ Mesha (in person)
FOR THE
RESPONDENTS:
Mr S Tawana
Malebye Motaung Mtembu
Inc