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[2017] ZALCJHB 303
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Maloka v Workerslife Direct (Pty) Ltd (J1446/13) [2017] ZALCJHB 303 (25 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
Reportable
Case
No: J1446/13
In
the matter between:
EDMOND
MALOKA
Applicant
and
WORKERSLIFE
DIRECT (PTY) LTD
Respondent
Heard:
9, 10 February
2017 and 6 March 2017
Date
of Delivered: 25 August 2017
Summary:
Action for specific performance arising
out of a clause in an
employment contract providing for the payment of commission after
termination of employment. Despite the
respondent admitting the
authenticity of the contract in question on the pleadings, parties
conducting the trial on the basis that
the authenticity of the
contract was an issue in dispute. Court assuming, in the respondent’s
favour, that the parties re-defined
the issues arising from the
pleadings to place the authenticity of the contract in dispute.
Applicant proving on a balance of probabilities
that he concluded the
contract with the respondent and therefore entitled to the relief
sought.
JUDGMENT
BARNES
AJ
INTRODUCTION
[1]
This matter began as an application in terms of section 77(3) of the
Basic Conditions of Employment Act
[1]
(“the BCEA”) in which the applicant, Mr Maloka, sought to
compel specific performance with the terms of an employment
contract
allegedly concluded with the respondent.
[2] Specifically, Mr Maloka sought to
compel the respondent to comply with clause 5.5.1 of the employment
contract which, he contended,
entitled him to the payment of
commission after the termination of his employment, it being common
cause that Mr Maloka had resigned
from his employment with the
respondent on 13 March 2013.
[3] The clause on which Mr Maloka
sought to rely entitled a person employed as a sales broker, provided
that he or she had worked
for the respondent for five years from the
date of signature of the agreement, to the payment of commission
after the termination
of employment for a period equivalent to his or
her term of service. In Mr Maloka’s case this period was
twelve years
and three months.
[4]
In its answering affidavit filed in opposition to the application,
the respondent admitted that it had concluded the employment
contract
in question with Mr Maloka. However, the respondent contended
that, prior to Mr Maloka’s resignation, a new
payment structure
had been negotiated and agreed in terms of which post termination
commissions were no longer payable. On that
basis, the respondent
denied that Mr Maloka was entitled to the relief he sought.
[5]
In his replying affidavit, Mr Maloka denied having agreed to any new
payment structure and persisted with the claim set out
in his
founding papers.
[6]
The respondent then took the unusual step of launching an
interlocutory application in which it sought to withdraw certain
admissions made in its answering affidavit. These were the admissions
to the effect that it had concluded the employment contract
in
question with Mr Maloka.
[7]
In its founding affidavit in support of its interlocutory
application, the respondent denied that it had employed Mr Maloko
as
a sales broker and, for the first time, disputed the authenticity of
the employment contract.
[8]
However, in its replying affidavit in the interlocutory application
the respondent changed its version again. It stated in the
reply that
it did not dispute the authenticity of the employment contact but
contended that the contract had never been implemented
and was
therefore “null and void.”
[9]
Ultimately, the main application was converted into an action and the
interlocutory application was never determined. The parties
held a
pre-trial conference, the minutes of which recorded that the
affidavits in the applicant’s main application as well
as the
respondent’s interlocutory application would constitute the
pleadings in the trial.
[10]
In order to crystallise the issue for determination in this trial, it
is useful to set out the facts which are not in dispute
between the
parties. They are the following:
10.1
The respondent is in the business of
selling insurance policies and related products. The business was
started in the late 1990s
by two brothers – the Ferreiras –
who contracted with the Police and Prisons Civil Rights Union
(“POPCRU”)
to sell funeral policies and other products to
its members.
10.2 At
its inception, the business was a close corporation which went by the
name of Ferreira Brokers CC. In 2000 the
business was converted to a
company and changed its name to C & J Ferreira Brokers (Pty) Ltd.
Later, the Ferreira’s business
was taken over as a going
concern
[2]
by Lesaka Employee Benefits (Pty) Ltd. Thereafter it changed
its name to Workerslife Direct (Pty) Ltd, the respondent. The
parties are in agreement that all references to the respondent should
be taken to include its predecessors.
10.3 Mr Maloka commenced
employment with the close corporation, Ferreira Brokers CC, on 2
September 1997. He did so
as an administrative clerk. Mr Maloka was
however permitted to sell the products of the business and did so,
with significant success.
For this he received commission. The
employment contract concluded between Mr Maloka and Ferreira Brokers
CC on 2 September
1997 made provision for Mr Maloka’s salary
for his position as administrative clerk and for the payment of
commission for
products sold. I will refer to this as “the
initial employment contract.”
10.4 In 2000, as a result
of the conversion of Ferreira Brokers CC to a company, all employees
were required to sign
new contracts of employment. On 20
November 2000, Mr Maloka signed a contract of employment with C &
J Ferreira Brokers
(Pty) Ltd. In terms of this contract, Mr Maloka
was appointed as an administrative clerk backdated to 1 September
1997. This contract
made provision for the payment of a salary to Mr
Maloka. It made no provision for the payment of commission. I will
refer to this
as “the admin contract.”
10.5 Throughout his
employment with the respondent, Mr Maloka sold the products of the
business and received commission
therefor. On 13 March 2013, Mr
Maloka resigned.
[11]
All of this is common cause.
Now comes the dispute:
11.1
Mr Maloka contends that on the same
day that he signed the admin contract, that is, on 20 November 2000,
he also signed a second
contract with C & J Ferreira Brokers
(Pty) Ltd, in terms of which he was appointed as a sales broker,
termed a Group Scheme
Broker (“GSB”) by the respondent.
This contract made no provision for the payment of a salary. It made
provision for
the payment of commission on products sold and for the
payment of a target bonus when applicable sales targets were met.
This is
the contract on which Mr Maloka relies for his claim. I
will refer to it as “the GSB contract.”
11.2 As stated
above, the respondent initially admitted that it had concluded
the GSB contract with Mr Maloka. Thereafter,
it brought an
interlocutory application in which it first disputed the authenticity
of the GSB contract and then, in an about turn,
admitted it. Despite
this admission on the pleadings,
[3]
the parties conducted the trial on the basis that the authenticity of
the GSB contract was in dispute.
11.3 The respondent accepted that the
GSB contract in issue is the standard form contract which it utilises
for the sales brokers
employed by it. Clause 5.5.1 of the contract
provides as follows:
“
Should
the GSB leave the service of the COMPANY after five years from the
date of signing this agreement or should the GSB die or
retire as a
result of ill health (the condition to be certified by two medical
practitioners that he /she is permanently unable
to continue with
employment as GSB), payment of the Provida commission will continue
for a period equal to his term of service.”
[12]
Having regard to the above, counsel for the respondent, Mr Kirstein,
accepted, correctly, that if it is established that Mr
Maloka and the
respondent concluded the GSB contract, then Mr Maloka is entitled to
the post termination commission payments provided
for therein and
accordingly to the relief which he seeks.
The
issue for determination before me is therefore whether the evidence
establishes, on a balance of probabilities, that Mr Maloka
concluded
the GSB contract with the respondent.
THE
PLEADINGS
[13]
Mr Maloka’s pleaded case is the following:
“
5.2
On or about 20 November 2000 I entered into a written employment
contract with C & J Ferreira Brokers,
a copy of which is attached
hereto marked ‘
Annexure
EM1.’
I
was employed as a Group Scheme Brokers (‘broker’) and I
sold various policies and products of my employer as
well as
facilitated the lending of funds on behalf of my employer.
5.3
I was remunerated by way of commissions earned on products sold as
well as by way of a target
bonus as applicable when targets were met.
My remunerations structure is detailed in the Employment Contract in
clause 5.
5.4
Clause 5.5.1 of the agreement states inter alia the following:
Should the GSB [broker] leave the
service of the COMPANY after five years from the date of signing this
agreement, or should the
GSB die or be compelled to retire as a
result of ill-health (the condition to be certified by two medical
practitioners that he/she
is permanently unable to continue with
employment as GSB), payment of the Provida commission will continue
for a period equal to
his term of service.”
[14]
Mr Maloka attached a copy of the GSB contract to his founding
affidavit. The copy is of a poor quality. It has however been
signed
and witnessed and is dated 20 November 2000.
[15]
Mr Maloka pleaded that he resigned from his employment with the
respondent on 13 March 2013. After his resignation, he was
paid only
his basic salary for the month of March and not the commission he was
entitled to. Nor was he paid the commission which
he contends he is
entitled to in terms of clause 5.5.1 of the GSB contract. Mr Maloka
accordingly approached attorneys who sent
a letter of demand to the
respondent in the following terms:
“
Today
our client was only paid an amount of R3896.03. Our client is
entitled to receive his salary and commission
for the month of March. In addition, our client is entitled, in terms
of the provisions of his contract, to be paid Provida commissions
for
a period of time equal to his term of service, after his resignation,
which term at date of his resignation, is more than 12
years.”
[16]
This letter elicited no favourable response. Nor did a further letter
of demand. Mr Maloka accordingly launched his application.
In it he
claimed “
payment of outstanding commissions for the months
of March, April, May and June 2013.”
[17]
Mr Maloka also asked for orders in the following terms:
17.1
“
that the Respondent be
ordered to comply with clause 5.5.1 of the Applicant’s
employment contract;
17.2 that the Respondent be ordered to
pay the Applicant all outstanding commissions that accrued to him
post the termination of
the employment relationship;
17.3 that the Respondent be ordered to
pay the Applicant all commissions on a monthly basis as they become
payable in the future
of the remainder of the period post termination
of his employment which is equal to his length of service, being
twelve years and
three months;
17.4 that the Respondent be ordered to
provide the Applicant with a breakdown of all commissions due to the
Applicant on a monthly
basis.”
[18]
The respondent’s answering affidavit was deposed to by Mr
Prince Charles Nonkonyana, its Managing Director at the time.
[19]
The respondent conceded in its answering affidavit that Mr Maloka was
entitled to his commission for the month of March 2013.
It did so in
the following terms:
“
I
concede and submit that the Applicant should have received his
commission payment for the month of March 2013 (up until his
termination)
and tender that the Respondent will pay same.”
[20]
For reasons which have not been explained, the respondent has not
made good on this tender. During the trial however, the respondent
confirmed that it is liable to pay Mr Maloka this amount.
[21]
As for the rest of Mr Maloka’s claim, the respondent pleaded as
follows in its answering affidavit:
“
3.1
I confirm that the Applicant was employed by the Respondent and on
the basis as set out in paragraph
5 of the Applicant’s founding
affidavit after the Respondent took over the employment contract
dated November 2000.
3.2
The Applicant however conveniently fails to mention to this
Honourable Court that terms
of the initial employment contract was
revised during June 2010 and effectively amended after the Respondent
restructured the employment
benefits and commission structure for all
employees.”
[22]
The respondents’ defence, in essence, was that a new payment
structure had been implemented, after having been agreed
to by all
employees, including Mr Maloka, which did away with post termination
commission payments.
[23]
Mr Maloka denied this in his replying affidavit. He pleaded as
follows:
“
44
I was never consulted on any amendment to my contract and no
amendment was ever agreed to. No documentary
proof of any amendment
is attached to the answering affidavit.”
[24]
After the filing of Mr Maloka’s replying affidavit, the
respondent brought an interlocutory application in which it sought
to
withdraw its admissions to the effect that it had concluded the GSB
contract with Mr Maloka. The affidavit in support of this
application
was deposed to by Mr Jan Jooste, the respondent’s General
Manager.
[25]
Mr Jooste stated that in preparation for the hearing of the
application he had “
personally investigated the [personnel]
file of [Mr Maloka].”
He stated further that:
“
During
my investigation it appeared that the terms of the employment
contract on which the respondent relies were admitted in error
by Mr
Nonkonyana in the answering affidavit and that the respondent was
never appointed or remunerated as a Group Scheme Broker.
[26]
On how the respondent had made an error of this nature, Mr Jooste
stated that Mr Nonkonyana had simply accepted Mr Maloka’s
version in his founding affidavit “
without performing any
investigation into the veracity thereof.”
Mr Nonkonyana
confirmed this in a one page confirmatory affidavit. As to why, or
the circumstances in which Mr Nonkonyana did this,
there is no
explanation.
[27]
Mr Jooste then deposed to a new answering affidavit which purported
to replace the answering affidavit deposed to by Nonkonyana.
In it,
he stated as follows:
“
The
respondent employs two kinds of employees, namely brokers and
administrative personnel. These two types of personnel are employed
in two distinct types of contracts. I need to emphasise that one
employee cannot be employed as both an administrative type of
employee, as well as a broker. Every employee can only be employed as
either a broker or as an administrative employee.
The applicant was at all relevant
times employed by the respondent as an administrative employee and
not as a broker. The allegation
by the applicant that he has been
employed as a Group Scheme Broker is devoid of truth.”
[28]
In relation to the GSB contract attached to Mr Maloka’s
founding affidavit, Jooste said the following:
“
In
the circumstances, it is denied that the document attached by the
applicant to his papers as the alleged employment contract
is
authentic, or reflects the correct factual and legal relationship
between the parties.”
[29]
In his answering affidavit in the interlocutory application, Mr
Maloka stated that “
[the respondent] does not allege that my
GSB contract was never concluded.”
This was not correct,
having regard to the challenge to the authenticity of the GSB
contract in the respondent’s founding
affidavit.
[30]
However, in its replying affidavit, the respondent changed its
version yet again. It now stated as follows:
“
Contract
as GSB
I
do not place the authenticity of the GSB contract, or the handwriting
of the respondent in issue
.
I simply contend that the GSB contract and the employment contract
cannot co-exist and that the GSB contract is invalid. When
viewed
from a historical perspective, it appears that the company never
implemented the GSB contract, which supports my point that
the GSB
contract is null and void and never co-existed with the employment
contract. I emphasise that a person cannot be employed
as GSB and as
an administrative employee at the same time. The two are mutually
exclusive.” (emphasis added)
[31]
The respondent’s version in the replying affidavit in its
interlocutory application is thus that it accepts the authenticity
of
the GSB contract but contends that it was not implemented, could not
co-exist with employment contract, and was therefore “invalid”
and “null and void.”
[32]
Clearly, this constitutes an admission by the respondent on the
pleadings as to the authenticity of the GSB contract. Despite
this,
as will be evident below, the parties conducted the trial on the
basis that the authenticity of the GSB contract was an issue
in
dispute.
THE
EVIDENCE
The
Evidence for the Applicant
Mr
Edmond Maloka
[33]
Mr Maloka began working for Ferreira Brokers CC on 2 September 1997.
He was employed as an administrative clerk. He was however
permitted
to sell the products of the business and did so. His initial contract
of employment (concluded on 2 September 1997) made
provision for his
salary for his position as administrative clerk and for commission on
products sold.
[34]
Mr Maloka testified that on 20 November 2000, Ms Pillay, a secretary
in the employ of Ferreira Brokers CC, approached him and
requested
him to sign two new contracts of employment. This was necessary
because Ferreira Brokers CC had converted to a company
and changed
its name to C & J Ferreira Brokers (Pty) Ltd. Mr Maloka testified
that the contracts presented to him for signature
were the admin
contract and the GSB contract respectively. The contracts were
unsigned upon presentation to him. Mr Maloka testified
that he signed
both contracts in the presence of Ms Pillay. Ms Pillay then witnessed
Mr Maloka’s signature on both contracts
and left with them. Mr
Maloka was later provided with copies of the contracts which had been
signed and witnessed on behalf of
the company. The signature on
behalf of the company appears to be identical on both contracts. Mr
Maloka testified that he
does not know who signed the contracts on
behalf of the company.
[35]
In 2009, Mr Maloka was promoted from administrative clerk to branch
secretary. This was also an administrative position. Mr
Maloka
testified that he continued to earn a salary and to sell products for
which he earned commission. Mr Maloka enjoyed significant
success as
a sales broker and the commission he earned comprised the vast
majority of his total earnings. Mr Maloka also received
a target
bonus if he achieved applicable sales targets, which he regularly
did. Mr Maloka referred the Court to a number
of his salary
advices, which bore out the above. Mr Maloka’s salary advice
for February 2013 reflected that he earned the
following:
“
Target
Bonus
R1 565.55
IPHC Commission
R1 221.00
Cleaning & Beverage
Allowance
R250.00
Basic
Salary
R7 540.20
Commission
R36 558.40”
[36]
Mr Maloka testified that his wife, Ms Ella Maloka, was employed by C
& J Ferreira Brokers (Pty) Ltd for a period of 5 years
from 2005
to 2010, when she resigned. Ms Maloka’s employment contract was
virtually identical to the GSB contract signed
by Mr Maloka on 20
November 2000. In particular, it contained a clause identical to
clause 5.1.1 quoted above.
[4]
After Ms Maloka resigned, the respondent paid her post termination
commissions for a period equivalent to her term of service in
terms
of the aforesaid clause.
[37]
Mr Maloka testified that he resigned from the respondent’s
employment on 13 March 2013. He was not paid his commission
for
the month of March 2013. Nor was he paid the post termination
commissions due to him in terms of clause 5.5.1 of the GSB contract,
despite demand.
[38]
In cross examination, Mr Kirstein put to Mr Maloka that the
respondent had established, after the first day of the trial, that
the signatures on the admin contract and the GSB contract on behalf
of the company appeared to belong to Mr Helbut Nebur –
the
respondent’s Pretoria branch manager in 2000. It was put to Mr
Maloka that Mr Nebur would testify that while he had signed
the admin
contract and while the signature on the GSB contract appeared to be
his, he had not in fact signed the GSB contract.
Mr Maloka reiterated
that he did not know who had signed the GSB contract on behalf of the
company.
[39]
Mr Kirstein put it to Mr Maloka that the respondent had two types of
employee: administrative staff and sales brokers and that
employees
signed either an administrative contract or a GSB contract but not
both. Mr Maloka maintained that he had worked as both
an
administrative staff member and a sales broker and had signed both
the admin contract and the GSB contract.
[40]
Mr Kirstein also put the following to Mr Maloka in cross examination:
40.1
that Mr Jooste would testify that he
was not aware of the GSB contract and that in fact the GSB contract
did not exist;
40.
2 that Mr Maloka had not signed the GSB
contract;
40.3
that the signature on the GSB contract
resembled not his but that of his wife; and
40.4
that the GSB contract was a “false
contract.”
[41]
Mr Maloka consistently denied these allegations. Notably, it was not
put to Mr Maloka in terms that he and/or his wife had
forged the GSB
contract.
Mrs
Ella Maloka
[42]
Mrs Maloka testified that she commenced employment with C & J
Ferreira Brokers (Pty) Ltd in 2005 as a GSB. She initially
received
commission only, however this changed in 2010 when after complaints
from GSBs, the respondent restructured to provide
for a basic salary
for GSBs in addition to commission.
[43]
Ms Maloka testified that Mr Maloka worked for the respondent as both
an administrative clerk (and later a branch secretary)
and as a GSB.
[44]
Ms Maloka confirmed that the signature on the GSB contract belonged
to her husband.
[45]
Ms Maloka was not aware of whether other employees of the respondent
worked as both administrators and sales brokers. She maintained
however that her husband had done so.
[46]
Ms Maloka testified that she resigned from the respondent’s
employ in 2010. The respondent paid her post termination
commissions
for a period equivalent to her period of service in terms of her
contract of employment.
[47]
In cross examination, it was put to Ms Maloka that the signature on
the GSB contract resembled hers and not her husbands. Ms
Maloka
denied this and reiterated, in terms, that the signature on the GSB
contract belonged to her husband.
The
Evidence for the Respondent
Mr
Jan Jooste
[48]
Mr Jooste has been the General Manager of the respondent since 2008.
Prior to that he was Manager of Operations and IT. Since
1995, Mr
Jooste has been the manager in charge of the payment of all salaries
and commissions on behalf of the respondent.
[49]
Mr Jooste testified that he became involved in the matter when, as a
result of Mr Nonkonyana’s resignation from the company,
the
directors asked him to step in and assist. He had regard to
Nonkonyana’s answering affidavit and to Mr Maloka’s
personnel file and formed the view that the facts deposed to by
Nonkonyana did not accord with the contents of Mr Maloka’s
file. This was because the file contained only the initial employment
contract and the admin contract. It did not contain the GSB
contract.
[50]
Mr Jooste testified that prior to Mr Maloka’s application, he
had never seen the GSB contract. He testified that had
he been aware
of it, Mr Maloka would have been categorised as a GSB and remunerated
as such. In fact, he had not been.
[51]
Mr Jooste testified that there were three categories of employee at
the respondent: purely administrative staff, administrative
staff who
were permitted to sell products and receive commission therefor, and
GSBs. The first category received a salary and benefits,
the second
category received salary, benefits and commission and the third
category received commission only (until 2010 when the
respondent
restructured and paid GSBs a salary in addition to commission). Mr
Jooste testified that Mr Maloka fell into the second
category of
employee.
[52]
Mr Jooste confirmed that Mr Maloka signed the initial employment
contract on 2 September 1997. He confirmed further that by
reason of
the conversion of the business from a CC to a company, Mr Maloka
signed the admin contract on 20 November 2000. Mr Jooste
accepted
that while the admin contract made provision for Mr Maloka’s
salary, it made no provision for the payment of commission.
When
asked in terms of what instrument Mr Maloka was paid commission, Mr
Jooste answered that it was in terms of the initial contract
of
employment.
[53]
Mr Jooste testified that at the conclusion of the first day of the
trial, he took photographs of the signatures on the admin
contract
and the GSB contract and mailed them to the respondent’s
managerial employees in an effort to establish who they
belonged to.
Mr Jooste was then contacted by Mr Nebur who said that the signatures
appeared to be his but that he had not signed
the GSB contract.
[54]
Mr Jooste expressed the view that the signature on the GSB contract
which Mr Maloka claimed to be his did not resemble his
signatures
elsewhere. Jooste stopped short, however, of accusing Mr Maloka of
having committed forgery.
[55]
In cross examination, Mr Kuhn who appeared for the applicant, put it
to Mr Jooste that had Mr Maloka not been a GSB, this would
have been
obvious to the respondent and it would have said so in response to
his letters of demand and certainly, his application.
Mr Jooste could
not explain why this had not happened.
[56]
As for the respondent’s claim that its Managing Director had
simply accepted Mr Maloka’s version that he was a
GSB without
checking the veracity thereof, Mr Kuhn put it to Mr Jooste that this
was implausible and unreasonable. Mr Jooste offered
no further
explanation or comment.
[57]
Mr Kuhn put it to Mr Jooste that if the respondent had been genuinely
concerned about the authenticity of the GSB contract
it would have
investigated the matter years ago. Mr Kuhn pointed out that the
respondent had challenged the authenticity
of the GSB contract in
August 2014 yet it was only in February 2017, after the commencement
of the trial, that it took steps to
establish who had signed the GSB
contract on behalf of the company. Mr Jooste’s response
was that it had not seemed
necessary to investigate the matter
earlier.
[58]
The following important exchange then occurred between Mr Kuhn and Mr
Jooste during cross examination:
58.1
Mr Kuhn asked Mr Jooste on what
basis he contended that the GSB contract was not authentic.
58.2 Mr Jooste answered that it had
not been on Mr Maloka’s personnel file and it had not been
implemented.
58.3
Mr Kuhn asked Mr Jooste whether his version
was that the GSB contract was a forgery. Mr Jooste expressed
reluctance to answer. Mr
Kuhn pressed on and asked the question in a
different form, namely whether Mr Jooste was accusing Mr Maloka of
presenting a false
contract to court. Mr Jooste’s answer was
yes.
58.4
Mr Kuhn then pointed out that the fact that
the GSB contract was not on the personnel file did not render it
fraudulent. Mr Jooste
agreed with this.
58.5
Mr Kuhn then asked what other facts or
reasons Mr Jooste based his allegation of fraud on. Mr Jooste
answered that if the GSB contract
had come to his attention he would
have remunerated Mr Maloka differently.
58.6
Mr Kuhn then asked whether it was possible
that the GSB contract had been concluded and signed but had not been
placed on Mr Maloka’s
personnel file. Mr Jooste’s answer
was yes.
58.7
Finally, Mr Kuhn asked whether Mr Jooste’s
challenge to the authenticity of the GSB contract was therefore
purely administrative.
Mr Jooste’s answer was yes.
Mr Helmut Nebur
[59]
Mr Nebur was employed by the respondent from 1996 to 2016, when he
retired. In 2000 he was the respondent’s Pretoria
branch
manager.
[60]
Mr Nebur testified that, at the conclusion of the first day of the
trial, he was sent photographs of the signatures on the
admin
contract and the GSB contract and asked whether he recognised them.
He indicated that they appeared to be his. He was asked
to testify.
[61]
Mr Nebur testified that he signed the admin contract on behalf of the
company. He testified that the signature on the GSB contract
appeared
to be his, but he does not believe that he signed it. He gave three
reasons for this:
61.1
Firstly, he stated that he could not
see his initials on the contract and he would not have signed without
initialling.
61.2 Secondly, he stated that he would
not have signed two contracts for the same person on the same day.
61.3 Thirdly, he stated that he was
not authorised to sign contracts for GSBs. He stated that only the
Sales and Marketing Manager
was authorised to do so.
[62]
Under cross examination, Mr Nebur conceded that his testimony that he
had not signed the GSB contract was based on deductive
reasoning and
that he had no independent recollection thereof, one way or another.
Mr
Derek Le Roux
[63]
Mr Le Roux was employed at the respondent from 1994 to April 2010. In
2000 he was the respondent’s Group Sales and Marketing
Director.
[64]
Mr Le Roux had no personal knowledge of the conclusion of the admin
contract or the GSB contract or of who had signed them
on behalf of
the company. He testified that it would have made sense for Mr Nebur
to have signed the admin contract.
[65]
Mr Le Roux testified that the GSB contract could only have been
signed by himself or another authorised person within the sales
structure. He testified that there was a clear distinction at the
respondent between salaried employees and sales brokers and that
people were not employed in both capacities. He testified that the
respondent would not have signed two contracts with one person
on the
same day.
[66]
Under cross examination, Mr Le Roux conceded that some salaried staff
in the respondent’s employ were permitted to sell
products and
earned commission therefor.
[67]
Mr Le Roux testified that only GSBs were entitled to a target bonus.
When presented with Mr Maloka’s salary advices in
cross
examination, Mr Le Roux could not explain why Mr Maloka received a
target bonus if he was not a GSB.
ANALYSIS
[68]
As stated above, the pre-trial minute provides that the affidavits in
the main application as well as the interlocutory application
constitute the pleadings for purposes of the trial. Those pleadings
effectively render the issue of the authenticity of the GSB
contract
moot. This is because the respondent admitted the authenticity of the
GSB contract in its replying affidavit in its interlocutory
application. Ordinarily, the respondent would, in law, be bound by
that admission.
[5]
[69]
Despite this however, the parties conducted the trial on the basis
that the authenticity of the GSB contract was an issue in
dispute.
Moreover, the pre-trial minute lists as one of the issues that the
court is requested to determine: “
whether the GSB contract
is authentic.”
[70]
The apparent contradiction between these two portions of the
pre-trial minute was not explained during the trial. Parties may
of
course, by agreement, re-define the issues arising from the
pleadings
[6]
and it may be that
this is what the parties sought to do in relation to this particular
issue. This was not however explicitly
stated by either of the
parties during the trial.
[71]
Given the conclusion I ultimately reach on the merits, the result in
this case, would be the same. I shall therefore assume,
in the
respondent’s favour, that the parties agreed to redefine the
issues arising from the pleadings to place the authenticity
of the
GSB contract in dispute.
[72]
It is to an assessment of the merits that I now turn, accepting as
both parties did during the trial that the onus is on Mr
Maloka to
prove his case.
[73]
Mr Maloka gave direct evidence to the effect that he signed the GSB
contract in the presence of Ms Pillay on 20 November 2000.
He
identified his signature on the last page of the contract, as did his
wife. The evidence of Mr and Mrs Maloka was clear and
consistent and
was not impugned in any material respect under cross examination.
[74]
Moreover, their evidence, in my view, accords with the probabilities.
It was common cause that Mr Maloka was paid commission
and, on a
regular basis, a target bonus. The admin contract made no provision
for either of these. Mr Jooste’s evidence that
Mr Maloka was
paid commission in terms of his initial contract of employment
concluded on 2 September 1997 cannot be accepted.
That contract was
replaced by the contracts concluded in November 2000 when the
business converted from a CC to a company. Mr Maloka’s
initial
contract of employment was superceded at that point. Moreover, while
the initial contract of employment may have provided
for commission,
it made no provision for the target bonus which Mr Maloka regularly
received.
[75]
In summary, the payments received by Mr Maloka as evidenced in his
salary advices accorded precisely with the provisions of
the GSB
contract making it far more probable than not that the GSB contract
was indeed concluded.
[76]
The respondent’s case is, by contrast, riddled with
contradictions and implausibilities.
[77]
The respondent pleaded that it had two categories of employee only:
administrative staff and sales brokers and that and it
was not
possible for one employee to work in both these capacities or to
conclude contracts of employment in both categories. Yet
the evidence
for the respondent was markedly different. Mr Jooste testified that
there was in fact a third category of employee:
the administrative
staff member who was permitted to sell products and received
commission therefor. Mr Jooste testified that Mr
Maloka fell within
this category. The respondent led no evidence as to the contractual
arrangements pertaining to this category
of employee or the basis on
which they received their commission and there does not appear to be
any logical reason why the respondent
would not have entered into GSB
contracts with some or more of the employees in this category. Under
cross examination, Mr Le Roux
could not explain why Mr Maloka
received a target bonus if he had not signed a GSB contract.
[78]
Furthermore, it is difficult to understand why, if Mr Maloka was not
a GSB, this would not have been obvious to the respondent
and it
would not have said so in response to his letters of demand or, at
the very least, his court application. Instead, the respondent
admitted that it employed Mr Maloka as a GSB. The respondent’s
claim that this was done in error because its Managing Director
simply assumed without checking that Mr Maloka’s version was
correct is implausible. The terse character of the explanation
for
this error and the fact that it was given not by Mr Nonkonyana
himself, but by Mr Jooste and merely confirmed by Mr Nonkonyana,
does
not help matters.
[79]
Having made the allegation that the GSB contract was not authentic,
the respondent took no steps to establish who the signature
appearing
on the contract on its behalf belonged to. The reason for this
becomes clear when one has regard to the respondent’s
replying
affidavit in its interlocutory application. There it changed
its version yet again, stating that it did not dispute
the
authenticity of the GSB contract. Its case in the replying
affidavit was that the contract was not implemented and is
therefore
invalid. It is however clear from the evidence that Mr Maloka
received commission and a target bonus, for which express
provision
was made in the GSB contract.
[80]
While the respondent persisted with its authenticity challenge in the
trial, this was not done with the rigour that one would
expect of a
serious and well founded challenge. Instead the challenges to the
Malokas during cross examination were tentative at
best, with the
respondent’s counsel merely suggesting that the signature on
the GSB contract did not “resemble”
Mr Maloka’s
signatures elsewhere and more closely “resembled” Mrs
Maloka’s signature. At no stage was it
put to either Mr or Mrs
Maloka, in terms, that they had forged the GSB contract.
[81]
The respondent’s challenge to the authenticity of the GSB
contract finally collapsed during the cross examination of
Mr Jooste
when he conceded that the GSB contract may have been concluded
and signed and simply not placed on Mr Maloka’s
personnel file.
[82]
As for the evidence led on behalf of the respondent, neither Mr
Jooste nor Mr Le Roux had personal knowledge of the conclusion
of the
GSB contract. Mr Nebur testified that he did not believe that he
would have signed the GSB contract but conceded that he
had no
personal recollection of the matter one way or another. Mr Nebur
stated that he could not see his initials on the GSB contract.
This
may however simply have been a consequence of the poor quality of the
copy of the contract. Mr Nebur accepted that he
had signed the
admin contract and accepted further that the signatures on the admin
contract and the GSB contract appeared to be
identical.
[83]
Mr Nebur’s evidence was accordingly inconclusive at best and is
certainly not sufficient to disturb the probabilities,
which for the
reasons stated above, favour the applicant.
[84]
For all these reasons, I am satisfied that Mr Maloka has proved his
claim and is entitled to the relief that he seeks. He is
of course
also entitled to his commission for the month of March 2013 which the
respondent has conceded it owes him.
[85]
As far as costs are concerned, I see no reason why they should not
follow the result.
[86]
I accordingly make the following order:
ORDER
1.
The respondent is
ordered to pay the applicant the commission he earned for the month
of March 2013, within 7 days of the date of
this judgment.
2.
The respondent is
ordered to comply with clause 5.1.1 of the applicant’s GSB
contract of employment concluded between the
parties on 20 November
2000 (“the contract”).
3.
The respondent is
ordered to pay to the applicant all outstanding commissions that have
accrued to the applicant in terms of clause
5.1.1 of the contract
from March 2013 to the date of the judgment, within 30 days of the
date of this judgment.
4.
The respondent is
ordered to pay the applicant all commissions on a monthly basis as
they became payable in future for the remainder
of the period
envisaged in clause 5.1.1, which is a period equal to the applicant’s
term of service from date of signature
of the contract to date of
resignation, namely twelve years and three months.
5.
The respondent is
ordered to provide the applicant with a breakdown of all commissions
due to the applicant on a monthly basis.
6.
The respondent is to
pay the applicant’s costs, including the costs, if any,
occasioned by the postponement of the trial on
10 February 2017.
_____________________________
H
BARNES
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant: Mr R Kuhn of
Rudolph Kuhn Attorneys
For
the respondent: Advocate P Kirstein
Instructed
by:
Grosskopf Attorneys
[1]
75 of 1997.
[2]
In terms of
section 197 of the Labour Relations Act 66 of 1995 (“the
LRA”).
[3]
As stated
above, the pre-trial minute records that the affidavits in both the
main application and the interlocutory application
constitute the
pleadings in the trial.
[4]
In Ms
Maloka’s contract this clause is not numbered 5.1.1 but
appears as an unnumbered sub clause under clause 5.
[5]
Section 15
of the Civil Proceedings Evidence Act 25 of 1965 provides that
“
It
shall not be necessary for any party in any civil proceedings to
prove
nor
shall it be competent for any such party to disprove any fact
admitted on the record of such proceedings
.”
See
also
Associated
Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and
Laquers v Smit
2000
(2) SA 789
(SCA) at 729I.
[6]
Price NO
v Allied-JBS Building Society
1980 (3) SA 874
(A) at 881E –
882E.
This
is most commonly done by making admissions of fact in relation to
issues that may initially have been placed in dispute by
way of a
denial in a pleading. In principle, a plaintiff could also permit
admissions in the pleadings to be withdrawn by agreement
at a
pre-trial conference, so creating a dispute in relation to an issue
that was previously common cause.