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[2017] ZALCJHB 497
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Muir v Golden Lions Rugby Union (JS1108/11) [2017] ZALCJHB 497 (14 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: JS 1108/11
DICK JOHN MUIR
Applicant
And
GOLDEN LIONS RUGBY UNION
Respondent
In
the matter between:
Heard:
19 – 21 April 2017
Delivered:
14 December 2017
JUDGMENT
SALOOJEE
AJ
Introduction
[1]
This is a contractual dispute in which the applicant seeks payment in
the amount of R6 440 000 for specific performance
on a
fixed term employment contract.
[2]
The respondent opposed the action and counterclaimed for enrichment
in the amount of R 900 000.
[3]
The applicant gave evidence in support of his claim and called one
other witness, David Craig Livingstone (“Livingstone”),
the applicant’s agent.
[4]
The respondent closed it case without leading any evidence.
Summary
of the applicant’s case
[5]
The applicant is a past provincial and national rugby player.
He is currently a rugby coach and a businessman.
[6]
The applicant entered into a fixed term written employment agreement
with SA Rugby (Pty) Ltd for the period 08 May 2008 to April
2011
(“the SA Rugby agreement”) as an assistant coach for the
South African national rugby team.
[7]
During October 2009, the applicant entered into a second fixed term
employment agreement (“the second agreement”)
with the
respondent for the period 01 November 2009 to 31 October 2012.
[8]
The second agreement was concluded in two parts; the first part was
to confirm the terms of his employment with the respondent
and was
agreed on 16 October 2009 and the second part to confirm the
remuneration and was agreed on 22 October 2009.
[9]
The dispute relates to non-payment of the applicant’s salary
from December 2010 to the end of the second agreement and
a
performance bonus.
Summary
of the respondent’s opposition
[10]
The respondent pursued two defences at trial. Firstly, that the
second agreement is void as the applicant misrepresented that
he had
obtain written permission from SA Rugby (Pty) Ltd to conclude the
second agreement.
[11]
In term of Clause 5.2.1 of the SA Rugby agreement, the applicant was
bound to render coaching services to the South African
national rugby
team, the national squad or another team as directed by SA Rugby
(Pty) Ltd or the South African Rugby Union (“SARU”).
The
applicant would be allowed to coach another team upon obtaining
written permission from SA Rugby (Pty) Ltd or SARU.
[12]
Secondly, the respondent would pay the applicant his full salary and
claim payment from SA Rugby (Pty) Ltd for the period that
the
applicant was away with the South African national rugby team. SA
Rugby (Pty) Ltd did not make payment to the respondent when
requested
to do so resulting in the respondent withholding payments to the
applicant.
Validity
of the second agreement
[13]
The validity of the second agreement would entitle the applicant to
his claim.
[14]
It is accepted that an employee
can have more than one employer.
[1]
The stipulation in the SA Rugby agreement that the applicant was
bound to obtain written permission from SA Rugby (Pty) Ltd or
SARU to
render the same services to another employer does not affect the
validity of the second agreement. This is an issue between
the
applicant and SA Rugby (Pty) Ltd.
[15]
The validity of the second agreement is dependent on the fulfilment
of the conditions discussed in the meeting between the
applicant and
Kevin De Klerk (“De Klerk”) during August 2009.
[16]
The first condition discussed
at the meeting was that the applicant required the permission from
South African national rugby team
management and the relevant
decision makers at SA Rugby.
[2]
The second condition was that the second agreement would be separate
from the SA Rugby agreement.
[17]
In order to prove fulfilment of the first condition, the applicant
has to prove that he obtained permission from the South
African
national rugby team management and relevant decision makers at SA
Rugby.
[18]
The applicant stated in evidence that he obtained permission to enter
into the second agreement from Mr Pieter De Villiers,
the national
head coach, Mr O’Reagan Hoskins, the SA Rugby President and Mr
Mark Alexander, the SA Rugby Deputy President.
The applicant regarded
the permission obtained from these three persons to be substantial
compliance of the condition.
[19]
The applicant’s amended statement of claim states that the
applicant obtained permission from Mr Pieter De Villiers,
Mr O’Reagan
Hoskins and Mr Andy Marinos, the SA Rugby CEO.
[20]
Despite the amended statement of claim differing from the applicant’s
evidence and the applicant leading evidence on
the roles played by
the above persons, the applicant did not lead evidence on which
persons constituted the South African national
rugby team management
and the relevant decision makers at SA Rugby.
[21]
Further, SA Rugby is defined in
the SA Rugby agreement to be SARU and SA Rugby (Pty) Ltd.
[3]
The applicant did not define SA Rugby in his amended statement of
claim or in his evidence.
[22]
In the event that the applicant referred to SA Rugby as SA Rugby
(Pty) Ltd, the applicant had to present evidence that he obtained
permission from members of the Board of Directors of SA Rugby (Pty)
Ltd, who would constitute the relevant decision makers at SARU.
[23]
In the event that the applicant referred to SA Rugby as SA Rugby
(Pty) Ltd and SARU, then the applicant had to present evidence
that
in addition to the board members of SA Rugby (Pty) Ltd, he also
obtained permission from the relevant decision makers at SARU.
[24]
On either interpretation of SA Rugby, the applicant did not present
evidence that the condition was fulfilled.
[25]
Lastly, substantial compliance of the condition refers to fictional
fulfilment of the condition that; a condition in a contract
will
sometimes be considered to have been fulfilled as against one party
even though it has not been fulfilled.
[26]
The test for fiction fulfilment
was formulated in
Scott and
Another v Poupard and Another
[4]
where the Court said that:
“…
what must a plaintiff
prove when invoking the doctrine? Must he prove (a) non-fulfilment of
the condition, (b) the defendant’s
breach of his duty with
intention to frustrate the fulfilment , and (c) a causal link between
(a) and (b)? Does (c) involve prove
by the plaintiff that, but for
(b), the condition would probably have been fulfilled?”
[27]
The applicant did not lead evidence that the respondent breached its
duty with intention to frustrate the fulfilment of the
condition.
Thus, the applicant did not prove substantial compliance or fictional
fulfilment of the condition.
[28]
In light of the above, the applicant did not prove that the second
agreement was valid and enforceable.
The
counterclaim
[29]
The respondent did not lead evidence in support of its counterclaim,
which is dismissed.
[30]
In the premises, the following order is made:
Order
1.
The applicant’s claim is dismissed.
2.
The respondent’s counterclaim is dismissed.
3.
Each party to pay its own costs.
____________________
YF
Salooje
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Adv G Fourie
Instructed
by:
Van Der
Merwe Incorporated
For
the respondent:
CE Watt-Pringle SC
Instructed
by:
Erasmus Inc Attorneys
Appearances
For
the Applicant:
Advocate J Partington
Instructed
by:
Chris Baker and Associates.
For
the Respondent:
Vusi
Masinga legal officer of AMCU
[1]
Boumat Ltd v Vaughan
1992 (13) ILJ 934 (LAC). See also
Camdons
Realty (Pty) Ltd v Hart
(1993)
14 ILJ 1008 LAC.
[2]
Paras 13.2 and 15 of the amended statement of claim.
[3]
Clause 1.2.4 of the SA Rugby agreement.
[4]
1971 (2) SA 373
(A) at 379.