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[2018] ZALCJHB 76
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Koko v Eskom Holdings SOC Limited (J200/18) [2018] ZALCJHB 76 (21 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
J200/18
In
the matter between:
MATSHELA
MOSES KOKO
Applicant
and
ESKOM
HOLDINGS SOC
LIMITED
Respondent
Heard:
06
February 2018
Delivered
:
21 February 2018
Summary:
An application to interdict and restrain the respondent from
terminating a contract of employment
and to declare that an ultimatum
issued by an Acting Group Chief Executive is unlawful and also to
direct the respondent to comply
with the contractual obligations.
Mootness arises when a dispute no longer presents a live controversy
between the warring parties.
However, where a possibility of acting
unlawfully could recur, a dispute is not moot and remains justiciable
by a court of law.
When a party disputes the unlawfulness of its
conduct, a controversy remains even if certain events had occurred. A
party consenting
to an interdict-even on an interim basis-admits
illegality and cannot later be heard to have acted lawfully. A
direction cannot
issue where a party has taken steps consistent with
the terms and conditions of the employment contract. Such a direction
shall
be moot and ineffective-offending the doctrine of
effectiveness. If on the uncontested evidence before court there
exists a possibility
of returning to the old ways, an interdict
remains justiciable. Mootness on some reliefs does not disentitle a
successful party
of its costs. Urgency ought to be challenged at the
first available opportunity and not when the horse has bolted. Held:
(1) The
applicant is entitled to the reliefs set out in the order.
Held: (2) The respondent to pay the applicant’s costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is the return day for an
interim order. On 26 January 2018, this Court issued an interim
order.
[1]
It is important to state upfront that essentially the interim order
was obtained by agreement. The applicant’s notice of
motion
sought a final order. On the day, the respondent did not file any
affidavits. The parties approached the Court with an agreed
draft
order. The only issue that the parties requested the Court to
consider and rule on was paragraph 2.2
[2]
of the notice of motion. The contention of the applicant was that it
needed that to form part of the agreed order, whereas the
respondent
contended that it should not. After hearing argument on that point
alone, I sanctioned the agreed order and upheld the
applicant’s
contention. It was unknown to me why the respondent agreed to an
interdict at the time. I could only surmise
that it may have
discovered that the ultimatum issued by the Acting Group Chief
Executive was unlawful. The applicant sought to
obtain an order at
08h30 of that morning because by 10h00 of that day the applicant
would have been dismissed had he not resigned.
[2]
In the meanwhile, the applicant was suspended and charged with acts
of misconduct. Despite these developments, the respondent
chose to
file an answering affidavit. Such prompted the applicant to file a
reply. The matter was fully canvassed before me on
the return day.
After hearing submissions, I reserved judgment in order for me to
carefully consider the matter.
Background
facts
[3]
It is common cause that the respondent is
facing a financial quack mire. It requires liquidity injection to the
tune of R20 billion
in order to stay afloat. It is not disputed that
the respondent is an essential entity within the South African
economy. Its survival
as an entity is of paramount economic
significance. The onset of this matter is the statement dated 20
January 2018, wherein the
Government of the Republic of South Africa
announced several exigent measures that would be taken to bring about
solidity at the
respondent. These measures were announced following a
meeting held between the President, Jacob Zuma; the Deputy President
Cyril
Ramaphosa; the Minister of Public Enterprises, Lynne Brown and
the Minister of Finance Malusi Gigaba.
[4]
The measures announced included the
appointment of a new Board headed by Mr Jabu Mabuza as the
Chairperson of the Board and the
appointment of Mr Hadebe as the
Acting Group Chief Executive Officer. It is apparent that these
measures were taken because the
respondent was faced with various
challenges caused by failures in corporate governance that resulted
in a qualified audit report,
austere liquidity conundrum that
threatened the South African economy as a whole and the downgrade of
the respondent’s credit
rating.
[5]
Around
11 July 2017, the respondent published its financial statements for
the financial year ending 31 March 2017. The external
independent
auditors issued a qualified audit. The qualification arose because of
the R2.9 billion in irregular expenditures. One
of the expenditures
was the R30 million payment made to Mr Brian Molefe, the erstwhile
Group Chief Executive Officer of the respondent.
A matter which had
caused much public spat, later to be reversed by a court of law.
Another, was the alleged conflict of interest
relating to the
applicant’s step daughter’s shareholding in an entity,
Impulse International (Pty) Ltd. The matter
which led to the
applicant being disciplined and vindicated
[3]
.
[6]
Following the qualified opinion, the
Development Bank of South Africa threatened to recall its R15 billion
loan to the respondent.
At that point in time, the respondent was
R361 billion in the red. Also, Banks froze credit lines and demanded
urgent steps to
be taken to correct the situation. Various
institutions joined in to put more pressure on the respondent. The
difficulties became
somewhat insurmountable. It became increasingly
imperative for the respondent to deal with the corporate governance
failures that
had threatened the financial effectiveness of the
respondent. However, the matter before me turns on very limited
facts, as such
a full rendition of the quack mire would serve no
purpose but to elongate this judgment.
[7]
The essential facts are largely common
cause. Sparing the history of the dispute between the parties, which
is littered in the print
and electronic media, and is not worth
repeating, the applicant was charged with some acts of misconduct and
was cleared. Subsequent
thereto, he returned to his position. Shortly
thereafter, the Board of the respondent was changed. On 20 January
2018, the Presidency
issued a statement. The relevant and contentious
portion of the statement read thus:
‘
The
board is
directed
to immediately
remove
all Eskom executives who are facing allegations of serious corruption
and other acts of impropriety,
including
Mr Matshela Koko
and Mr Anoj Singh.’
[4]
[8]
Following this statement, the applicant
appeared before the Parliamentary Committee. Issues canvassed thereat
may form part of the
upcoming Judicial Commission of Inquiry into
allegations of “State Capture”. The applicant presented a
lengthy written
submission which was copied to the respondent’s
Acting Group Chief Executive.
[9]
On 24
January 2018, the applicant was summoned to a meeting with a Mr
Hadebe, the Acting Group Chief Executive of the respondent.
The
applicant had not met Mr Hadebe before. The meeting took place on 25
January 2018. In this meeting, and in no uncertain terms,
the
applicant was told that his presence at the respondent had become
undesirable and if he were to return it would be detrimental
to the
respondent. He was informed that the lenders had expressed concern
about his presence at the respondent.
[5]
It was mentioned to the applicant that the lenders viewed him as a
stumbling block to the efforts of the respondent to clean up
acts of
maladministration and corruption. The applicant was there and then
told that it was intolerable for him to remain in his
position. He
was urged to resign by 10h00 the following day failing which he would
be terminated. The applicant refused to resign
and in anticipation of
being dismissed by 10h00 on 26 January 2018, he approached this Court
for a relief. Essentially the above
constitutes the relevant facts
for the purposes of this judgment.
The
respondent’s defences on the return day
[6]
[10]
On
the day the interim order issued, this Court was left with an
indelible mark that the respondent accepted that its actions which
were to ensue at 10h00 on that day (dismissal of the applicant) was
unlawful. If it did not accept it, then it was unwise of it
to agree
to an interdict even on an interim basis. To the Court’s utter
amazement, the answering affidavit suggested that
the applicant was
not entitled to the interim interdictory relief. Urgency was also
attacked. The applicant was criticized for
“jumping the gun”.
Reliance was placed on clause 15.3 of the employment contract.
[7]
[11]
It
was contended that the applicant would have been given the required
six months’ notice of termination.
[8]
The mootness point was mentioned on the basis that the disciplinary
process in accordance with the contract of employment was in
gear.
[9]
The disciplinary process in accordance with the contractual
obligation was prompted by the urgent application. Further, it was
contended that the dismissal that was to ensue was not going to be
unlawful. The applicant would have been given the required notice
had
he not “jumped the gun”. The applicant had alternative
remedies in terms of the Labour Relations Act
[10]
(LRA).
Defences
in the heads of argument
[12]
The
argument of mootness was pursued with sufficient vigour. In fact, it
appeared to have been the respondent’s main and primary
defence. Even during oral submissions, Mr Ngcukaitobi for the
respondent had put up a spirited argument that the relief should
not
be granted since the relief sought had become moot
[11]
.
The submission was that the application ought to be dismissed on the
grounds of mootness. I shall in due course deal with the
principles
applicable to the doctrine of mootness.
[13]
Without laying a factual foundation for
such, it was submitted that the respondent had a fair reason to
dismiss and the procedure
it followed was fair. This submission was
startling in that on the respondent’s own version, the
applicant was not dismissed.
He, “jumped the gun”. The
procedure followed to dismiss him was not in breach of the Code of
Conduct, properly construed,
so the argument went. The fair reason
was allegedly the demands of the lenders, classified as operational
needs.
[14]
On
procedure, reliance was placed on the decisions of this Court.
[12]
Firstly reference was made to the discussion between Mr Zethembe
Khoza, Professor Malekgapuru Makgoba and the applicant. These
discussions took place on 10 January 2018. The facts pertaining to
these discussions were appropriately pleaded by the applicant
and not
the respondent. He testified that on the day in question, he was
engaged in a discussion by the then chairman of the respondent’s
Board, Mr Khoza, and Professor Makgoba, one of the two new Directors
appointed to the respondent’s Board in 2018. They informed
him
that the respondent’s funders, whom he understood to be the
four major South African Banks, have a perception that he
is the face
of corruption at the respondent. The banks were calling for his
resignation. This call was being supported by the Minister
of
Finance. He was informed that the respondent has to explore
termination of his services.
[15]
These discussions were dubbed by the
applicant to have been off the record. Despite that Professor Makgoba
chose to reduce the discussion
in writing in the form of short
message service (sms) text. Only then was the applicant prompted to
respond through his attorneys
of record. The respondent’s
version of the discussion amounts to hearsay and is inadmissible.
Applying the
Plascon Evans
rule, I reject the respondent’s version. The applicant denies
the version. According to the respondent, the applicant was
given an
opportunity to be heard before the dismissal.
[16]
Secondly, reference is made to the
discussion between the applicant and Mr Hadebe on 25 January 2018.
There is not much difference
on what was said to the applicant as
testified by applicant and Mr Hadebe. Mr Hadebe testified that the
applicant asked for extension
of time which was refused. The
applicant testified that he actually sought the legal basis for his
resignation, to which Mr Hadebe
refused to disclose. In addition, Mr
Hadebe gave the applicant an opportunity to state his defence to
which the applicant acquiesced
and gave reasons why he should not be
dismissed. The applicant disputes that. These differences do not
bring about a genuine dispute
of fact given the vacillating versions
presented by the respondent. On the one hand it seeks to rely on
termination by giving notice
even where there is no misconduct. On
the other hand, it attempts substantial compliance with the
Disciplinary Code, which on its
own version applies only to
misconduct. If there is a genuine dispute of fact, I reject the
version of the respondent as being
far-fetched and actually false.
[17]
The
respondent also disputed non-compliance with the Code of Conduct.
Another spirited argument was made around substantial compliance
[13]
and how documents are to be interpreted as decreed by the Supreme
Court of Appeal.
[14]
[18]
In the course of these submissions,
particularly those relating to procedure, I enquired from Mr
Ngcukaitobi that if the dismissal
was lawful or was going to be
lawful what was the point of the new process under the
Chairpersonship of Mr Cassim SC? He retorted
by submitting that had
the applicant not jumped the gun, the respondent was “good to
go”-entitled to dismiss. I shall
return to this submission when
I deal with the issue of mootness later in this judgment.
Evaluation
[19]
The
applicant contends that its case is pegged on specific performance
and he approached this Court under section 77(3) of the Basic
Conditions of Employment Act (BCEA)
[15]
.
On the defence of mootness, Mr Barrie SC for the applicant, submitted
that the principle does not apply in that there is evidence
of
possible recurrence of the unlawful conduct complained of. The two
defences raised by the respondent are that of mootness, which
as I
said appears to be the primary defence, and that of legality of its
action. This legality argument is pegged on two legs.
Firstly, the
contract of employment permits termination on notice, even if there
is no misconduct alleged. Secondly that there
was substantial
compliance with the Code of Conduct, which the applicant contends was
part of his contract of employment. Thus,
the respondent has complied
with the contractual obligations and the applicant has no reasons to
lament.
Is
the matter moot?
[20]
According to the respondent, what renders
the matter moot is the on-going disciplinary enquiry under the
stewardship of Mr Cassim
SC. Put differently, “you wanted a
disciplinary hearing before dismissal here you have it now.”
Stop complaining. The
applicant submits that he has reason to
complain because on the facts of this case, the respondent is still
intending and could
dismiss him unlawfully as it had done so to other
colleagues of his and attempted to do so with him on 26 January 2018
at 10h00.
[21]
The
doctrine of mootness is well developed in the American constitutional
law jurisprudence. A case becomes moot if a party seeks
to obtain
judgment on a pretended controversy, when in reality there is none,
or a decision in advance about a right before it
has actually been
asserted and contested, or a judgment upon some matter which when
rendered, for any reason, cannot have any practical
effect upon an
existing controversy. Courts exists to resolve controversies and not
abstract issues. As I see it, for a court to
intervene and assist the
warring parties, there must be controversy between the parties. The
dictionary meaning of the term controversy
is a dispute, argument, or
debate, especially one concerning a matter about which there is a
strong disagreement. Further, the
controversy must be a live one. Put
differently it must exist between the warring parties. A case would
be moot if the parties
are not adverse, if the controversy is
hypothetical, or if the judgment of the court for some other reason
cannot operate to grant
any actual relief, and the court is without
power to grant a decision. It is moot, if it no longer presents an
existing or live
controversy or the prejudice or threat of prejudice,
which to an applicant, no longer exists
[16]
.
[22]
The
mere fact that the matter is moot does not constitute an absolute bar
for a court to hear a matter. The overriding factor is
that the order
will have some practical effect on the parties or others.
[17]
The Constitutional Court had set out the following as potentially
relevant factors: the nature and extent of the practical effect
that
any possible order might have; the importance of the issue; the
complexity of the issue; the fullness or otherwise of the
argument
advanced and resolving disputes between different courts.
[18]
Added to the factors is the interest of justice.
[19]
[23]
Quiet
recently the Constitutional Court in
Pheko
v Ekurhuleni Metropolitan Municipality
[20]
had the following to say:
‘
[32]
Although the removal has taken place, this case still presents a live
controversy regarding the lawfulness
of the eviction.
Generally,
unlawful conduct is inimical to the rule of law and to the
development of a society based on dignity, equality and freedom.
Needless to say, the applicants have an interest in the adjudication
of the constitutional issue at stake. The matter cannot therefore
be
said to be moot.
It
is also live because if we find that the removal of the applicants
was unlawful, it would not be necessary to consider their
claim for
restitutionary relief.’
[My
own underlining and emphasis]
[24]
Determining
whether a case is moot requires consideration of the evidence placed
before a court. It is not a principle that is to
be plugged from the
vacuum. Also of importance is the relief that is being sought by a
party. In
Tshwane
University of Technology v All Members of the Central Student
Representative Council of the Applicant
[21]
Acting Justice Wentzel had the following to say before declining to
grant the relief sought:
‘
[23]
To my mind, it is not the function of the courts to make blanket
interdicts. What the respondents in
a sense want is restraining order
to preclude any decision to close the residences without a Court
order. It is a matter of law
that this must be done lawfully and no
order declaring this is necessary. If this is done unlawfully in the
future, the respondents
will have recourse to the courts.’
[25]
Recently,
the High Court, in
Afriforum
NPC and Others v Eskom Holdings SOC Ltd and others
[22]
,
had
the following to say:
‘
[107]
The mootness barrier therefore usually arises from events arising or
occurring after an adverse decision has been
taken or a lawsuit has
gotten underway, usually involving a change in the facts or the law,
which allegedly deprived the litigant
of the necessary stake in the
pursued outcome or relief. The doctrine requires that an actual
controversy must be extant at all
stages of review and not merely at
the time the impugned decision is taken or the review application is
made.
[110]
An application for an interdict or other relief with continuing force
is not rendered moot solely by the voluntary cessation of
allegedly unconstitutional, illegal, unreasonable or unfair conduct,
si
nce the offending party may return to its old ways.
An
issue will normally not be deemed moot if it is capable of
repetition, yet evading review. The court should enquire into whether
the claim has been mooted because the respondent has voluntarily, but
not necessarily permanently, acquiesced.
So long as the person
mounting the legal challenge confronts continuing harm, collateral
harmful consequences that continue to endure,
or a significant
prospect of future harm, the case cannot be deemed moot
. By
similar token, in the event of a voluntary cessation of wrongful
conduct, a case might well be moot if subsequent events make
it
sufficiently clear that the allegedly unlawful behavior may not
reasonably be expected to recur.
[115]
The essential question for decision in relation to the justiciability
of the issues and the relief sought
in these applications, therefore,
is whether the voluntary cessation of Eskom’s alleged wrongful
conduct has rendered the
applications moot.
As just said,
applications for interdictory relief or review should not be rendered
moot solely by the voluntary cessation of allegedly
wrongful conduct
where it appears that the offending party may return to its old
ways
…Put differently, do the applicants still face
continuing harm, enduring collateral harmful consequences or a
significant
prospect of future harm? Does the evidence make it
sufficiently clear that the allegedly wrongful conduct may not
reasonably expected
to recur?’
Applying
the principles to the facts of this case
.
[26]
As I said, principles and doctrines are not
simply plugged in the air and are blindly applied. The evidence
before a court plays
a pivotal role. The respondent did not lay facts
that would sufficiently suggest that recurrence is not reasonably
possible. It
does not take a submission from counsel, but it requires
some evidence. Counsel for the respondent submitted that once the
applicant
is cleared of the current charges, there is no possibility
of him being dismissed in the manner that was to occur on 26 January
2018. This submission falters on two bases: Firstly in the
recent past, the applicant was cleared of allegations of misconduct,
yet he was threatened with dismissal on the reason that the lenders
are unhappy. To this day the respondent still faces the challenge
of
unhappy lenders. They unwaveringly see the applicant as a face of
corruption, even if he was cleared of the allegations of corruption.
Secondly, the respondent to this day maintains that its actions that
were to ensue on 26 January 2018 were lawful. Counsel for
the
respondent submitted that had it not been for the interim order, the
respondent was “good to go”.
[27]
The respondent pleaded its case on this
point as follows:
‘
33
What happened here is that I informed Mr Koko that it was
my
intention to terminate his employment on the grounds of the concerns
expressed by the lenders and the intolerability
of his remaining in his position while the matter remained addressed.
I am advised that in law, this is akin to an extreme operational
need
justifying the steps that were taken.
This
remains the case
,
although the situation has been
ameliorated
by the subsequent suspension of Mr Koko and the commencement of a
disciplinary hearing.
34
Upon receiving the urgent application brought by Mr Koko, Eskom
decided
to embark upon a disciplinary process on the grounds
of misconduct…
35
The disciplinary process is in accordance with Mr Koko’s
contract of employment
and thus renders the relief sought in this
application moot.
As matters stand
, it is not the intention of
Eskom to dismiss Mr Koko without following a disciplinary enquiry.
The
dismissal
of Mr Koko will depend on the findings and
recommendations of the independent Chair, Adv. Nazeer Cassim SC.’
[28]
The above quoted evidence evinces in no
uncertain terms that the respondent is still intent to terminate the
applicant’s employment
contract on the grounds of the concerns
expressed by the lenders. According to the evidence before me those
were the grounds to
have been used on 26 January 2018. There is no
admission that this position would have been unlawful and is being
jettisoned. So
much so, it had to be done urgently hence the
applicant was refused extension of time. On the contrary, the
position was improved
by the subsequent suspension and the
commencement of a disciplinary process.
[29]
I am inclined to agree with Mr Barrie SC
that the evidence points to the fact that there is a reasonable
prospect that the respondent
may return to its old ways. The evidence
before me suggests that there is reasonable possibility that the
respondent may return
to its old ways, particularly because the
respondent does not see its conduct to be unlawful in any manner
whatsoever. It does
seem to me that the pressure from the lenders is
insurmountable. There exists a great possibility that if the
respondent fails
to secure the dismissal of the applicant through the
current process, it may return to its position which was only
ameliorated
by the current process. I am accordingly of the view that
the reliefs sought are not moot.
[30]
Another factor is that the directive issued
by the office of the Presidency still stands. The applicant, when he
approached this
Court, on 26 January 2018, made a connection between
what was to befall him, being dismissed and the directive. According
to the
directive, the applicant is to be removed, and not that he be
subjected to a disciplinary hearing to determine whether there are
grounds in law for his employment to be terminated. The applicant has
rights guaranteed by his contract of employment. The respondent
is
constrained to act in line with the rule of law. Unlawful actions are
inimical to the rule of law.
[31]
The actions of Mr Hadebe on 25 January 2018
are consistent with the directive issued on 21 January 2018. Although
Mr Hadebe disputes
the connection but on the balance of probabilities
there is a clear connection. The fact that he did not mention the
directive
in the discussion is of no moment. Fact is, the directive
wanted some action-removal and few days thereafter, Mr Hadebe acted.
There is clearly a causal link. How else could the respondent’s
Board have followed the directive? It cannot be said that
the
respondent simply ignored the directive. If it did, it does not make
such a case in its papers. On the contrary, Mr Hadebe
testified that
the Government was rightly concerned about the apparent lack of
accountability of employees like the applicant.
This suggests that
the respondent saw nothing wrong with the directive. If that is the
case, why not act upon it?
[32]
This is an additional factor that points to
the possibility of recurrence. For reasons set out above, I come to
the conclusion that
the case is not moot. The point of mootness is
not upheld.
[33]
On
the evidence before me, it is clear that the respondent is intent and
actually is pressured to dismiss the applicant. Should
the outcome of
the current process not yield the desired results, there is a great
possibility of the respondent pulling the ace
up the sleeve. Legal
advice has already been sought and dispensed with that the steps
taken are justified in law.
[23]
That being so, there is nothing that would prevent the respondent to
flag the steps already interdicted to justify the termination
once
the interdict is gone. Therefore, the fear of the applicant is
reasonable and ought to be entertained by this Court.
Was
the applicant entitled to the interim relief or not?
[34]
The respondent contended, seriously so,
that the applicant was not entitled to the interim relief in the
first place. This was rather
surprising, given the facts exposed
above as to how the order was obtained. This on its own rendered the
matter alive. There is
controversy between the applicant and the
respondent as to the legality or otherwise of the steps taken, which
led to the applicant
approaching this Court. This cannot be left
unattended. To my mind, although the point was not raised by any of
the parties during
argument, if the applicant is eventually
dismissed-the position that will please the lenders and the
Government-and the procedure
leading to his dismissal is being
challenged, the steps taken may potentially become an issue. In fact,
the issue, would not have
been decided in the circumstances where
this Court was seized with an opportunity to decide the controversy.
Such a decision will
benefit either of the parties when it arises at
a possible unfair dismissal dispute. There lies the practical
benefit.
Does
the applicant have a clear right?
[35]
Turning to the applicant’s case.
Simply put the applicant seeks a specific performance. Clause 13.1 of
his contract of employment
provides thus:
‘
13.1
Save where specifically amended by this Agreement, the Company’s
standard conditions of employment
as applicable to Managerial Levels
shall be applicable.
All
other relevant Policies
and Procedures are
also
incorporated into this agreement
and the Employee shall be bound by the provisions thereof. The
company shall be entitled from time to time to amend the terms and
conditions of its Policies and Procedures.’ [My underlining and
emphasis]
[36]
The
respondent has in place a Disciplinary Procedure which is due to be
reviewed in August 2020. The version presented to me was
authorized
on 10 August 2017. The Disciplinary Procedure is informed by the
Constitution and other pieces of labour legislations.
[24]
The applicant places reliance on clause 3.1 read with clause 3.2.
Those clauses provides the following:
‘
3.1
PRINCIPLES
The following principles will be
observed when applying the procedure:
a)
The
principle of fairness and equity shall always be adhered to.
b)
Any
disciplinary action, shall as far as possible emphasize corrective
measures rather than punitive measures; and
c)
Eskom
will endeavor to take disciplinary action within three (3) months
from the date that it becomes aware of any misconduct.
3.2 DISCIPLINARY PROCEDURE
No disciplinary action
shall
be
instituted against an employee unless he/she is
afforded a proper
opportunity to state his/her case and to defend him/herself against
any allegations,
which may be taken into consideration against
him/her.’ [My emphasis and underlining]
[37]
The
applicant contends that the respondent had breached the rights
guaranteed in these clauses. If a party to a contract fails to
perform in terms of the obligation he/she had undertaken and the
contractual counterparty continues to demand performance a court
shall, in principle, provided that performance is possible, and
subject to the court’s discretion to refuse such an order,
order the promisor to perform.
[25]
The promissee’s entitlement is to performance
in
forma specifica
-performance
of precisely what the debtor had bound himself to perform.
[26]
The disciplinary policy gives the applicant the contractual right to
a hearing prior to termination of his services.
[27]
[38]
To
this apparent solid case, the respondent mounts the defence firstly
that section 77(3) of the BCEA is of no application in that
no
particular clause in the employment contract has been infringed.
Also, that the Disciplinary Code finds no application since
the
reasons to have the applicant dismissed are not related to misconduct
but extreme operational risks threatening the viability
of the
respondent. These contentions seem to be opportunistic at the very
least. The evidence of Mr Hadebe is that the applicant
is alleged to
be a central player in the collapse of corporate governance at the
respondent. This allegation of being central threatens
the viability
of the respondent
[28]
.
The lenders were no longer tolerating allegations of corruption.
[29]
What concerned the lenders was corporate governance failures which
threatened the viability of the respondent.
[39]
Therefore, in order to address the concerns
of the lenders, the applicant in particular ought to have been
charged with the failures
in corporate governance and such requires
application of the Disciplinary Code. If it walks like a duck and
quacks like a duck
it is a duck. To now label the concerns of the
lenders as “extreme operational requirements”, when in
truth it is allegations
of misconduct and or performance is not
appropriate. The respondent knows fully well that labelling the
concerns correctly suggests
that the Disciplinary Code ought to be
invoked. The directive is pertinently clear, it is about allegations
of serious corruption
and other acts of impropriety. It is for that
reason that the respondent seeks to disavow the connection between
the ultimatum
to resign and the directive. In any event on the
balance of probabilities I found that such a connection exists.
[40]
Secondly,
and only in argument, that there has been substantial compliance with
the contractual obligation. The discussions between
the applicant, Mr
Khoza and Professor Makgoba and those between the applicant and Mr
Hadebe are now turned into a compliance with
the
Audi
alteram partem
rule. The events of Mr Khoza and Professor Makgoba’s meeting
are related by the applicant only. There was no attempt to obtain
any
evidence from Mr Khoza or Professor Makgoba. There is hearsay
evidence by Mr Hadebe as to what he was advised, by whom it is
unclear, regarding the discussions between the applicant and
Professor Makgoba.
[30]
The applicant calls the discussions off the record discussions. I
must accept them as such absent contrary evidence.
[41]
Most startling is the version of Mr Hadebe.
On his own version he does not describe the discussion as anything
close to a hearing.
If anything, he presented the applicant with a
fait accompli
as it were. All he did, after presenting the lenders’
complaints, was to urge the applicant to resign. Further, he made it
clear that if he did not resign by 10h00, the following day, his
employment will be terminated. Even on
Avril
Elizabeth’s
approach, there was
no opportunity for reflection before any decision is taken to
dismiss. On his own version he was faced with
an urgent situation,
which required urgent action. In such situations as described by him,
it would be befitting to refuse any
form of extensions.
[42]
As an indication that Mr Hadebe was not
involved in a dialogue and an opportunity for reflection, he
testified thus:
‘
33.2
I would have given Mr Koko the required notice of termination, as
stipulated above. I am advised that it
is not unlawful to give Mr
Koko notice of termination of his contract…However, the code
applies where an employee is to
be dismissed on grounds of
misconduct, which is not what happened here. What happened here is
that I informed Mr Koko that it was
my intention to terminate his
employment on the grounds of the concerns expressed by the lenders…’
[43]
A submission that there was at the very
least substantial compliance is not supported by the evidence before
me. The high watermark
of the respondent’s case is exposed by
the following version:
‘
58
The provisions of the disciplinary code are noted. It is denied that
the provisions of the
code are of application on the facts dealt with
above. The facts, in any event, were exceptionally serious,
justifying a departure
from the provisions of the code.’
[44]
It is
clear from this evidence that the case is not one of substantial
compliance but that of departure due to exceptionally serious
facts.
With this evidence, it was impermissible for the respondent’s
counsel to make submissions around substantial compliance.
[31]
The contractual arrangement did not promise the applicant a truncated
process.
[32]
In the recent past, the respondent did not follow a truncated
process, simply because it had a contractual obligation to follow
a
specified and the agreed process. One of the known defences for a
claim of specific performance is impossibility. Such a defence
has
not been properly pleaded by the respondent. In any event its actions
in the recent past and the current process would have
defeated such a
defence.
[45]
Based
on the authorities cited
[33]
by the respondent’s counsel, it does seem that the applicant’s
case is being misunderstood. The applicant before me
is not
complaining about procedural fairness. The applicant is staking the
fruits of his bargain
[34]
.
He approached this Court under section 77(3) of the BCEA. I agree
with the respondent’s counsel that the applicant has no
right
not to be dismissed. However, before me, he is not staking that
claim. The principle in
Denel
[35]
has never been disturbed by any court
[36]
.
The applicant has not called upon the Court to interpret the clauses
but to enforce them. As pointed out earlier, the defence
of
substantial compliance has not been properly pleaded.
[46]
Perhaps,
if it was, it would have compelled me to gravitate towards the
interpretation route to establish compliance. The only case
pleaded
is that of being entitled to terminate by giving a six months’
notice.
[37]
[47]
It
seems to me that the respondent labours under a misapprehension that
even if the reasons that justify summary dismissal are absent,
it can
terminate by simply giving a six months’ notice
[38]
.
This contention seeks to ignore other clauses of the contract.
Interpretation of a document requires consideration of the document
as a whole.
[39]
Misconduct is a reason that justifies summary dismissal
[40]
.
[48]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[41]
,
the SCA had aptly said the following:
‘
Interpretation
is the process of attributing meaning to words used in a document, be
it legislation, some other statutory instrument,
or contract, having
regard to the context provided by reading the particular provision in
the light of the
document
as a whole
and the circumstances attendant upon its coming into existence.
Whatever the nature of the document consideration must be given
to
the
language
used
in the light of the ordinary rules of grammar and syntax; the
context
in which
the provisions appear; the apparent purpose to which it is directed
and the material known to those responsible for its production’.
[My underlining and emphasis].
[49]
Effectively, the respondent does not have a
defence to a claim for specific performance. I am not amazed by the
agreement to the
interim order. To my mind, the respondent should
have agreed to a final order as well in order to avoid costs. I
therefore unequivocally
conclude that the applicant has demonstrated
a clear right as guaranteed by the Disciplinary Code, which forms
part of his employment
contract.
The
issue of urgency
[50]
In his founding papers, the applicant
testified that it was simply impossible to abide by the usual forms,
service and time periods
prescribed, as to do so would result in him
being subjected to the unlawful conduct by 10h00 on Friday and him
suffering irreparable
harm. He then requested that the matter be
addressed as one of urgency and that the non-compliance be condoned.
[51]
On 26 January 2018, when the interim order
issued by agreement as explained above, the respondent was
represented by an attorney,
Mr Kaapu. The respondent did not take
issue with the urgency of the matter. In this Court, and indeed in
other courts, a party
can challenge the issue of urgency without
filing any papers. It was thus open to the respondent to challenge
the urgency then.
It ought to be remembered that if a court is not
satisfied that the matter is not sufficiently urgent, to warrant its
attention,
the only competent order it can make is to strike the
matter off the roll-refuse to hear it and costs.
[52]
And
if another party does not believe that a court must hear a matter as
one of urgency, it must indicate so and make submissions
relevant
thereto. Once a court issues an order, even an interim one, when on
the day the other party to be affected by the order
was present, the
issue of urgency becomes academic as it were. The horse would have
bolted. There are instances where urgency may
remain alive. Those are
when the one party obtains an order in the absence of the other and
the judge granting the order is not
advised of a fact that would have
led to the court refusing to entertain the matter as one of urgency.
On the return day, a party
who was absent is still entitled to
challenge the issue of urgency because all the aspects of the relief
sought ought to be entertained
on the return day.
[42]
[53]
When
the respondent obtained an opportunity to answer to the applicant’s
case-when the dust has settled as stated in the
Polyoak
matter, the deponent on behalf of the respondent simply testified
that he will demonstrate that the applicant failed to establish
urgency. The deponent testified that the applicant did not make out a
case for bringing an application for urgent interdictory
relief.
[43]
In relation to the facts pleaded by the applicant stated above, the
deponent only offered a bare denial.
[44]
[54]
The
deponent accused the applicant for not having a clear right and also
having an alternative remedy instead
[45]
.
This Court in
Vermaak
v Taung Local Municipality
[46]
had the following to say:
‘
The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a court to be placed
in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely to
happen. By way
of an example if the court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date.’
[55]
On
the uncontested facts before me, the applicant has satisfied the
above requirement. Had the Court not issued an injunction, the
applicant would have been dismissed by 10h00 on 26 January 2018, in
breach of his contract-an unlawful act, as alleged by the applicant.
In any event, I did not hear the respondent’s counsel arguing
this point with vigour. Although I did not hear him saying
so, I
assumed that the point was abandoned. However, in the bundle of
authorities relied on, provided to the Court after hearing
oral
argument, the judgment of this Court
[47]
per Snyman AJ was included. I then gained an impression that the
point is still being pressed on. For the reasons set out above,
I am
satisfied that the matter ought to have been heard as one of urgency.
[56]
En passant
,
I do state that objections on urgency ought to be raised in
limine
and be decided upon before any submissions on the merits are made. To
not do so, on a matter that is potentially not urgent, would
be to
actually waist the court’s time. It is impermissible for a
party to argue the merits and at the same time submit that
the matter
was not urgent, in other words the matter should not have been heard.
There seems to be a growing tendency for parties
to argue urgency
together with the merits. This tendency is undesirable and ought not
to be encouraged.
The
issue of costs
[57]
Both parties before me are in agreement
that costs should follow the results. The respondent’s counsel
submitted that at the
very least the applicant is entitled to the
costs of the interim order. In amplification of this submission,
reference was made
to the fact that once the respondent ignited the
current process, the applicant should have noted that the relief he
is seeking
was no longer necessary as it was no longer the intention
of the respondent to proceed with the intended dismissal. If it was
not
clear to him, the answering affidavit made it clear. He should
not have filed a replying affidavit since the dispute was mooted
by
the current proceedings.
[58]
I have no reason to entertain this
submission, since in my judgment the case was not mooted. On the
contrary, as said above, the
Court believes that the appropriate
thing to have been done was to agree to a final order. To file an
answer and allege that the
act complained of was legal and an interim
order was not appropriate, is nothing else but to ignite controversy
compelling the
court into issuing an order to resolve the
controversy. Since the applicant is successful, he is entitled to his
costs. The costs
include the ones reserved on 26 January 2018 and
those incidental to the employment of two counsel.
Conclusions
and summary
[59]
In conclusion and in summary, it is my
considered view that the case, for reasons spelled out above, is not
moot. The evidence demonstrates
a reasonable possibility of
recurrence. The actions of the respondent on 25 January 2018 of
intending to terminate the employment
of the applicant in breach of
his employment contract are unlawful and ought to be declared as
such. The applicant has demonstrated
a right emanating from the terms
of his employment contract, which right is under threat on the
evidence before this Court. Given
the evidence of possible
recurrence, the respondent ought to be interdicted from acting
unlawfully. As to costs, and guided by
section 162 of the LRA, I am
not averse to the submission by both parties that costs should follow
the results.
[60]
In the results I make the following order:
Order
1.
The matter is heard as one of urgency.
2.
The respondent is interdicted and restrained
forthwith from terminating the applicant’s contract of
employment and or services
in an unlawful breach of the terms and
conditions of his employment contract and or on the basis of a
directive issued to it by
the Government of the Republic of South
Africa in terms of the statement that the Government put out on
Sunday, 21 January 2018
to the effect that: “
The
board is directed to immediately remove all Eskom executives who are
facing allegations of serious corruption and other acts
of
impropriety, including Matshela Koko…”
3.
It is hereby declared that the ultimatum issued by
Mr Phakamani Hadebe requiring the applicant to resign by Friday 26
January 2018,
failing which his employment shall terminate by 10h00
am is unlawful.
4.
The respondent to pay the costs, which include the
costs of 26 January 2018 and the employment of two counsel.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
.
Appearances
For
the Applicant:
Advocate F G Barrie
SC with him Advocate L M Malan.
Instructed
by:
Asger Gani Attorneys, Pretoria.
For
the Respondent:
Advocate T N Ngcukaitobi with him Advocate L J Zikalala.
Instructed
by:
Bowman Gilfillan Inc, Sandton.
[1]
Having read the papers and having considered the matter:
IT
IS ORDERED THAT:
1. The
respondent (Eskom) is hereby and forthwith interdicted and
restrained from unlawfully terminating
the applicant’s
contract of employment and/or
1.1
in breach of the terms and conditions of his employment and/or
1.2
on the basis of a directive issued to it by the Government of the
Republic
of South Africa (“the Government”) in terms of
a statement that the government put out on Sunday, 21 January 2018,
to the effect that:
“
The board is directed to
immediately remove all Eskom executives who are facing allegations
of serious corruption and other acts
of impropriety, including Mr
Matshela Koko…”
1.3
The provisions of paragraph 1 supra shall operate as an interim
interdict
pending the final determination of this matter.
1.4
The matter is postponed for a hearing on 6 February 2018 at 10h00 or
soon thereafter,
1.5
The issue, at the incidence of the parties, costs for the
appearances
today Friday 26 January 2018, is reserved.
BY THE COURT
REGISTRAR
[2]
2.2 on the basis of a directive issued to it by the Government
of the Republic of South Africa (“the Government”)
in
terms of a statement that the government put out on Sunday, 21
January 2018, to the effect that:
“
The board is directed to
immediately remove all Eskom executives who are facing allegations
of serious corruption and other acts
of impropriety, including Mr
Matshela Koko…”
[3]
For reasons better known to the media and later the respondent, the
disciplinary hearing was labelled a “sham”.
[4]
My own underlining and emphasis. A clear statement is that the Board
as newly constituted was given a directive to remove. Clearly,
this
means dismissal. For Executives that faced allegations, the
directive must have meant that any process if underway, ought
to be
expedited. However, at the time the applicant was not facing formal
allegations. Despite that it seems that he had to be
dismissed-removed. For what reason, it is not altogether clear from
the statement. On the day the interim order issued, I enquired
from
both representatives as to whether the directive is an
administrative decision within the contemplation of PAJA or an
executive decision. No clear answer was given. Nonetheless nothing
turns on that.
[5]
Notably, the directive is not raised as the basis.
[6]
Stated on affidavit.
[7]
15.3 This contract may be terminated by either party giving 6
months’ written notice to that effect
to the
other party, provided that the Company shall be entitled to
terminate this contract without notice for reasons justifying
summary dismissal.
[8]
On the uncontested facts, applicant was to be dismissed by 10h00 the
following day.
[9]
Paragraph 34 of the Answering Affidavit.
[10]
Act 66 of
1995 as amended.
[11]
He placed reliance on
National
Employers Association of South Africa v Metal and Engineering
Industrial Bargaining Council (MEIBC) and others
[2015] 36 ILJ 2032 (LAC).
[12]
Avril Elizabeth Home for
the mentally Handicapped v CCMA and others
[2006] 9 BLLR 833
(LC) and
Nitrophoska
(Pty) Ltd v CCMA and others
[2011] 8 BLLR 765 (LC).
[13]
See;
Mojaki
v Ngaka Modiri Molema
[2015] 36 ILJ 1331 (LC).
[14]
See:
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA).
[15]
Act 75 of 1997.
[16]
See in this regard
Coalition
for Gay and Lesbian Equality and others v Minister of Home Affairs
and others
2000 (2) SA 1
(CC) followed in
NEASA v
MEIBC and others
[2015] 36
ILJ 2032 (LAC).
[17]
See:
IEC v Langeberg
Municipality
2001 (3) SA
925 (CC).
[18]
See:
MEC
for Education: Kwazulu-Natal and others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC) and
Minister
of Justice and others v Estate Stransham-Ford
2017 (3) SA 152 (SCA).
[19]
See:
Qoboshiyane NO and
others v Avusa Publishing Eastern Cape (Pty) Ltd and others
2013
(3) SA 315
(SCA). See also
City
of Tshwane Metropolitan Municipality and others v Nambiti
Technologies (Pty) Ltd
[2016] 1 All SA 332
(SCA) and
Legal
Aid South Africa v Magidiwana and others 2015
(6) SA 494 (CC).
[20]
2012 (2) SA 598 (CC).
[21]
[2016] ZAGPPHC 881 (22 September 2016).
[22]
[2017] 3 All SA 663 (GP).
[23]
Paragraph 33.2 of the answering affidavit- ‘I have been
advised that in law, this (the intention to terminate the
applicant’s
employment on the grounds expressed by the
lenders) is akin to an extreme operational need justifying the steps
that were taken.’
[24]
Clause 2.2.2 of the Disciplinary Policy.
[25]
See:
Steenkamp and others
v Edcon Limited
2016 (3)
SA 251 (CC).
[26]
See:
Haynes v Kingwilliamstown
Municipality
1951 (2) SA
371 (A).
[27]
See:
Denel (Pty) v Vorster
[2005] 5 BLLR 313 (SCA).
[28]
Paragraph 9 of the answering affidavit.
[29]
Paragraph 19 of the answering affidavit.
[30]
Paragraph 68 of the answering affidavit.
[31]
Paragraphs 57-59 of the respondent’s written heads and the
bundle of authorities provided to the court after oral submissions.
[32]
Clause 3.2 provides that when it is suspected that an employee has
committed misconduct, one of the following disciplinary process
will
be followed…
[33]
Avril Elizabeth Home,
Nitrophoska (Pty) Ltd, JDG Trading (Pty) Ltd v Brunsdon
[200]
1 BLLR 1
(LAC),
Somyo
v Ross Poultry Breeders (Pty) Ltd
[1997] 7 BLLR 862
(LAC),
Leonard
Dingler (Pty) Ltd v Ngwenya
[1999] JOL 5414
(LAC),
Mojaki,
Lebu, and Semenya and others v the CCMA and others
JA26/2003 delivered 23 March 2016.
[34]
In
Trotman and Another v
Edwick
1951 (1) SA 443
(A), it was held that a litigant who sues on contract sues to have
his bargain or its equivalent in money or in money and kind.
[35]
Ibid 25.
[36]
On the contrary, this court in
Ngubeni
v The National Youth Development Agency and another
[2103] ZALCJHB 269 (21 October 2013) reasoned thus: ‘[17
]…Instead,
for reasons known only to it, the NYDA offered Ngubeni a procedure
that would make any criminal court proud
.
Ngubeni accepted those terms
,
and the enquiry was commenced on that agreed basis. In these
circumstances
, it is
not open to the NYDA unilaterally to change the terms of that
agreement, or as it has in effect done, to renege on the
agreemen
t.
[18] Having found that clause 10.1 of the employment contract
requires the NYDA to afford Ngubeni a fair disciplinary hearing
procedure prior to terminating his contract, it remains to consider
whether the NYDA’s conduct amounted to a breach of
that
clause. [19] In so far as it may be contended that the remedy of
specific performance is either unavailable or inappropriate,
the
starting point is to note that
in
terms of s 77A (e) of the BCEA specifically empowers this court
to
make such orders.
At the
end, the court declared that the decision to dismiss was in breach
of the clause that guaranteed Ngubeni a fair hearing.’
[37]
Clause 15.3 provides that: This contract may be terminated by either
party giving 6 months’ written notice to that effect
to the
other party, provided that the Company shall be entitled to
terminate this contract without notice
for
reasons
justifying
summary
dismissal
.
[38]
33.2 I am advised that it is not unlawful to give Mr Koko notice of
termination of his contract.
[39]
See:
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA).
[40]
See clause 15.2 of the contract of employment.
[41]
Ibid 37.
[42]
See
Polyoak (Pty) Ltd v
CWIU and others
[1999] 20
ILJ 392 (LC) and
Southern
Shipyard (Pty) Ltd v NUMSA and others
2008 ZALCCT 7 (7 November 2008).
[43]
Paragraph 59 of the Answering Affidavit.
[44]
Paragraph 77 of the Answering Affidavit.
[45]
Paragraph 80 of the Answering Affidavit.
[46]
[2013] ZALCJHB 81 (1 March 2017).
[47]
AMCU v Northam Platinum Ltd
Case J1671/16 delivered 19
August 2016.