THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no : J502/2022
In the matter between:
DAVID SEDUMEDI Applicant
and
SEFAKO MAKGATHO HEALTH Respondent
SCIENCES UNIVERSITY
Heard : 14 & 15 March 2024 ; 15 April 2024; 25 October 2024
Delivered : 4 April 2025
This judgment was handed down electronically by emailing a copy to the
parties. The 4th of April 2025 is deemed to be the date of delivery of this
judgment.
Summary: Fixed -term contract – no right to terminate on notice for
operational reasons unless such right specifically agreed to as a
contractual term
Fixed -term contract – premature termination of f ixed-term contract by
employer constituting breach – employee’s duty to mitigate loss –
damages equal to unexpired portion of contract less income actua lly
earned in similar employment , or income that could have been earned if
employee had taken reasonable steps to find such employment – onus on
employer to prove employee’s efforts at finding such employment
unreasonable
Contractual interpretation – incorporation by reference – permissible to
incorporate contractual terms into employment contract that have not
been read or even seen by employee, provided employee clearly and
unequivocally agrees to s uch incorporation
Contractual interpretation – incorporation by reference – employer’s
managerial policies only become terms of an employment contract if the
employee clearly and unequivocally agrees to such policies constituting
contractual terms
Contractual interpretatio n – correct method of interpretation is a unitary
consideration of text, textual context, extra -textual context , and purpose –
the text itself has a n important interpretative gravitational pull –
interpretative gravitational pull strongest with text, then with textual
context, then with extra -textual context, then with purpose
JUDGMENT
MEYEROWITZ AJ
Introduction
[1] In September 2018 t he applicant, Mr David Sedumedi (Mr Sedumedi) ,
concluded a five-year fixed term contract of employment with the
respondent, Sefako Makgatho Health Sciences University (the
University), in terms of which he was appointed as Director: Institutional
Advancement & Internationalisation , from 1 October 2018 until
31 September 2023 .
[2] His gross salary was initially R100,500.91 per mont h but, by the time he
received a notice of possible retrenchment on 24 June 20 21, his gross
salary had been increased to R129,647.17 per month. In the notice the
University explained that his position of “ Director: Institutional
Advancement & Internationalisation ” would likely become redundant
through the creation of a new position titled “ Director:
Internationalisatio n”, explaining that the “ Institutional Advancement ”
function of his job would now be contained in a different subordinate
position which would report to the Director: Communications and
Marketing.
[3] Mr Sedumedi participated, more or less, in the retrenchment process, but
explained to the University that he expected to be automatically
appoin ted to the newly created position of Director: Internationalisatio n.
On 6 August 202 1 the University responded stating that he would not be
automatically appointed to this position, and duly commenced advertising
the position for possible incumbents .
[4] Mr Sedumedi did not apply for the position of Director:
Internationalisatio n.
[5] On 24 February 2022, Mr Sedumedi received notice of the termination of
his services for operational reasons . In this notice the University
explained tha t, following the abovementioned interview process, a Dr
Jooste had been appointed to the position of Director:
Internationalisatio n, and that Mr Sedumedi was being dismissed as there
were no other suitable positions available for him. The University stated
that Mr Sedumedi wo uld receive R129,647.17 in lieu of one months’
notice , three weeks’ severance pay in an amount of R101,801.47, and 28
days’ of leave pay in an amount of R168,375.17. Mr Sedumedi’s last
working day would be 28 February 2022.
[6] On 30 March 2022 , Mr Sedumedi addressed a letter to the University ,
through his attorneys, stating that the University had no legal right to
terminate his fixed -term contract prior to its natural end date on
31 September 2023. He stated that the notice of termin ation constituted
a repudiation of the contract, which repudiation he accepted, and that he
was therefore entitled to payment of the balance of his contract .
[7] On 25 April 2022 Mr Sedumedi issued action proceedings in this court ,
under section 77(3) of the BCEA1, for the outstanding 18 months ’ of his
contract in a total amount of R2,333, 649.06 .
Mr Sedumedi’s claim and the University’s defence
[8] Mr Sedumedi ’s claim for the balance of his contract is based on the
common law position , set out in the Labour Appeal Court (L AC) decision
of Buthelezi v Municipal Demarcation Board2, that unless an employee
breaches a material term of a fixed -term employment contract, or the
fixed -term contract otherwise provides for terminati on on notice, the
employer has no right to prematurely terminate a fixed -term contract prior
to its natural end date . This would be in contrast to an employment
contract of indefinite duration which may be terminated by providing
reasonable, or otherwise agreed, notice .
[9] The University ’s main defence to Mr Sedumedi’s claim was that the
fixed -term contract in question, properly interpreted , actually provide d for
termination on one month’s notice for operational reasons .
During argument the University also seemed to suggest, based on a
criticism of Buthelezi by Dr John Grogan in his book Dismissal3, that it
would nevertheless have the right to prematurely terminate the fixed -term
contract , based on its operational requirement s, even if the contract di d
not provide for termination on notice. However, this argument was not
1 The Basic Conditions of Employment Act 75 of 1997
2 (2004) 25 ILJ 2317 (LAC)
3 Grogan (2022 ), Dismissal , 4th ed, Juta, p360
~~
pursued with particular vigour and I am , in any event , bound by the
Buthelezi decision .4
[10] The salient aspects of Mr Sedumedi’s fixe d-term contract , contained in
his Appointment Letter, are as follows:
“We have pleasure in confirming your permanent employment, on a
five-year renewable contract …
Designation: Director: Institutional Advancement & Internationalisation
Effective Date of Appoint ment: 01 October 2018 – 31 September
2023 …
… 3. Retirement Age … 4. Termination of Service . Notice of
termination must be submitted to your line manager for his/her
acceptance before submission to the Human Resources Division for
final processing. You will be required to serve a notice period of one
month (Administrative role), or three months (Academic role) . 5.
Official Working Hours …
Your attention is drawn to the fact that all ap pointments are subject to
the articles contained in the conditions of service of the University .
Appointments are further subject to decisions lawfully taken by Council
of the University on matters pertaining to its employees. ” (own
emphasis)
[11] Ms Scheepers , for the University, conceded during argument that the
Appointment Letter did not constitute what might be regarded as “a
perfect contract”. Indeed, the document seems to suggest that the
employment contract was for a fixed period of 5 years, but that Mr
Sedumedi would nonetheless have the option of terminating the contract
on one month’s notice (given that his was an administrative position).
Importantly, n othing is said about the University also being able to
terminate the contract on notice prior to its natural end date .
4 See also SA Municipal Workers Union on Behalf of Morwe v Tswaing Local Municipality and
Others (2022) 43 ILJ 2754 (LAC ), SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529
(SCA) and Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA) .
[12] The above notwithstanding, i t was the University’s position that the
phrase s “all appointments are subject to the articles contained in the
conditions of service of the University ” and “ Appointments are further
subject to de cisions lawfully taken by Council of the University on matters
pertaining to its employees ”, mean t that the University’s “Human
Resources Policies and Procedures ” document constituted actual terms
and conditions of Mr Sedumedi’s contract of employment. In particular,
the University claim ed that Chapter A7 of this document, titled
“Termination of Employment Policy and Procedure ”, constituted
contractual terms of his employment. The salient aspects of this policy
(the Termination Policy) are set out below as follows :
1. INTRODUCTION
The University is committed to ensure the security of employment
of its employees as far as such is consistent with the maintenance
of order and with the efficient and economic operatio n of the
institution. Accordingly, it is necessary that a reasonable notice
period of termination be provided by both the employee and the
University to ensure smooth continuity of service provision.
2. POLICY STATEMENT
When terminating employment, the Un iversity will comply with the
provisions of the employment contract and/or workplace
agreements and relevant legislation.
3. SCOPE OF APPLICATION
3.1 This policy and procedure applies to all employees of the
University, except those with contracts that include termination
procedures that differ from the terms contained herein …
4. ACCOUNTABILITY
4.1 All line managers are accountable for fulfilling the terms of this
policy and procedure when terminating an employee's
employment …
~
5. PROCEDURE AND GUIDELINE S
5.1 The University shall not terminate the employee's services,
unless there is a valid reason for such termination related to the
capacity or conduct of the employee or the operational
requirements of the University .
5.2 Terminat ion of service, either by the employee or the
University, will be in accordance with the specific terms of the
employment contract that exists between the University and the
employee regarding the giving of notice of termination of such
service …
5.7 The pe riod of notice is as follows for the various categories of
employment :
5.7.1 Permanent Employees/ Fixed -term Contract Employees :
(i) The period of notice will be 3 (three) calendar
months for academic employees unless otherwise
determined by Senate
(ii) The period of notice will be 1 (one) calendar month
for non -academic employees , unless otherwise
agreed upon between an employee and his/her line
manager, in consultation with the Human Resources
Department …
5.8.1 Termination of service may be effected by either the
University or the employee without notice of termination, on
grounds recognised by law as sufficient commonly referred
to as material breach of the employment contract …
5.8.3 University employees whose services have been
terminated in accordance with the disciplinary code, and/or
upon grounds of material breach of the employment _-_--
contract, and whether by the giving of notice or not, are
entitled to lodge an appeal against such t ermination in
accordance with the provisions of the disciplinary
procedure .
5.8.4 Employees, whose services have been terminated in
accordance with the retrenchment procedure are not
entitled to appeal against their retrenchment in accordance
with the dis ciplinary appeals procedure …
7. EFFECT OF NON -COMPLIANCE
Any non -compliance with this policy must be dealt with in terms
of the normal institutional governance and management
processes, including possible disciplinary action where
appropriate .” (my emph asis)
[13] The University argue s that, when the Appointment Letter is read together
with the Termination Policy, it reveals that the University was
contractually entitled to terminate Mr Sedumedi’s employment on one
month’s notice for operational reasons. Mr Sedumedi argues that the
University had no such contractual right, and that it could only have
terminate d his employment , prior to 31 September 2023 , if he had
materially breached the contract .
Contractual interpretation
[14] The seminal cases of Natal Joint Municipal Pension Fund v Endumeni
Municipality5, Capitec Bank Holdings Ltd and Another v Coral Lagoon
Investments 194 (Pty) Ltd6, and University of Johannesburg v Auckland
Park Theological Seminary and Another7, all recently appro ved by the
LAC in Herbert v Head of Education: Western Cape8, make it clear that
5 2012 (4) SA 593 (SCA)
6 2022 (1) SA 100 (SCA)
7 2021 (6) SA 1 (CC)
8 (2022) 43 ILJ 1618 (LAC)
interpretation begins by considering the text contained in the document ,
then how the text is situated within its own te xtual context, then its extra -
textual context, then finally by considering the purpose of the document.
[15] Although the Constitutional Court in University of Johannesburg stressed
that statutory interpretation is now a “ unitary exercise ” that must be
approac hed “ holistically: simultaneously considering the text, context and
purpose ”9, there is no doubt that, as stated in both Endumeni10 and
Capitec11, “the inevitable point of departure [remains] the language of the
provision itself ”.
[16] Indeed, as pointed out by Unterhalter AJA in Capitec , “interpretation
begins with the text and its structure. They have a gravitational pull that
is important . The proposition that context is everything is not a licence to
contend for meanings unmoored in the text and its structure. Rather,
context and purpose may be used to elucidate the text ”12 (own
emphasis).
[17] The above means that, even in the post Endumeni world, primacy must
still be given to the text of a document . The only difference is that the
meani ng of the text must now be properly understood after considering
context and purpose (as opposed to giving primacy to what used to be
referred to, prior to Endumeni , as the text’s “ ordinary meaning ”, and then
only invoking context and purpose if the “ ordin ary meaning ” created an
absurdity – with “ ordinary meaning ” being far too imprecise and
subjective a concept in any event). As the court in Endumeni warned
“Judges must be alert to, and guard against, the temptation to substitute
what they regard as reason able, sensible or businesslike for the words
actually used. To do so in regard to a statute or statutory instrument is to
cross the divide between interpretation and legislation ; in a contractual
9 University of Johannesburg (supra ) at [65]
10 At [18]
11 At [25]
12 Capitec (supra) at [51]
~~
---- ~---t-J~L~""~~
context it is to make a contract for the parties other than the one they in
fact made ”.13
[18] I would go further and state that the gravitational pull is strongest with the
text, thereafter with the textual context, then the extra -textual context,
and then finally with the purpose. Staying alive to the respective
strengths of these different gravitational pulls will, in my view, lead to
more certainty and minimise the risk of judges stating what the
document’s legal implications should be rather than what they actually
are.
[19] A straigh tforward analysis of the text the Appointment Letter does not
support the University’s claim that it had the contractual right to terminate
Mr Sedumedi’s contract on notice prior to its natural end date on
31 September 2023 . However, before proceeding to a contextual and
purposive analysis, it is important to consider whether the Termination
Policy formed part of Mr Sedumedi’s contract of employment.
Contractual incorporation by reference and quasi -mutual assent
[20] Incorporation of contractual terms by refere nce is something that has
long been recognised in our law.14 In Cape Group Construction (Pty) Ltd
t/a Forbes Waterproofing v Government of the United Kingdom15 a
unanimous Supreme Court of Appeal ( SCA) discussed the issue as
follows:
[12] Counsel for Forbes… relied on the case of Africa Solar (Pty)
Ltd … [in which a] form had been faxed to a customer which
included a paragraph reading: 'All purchases will be made in terms
of and subject to the conditio ns of trade of Helios Power (Pty) Ltd,
as printed on the reverse hereof, which by signing this, I
13 Endumeni (supra) at [18]
14 Christie’s The Law of Contract in South Africa (8th Ed), LexisNexis, p 220 et seq
15 2003 (5) SA 180 (SCA ). Insofar as this SCA decision is at odds with the decision of Eskom
Holdings Ltd v Grundy 2018 (4) SA 242 (KZP) , and I am not certain that it is, the former
decision overrules the latter.
-
acknowledge having read, understood and accepted .' [However],
'the reverse' had not been transmitted. The majority of the Court
held that the customer was not bound by the terms of this
paragraph as there had been no animus contrahendi (for reasons
not relevant to the case before us). But the minority (Streicher and
Nugent JJA) held that the animus had been established and that
the customer was bound by the 'co nditions of trade' for the reason
that 'the reverse' referred to was clearly the reverse of the original
document ... As a matter of construction, the customer in the Africa
Solar case was told that by signing he was committing himself to
what was clearly a n existing set of conditions… (my emphasis,
footnotes omitted)
[21] The unanimous court in Cape Group Construction agreed16 with the
minority in Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd17, with the latter
saying that “If the reverse was not faxed to him and not known to him he
could have called for a copy. By not doing so he indicated that he was
nevertheless prepared to contract on the basis of the appellant's
standard conditions . The Full Court erred in holding that a person 'cannot
be held to be bound by something which he has not seen'. If a person is
prepared to contract subject to standard conditions which he has not
seen, there is nothing preventing him from doing so ”18 (my emphasis)
[22] The concept of incorporation by reference is directly linked to the caveat
subscriptor rule. Referring to Brink v Humphries & Jewell (Pty) Ltd19, the
High Court in Automated Office Technology (Pty) Ltd t/a Assetfin
Financial Solutions v Bestmade 160 CC and Others20 held that the
caveat subscriptor principle:
[14]… … c an be traced to the oft -cited decision in Smith v Hughes
where it was explained that: “ If, whatever a man’s real intention
16 At [12] by stating that “ As a matter of co nstruction I have no difficulty with that conclusion. ”
17 2002 (4) SA 681 (SCA)
18 At [62]
19 2005 (2) SA 419 (SCA)
20 (A123/2015; A124/2015) [2017] ZAWCHC 3 (17 January 2017)
may be, he so conducts himself that a reasonable man would
believe that he was assenting to the terms proposed by the other
party , and that other party upon the belief enters into the contract
with him, the man thus conducting himself would be equally bound
as if he had intended to agree to the other party’s terms.”
(footnotes omitted)
[15] This principle is said to be based on the doctrine of “quasi -
mutual assent” , and is predicated on an objective approach to the
theory of contract law ie that the law is concerned with the external
manifestation, and not the inner workings of the minds of parties to
a contract [otherwise effective commerce would be impossible]21.
So, even where subjectively speaking consensus may be absent,
resort may nonetheless be had to this so -called reliance theory to
determine whether a binding contract has come into being. In
effect what the law does in such matters is to say that a party will
ordinarily be held to an agreement he or she has signed, even
though they may not have intended to bind themselves thereto
contractually, and even though they may not have read the
document containing the agreement befo re signing it”. (my
emphasis, footnotes omitted)
[23] After discussing both Cape Group and Africa Solar , the authors of
Christie’s The Law of Contract in South Africa clarify the issue by
postulating that the hypothetical phrase “ I haven’t read [or even seen]
this document but I’m [assenting to it] because I’m prepared to be bound
by it without reading it” is “an attitude, whether expressed or implied, that
entitles the other party to regard the document as binding ”.22
[24] The above authorities certainly appear to support the University’s case in
the present matter . However, what remains to be considered is the
precise wording used in both the Appointment Letter and the Termination
Policy , and a correct interpretation of these two documents.
21 See Irvin and Johnson (SA) Ltd v Kaplan 1940 CPD 647 at 651 ; Christie (note 14 supra ) at
224
22 Christie (note 14 supra ) at 221
The Appointment Letter and the Termination Policy
[25] Mr Sedumedi testified that, when he received the Appointment Letter
(signed by the University but not by him) , he understood the document to
contain the relevant terms of his employment contract with the University.
He believed that the contract w as for a fixed -term of five years (as
indicated in the corresponding advertisement) , and he also stated that,
if he had known that the cont ract could have been prematurely
terminated , then he would not have given up his permanent position with
the Tshwane University of Technology .
[26] Mr Sedumedi also confirmed that when he received the Appointment
Letter he had not been provided with any “ conditions of service ”
document. The University was unable to gainsay this allegation because
the Appointment Letter was provided to Mr Sedumedi b y the then Vice -
Chancellor , Professor De Beer , who did not testify in these pr oceedings
– the University call ed only one witness, the present Vice -Chancellor
Professor Mbati.
[27] Under cross -examination Mr Sedumedi conceded that he had read and
understood the Appointment Letter , that he considered the terms of the
Appointment Letter binding, but he denied that the Termination Policy
constituted a contractual term of his employment .
[28] The Appointment Letter states that (a) “all appointments are subject to
the articles contained in th e conditions of service of the University ”,
and that (b) “Appointments are further subject to decisions lawfully taken
by Council of the University on matters pertaining to its employees ”.
[29] To begin with, I am very sceptical of the University’s argument regarding
sentence (b). I find it difficult to believe that the University had the legal
right to unilaterally transform a 60 month (i.e. 5 year) employment
contract , into a 42 month employment contract , simply through a
~~
resolution of its Council . This seems to go against the principle of pacta
sunt servanda (although I am aware that a contract granting one party
the right to unilaterally vary that contract’s terms is not entirely anathema
to our law ).23
[30] Fortunately, this issue is bey ond the facts of this case because the
University is relying on sentence (a) to incorporate the Termination Policy
– which policy existed at the time of Mr Sedumedi’s appointment – and
not on any decision by the University Council that is unrelated to the
Termination Policy. Furthermore, even the decision s to start
retrenchment proceedings and ultimately retrench Mr Sedumedi , if those
decisions were indeed taken by the University Council, were decision s
premised on the assumption that the U niversity had the contractual right
to prematurely terminate Mr Sedumedi ’s contract for operational reasons ;
there is no evidence that the University Council ma de a decision to alter
the terms of Mr Sedumedi’s contract.
[31] Sentence (a), which states that “all appointments are subject to the
articles contained in the conditions of service of the University ”, places
the University on much firmer ground. However, when Mr Sedumedi
received the A ppointment Letter he was not made aware of where he
could fin d “the conditions of service of the University” or even if the se
“conditions ” existed in a specific document. In Siyotula vs Mogale City
Local Municipality & others24 Snyman AJ considered the issue of when
an employer’s policies might be elevated from mere operational
directions falling within the employer’s managerial prerogative, to actual
contractual terms by virtue of an employee undertaking to be bound by
such policies . After considering the cases of Wereley v Productivity SA25
and Mpane v Passeng er Rail Agency of SA26, the learned judge reached
the following conclusion (with which I respectfully agree) :
23 See NBS Boland Bank Ltd v One Berg River Drive CC 1999 (4) SA 928 (SCA)
24 Unreported judgment dated 5 April 2024 under case number J224/2024 per Snyman AJ
25 (2020) 41 ILJ 997 (L C)
26 (2021) 42 ILJ 546 (LC)
~~
“[30]… incorporation by reference must be clear and unequivocal.
The provision that one often finds in contracts of employment …
that the employee i s bound by or subject to or must comply with a
disciplinary code as it may exist from time to time simply does not
cut it. It must be stipulated that the disciplinary code is a
contractual term that is part of the essential terms of the
employment contract . Mere reference to the disciplinary code and
an undertaking in the contract that the employee is bound by it,
does not constitute such incorporation necessary to assert the
provisions of such disciplinary code as a contractual term. (my
emphasis)
[32] The existence of managerial policies in the employment space is an
important contextual factor, informing contractual interpretation, that is
generally absent i n purely commercial settings . In Africa Solar (discussed
above) the phrase “All purch ases will be made in terms of and subject to
the conditions of trade of Helios Power (Pty) Ltd , as printed on the
reverse hereof ”, is similar to sentence (a) relied upon by the University in
the present matter. However, given the sales context , the underli ned
portions cannot be confused with one party’s managerial prerogative to
give the other party directions on how to act . As Snyman AJ expressed
the issue in Siyotula :
“[29] All that the employment contract provides for in these clauses
is that the applicant is subject to the first respondent's rules and
regulations, and disciplinary procedures, as it exists from time to
time. This is a standard provision found in most employme nt
contracts. I simply do not believe it can be legitimately contended
that an undertaking by an employee to be bound by the terms of a
disciplinary code from time to time then entitles that employee to a
contractual right, as established by that disciplin ary code. In my
view, far more than such a reference is needed to establish
incorporation of such a right ”. (my emphasis)
~~
[33] Indeed, in Africa Solar the relevant phrase went further with t he customer
expressly agreeing that “ by signing this [document], I ackn owledge
having read, understood and accepted [the conditions of trade of Helios
Power (Pty) Ltd, as printed on the reverse hereof]”. In his Appointment
Letter Mr Sedumedi only agree d that “ all appointments are subject to the
articles contained in the condi tions of service of the University ”, and he
did not state that he ha d read, understood and accepted these apparent
“conditions of service ”. Furthermore, in the employment context it is
possible, even probable, that these “ conditions of service ” refer only to
the University’s various managerial decisions, as crystallized in its policy
documents , rather than to specific contractual terms of employment .
[34] Turning to the Termination Policy itself (described in paragraph [12]
above) , it seems to me that this document does not intend to alter any
contractual terms contained in the written contracts of employment
concluded between the University and its respective employees. Firstly,
the document is clearly a set of instructions to the University’s
managerial employees regarding how to handle the dismissal of
subordinate employees (and a failure to comply with the policy might
result in disciplinary action being taken against those managerial
employees ). Secondly , at clauses 2 , 3.1 and 5 .2 the policy states, in
effect, that i f an employee’s employment contract varies from the dictates
of the policy, the n the contractual terms must be respected.
[35] The high point of the University’s case are the following two clauses:
5.1 The University shall not terminate the employee's services,
unless there is a valid reason for such termination related to the
capacity or conduct of the employee or the operational
requirements of the University …
5.7 The period of notice is as follows for the various categories of
employment :
5.7.1 Permanent Employees/ Fixed -term C ontract Employees :…
~~
(ii) The period of notice will be 1 (one) calendar month
for non -academic employees , unless otherwise
agreed upon between an employee and his/her line
manager, in consultation with the Human Resources
Department… (my emphasis)
[36] Assuming , for the sake of argument, that the Termination Policy indeed
constitutes contractual terms of Mr Sedumedi’s contract of employment,
I am not convinced that th e above two clause s even purport to introduce
a termination o n notice cla use to Mr Sedumedi ’s fixed term contract.
What these clauses do, in my view, is proceed on the assumption that
the University is entitled to terminate fixed -term contracts on notice for
operational reasons, unless those fixed -term contracts stipulate
otherwise. That is a far cry from saying that, for example, “all employees
on fixed term contracts agree that their contracts may be prematurely
terminated on one months’ notice as a result of the University’s
operational requirements ”. And here the contra proferentem rule works
against the University . As the drafter of both the Appointment Letter and
Termination Policy, the University “ [only] has [itself] to blame for not
speaking more plainly ”27.
[37] Given that the Termination Policy does not even purport to amend the
terms of Mr Sedumedi’s fixed -term contract , it matters not whether the
Appointment Letter incorporates the Termination Policy as a managerial
policy or as a contractual term. However, given the contents of the
Termination Policy, it is likely that the Termination Policy is not in fact a
contractual term .
[38] In light of above, my decision is that Mr Sedumedi’s fixed -term contract
did not entitle the University to terminate his employment on notice on
the basis of its operational requirements (or indeed on any basis other
than his material breach of the contract). Although it is perhaps strange
that Mr Sedumedi was afforded the right to cancel on notice and not the
27 Cape Group Construction (note 15 supra ) at [13] (quoting Grotius).
~~
University, that is what the contract says, and I am not a liberty to
substitute what the contract says for what I believe it should have said.
Remedy and quantum
[39] Given that the University was not entitled t o terminate Mr Sedumedi’s
contract of employment, by doing so it repudiated the contract.
Mr Sedumedi chose to accept the repudiation and sue for damages.
The LAC in Buthelezi , referring to Meyers v Abrahamson28 held that “The
measure of damages accorded [an] employee [whose fixed -term contract
has been prematurely and unlawfully terminated] is… the actual loss
suffered by him represented by the sum due to him of the unexpired
period of the contract less any sum he earned or could reasonably have
earned during such latter period in similar employment .”29.
[40] At the beginni ng of his testimony Mr Sedumedi explained that , since his
employ ment was terminat ed in February 2022 , he had not been
employed nor ha d he been earning an income . He explained further that
during this time he ha d been applying for jobs while his wife support ed
him financia lly as the family’s sole breadwinner . This testimony was not
challenged under cross -examination.
[41] In its closing submissions the University argued tha t Mr Sedumedi had
failed to prove the quantum of his alleged damages. I disagree. It is
common cause that at the time of his termination he was earning
R129,647.17 per month (this fact was even conceded to by Mr Sedumedi
during his cross -examination – a fact put to him appa rently in pursuit of
an argument regarding waiver )30. It is also common cause that the
“unexpired period of the contract” was 18 months – i.e. April 2022 to
September 2023 inclusive , being R129,647.17 x 18 = R2,333,649.06.
28 1952 (3) SA 121 (C)
29 At [20]
30 The waiver argument was not seriously pursued by the University. In any event, it is well
settled that a waiver of rights must be clear and unambiguous (see Van Haght v JBS Building
Co (Pty) Ltd (2024) 45 ILJ 2629 (LC) at [23]), and I am not satisfied that Mr Sedumedi’s
participation in the retrenchment consultations, such as they were, constituted a clear and
unambiguous waiver of his contractual rights.
~~
[42] Mr Sedumedi is not e ntitled to the severance pay and leave pay he
received as a result of his purported retrenchment, so an amount of
R101,801.47 plus R168,375.17 = R270,176.64 must be deducted from
the total.
[43] What must also be deduced from the total is “any sum he earned or
could reasonably have earned during such latter period in similar
employment ” – which factor derives from Mr Sedumedi’s contractual duty
to mitigate his loss.31 This factor, in my view, means income that he may
have actually received from being similarly employed, or income he could
have received in similar employment i f he taken reasonable steps to find
such employment.
[44] Mr Nhlapo, appearing on behalf of Mr Sedumedi, argued that there was
nothing more that Mr Sedumedi was required to do to demonstrate ,
at least on a prima facie basis, that he had taken reasonable steps to
mitigate his loss. I agree. On this point the authors of Christie’s The Law
of Contract in South A frica, with reference to Holmdene Brickworks (Pty)
Ltd v Roberts Construction Co Ltd32 state the following:
“The plaintiff does not have to plead and prove that it has done
what is reasonable to mitigate its damages, because the onus is
on the defendant to prove that it has not . The plaintiff is not
required to do more than a reasonable person would do to mitigate
his or her damages, and the defendant's onus of proving that the
plaintiff has not acted reasonably is difficult to discharge ”.33 (my
emphasis)
[45] Mr Sedumedi ’s testimony was therefore sufficient to establish, at least on
a prima facie basis, that he had taken reasonable steps to look for similar
employment. The only thing put to him under cross -examination on this
31 See Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A)
32 [1977] 4 All SA 94 (A)
33 Christie (note 14 supra ) at 693
~
point was the fact t hat he had not requested a reference letter and
certificate of service from the University , and that same might have
“helped [him] in [his] job search ” – to which Mr Sedumedi simply replied ,
“I don’t know ”.
[46] I am not satisfied that failing to request a reference letter , on its own , is
enough for the University to discharge the difficult onus of proving
unreasonableness. The University could have interrogated Mr Sedumedi
on the exact steps taken by him to look for work, but it did not do so
(perhaps becau se the evidence would not likely be favourable to it). In
any event, on the facts before me I cannot find that Mr Sedumedi’s
attempts at finding similar employment were unreasonable.
[47] In light of the above, Mr Sedumedi is entitled to R2,333,649.06 -
R270, 176.64 = R2,063,472.42.
Costs
[48] This is a purely contractual matter and, as such, there is no reason why
costs should not follow the result.
[49] However, Ms Scheepers argued that, if the University was held liable for
costs, Mr Sedumedi should nevertheless be made to pay the costs of the
third and final day of evidence because his imprudent conduct caused
the matter to be part -heard and resulted in the need for a third day of
evidence (which had to be convened s everal weeks’ l ater).
[50] Ms Scheepers explained that Mr Sedumedi only challenged the
authenticity of the Termination Policy during his re -examination on the
first day of evidence , resulting in a postponement so that the University
could obtain and introduce proof of the document’s authenticity and
thereafter cross -examine Mr Sedumedi on this discreet point – which is
the procedure I allowed to take place.
~~
[51] The authenticity of the Termination P olicy was not disputed in either the
University’s replication or the pre-trial minute. The University was
theref ore within its rights to assume that the authenticity of the
Termination Policy was not disputed. This means that blame for the
postponement should fall at Mr Sedumedi’s feet.
[52] In the circumstance s I make the following order:
Order
1. The respondent is ordered to pay the applicant a total amount of
R2,063,472.42 , plus interest at a rate of 7.25% per annum a tempore
morae .
2. The respondent is ordered the pay the applicant’s costs of suite,
save for the costs incurred by the applicant regardi ng the hearing of
evidence on 15 April 2024.
3. The applicant is ordered to pay the respondent’s costs regarding the
hearing of evidence on 15 April 2024.
_______________________ _____
Mark Meyerowitz
Acting Judge of the Labour Court of South Africa
Appearances :
For the Applicant : Advocate Sinclair Nhlapo
Instructed by: Mncedisi Ndlovu & Sedumedi
Attorneys , Johannesburg
~~
For the Respondent : Advocate Melissa Scheepers
Instructed by: Malatji & Co Attorneys, Johannesburg