IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: J551/20
In the matter between:
GERSON NEVARI Applicant
and
DEPARTMENT OF TOURISM
First Respondent
DIRECTOR-GENERAL (DEPARTMENT OF TOURISM)
Second Respondent
Heard: 1 October 2024.
Delivered: 26 August 2025.
(This judgment was handed down electronically by circulation to the parties'
representatives by email. The date of hand-down is deemed to be on 2 6 August
2025.)
JUDGMENT
MYBURGH AJ
Introduction
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[1] There has been an unfortunate delay in handing down this judgment caused
by an administrative bungle on my side. Previous follow ups by the S tate Attorney
were also, regrettably, not brought to my attention.
[2] The applicant was employed by the first respondent (“the Department”) as the
Head of Office in the office of the Deputy Minister of Tourism on a five-year fixed-
term contract of employment running from 1 June 2019 to 30 May 2024. The five-
year term of employment was linked to the term of the Deputy Minister’s political
appointment.
[3] In terms of his amended notice of motion, the applicant seeks an order:
“Declaring that the applicant did not tender his resignation to the respondent
on or during November 2019 as alleged by the respondents. …
[Ordering] the res pondents to compensate the applicant for the remaining
period of his 5 year contract of employment.”
[4] The applicant’s claim is one based on his contract of employment, with the
essential issue for determination being whether he resigned his employment with the
Department.
[5] The position of the Deputy Minister should be clarified at the outset. Although
it was contended by the respondents that he ought to have been joined as a party, I
am of the view that this was unnecessary as he was not the applicant’s employer
and no relief is sought against him. Mention should also be made of the fact that the
Deputy Minister did not put up an affidavit confirming the respondents’ version
pleaded in their answering affidavit (deposed to by the second respondent (“the
DG”)), insofar as it related to him . This despite the fact that the DG makes much
mention of the Deputy Minister in the answering affidavit. As expanded on below,
this has material consequences for the outcome of this application.
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The factual matrix
[6] Although employed by the Department, in terms of the position held by the
applicant (i.e. Head of Office), he reported directly to the Deputy Minister , as
opposed to the DG.
[7] On 25 September 2019, the applicant was placed on precautionary
suspension.
[8] What followed w as an investigation into allegations of sexual harassment
against the applicant , which he participated in. On 2 December 2019, a fter the
elapse of 60 days following the applicant’s suspension without charges having been
brought against him, NEHAWU demanded that his suspension be uplifted.
[9] These events were the prelude to the applicant being called to a meeting at
the Deputy Minister’s official residence on 17 December 2019. On the applicant’s
version of this meeting: the Deputy Minister informed him that the report into the
investigation was very bad, and suggested that he should resign because the DG
was planning to charge him and he would be dismissed; and following the applicant
having professed his innocence, it was agreed that he and the Deputy Minister would
sleep on the matter and discuss it further the next morning.
[10] This is what transpired on 18 December 2019 (with the controversy between
the parties being interposed):
a) At 08:07, the Deputy Minister sent the applicant a WhatsApp reading:
“Good morning Cde Nevari; As per our discussion yesterday, the correct legal
process is that you should tender a resignation yourself so that the matter
doesn’t become an unfair labour practice. The letter should be addressed to
the DG and copied to me. This should be done with effect from today not later
than 12:00. The content of the letter should indicate that you are tendering
your resignation with effect from 31 December 2019 and you have no
intention to work from tomorrow till your resignation date.”
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b) At 08:09, the Deputy Minister sent the applicant a second WhatsApp
reading: “Please email the said letter to the employer, i.e DG and send me a
WhatsApp.”
c) The applicant then placed a telephone call to the Deputy Minister. On
the applicant’s version, the upshot of this discussion was that the Deputy
Minister informed him that, despite the applicant professing his innocence, he
would be fired.
d) Although claiming that he was confused and pressurised into doing so,
the applicant then drafted a letter of resignation, which was addressed to the
DG (by way of email) and read: “ Kindly receive my resignation as the head of
Deputy Minister’s office effect from 31 December 2019, further note that I will
not be returning to the office with immediate effect.”
e) At 11:38, the applicant took a screenshot of the letter on his laptop and
sent it to the Deputy Minister via WhatsApp.
f) The applicant contends (in his founding affidavit) that the reason for
sending this WhatsApp to the Deputy Minister “ was merely to show him the
contents of the draft resignation letter ”, which , he says, was not signed,
printed out or sent to the DG “as a way of tendering my resignation”. He
contends further that he did not instruct or request the Deputy Minister to act
as his agent to send the screenshot to the DG (see below). The DG (in the
respondents’ answering affidavit) baldly denies all of this.
g) The DG goes on to say this in relation to the applicant’s WhatsApp of
11:38 to the Deputy Minister : (a) “I received notification from the Deputy
Minister: Tourism of the fact that the applicant tendered his resignation from
the Department with effect from 31 December 2019”; (b) “[t]he Deputy Minister
further advised me that, due to the Internet connection problems experienced
by the applicant on that day , he (applicant) was not in a position to transmit
his letter of resignation by email ”; (c) “[t]he Deputy Minister then forwarded to
his letter of resignation by email ”; (c) “[t]he Deputy Minister then forwarded to
me an unsigned resignation letter addressed to me by the applicant wherein
the following is recorded … ”; (d) “[i]t would appear as though the letter … was
sent to the Deputy Minister via WhatsApp message by the applicant ”; and (e)
“[a]fter having been advised by the Deputy Minister of the applicant’s
resignation from the Department , I advised the offices of the Hum an
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Resources Management (HRM) and Finance to process the resignation
accordingly.”
h) In his replying affidavit, the applicant pleads that he has no knowledge
of (a); denies (b); admits (c) and (d); and notes (e).
i) At 13:13, the applicant sent the Deputy Minister another What sApp
reading: “Good day DM , I am of the view that you must advise the DG to
prefer charges against me. It won’t be possible for me to carry on with life with
this injustice. My conscious is refusing to allow me to resign without basis
that’s cowardice. I am sorry if I am disappointing you but I [am] ready to fight
for my freedom.”
j) At 13:44, the Deputy Minister responded in a WhatsApp reading: “ It’s
not me who should advise the DG on what action to take, I’ve forwarded your
WhatsApp to the DG more than an hour ago. The matter is not between me
and you but its between you and the employer.”
k) At 13:45, the applicant responded in a WhatsApp reading: “ I do
understand, I was saying it because I don’t have a line with him [i.e. the DG]. I
am ready to face the consequences of my decisions.”
[11] To complete the chronology:
a) On 8 January 2020, the applicant’s attorneys wrote a letter to the
respondents requesting the upliftment of the applicant’s suspension.
b) On 10 January 2020, the respondents replied, stating that the applicant
had resigned from the employment of the Department in December 2018.
c) On 22 January 2020, the applicant’s attorneys responded, recording
that “according to our instructions from our client , it is clear that he has never
sent or signed any resignation letter to your offices or to his superiors”.
[12] In relation to the applicant’s claim for damages, it was placed on record during
argument that the applicant was unemployed for seven months from January to the
end of July 2020, and that he was thereafter gainfully employed until the end of his
fixed-term contract at the end of May 2024, albeit (in part) at a lesser salary than he
fixed-term contract at the end of May 2024, albeit (in part) at a lesser salary than he
earned while employed by the Department . Given that the applicant’s damages had
not been established under oath, it was agreed that they would be held over for
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subsequent determination, in the event of this court finding that the applicant had not
actually resigned on 18 December 2019.
Relevant legal principles
[13] Two principles applicable to motion proceedings warrant mention up front.
The first is that a court should generally refrain from making findings on the basis of
probabilities in such proceedings in the face of any conflicts of fact on the papers.
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The second is that, given that the applicant seeks final relief by way of motion, the
Plascon-Evans principles apply. 2 These principles are aptly summarised by Willis J
(as he then was) in Thebe Ya Bophelo Healthcare Administrators as follows:3
“[19] … it is the facts as stated by the respondent together with the admitted
or undenied facts in the applicant’s founding affidavit which provide the factual
basis for the determination, unless the dispute is not real or genuine or the
denials in the respondent’s version are bald or uncreditworthy , or the
respondent’s version raises such obviously fictitious disputes of fact, or is
palpably implausible, or far -fetched or so clearly untenable that the court is
justified in rejecting that version on the basis that it obviously stands to be
rejected.” (Emphasis added.)
[14] Regarding the law on resi gnations, Van Niekerk J (as he then was) provides
this useful summary in Sihlali:
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“[11] A resignation is a unilateral termination of a contract of employment by
the employee. The courts have held that the employee must evince a clear
and unambiguous intention not to go on with the contract of employment, by
words or conduct that would lead a reasonable person to believe that the
1 BDS South Arica & another v Continental Outdoor Media (Pty) Ltd & others 2015 (1) SA 462 (GJ)
para 62.
2 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.
3 Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd & others v National Bargaining Council for
the Road Freight Industry & another (2009) 30 ILJ 1031 (W) para 19.
4 Sihlali v SA Broadcasting Corporation Ltd (2010) 31 ILJ 1477 (LC).
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employee harboured such an intention … . Notice of termination of
employment given by an employee is a final unilateral act which once given
cannot be withdrawn without the employer's consent … . In other words, it is
not necessary for the employer to accept any resignation that is tendered by
an employee or to concur in it, nor is the employer party entitled to refuse to
accept a resignation or decline to act on it. …
[12] This is not to say that a resignation need not be communicated to the
employer party to be effective - indeed, it must, at least in the absence of a
contrary stipulation … .
[13] A resignation is established by a subjective intention to terminate the
employment relationship, and words or conduct by the employee that
objectively viewed clearly and unambiguously evince that intention. The
courts generally look for unambiguous, unequivocal words that amount to a
resignation … .” (Authorities omitted.)
Did the applicant resign on 18 December 2019?
[15] As Sihlali makes clear, notice of resignation must be communicated by the
employee to his / her employer.
[16] In this case, irrespective of the relationship between the applicant and the
Deputy Minister, it is common cause that the applicant was employed by the
Department (represented by the DG) and not by the Deputy Minister. There is also
no dispute on the papers that the applicant was required to communicate his
resignation to “the employer” (i.e. the DG). The Deputy Minister’s WhatsApp at 08:07
and 08:09 (as well as 13:44) on 18 December 2019 makes this abundantly clear.
[17] In circumstances where it is also common cause that the applicant did not
communicate his resignation letter to the DG, the only basis upon which the
requirement of communication to the employer can be established, is if it was
intended that the Deputy Minister would convey the letter to the DG on the
applicant’s behalf. The applicant says it was not his intention. While the DG (in the
applicant’s behalf. The applicant says it was not his intention. While the DG (in the
respondents’ answering affidavit) denies this, the denial is bald and uncreditworthy
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because it is not confirmed by the Deputy Minister, who is the only one with personal
knowledge of the matter (other than the applicant). In the circumstances, this dispute
of fact (insofar as it exists) does not stand to be resolved in favour of the
respondents based on Plascon-Evans; the applicant’s version stands.
[18] Allied to this, the DG goes on to attempt to proffer an explanation for why the
applicant did not send him the resignation letter, namely that he (i.e. the DG) was
told by the Deputy Minister that , due to the applicant experiencing Internet
connectivity problems on the day in question, the applicant was unable to email the
letter to him (see para 10 (g) above) . On the face of it, this may have served as
something of a basis for inferring that the applicant and the Deputy Minister had an
arrangement that the Deputy Minister would forward the letter to the DG on the
applicant’s behalf, and that upon this occurring, there was effective notice of
resignation to the employer. The difficulty, however, is that in the absence of the
Deputy Minister having put up a confirmatory affidavit, the DG’s version amounts to
impermissible hearsay evidence. In circumstances where the applicant denies the
version, it stands to be disregarded.
[19] In any event, the applicant say s that what he sent the Deputy Minister by way
of WhatsApp was only a draft, and that he did so “merely to show him the contents of
the draft resignation letter” (as opposed to effecting his resignation). Again, the DG’s
denial is bald and uncreditworthy because it is not confirmed by the Deputy Min ister.
In the circumstances, this dispute of fact (insofar as it exists) also does not stand to
be resolved in favour of the respondents based on Plascon- Evans; the applicant’s
version stands.
[20] In the premises, on the affidavits before me, I am unable to find that the
applicant communicated his resignation to his employer (as required by Sihlali). I,
applicant communicated his resignation to his employer (as required by Sihlali). I,
accordingly, conclude that the applicant did not validly resign from the employ of the
Department.
Order
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[21] In the result, the following order is made:
a) It is declared that the applicant did not tender his resignation to the
respondents on 18 December 2019 as alleged by the respondents;
b) The first respondent shall pay the costs of the application, excluding
any costs granted in its favour in relation to an earlier postponement of the
matter.
Myburgh AJ
Acting Judge of Labour Court of South Africa
Appearances
For the applicant: Adv M Sibuyi instructed by Mafori Lesufi Inc
For the respondents: Adv M Rantho instructed by the State Attorney