THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 100/24
In the matter between:
SOUTH AFRICAN BROADCASTING CORPORATION Appellant
and
FAMIDA YACOOB VALLA Respondent
Heard: 19 August 2025
Delivered: 22 September 2025
Coram: Mahalelo ADJP, Van Niekerk JA, et Chetty AJA
JUDGMENT
VAN NIEKERK, JA
Introduction
[1] This is an appeal , with the leave of this Court, against a judgment delivered by
the Labour Court on 19 July 2023. 1 In its judgment, the Court found that the
appellant (the SABC) had unlawfully terminated the respondent’s employment
1 Valla v SA Broadcasting Corporation SOC Ltd & another (2024) 45 ILJ 350 (LC).
2
contract. The Court also found that the SABC had dismissed the respondent for a
reason that is automatically unfai r, and that her dismissal was an act of unfair
discrimination as defined in the Employment Equity Act 2 (EEA). Finally, the Court
ordered the SABC to pay the respondent’s costs. The determination of the
quantum of compensation and damages was postponed sine die.
Background
[2] The material facts are not in dispute. On 2 April 2013, the SABC offered the
respondent employment as a deputy company secretary on what was described
as a limited -duration basis . The fixed term for which employment was offered
commenced on 1 May 2013 to terminate on 30 April 2018. The respondent
accepted the offer on 1 May 2013 and commenced work on the same date.
[3] At the time that the respondent was employed, the retirement age of employees
was regulated by t he SABC’s policy on retirement and the rules of the SABC
pension fund. 3 For senior managerial employees engaged on fixed- term
contracts (such as the respondent) , both t he retirement policy and the pension
fund rules fixed the retirement age as the date on which their contracts expired.
For those senior managerial employees not engaged on fixed- term contracts, the
retirement age was fixed at 60. For all other employees , the retirement age was
fixed at 63. Regardless of status, the retirement policy provided for the possibility
of extended service beyond normal retirement age, on application and with the
special permission of the group executive committee.
[4] The respondent was employed as a senior managerial employee, on scale 120.
There is no dispute that , given the level at which she was employed, in terms of
both the retirement policy and the pension fund rules, at the time of her
2 Act 55 of 1998.
3 The Rules define ‘normal retirement age’ for group executive or general management members
appointed for a fixed period in terms of a service contract as ‘ the expiry date of such contract provided
that it is not renewed’ and at age 60 for group executive members or general management members.
(The Rules were amended with effect from 1 August 2022, to increase the retirement age to 63 for both
group executive members and general management members.)
3
appointment, the respondent’s retirement age was the date on which her fixed-
term contract expired, i.e. 30 April 2018.
[5] The respondent reached the age of 60 on 22 May 2018, some three weeks after
the date on which her fixed- term contract was to terminate by the effluxion of
time.
[6] The SABC’s policy both on the use of fixed- term contracts for managerial
employees and their retirement ages had been under discussion for some time
prior to the respondent’s engagement. The discussions over retirement ages
were driven by discontent over the differential in retirement ages between senior
managerial and other employees , and also the differential in benefits applicable
in terms of the pension fund rules as between executive managerial employees
and general managerial employees. Although the retirement age for both was 60,
the pension benefits of executive managerial employees were more favourable.
As far back as 2007, these matters had enjoyed the attention of the SABC’s
board.
[7] On 16 September 2013, the group chief executive officer addressed a
submission to the board, recommending that the pension fund rules be amended
to address what was averred to be the prejudice caused to general managers by
a differential in the calculation of benefits as between general managers and
executive general management members. (This differential did not find reflection
in the SABC’s human resource policies, which , as noted above, drew a
distinction only between general managerial employees and other employees,
with retirement ages fixed at 60 and 63, respectively.) The submission to the
board concerned only the distinction drawn in the pension fund rules between
general managers and executive general managers , and the calculation of
retirement benefits.
[8] On 18 September 2013, the SABC’s group executive committee adopted the
following Resolution:
4
‘Resolved that:
(1) Permission to amend the Pension Fund rules so that the name
"Executive General Manager" is removed from the definitions and
the entire Pension Fund Document Rules (including changes) to
clause 6.1(1) and 6.2(2) and definition pensionable service clause
(iv) with the view to changing the General Management Member
as per the true definition, be and it is hereby given.
(2) The calculation of pension fund benefits of General Managers who
retire at age 60 (3 years short of the normal retirement age
compared to other employees) be aligned to that of Executive
General Manager but with the new definition of General
Management Member for the purpose of aligning the rules with
the SABC Internal governance Definition, i.e. scales 120, 115 and
110.'
4
[9] In October 2014, the group executive: human resources made a written
submission to the group executive committee for the following purpose:
‘To seek approval of the EXCO for funding based on the rule change approved
that defines general managerial employees to include 120, 115 and 110 for the
purposes of equitable calculation of termination benefits for this scheme codes.
Alternatively, conversion of GM level fixed term contracts to permanent and
extend the retirement age to 63, where positions are deemed permanent in
nature.’
[10] On 6 August 2015, the SABC's board, by way of a round robin resolution,
resolved to convert general managers to permanent employment . The round
robin resolution was ratified by the SABC board on 26 November 2015 (the
board resolution). The relevant extract from the board resolution reads:
4 Scales 115 and 110 applied to executive managers, levels higher than scale 120, on which the
respondent was employed.
5
‘Approval be and is hereby given to convert GM Levels to permanent; where the
status of the job is permanent in nature and not project-based, as an incentive for
buy-in and for the retention and leadership continuity and to assist with pension
benefit equity, medical dependency equity, group life equity, etc…’
[11] The respondent testified that after the board meeting, her immediate superior, Ms
Geldenhuys, called the respondent to her off ice and advised her that all general
managers were now permanent employees of the SABC. Despite the fact that
the resolution makes no reference to any change in the retirement age as set out
in the retirement policy and the rules of the pension fund, the respondent testified
that she understood the resolution to mean that the conversion of her
employment to permanent status meant that she could ‘stay on until age 63’. The
respondent further confirmed that the conversation with Geldenhuys was the first
time that she had heard of the resolution.
[12] On 18 February 2016, representatives of the SABC and the SABC p ension fund
and the f und’s actuary held a meeting to discuss the f und’s benefits for general
managers. At the meeting, it was proposed that the normal retirement age for
general managers be increased from 60 to 63, and that the pension accruals rate
be increased from 2.22% to 2.50% for each year of pensionable service. The
actuary was instructed to prepare a report for discussion at the next meeting of
the fund’s trustees. The actuary duly reported to the trustees. In his report, it is
recorded that the SABC had indicated that it was not in a financial position to
afford the increased rates of contribution. The respondent stated that she
became concerned when she received her pension fund statement in 2016,
which did not reflect any change in her retirement age.
[13] On 29 November 2017, the respondent lodged a grievance in which she, among
other things, stated that:
other things, stated that:
‘…In view of the fact that the Resolution taken by the Board has not been
implemented, I am of the view that I am being prejudiced. Given the Board
Resolution, I do not see why I have to submit a motivation for the extension of my
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contract, as I am supposed to be a permanent employee. Had the Resolution
been implemented, as it should have, I would not be placed in this position.
SUGGESTED SOLUTION: The conversion to permanent status is implemented
as resolved by the Board in November 2015.’
[14] On 11 December 2017, after a grievance hearing at which the respondent
presented her case, her grievance was dismissed.
[15] The board became concerned about t he confidentiality of the minutes of its
meetings and the consequences of their disclosure, and there was a suggestion
that the respondent may have used confidential information for her own benefit.
On 27 February 2018, the SABC addressed a letter to invite the respondent to
submit written representations in respect of an allegation of the following
misconduct:
‘…
2.1 Contrary to clauses 4 and 5 of your confidentiality agreement dated
07 June 2013, you gained and/or obtained unauthorised access to
the SABC’s confidential information attaining to SABC’s Board
resolution taken about 26 November 2015, and you, on or about 29
November 2017, unfairly and unlawfully misused the said
confidential information to advance your own interest and for your
own benefit.
Further, you committed acts of misconduct in that you, inter alia: -
3. On or about 29 November 2017, in your grievance form, you
misrepresented facts by stating that (on a date after 26 November 2015)
you were told by Ms T Geldenhuys ("Ms Geldenhuys") that the Deputy
Secretary had been made permanent and that your understanding
thereafter was that the Human Resources Division would implement the
alleged Resolution, in circumstances where you knew and were aware or
ought to have reasonably known or to have reasonably been aware that
between 26 November 2015 and 29 November 2 017, none of the Deputy
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Company Secretaries was ever converted/appointed on a permanent
basis as per the alleged discussion you had with Ms Geldenhuys and that
the Human Resources Division did not implement the alleged Resolution
to convert/appoint Deputy Secretaries on a permanent basis.’
[16] The board ultimately decided, given that in its view the respondent’s contract of
employment would terminate by the effluxion of time on 30 April 2018, that it
would not pursue disciplinary action against her.
[17] On 2 March 2018, the SABC informed the respondent that it had employed her
on a fixed-term contract, which would expire on 30 April 2018. The letter read:
‘You are hereby advised that the SABC will not be renewing and/or extending
your fixed-term contract of employment upon termination on 30 April 2018. The
SABC will maintain its contractual obligation with you by remunerating you until
30 April 2018. Your SABC access card, 3G card, laptop, office keys, as well as
any SABC equipment you have in your possession, and your forwarding address
might be given to the Human resource manager before leaving the service of the
SABC on the 30 April to finalise this matter...’
[18] The respondent referred disputes to the CCMA and, after a failed conciliation
process, on 31 August 2018, she filed a statement of claim in the Labour Court.
Labour Court
[19] The respondent’s referral of her disputes to the Labour Court was made by way
of a state ment of claim . Regrettably, the statement of claim , while it records the
facts on which the respondent relied in fulsome terms, was rather more
ambivalent on the legal grounds on which the respondent sought to rely. The four
claims that the respondent filed were summarised by her as follows:
‘Claim A
1.1.1 Declaring the termination of her contract of employment as
unlawful.
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1.1.2 Reinstating her into the employ of the respondent on a permanent
basis.
1.1.3 Costs.
1.1.4 Further and/or alternative relief.
1.2 Claim B
1.2.1 Declaring that the respondent's failure to renew her fixed-term
contract constitutes automatically unfair dismissal.
1.2.2 Ordering the respondent to reinstate her alternatively to pay 24
months' compensation and three years' pension calculated by an
independent actuary.
1.2.3 Costs.
1.2.4 Further and/or alternative relief.
1.3 Claim C
1.3.1 Declaring that the Personnel Handbook, the Policy and the Fund
Rules directly discriminate against her on the basis of her age.
1.3.2 Ordering the respondent to amend the Personnel Handbook, the
Policy and the Fund Rules to provide that senior managers'
normal retirement age shall be 63.
1.3.3 Declaring that she was entitled to continue her duties until the age
of 63.
1.3.4 Ordering the respondent to reinstate her and to comply with all its
obligations until she reaches the age of 63.
1.3.5 Alternatively, ordering the respondent to pay her three years’
compensation and three years’ pension calculated by an
independent actuary.
1.3.6 Costs.
1.3.7 Further and/or alternative relief.
1.4 Claim D
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1.4.1 Declaring that the Labour Court has jurisdiction to deal with Claim
D as it is expedient to continue with the procedures in terms of
section 158(2)(b).
1.4.2 Declaring that the failure by Exco to exercise its discretion in
terms of the Policy to extend her retirement age to 63 constitutes
an unfair labour practice.
1.4.3 Substituting the decision of Exco with an order extending her
retirement age to 63 and setting aside the respondent's decision
of 2 March 2018 to terminate her contract as of 30 April 2018.
1.4.4 Ordering the respondent to reinstate her and to comply with its
obligations until she reaches the age of 63.
1.4.5 Alternatively, ordering the respondent to pay her 36 months’
compensation and three years’ pension calculated by an
independent actuary.
1.4.6 Costs.
1.4.7 Further and/or alternative relief.’
[20] The second respondent cited in the statement of claim, the SABC Pension Fund,
filed a statement of response, in essence contending that the Labour Court
lacked jurisdiction to entertain a dispute between the respondent and the Fund.
The respondent ultimately withdrew her claim against the Pension Fund.
[21] At the trial, the respondent was called to give evidence, after which the SABC
elected not to call any witnesses and closed its case.
[22] The judgment of the Labour Court deals first with the issue of t he respondent’s
retirement age. The Court noted that the respondent was required, in terms of
her fixed- term contract, to retire on 30 April 2018, a date that preceded the
respondent’s 60
th birthday by about a month. On the evidence, the Court held
that the 26 November board resolution had the effect first, that the respondent’s
employment became permanent and secondly, that her retirement age was
varied from 60 to 63.
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[24] The Court’s reasoning can be discerned from the following passage:
‘[40] Although the resolution does not state that the SABC would change the
retirement age of the affected general managers to 63, this can be
implied from its wording, the context, the background leading to its
adoption and the assurances Ms Valla received from her senior
managers. Thus, the resolution converted Ms Valla’s fixed-term contract
into permanency and amended the agreed retirement age from 60 to 63.’
[23] The Court then moved to consider the question of the existence of a dismissal
and concluded that , to the extent that the respondent was permanently
employed, ‘… the SABC could not rely on the effluxion of time due to her fixed-
term contract. Therefore the termination of her employment was a dismissal’.5
[24] In regard to the respondent’s’ claim of an automatically unfair reason for
dismissal and in particular, her contention that the reason for her dismissal was
unfair discrimination on t he grounds of her age, the Court noted that , once an
employee establishes that the reason for dismissal is age, the onus shifts to t he
employer to establish that the employee had reached the normal or agreed
retirement age. To the extent that the SABC had submitted that even if it was
accepted that the respondent had become permanently employed, her normal or
agreed retirement age was 60, the age she reached a month after the date of
termination of the fixed- term contract on which the SABC relied, i.e. 30 April
2018. After a review of the relevant authorities, t he Court came to the following
conclusion:
‘[59] As the Court enunciated recently in Bester, only the normal retirement
age must be considered if there is no agreed age. In the current matter,
the Policy is a contractual term of the employment contract, making the
retirement age an agreed age which was changed at the employer's
behest through a resolution that Ms Valla accepted. Since the agreed age
behest through a resolution that Ms Valla accepted. Since the agreed age
was 63, the only conclusion that can be arrived at is that Ms Valla was
5 Judgment of the court a quo at para 41.
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dismissed based solely on her age, which was not the agreed retirement
age, thereby making her dismissal automatically unfair.’
[25] Next, the Cour t considered the respondent’s claim that by dismissing her when
she turned 60, the SABC had discriminated against her on the grounds of her
age, a prohibited ground listed in section 6 (1) of the EEA. The Court concluded:
‘[67] The SABC failed to show, on the balance of probabilities, that
discrimination did not take place, that such discrimination was rational
and not unfair or was otherwise justifiable. Consequently, Ms Valla's
dismissal constituted unfair discrimination on the ground of age in terms
of section 6(1) of the EEA.’
[26] Under the heading ‘Was the contract of employment unlawfully terminated? ’, and
without any further reference to the evidence, the Court concluded:
‘[68] In light of the above findings, the SABC varied the agreed retirement age
by terminating Ms Valla's employment contract when her contract expired
on 30 April 2018. Such conduct constituted a repudiation of the
employment contract the SABC had with Ms Valla, which gave the latter
an election to either accept or reject it and hold it to the terms and
conditions of her employment contract. In this regard, Ms Valla elected
the latter.
[69] Accordingly, the purported variation of Ms Valla's employment contract
was unlawful, wrongful, and of no legal effect. In effect, the SABC could
not rely on the effluxion of time due to her fixed- term contract. Therefore,
the SABC unlawfully terminated her employment contract. The issue is
whether Ms Valla's contractual claim prescribed as alleged by the SABC.’
[27] The Court then addressed the preliminary issue of prescription that had been
raised by the SABC. In essence, the SABC submitted that the respondent’s claim
had prescribed, in that more than three years had passed between the date on
which the respondent became aware of the resolution that she contended
which the respondent became aware of the resolution that she contended
converted her fixed-term contract of employment to one of permanent status, and
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the date on which her statement of claim was delivered, 31 August 2018. The
Court concluded:
‘[77] In the light of the above authority, it cannot be said that an obligation to
convert an employee’s employment status from that of fixed term to
permanent (or failure to do so) in accordance with a board resolution or
the obligation to implement a board resolution constitutes a debt and thus
gives rise to the application of the Prescription Act. Accordingly,
prescription does not apply to Ms Valla’s claim.’
[28] With regard to the respondent’s claim of an unfair labour practice (in t he form of
an alleged failure by the SABC to exercise a discretion to extend the
respondent’s retirement age to 63), the Court upheld the preli minary point
advanced by the SABC that the Court lacked jurisdiction to entertain the claim.
The Court held that the unfair labour practice dispute was one required to be
determined by arbitration and that , in any event, the respondent had not referred
the dispute to conciliation.
[29] The Court then moved to consider the remedies to be afforded the respondent
and concluded:
‘[81] Regarding claim A, Ms Valla proved that the SABC repudiated her
employment contract by amending her retirement age from 63 to 60
without her consent. In this regard, her damages are limited to the
position she would have been in under the contract had the SABC not
breached her employment contract. As a result, Ms Valla is entitled to
contractual damages amounting to one month's notice pay.
[82] Concerning the claim for automatically unfair dismissal as envisaged in
section 187(1)(f) of the LRA and unfair discrimination as envisaged in
section 6(1) of the EEA, Ms Valla sought reinstatement, alternatively 24
months’ compensation and three years’ pension calculated by an
independent actuary.
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[83] Having found that Ms Valla’s dismissal was automatically unfair and that
reinstatement at this stage would not be reasonably possible, the SABC
is liable for compensation in terms of section 194(3) of the LRA.
Additionally, to the extent that Ms Valla’s dismissal was found to have
constituted unfair discrimination, the SABC is liable for the payment of
compensation and damages in terms of section 50(1) of the EEA.
[84] Regarding patrimonial loss resulting from unfair discrimination, Ms Valla
asserted in the statement of the case that she sought reinstatement and
the first respondent's compliance with its obligations until she reached 63
years of age, alternatively 36 months ’ remuneration and three years’
pension calculated by an independent actuary. In her heads of
arguments, Ms Valla sought damages equivalent to her salary for the
period between 01 May 2018 to 30 April 2021, the latter being the date on
which she would have reached the retirement age of 63, “ computed
according to the Total Guaranteed Remuneration Calculation based on
the February 2018 payslip and accounting for salary increase of 4% for
2018/2019; 5% for 2019/2020 and 5% for 2020/21 respectively for 3
years". In total, the damages amounted to R7 648 227.08.
[85] Although the patrimonial damages may be calculated based on Ms Valla's
payslip, no evidence was led to prove the salary increase over the years.
In addition, the parties were not afforded an opportunity to present
evidence or advance arguments as to what would be just and equitable in
the current circumstances. Resultantly, the determination of the quantum
of compensation and damages is reserved for a subsequent
determination by another Court in terms of section 194(3) of the LRA and
section 50(2) of the EEA.’ (footnotes excluded)
[30] Finally, the Court considered the issue of costs. The Court considered that ,
despite the wording of section 162 of the Labour Relations Act6 (LRA), the
despite the wording of section 162 of the Labour Relations Act6 (LRA), the
respondent should be awarded her costs on account of the SABC’s ‘ …
persistence in defending this application when the validity of its Resolution was
6 Act 66 of 1995, as amended.
14
not in dispute was unreasonable. Moreover, the manner in which the SABC
treated Ms Valla after discovering that her retirement age had not been adjusted
in accordance with the Resolution was unfair and demonstrates mala fides’.7
Grounds of appeal
[31] The SABC contends that , while it is correct that the 26 November 2015 board
resolution provided that general managers should, where the status of the job is
permanent in nature, be employed on a permanent basis, the Labour Court erred
when it found that the resolution amended the respondent’s retirement age to 63.
In particular, the SABC contends that the respondent did not rely on or plead any
implied term to this effect . The SABC contends further that any change to the
retirement age of general managers (including the respondent) could take place
only after a change to the rules of t he pension fund. Any assurances given to the
respondent by her supervisors did not constitute a decision by the board nor the
trustees of the pension fund and could thus not have the effect of extending the
respondent’s retirement age.
[32] The SABC further submits that the Labour Court ’s finding that the respondent
had been dismissed for a reason that is automatically unfair is dependent entirely
on the correctness of its prior finding that her employment contract had been
varied to amend her retirement age to 63. The Court ought properly to have
found that the respondent’s contract terminated by the effluxion of time, and not
on account of her age. The same submission was made in relation to the Court’s
finding that the SABC had discrim inated against the respondent on account of
her age.
[33] Insofar as the Labour Court held that the SABC varied the respondent’s
retirement age and thus repudiated her contract , the SABC submits that the
contract was never varied to amend the respondent’s retirement age, and that
there was no repudiation of the contract, which terminated by the effluxion of time
there was no repudiation of the contract, which terminated by the effluxion of time
in accordance with its own terms. Regarding the plea of prescription, the SABC
7 Judgment of the court a quo at para 87.
15
submits that the Court erred in finding that the respondent’s claim had not
prescribed, and finally, that the order for costs against the SABC was erroneously
made.
Evaluation
[34] In her statement of claim, t he respondent referred four alternative claims to the
Labour Court for adjudication. These were:
1. that the SABC had unlawfully terminated her employ ment contract, which
the respondent alleged was converted from a fixed -term contract to
employment on a permanent basis by way of a resolution ratified by the
SABC board on 26 November 2015 and which the respondent alleges had
the consequence of extending her retirement age from 60 to 63;
2. that the SABC’s conduct in terminating her contract on 30 April 2018
constitutes an automatically unfair dismissal;
3. that the SABC’s conduct in ‘ terminating’ her employment on 30 April 2018
(the date of expiry of her fixed- term contract) constituted an act of unfair
discrimination in terms of section 6 of the EEA; and
4. that the SABC’s conduct in failing to exercise a discretion in favour of
extending the respondent’s retirement age to 63 constituted an unfair
labour practice.
[35] The Labour Court upheld the first three claims and dismissed the fourth. There is
no cross-appeal, and the present proceedings concern only the Labour Court’s
orders in respect of the claims of an unlawful termination of the respondent’s
employment contract, and her claims of automatically unfair dismissal and unfair
16
discrimination on the grounds of her age, and the order for costs granted against
the SABC.
[36] I deal first with the respondent’s primary claim before the Labour Court, the
alleged unlawfulness of the termination of the respondent’s employment contract.
In this regard, the respondent invoked the Labour Court’s jurisdiction in terms of
section 77(3) of the Basic Conditions of Employment Act
8 (BCEA). That section
provides that the Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of employment. In
essence, the respondent contended that her contract was converted from a fixed-
term contract to permanent employment, that her retirement age was extended to
age 63, and that the termination of the respondent’s contract on the basis that
her fixed-term contract had expired was unlawful.
[37] To the extent that the SABC persist s on appeal with its defence of prescription,
the facts do not disclose, as the SABC contends, that a period of three years
elapsed between the date on which the respondent obtained knowledge of what
she claims to be the varied terms of her contract and the date on which her
statement of claim was filed. The evidence discloses that the respondent became
aware of the board’s resolution on or about 26 November 2015. She testified that
after the meeting, she w as called to Geldenhuys’s office, where Geldenhuys told
her about the resolution. The respondent’s statement of claim was filed on 31
August 2018, less than three years later. The Labour Court’s conclusion that the
respondent’s claim had not prescribed thus stands to be upheld, albeit for
different reasons.
[38] I turn then to the Labour Court’s findings regarding what it suggested was the
unlawful termination of the respondent’s employment contract.
[39] The respondent’s contractual claim wa s imprecise ly pleaded, to say the least.
She contended, in effect, that the resolution adopted by the SABC’s board varied
She contended, in effect, that the resolution adopted by the SABC’s board varied
the terms of her employment contract , both to convert the fixed-term nat ure of
8 Act 75 of 1997.
17
the contract to employment on a permanent basis and to vary her retirement age
to 63. The statement of claim lacks any clear and concise statement of the legal
issues that arise from the material facts pleaded 9 - a generous reading of the
statement of claim suggests that the respondent contends (without expressly
asserting as much) that the SABC breached the terms of the contract as varied
(which she regards as material terms) and that she elected to enforce the varied
terms of the contract on which she relied (i.e. she claimed the remedy of specific
performance).
[40] In these circumstanc es, the onus was on the respondent to establish that the
resolution adopted by SABC’s board on 26 August 2015 constituted an offer to
vary her terms and conditions of employment on the terms alleged, and that she
accepted that offer. It will be recalled that t he Labour Court came to the following
findings:
‘[68] In light of the above findings, the SABC varied the agreed retirement age
by terminating Ms Valla’s employment contract when her contract expired
on 30 April 2018. Such conduct constituted a repudiation of the
employment contract the SABC had with Ms Valla, which gave the latter
an election to either accept or reject it and hold it to the terms and
conditions of her employment contract. In this regard, Ms Valla elected
the latter.
[69] Accordingly, the purported variation of Ms Valla’s employment contract
was unlawful, wrongful and of no legal effect. In effect, the SABC could
not rely on th e effluxion of time due to her fixed-term contract. The issue
is whether Ms Valla’s contractual claim prescribed as alleged by the
SABC.’
[41] These findings are far from c oherent - what they ignore is that , despite the
confused nature of the respondent’s claim, properly construed, it comprised two
discrete elements. The first is the respondent’s claim that her fixed- term contract
had been varied to convert the contract into one of permanent employment ; the
had been varied to convert the contract into one of permanent employment ; the
9 As required by the then-applicable Rule 6 of the Rules of the Labour Court.
18
second, that her ret irement age had been varied to age 63. Far from contending
that the SABC “varied the agreed retirement age by terminating Ms Vall a’s
employment contract when her contract expired on 30 April 2018 ”, the
respondent’s claim was that the SABC had breached her employment contract
by enforcing the fixed-term contract (in particular, t he termination of the contract
by the effluxion of time) and by refusing to permit her to continue in her
employment to age 63.
[42] Counsel for the respondent conceded that any valid variation to the respondent’s
fixed-term contract could be effected only by mutual agreement, and there was
no evidence of any express offer made by the SABC and accepted by the
respondent that served to var y her contract on the terms that she asserted.
Counsel relied on statements that were made to the respondent at the time by
the respondent’s colleagues, Geldenhuys and Yunus, and what he submitted was
the context in which the board resolution had been adopted.
[43] Contrary to what the Labour Court found, there is nothing to suggest that the
wording, context and background of the board resolution had the effect of varying
the respondent’s fixed- term contract either to convert her employment status to
that of a permanent employee, or to vary her retirement age to 63. An
examination of the wording of the November 2019 board resolution suggest s no
more than that , as a matter of policy, SABC employees engaged on fixed-term
contracts would be converted to the status of permanent employment. Given the
adoption of that policy, it remained for the SABC to implement the resolution by
seeking to vary the fixed- term contracts on which employees were engaged. Put
another way, the wording of the resolution does not suggest that , without more,
its immediate effect was to convert the employment status of all employees
engaged on fixed- term contracts to that of permanent employment.
10 The
engaged on fixed- term contracts to that of permanent employment.
10 The
10 The Labour Court failed to adopt an interpretation of the resolution consonant with Natal Joint Municipal
Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para [18] holding that
interpretation is, generally speaking, an objective process of attributing meaning to the words used in a
document, read in the context of the document as a whole and having regard to the apparent purpose of the
words. University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021
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wording of the resolution makes clear that the conversion applied only to
positions that were permanent in nature and not project -based. Any variation to
the terms of existing contracts would necessarily have to be negotiated and
agreed with those SABC employees who qualified for conversion of their
contracts. It could not be assumed that all employees engaged on a fixed- term
contract would, like the respondent, be amenable to the contemplated variation –
consent on an individual basis was a necessary requirement for implementation.
[44] Regarding the respondent’s retirement age, the evidence discloses that the
respondent relied on the text of the resolution and her subjective view that it
necessarily followed from the text of the resolution that her retirement age had
been varied to 63. She said the following:
‘MS VALLA: Well when I started it was on a contract basis for five years,
meaning I would have to retire at the age of 60, but having this
being converted to permanent meant that I could stay on until age
63, and I was quite happy with that.’
[45] Even if the resolution in and of itself varied the respondent’s status from fixed-
term employee to permanent employee, it does not follow that the adoption of the
resolution varied the respondent’s retirement age. Counsel for the respondent did
not dispute that , on a plain reading, the resolution makes no reference to any
change in retirement age, least of all does it reflect any increase in retirement
age for general managers from 60 to 63. Counsel submitted that the variation to
the terms of the respondent’s contract to fix her retirement date at 63 could be
discerned from the context in which the resolution was adopted. That context is
one of a complex and long- standing internal debate on a change to retirement
age, as reflect ed in the extracts of the memoranda referred to above, involving
the SABC’s human resources management, the board and the trustees of and
the SABC’s human resources management, the board and the trustees of and
advisers to the pension fund. That debate was resolved only in 2022, when the
(6) SA 1 (CC) para [65] held that it is a unitary exercise which must be approached holistic ally:
simultaneously considering the text, context and purpose.
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trustees adopted a n amendment to the pension fund rules , addressing both the
retirement benefits of general managers and the change in retirement age from
60 to 63 for those who accept ed the conversion to permanent employment
status.
[46] In terms of the SABC’s retirement policy and the rules of the SABC pension fund,
the respondent’s retirement age remained fixed at the date of expiry of her fixed-
term contract, being 30 April 2018. Even if the board resolution effected a valid
variation to the status of the respondent’s fixed-term contract by converting that
contract to one of permanent employment , in terms of the SABC’s retirement
policy and the pension fund rules then applicable, and by virtue of the
respondent’s status as a senior managerial employee, the respondent’s
retirement age was 60.
[47] In short: in the absence of any mutually agreed variation to the respondent’s
fixed-term contract, her employment terminated on 30 April 2018, which also
constituted her normal retirement age for the purposes of the pension fund rules.
There was no breach of the contract by the SABC – the respondent’s contract
terminated by the effluxion of time, and there was thus no unlawful termination of
the contract as alleged by the respondent.
[48] Insofar as the respondent’s claims of an automatically unfair dismissal and unfair
discrimination are concerned, the fact that the respondent’s fixed-term contract
expired on the agreed date has the consequence that there was no ‘dismissal’ as
defined by section 186 (1) of the LRA . The Labour Court thus lacked jurisdiction
to entertain the respondent’s claim of unfair dismissal. Further, th e differential in
retirement ages on which the respondent relies to assert that the SABC
discriminated against her (i.e. the retirement age of 60 for managerial executive
and general managerial employees , as opposed to 63 for other SABC
employees) is clearly based on occupational category, not age. The Labour
employees) is clearly based on occupational category, not age. The Labour
Court’s findings that the SABC had discriminated against the res pondent on a
prohibited ground (age) cannot be sustained. The Labour Court’s judgment
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stands to be set aside, as must its order that the SABC pay the respondent’s
costs.
Costs
[49] Finally, in relation to the costs in these proceedings , the rule applicable in this
Court is that costs do not necessarily follow the result, and that any liability for
costs fall s to be determined on the requirements of law and fairness. The first
element of the respondent’s claim was brought under section 77 (3) of the BCEA.
This Court has held that where the Labour Court exercises its concurrent
jurisdiction, the rule as to costs applied in the civil courts should apply. In the
present instance, the contractual claim is a single element of her claims referr ed
to the Labour Court. She is an individual who, in good faith, challenged a
decision by her employer that she perceived to be unjust . In these
circumstances, the requirements of law and fairness are best satisfied by each
party bearing its own costs, both in the Labour Court and in this Court.
Order
1. The appeal is upheld, with no order as to costs.
2. The orders granted by the Labour Court are set aside and substituted with
the following:
‘1. The applicant’s claims are dismissed, with no order as to
costs.’
____________________
André van Niekerk
Judge of the Labour Appeal Court
Mahalelo ADJP and Chetty AJA concur.
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APPEARANCES:
FOR THE APPELLANT: P Maserumule, Puke Maserumule Attorneys
FOR THE RESPONDENT: AP Landman, instructed by Mahomed Randera & Associates