THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS33/24
In the matter between:
SOLIDARITY OBO VAN RENSBURG Plaintiff
and
STALLION SECURITY (PTY) LTD Defendant
Heard: 28 August 2025
Delivered: 1 December 2025
Summary: Contractual claim for unpaid remuneration. Requirements met.
JUDGMENT
2
DANIELS J
Introduction
[1] The defendant was cited as Stallion Security Electronics (Pty) Ltd,
however the parties subsequently agreed that the correct citation was
Stallion Security (Pty) Ltd and requested the court to amend the citation.
There being no reason to require a formal amendment
1 the amendment
was granted.
[2] This is a contractual claim , brought under the Basic Conditions of
Employment Act No. 75 of 1997 as amended (“BCEA”) in which the
plaintiff seeks payment of the commission he earned while in the
defendant’s employ.
Material facts
[3] The defendant is engaged inter alia in the sale of security equipment,
installed and maintained subject to client’s needs . The plaintiff,
represented in these proceedings by Solidarity, was employed by the
defendant as a salesperson, until his resignation. He gave notice of his
resignation on 30 June 2023 and left the defendant’s employ on 26 July
2023.
[4] The plaintiff’s remuneration included a basic salary and commission.
Under the title “Remuneration”, clause 4.5 of the plaintiff’s employment
contract states:
1 PFE International and others v Industrial Development Corporation of South Africa Ltd 2013
(1) SA 1 (CC) at para 30: “ Since the rules are made for courts to facilitate the adjudication of
cases, the superior courts enjoy the power to regulate their processes, taking into account the
interests of justice. It is this power that makes every superior court the master of its own
process. It enables a superior court to lay down a process to be followed in particular cases,
even if that process deviates from what its rules prescribe.”
3
“4.5 Commission will be calculated and payable as set out in the
attached Annexure A “Payment of Commission/s Earned Pre
2022. The parties may amend the commission structure of any
aspect associated with it by mutual written agreement”
(own emphasis)
[5] Clause 23 of the employment contract includes a ‘non variation clause’
whereby any variation of its terms must be agreed, recorded in writing,
and signed.
[6] At trial, the document titled “ Annexure A – Payment of the Commission
Earned Pre 2022” was referred to as the commission structure. Clause
4.2.1 of the commission structure set s out the formula to calculate
commission and provided that such commission would be paid upon
receipt of payment from the client. The commission structure makes no
reference to instances where the client only pays after the resignation or
termination of services of the sales agent.
[7] It is common cause that the plaintiff signed up several clients
2 before his
resignation but did not receive payment of commission in respect of such
sales. Most of the payments were received from the clients after plaintiff
left defendant’s employ. The amount of the commission for these sales
was common cause.
[8] Mr Kevin Monk (“Monk”) testified for the defendant that he is the sales
director and has been in the industry for over 32 years. Monk testified
that the employment contract , and the commission structure, were not
amended prior to the plaintiff’s resignation.
2 Precious Fine Jewellery, Imperial, Makoya Blinkpan, Fairprice (Newton) and MML Electronics.
4
[9] Monk testified that the reason the defendant did not make payment of the
commission was that the plaintiff had left the defendant’s employ before
the clients had paid, and it was an industry norm that, in such
circumstances, commission would not be paid. Monk testified that he had
not made payment of commission in similar circumstances previously but
gave no details.
[10] On the other hand, t he plaintiff testified that he was unaware of the
‘industry norm’ and had not agreed to it. It was not suggested to him that
he would have agreed to it if he was made aware of it.
[11] On 21 September 2023, the plaintiff demanded payment of the disputed
commission.
Legal principles and analysis
[12] The plaintiff proved the terms of the employment contract. He further
proved that he was entitled to commission absent any defence from the
defendant, and he was not paid the commission. The first issue that
arises is whether there can be said to be an industry norm.
[13] It fell to the defendant, whose defence is based on the industry norm, to
prove that the norm actually exists. An industry norm must be shown to
be “ universally and uniformly observed within the particular trade
concerned, long established, notorious, reasonable and certain, and
does not conflict with positive law”.
3 The defendant relied on the ipse dixit
of its sales director to establish the norm and tendered no other
evidence. All Monk could say was that such a norm exists and he is
aware of it. In the circumstances, this was inadequate.
3 Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA 642 (C) at 645
5
[14] If there was an industry norm, one would still have to consider if the norm
was incorporated into the contract. This requires an interpretation of the
contract. The court must have regard to the context by reading the
provision considering the document, and the circumstances attendant
upon its coming into existence. Consideration must be given to the
language used considering the ordinary rules of grammar and syntax, the
context of the provision, the apparent purpose of the provision, and the
material known to those responsible for its production.
4 It is said that
interpretation is a unitary exercise that requires consideration of the text,
context and the purpose.
[15] In University of Johannesburg v Auckland Park Theological Seminary
and another5 at para [66] the court stated:
“The Supreme Court of Appeal has explicitly pointed out in cases
subsequent to Endumeni that context and purpose must be taken into
account as a matter of course, whether or not the words used in the
contract are ambiguous . A court interpreting a contract has to, from the
onset, consider the contract’s factual matrix, its purpose, the
circumstances leading up to its conclusion, and the knowledge at the
time of those who negotiated and produced the contract.”
(own emphasis)
[16] When the terms of the employment contract are considered using the
interpretative triad of text, context and purpose, the meaning is clear that
the commission is payable upon receipt of the monies from the client.
There are no indications in the text, context or purpose of the contract
which suggests that commission is forfeited if the employee is no longer
in employment.
4 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
5 2021 (6) SA 1 (CC)
6
[17] Even if the industry norm was proven, one must still consider whether the
industry norm was a tacit term of the contract. In City of Cape Town
(CMC Administration) v Bourbon Leftley and another NNO 6 (“Bourbon
Leftley”) the Supreme Court of Appeal stated:
“[19] A discussion of the legal principles regarding tacit terms is to be found in
the judgment of Nienaber JA in Wilkins NO v Voges 1994 (3) SA 130
(A) at 136H - 137D. These principles have since been applied by this
Court, inter alia, in Botha v Coopers & Lybrand 2002 (5) SA 347 (SCA) at
paras [22] - [25] and in Consol Ltd t/a Consol Glass v Twee Jonge
Gezellen (Pty) Ltd and Another 2005 (6) SA 1 (SCA) ([2004] 1 All SA 1) at
paras [50] - [52]. As stated in these cases, a tacit term is based on an
inference of what both parties must or would necessarily have agreed to,
but which, for some reason or other, remained unexpressed. Like all other
inferences, acceptance of the proposed tacit term is entirely dependent on
the facts. But, as also appears from the cases referred to, a tacit term is
not easily inferred by the courts. The reason for this reluctance is closely
linked to the postulate that the courts can neither make contracts for
people nor supplement their agreements merely because it appears
reasonable or convenient to do so (see e.g. Alfred McAlpine & Son (Pty)
Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 532H). It
follows that a term cannot be inferred because it would, on the application
of the well -known 'officious bystander' test, have been unreasonable
of one of the parties not to agree to it upon the bystander's suggestion.
Nor can it be inferred because it would be convenient and might therefore
very well have been incorporated in the contract if the parties had thought
about it at the time. A proposed tacit term can only be imported into a
contract if the court is satisfied that the parties would necessarily have
contract if the court is satisfied that the parties would necessarily have
agreed upon such a term if it had been suggested to them at the time (see
e.g. Alfred McAlpine (supra) at 532H - 533B and Consol Ltd t/a Consol
Glass (supra) at para [50]). If the inference is that the response by one of
the parties to the bystander's question might have been that he would first
6 2006 (3) SA 488 (SCA)
7
like to discuss and consider the suggested term, the importation of the
term would not be justified.
(own emphasis)
[18] It is clear from Bourbon Leftley that a tacit term should only be imported
into the contract where the court is satisfied that the parties
would necessarily have agreed upon such a term if it had been
suggested at the time. The court is not satisfied that the parties
would necessarily have agreed upon such a term if it had been
suggested at the time. In fact, at trial, this was not even suggested to the
plaintiff during cross examination.
[19] In the circumstances, the plaintiff has proven that he was entitled to
payment of the commission and that it was not paid. The defence raised
by the defendant fails.
Costs
[20] This dispute was brought under the BCEA, and the requirements of law
and fairness are not applicable. There being no reason why costs should
not follow the result, I intend to make such order.
Conclusion
[21] In the circumstances, the following order is made:
21.1 It is declared that the defendant breached the plaintiff’s employment
contract by failing to make payment of the commission due to him,
8
21.2 The defendant is ordered to pay the plaintiff his commission in the
amount of R89 262, 84 together with interest at the prescribed rate
calculated a tempore mora.
21.3 The defendant is ordered to pay the plaintiff’s costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Plaintiff
Solidarity - union official
For the Defendant
Self-representation