IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NO:
J5388/00
In the matter between:
Applicant
and
IT MANAGEMENT ADVISORY SERVICES Respondent
(PTY) LTD
JUDGMENT
LANDMAN J:
1. Mr Schoeman has filed an application for relief following an alleged unfair dismissal.
The application is 10 months late. An application for condonation serves before me. It
is opposed by the respondent, IT
2
Management Advisory Services (ITMAS). Mr Schoeman filed a replying
affidavit.
2. The replying affidavit was filed some 5 days late. Mr Schoeman’s attorney was aware
that it would be late. He asked ITMAS’s attorney for consent to file it later than
required. This was refused. In his replying affidavit Mr Schoeman states that a formal
application would be made. The affidavit was signed on 25 September 2001. Mr
Harrison, who appeared for ITMAS, had warned Mr Schoeman’s attorney in his heads
that his reply was not properly before court. In his heads dated 26 February 2002 Mr
Dormand, who appeared for Mr Schoeman, mentions the need for condonation. To
date, 3 May 2002, no substantive application has been filed.
3. However, Mr Dormand applied from the bar for the condonation of the late filing of
the replying affidavit. The application was opposed. Mr Dormand, was unfortunately
not briefed with sufficient information to deal with the failure to bring a substantive
application. In the circumstances I declined to condone the late filing of this
document.
4. 3
I will decide the matter on the founding affidavit and the answering affidavit.
5. This matter was argued as an application for condonation and during the course of the
argument submissions were made regarding the status of Mr Schoeman ie was he an
employee. It seems to me that the application for condonation itself requires Mr
Schoeman to show that he is an employee. If he is not, this court has no jurisdiction to
entertain even his application for condonation.
6. Ms Jacobs, managing director of ITMAS, and Mr Schoeman met and discussed an
employment relationship. Their discussions are important for the purposes of this
case.
7. Mr Schoeman says:
“Prior to my commencing employment with the respondent, I was advised by
Rene (sic) Jacobs ("Jacobs"), the managing director of the respondent, that I
would be required to sign a Confidentiality and NonDisclosure Agreement. This
document
4
was not given to me at the time I commenced employment with the respondent on
1 February 2000.”
8. Ms Jacobs says:
“Towards the end of January 2000, Applicant approached Respondent and
initiated discussions in relation to the possibility of establishing a working
relationship. At the time, Applicant had started his own business, which he called
IT Technology Consulting Services, which he had started in December 1999 after
he had taken a severance package and terminated his employment with the Iscor
Group, where he had been the Divisional Manager Technical Architecture and
had apparently also been acting as General Manager Business Information for
Iscor Mining.
On 3 February 2000, I met with Applicant and discussed the possibility of
Respondent employing him. During the discussion, I referred to the fact that an
agreement dealing with
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the protection of the confidential information and proprietary interests of
Respondent and Gartner (which I refer to more fully below) would be required to
be signed by him for there to be any employment relationship and he indicated
that he would be prepared to sign such an agreement.
On 8 February 2000, I emailed a draft letter detailing employment terms and
conditions for consideration by Applicant. The letter in question is annexure
"AS1" to Applicant's affidavit under reply. The letter was not signed by me and it
referred, in the 1 st paragraph of the 2 nd page, to the requirement that a
'confidentiality and nondisclosure agreement' would be required to be signed by
him. This is how the standard agreement dealing with confidentiality, non
disclosure and noncompetition (i.e. restraint of trade) is commonly referred to in
Respondent (and Gartner's) organisation.
6
The following day, 9 February 2000, Applicant returned to me an adapted letter in
which the nature of the proposed relationship between the parties was not to be
one of employment but one as between client and independent contractor, with
Respondent contracting with Applicant's business, IT Technology Consulting
Services. A copy of this document is annexed hereto marked " RJ1'. Applicant's
proposal in this regard was not acceptable to Respondent. Applicant thereafter
signed the original draft letter that had been sent to him for his consideration, but
this letter was not signed or accepted by me, however, because Applicant still
needed to subject himself to the confidentiality, nondisclosure and noncompete
obligations that Respondent required.
At the time of the above exchanges during February 2000, Applicant was already
informally involved in consulting assignments with some of Respondent's clients.
This was not because any employment relationship had been agreed upon,
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but because it was anticipated that such an agreement would be entered into
imminently.
I also indicated to Applicant that if no mutually acceptable agreement had been
reached by 20 March 2000 in relation to a relationship, all materials, equipment,
information, etc belonging to Respondent or Gartner would have to be returned by
him until such time as an agreement was reached, particularly in relation to non
disclosure, confidentiality and noncompete undertakings. I made this stipulation
due to my concern about Respondent's and Gartner's interests not being protected
on an ongoing basis given Applicant's access to the confidential information.
9. Have Mr Schoeman and ITMAS concluded a contract of employment? The onus of
showing this lies upon Mr Schoeman. Mr Schoeman’s modified letter of 9 February
constituted a rejection of the offer of employment. Mr Schoeman’s subsequent
signature of the letter of 8 February constitutes in law his offer to enter into a contract
10. 8
of employment. ITMAS was prepared to accept this and sign the letter of 8
February once a written contract relating to “confidentiality and nondisclosure”
had been signed.
11. A dispute arose about the presence of a “noncompete” clause (restraint of trade
clause) in the document headed “Agreement regarding certain conditions of
employment”. At first a document applicable to the United Kingdom was sent to Mr
Schoeman. He would not sign it. When this was discovered ITMAS’s HR manager
“... amended it appropriate to South Africa”.
12. The terms of the second document were also not accepted by Mr Schoeman. He was
not happy with some of the clauses and rejected the noncompete clause. I may
mention that the confidentiality clause itself contains a restraint of
trade but it does not feature in this matter.
13. Mr Schoeman says that the noncompete clause was not mentioned when the parties
initially negotiated his employment. This appears to
14. 9
be so. Ms Jacobs, the managing director of ITMAS, did not refer to it by name.
She says that the confidentiality and nondisclosure document is how her company
and Gartner (ITMAS is the sole distributor for Gartner Group products and
services in the territory of SubSaharan Africa and Indian Ocean Islands) refers to
the document. She says she had this in mind when she met Mr Schoeman.
15. Generally no formalities are required for the conclusion of a contract of employment.
But where the parties have stipulated that the contract must be in writing this
formality must be completed. “The question is in each case one of construction" said
Innes CJ in Goldblatt v Freemantle 1920 AD 123 at 129. See also Van der Merwe et
al Contract General Principles 116. In Woods v Walters 1921 AD 303 at 305
Innes CJ opined:
"It follows of course that where the parties are shown to have been ad idem as to
the material conditions of the contract, the
10
onus of proving an agreement that legal validity should be postponed until the due
execution of a written document, lies upon the party who alleges it."
See also Christie The Law of Contract In South Africa 3 rd ed 116.
16.The letter of 8 February may possibly be regarded as an instance
of the second type i.e. the reduction of the oral agreement to
writing. In any event its contents are not disputed. The
confidentiality and nondisclosure agreement is an example of the
first type. There were no discussions of the details of the
confidentiality and nondisclosure obligations or what Ms Jacobs
calls “an agreement dealing with the protection of confidential
information and proprietary interests of Respondent and Gartner”.
But it was agreed that a document would be signed and that its
signature was a condition for the conclusion of a contract of
employment.
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17. Two issues arise. The one of substance. The other relating to a formality in its
technical legal sense.
18. Was there a meeting of the minds? On the papers there was no consensus on the terms
or the document envisaged by Ms Jacobs. This being so it could be said that no
contract of employment came into existence. The temporary arrangement, referred to
earlier, then came to an end. In the result Mr Schoeman is not an employee and is not
entitled to the relief which he seeks.
19. However, if the matter were to be decided on oral evidence then it may be that Mr
Schoeman’s version would be accepted. What then? Initially Mr Schoeman even
refused to agree to the confidentiality and nondisclosure terms proposed by ITMAS.
Now he says, in his affidavit, but not in his statement of case, that he is prepared to
accept those terms but not the terms regarding the noncompete clause. All this goes
to show that even the terms of the nondisclosure and confidentiality agreement had to
be negotiated. I have set out the instances of Mr Schoeman rejecting and then
accepting
20. 12
(after making a counter offer) the letter of 8 February. I am of the opinion that
even on his own version Mr Schoeman has not shown that he concluded a
contract of employment.
21. In his statement of case Mr Schoeman alleges he is an employee as contemplated in
terms of s 213 of the Labour Relations Act 66 of 1995. I am of the opinion that Mr
Schoeman was an employee in the sense he assisted ITMAS pending the resolution or
conclusion of his contract. But his cause of action is not founded on this. None of the
complex matrix of facts which needs to be in place in order to constitute a contract of
employment in this instance have pleaded in the statement of case. Moreover it is
common cause that ITMAS did not dismiss him. Presumably Mr Schoeman is relying
on constructive dismissal. This is not pleaded.
22. If Mr Schoeman is an employee there is the difficulty that he has not signed the
confidentiality and nondisclosure agreement or, if he has, it has not been signed by
ITMAS. He would have to bring an
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action to compel ITMAS to sign. The contract of service does not come into
operation until this has been done.
23.In the premises the application is dismissed with costs.
SIGNED AND DATED AT BRAAMFONTEIN THIS 14 TH DAY OF
MAY 2002.
_____________
AA Landman
Judge of the Labour Court of South Africa
For the applicant: Adv B Dormand instructed by Sampson Okes &
Higgins Inc.
For the respondent: Mr S Harrison of Sonnenberg Hoffmann Galombik
Attorneys.
3 May 2002.
Date of judgment: 14 May 2002.