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[2023] ZAWCHC 255
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Roux v University of Stellenbosch and Others (6577/22; 11368/15;) [2023] ZAWCHC 255 (13 October 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 6577/22
In
the matter between:
JURIE
WYNAND ROUX
Applicant
And
UNIVERSITY
OF STELLENBOSCH
First Respondent
A
R SHOLTO-DOUGLAS SC N.O.
Second

Respondent
CM
ELOFF SC N.O
Third

Respondent
RETIRED
JUSTICE LTC HARMS N.O.
Fourth Respondent
M
VAN DER NEST SC
N.O.
Fifth Respondent
Consolidated
by agreement with:
Case No: 11368/15
In
the matter between:
UNIVERSITY
OF STELLENBOSCH
Applicant
and
JURIE
WYNAND
ROUX
First Respondent
JOHANNES
CHRISTIAAN DE BEER
Second

Respondent
Coram:
Justice V C Saldanha
Heard:
22 August 2023
Delivered
electronically:
13 October 2023
JUDGMENT
SALDANHA
J
:
[1]
The applicant seeks leave to appeal to the Supreme Court of Appeal
(the SCA) alternatively,
the full bench of the Western Cape High
Court against the whole of the judgment handed down by this court on
25 April 2023 and
the orders including that of costs. In the
application for leave to appeal, the applicant contends that there
are reasonable prospects
of success, if allowed, against the judgment
and orders in terms of section 17(1) (a) (i)
[1]
of the Superior Court Act 10 of 2013 (the Superior Court Act) and
with reference to the provisions of subsections (1)(b)
[2]
and (c)
[3]
of the Act. In the
heads of argument filed in support of the application for leave to
appeal and subsequently in argument, the
applicant expanded the
grounds of appeal to include that in terms of 17(1)(a)(ii)
[4]
,
on the basis that the decisions he seeks to appeal involves questions
of law of importance because of their general application.
[2]
The review application was brought in terms of section 33(1)(b) of
the Arbitration
Act 42 of 1965 (the Act):
‘
33(1)
Where –
(a)
…
(b)
An arbitration tribunal has committed any
gross
irregularity in the conduct
of the
arbitration proceedings…; or (emphasis added)
(c)
…’
[3]
The legal issues dealt with in the judgment sought to be appealed
against relates
to the decisions of the Initial Arbitrator and the
Appeal Tribunal (the arbitrators) in respect of; (i) whether special
damages
should have been pleaded and proved by the University in an
action in which damages were sought for the breach of a contract of

employment, (ii) the question of the “onus” relating to
compensating benefits as enunciated by the Supreme Court of
Appeal in
Minister
van Veiligheid en Sekuriteit v
Japmoco
BK
2002 (5) SA 649
in the context of an employment contract and (iii)
whether the common law relating to the determination of the above two
questions
should have been developed by the Initial Arbitrator or/and
the Appeal Tribunal in terms of section 39(2)
[5]
of the Constitution. The applicant contended, that the issues
relating to that of special damages, that of the “onus”

and the development of the common law should have been dealt with in
the context of an employer- employee relationship and not
simply on
the application of ordinary principles of contract.
[4]
This court determined the review application principally, on the
basis that the review
proceedings arose in the context of a
consensual private arbitration, to which the provisions of the
Arbitration Act 42 of 1965
applied and in terms of the pleaded case
by the parties and on the application of the law by both the Initial
Arbitrator and the
Appeal Tribunal to the facts found to be proved in
the proceedings. That remains the central point of departure, not
only in the
review proceedings but also in this application for leave
to appeal. Crisply stated, the University contended and so found by
the
court, that the applicant has failed to show that the
arbitrators, had committed any gross irregularity in the conduct of
the arbitration
proceedings that led to the applicant being the
subject of an unfair trial. Moreover, the applicant himself never
complained that
he did not have a fair trial before any of the
arbitrators, without which, he could simply not complain that there
was any gross
irregularity(s) in the conduct of any of the
proceedings. In this regard, counsel for the University, as in the
review proceedings,
pointed to the answering affidavit of the
University where it emphatically stated that none of the complaints
raised by the applicant
against the arbitrators related to the
conduct of the arbitration. The court, in its judgment, somewhat
tediously, also referred
at length to the proceedings before the
Initial Arbitrator in which the applicant was given the fullest
opportunity of not only
considering and moving for an amendment to
his pleadings, if he thought necessary, and in tendering any evidence
that would have
been admissible. The applicant flatly spurned the
opportunity of doing so. None of that needs any repetition at this
stage. The
University maintained in the application for leave, that
‘In the circumstances there can be no doubt that (Mr) Roux had
a
fair hearing’. In his replying affidavit, in the review
proceedings the applicant stated ‘The question is not whether

the hearing was fair but whether there was a gross irregularity in
the conduct of the proceedings’. The University contended
and
in my view, correctly so, that applicant had not and could not
complain that the proceedings against him were in any manner
or form
unfair. His continued reliance on a gross irregularity in the conduct
of the proceedings simply did not follow and was
moreover was not
borne out by the evidence and the findings both on the facts and on
the application of the law by the arbitrators.
[5]
Nonetheless, the applicant contends that the arbitrators committed
errors of law,
and rely on the decision of Harms JA in
Telcordia
Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA)at para 69,
where he states:
“
Errors
of law, can no doubt lead to gross regularities in the conduct of the
proceedings.
Telcordia
posed the example where an arbitrator, because of a misunderstanding
of the
audi
principle, refuses to hear the one party. Although in such a case the
error of law gives rise to the irregularity, the reviewable

irregularity would be the refusal to hear that party, and not the
error of law. Likewise, an error of law may lead an arbitrator
to
exceed his powers or to misconceive the nature of the inquiry and his
duties in connection therewith.”
In the context of this
matter the issue of a lack of
audi
did not arise at all as the
applicant was given the fullest opportunity by the arbitrators of
leading any evidence he sought to
tender and to make any submissions
relied upon.
[6]
Harms JA in
Telcordia
, also pointed out that an error of law
may lead to an arbitrator to exceed his/her powers or to misconceive
the nature of the inquiry
and his/her duties in connection therewith.
There is no complaint of any of the arbitrators having exceeded their
powers, but rather,
the complaint remains, that they had misconceived
the whole nature of the inquiry and their duties in connection
therewith. In
essence, the applicant claimed that the arbitrators
misconceived that in the context of a claim for a breach of contract
in an
employer- employee relationship, the nature of the inquiry with
regard to the proof of the damages also entailed that special damages

should have both been pleaded and proved as opposed to mere general
damages. That, in context, the “onus” to prove

compensatory benefits (if any) should also have been shouldered by
the employer where the benefits arose, as in a case of unauthorized

expenditure, in the course and scope of the employment of the
employee and where the benefits fell within the scope of business
of
the employer (a “modified application” of the decision in
Japmoco
as counsel for the applicant labelled it).
[7]
Counsel for the applicant submitted that they relied on amongst
others, the decision
of Viljoen J in
Primich v Additional
Magistrate, Johannesburg, and Another
1967 (3) SA 661
(T) which
decision was also referred to by Harms JA in
Telcordia
(at
paragraph 74) as an example of where a jurisdictional fact was
missing or put differently, ‘a condition for the exercise
of a
jurisdiction had not been satisfied’. That matter related to
the provision of security where a plaintiff was not resident
in the
country. The magistrate made an order against the plaintiff for the
provision of security who was in fact resident in the
country. Harms
JA, found, that amounted to an error of law, (which was, as he
stated,
an error of fact dressed
up as all too often, as an error of law) where although there was no
indication that the magistrate had
misinterpreted the rule; “he
misunderstood the facts, holding that a jurisdictional fact was
present while it was not”.
Viljoen J described it as follows:
‘
In
my view, in coming to the conclusion that, on a mere allegation that
the plaintiff was not resident at the address given in the
summons,
the defendant has satisfied the requirement of
Rule 58
(1) that the
plaintiff was not resident in the Republic, and, what is more,
satisfied it to the extent only of raising a grave
doubt in the
magistrate’s mind, the magistrate has completely misconceived
the whole nature of the enquiry and his duties
in connection
therewith.’
The applicant contended
that the fact that the University had not pleaded special damages was
akin to a jurisdictional fact not
being present. Hardly so, as in my
view, the issue of special damages related to the proof of damages as
opposed to a jurisdictional
fact for the claim. Moreover, the nature
of the enquiry was described by both Viljoen J and Harms JA in the
context of that matter.
[8]
So too, did counsel for the applicant rely on the decision of Wallis
JA in
Palabora Copper (Pty) Ltd v Motlokwa Transport &
Construction (Pty) Ltd
2018 (5) SA 462
(SCA.) In that matter an
arbitrator’s rulings in respect of the striking out of certain
paragraphs of a plea to the counterclaim
had prevented an exploration
of issues by relieving the respondent, of any obligation, however
light, to prove that it would have
performed the contract and had
suffered loss as a result of being prevented from doing so. The
applicant contended that the arbitrator
in that matter as did the
arbitrators in this matter, failed to apply their minds to the shift
in the “onus” as espoused
in
Japmoco
relating to
the compensatory benefits in the context of a breach of an employment
contract. In
Palaboro
, the decision of the magistrate,
amounted to a gross irregularity in the actual conduct of the
proceedings that lead to an unfair
trial, as stated by Wallis JA
‘…but the cumulative effect was to deprive
Palaboro
of a fair trial of the issues’. Needless to say, the
decision in
Palaboro
is distinguishable from the present
matter where the arbitrators applied the existing common law, as
espoused in
Japmoco,
and as required of them in accordance
with their mandate to the specific facts and pleadings before them.
Moreover, nothing prevented
the applicant from leading any evidence
relevant to the proceedings.
[9]
In respect of the question as to whether there was a gross
irregularity in the conduct
of the proceedings, the central question
remains, whether the applicant had a fair trial. In this regard,
counsel for the University
pointed to, as they did in the review
proceedings, to the longstanding pronouncement of Schreiner J (as he
then was) in
Goldfields Investment Ltd v City Council of
Johannesburg
1938 TPD 551
, and embraced by Harms JA in
Telcordia
to the effect;
‘…
the
issue of “gross irregularity” should be answered by
asking whether Telkom, in the words of Schreiner J, had a fair

trial…is not contentious. Telkom accepted that the High Court
never had asked itself this question and that its own heads
of
argument had not dealt with the point. When invited by us to state
why the hearing had been unfair, counsel who argued this
aspect
deferred to his lead counsel who, in turn, chose to disregard the
invitation.’
[10]
Inasmuch as the applicant contends there has been a gross
irregularity in the proceedings as
a result an error in the
determination of the legal issues, it was correctly pointed out by
counsel for the University that an
error in itself would not amount
to a gross irregularity as contemplated by
section 33(1)(b).
The
principle that where the legal issue is left for the decision of the
functionary, such as an arbitrator, any complaint about
the decision
must be directed at the method and not at the result. That principle
remains of impeccable vintage as per Innes CJ
in
Doyle v Shenker &
Co Ltd
1915 AD 233:
“
Now
a mere mistake of law in adjudicating upon a suit which the
Magistrate has jurisdiction to try cannot be called an irregularity

in the proceedings. Otherwise review would lie in every case in which
the decision depends upon a legal issue, and the distinction
between
procedure by appeal and procedure by review, so carefully drawn by
statute and observed in practice, would largely disappear…”.
See also the earlier remarks of Mason J in
Ellis v Morgan
,
1909 T.S. 576
at p. 581.
[11]
Moreover, as pointed out by Harms JA in
Telcordia and
reiterated
by counsel for the University with reference to the decision of
Smalberger ADP in
Total Support Management v Diversified Health
Systems
(SA)
[2002] ZASCA 14
;
2002 (4) SA 661
at paragraph 25, the hallmark of and
distinguishing features of an arbitration from that of administrative
action was stated as
follows;
‘
[24]
Arbitration does not fall within the purview of ‘administrative
action’. It arises through
the exercise of private rather than
public powers. This follows from arbitration’s distinctive
attributes, with particular
emphasis on the following. First,
arbitration proceeds from an agreement between parties who consent to
a process by which a decision
is taken by the arbitrator that is
binding on the parties. Second, the arbitration agreement provides
for a process by which the
substantive rights of the parties to the
arbitration are determined. Third, the arbitrator is chosen, either
by the parties, or
by a method to which they have consented. Fourth,
arbitration is a process by which the rights of the parties are
determined in
an impartial manner in respect of a dispute between
parties which is formulated at the time that the arbitrator is
appointed. See
Mustill and Boyd Commercial Arbitration 2
nd
ed (1989) at 41.
[25]
The hallmark of arbitration is that it is
an adjudication, flowing
from the consent of the parties to the arbitration agreement, who
define the powers of adjudication
, and are equally free to modify
or withdraw that power at any time by way of further agreement. This
is reflected in s 3(1) of
the Act. As arbitration is a form of
private adjudication the function of an arbitrator is not
administrative but judicial in nature.
This accords with the
conclusion reached by Mpati J in Patcor Quarries CC v Issroff and
Others
1998 (4) SA 1069
(SE) at 1082G. Decisions made in the exercise
of judicial functions do not amount to administration action (cf Nel
v Le Roux NO
and Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC) at 576C (para [24]), and
compare also the exclusionary provision to be found in (b) (ee) of
the definition of ‘administration
action’ in s 1 of the
Promotion of Administrative Justice Act). It follows, in my view,
that a consensual arbitration is
not a species of administrative
action and s 33(1) of the Constitution has no application to a matter
such as the present.’
(my emphasis)
[12]
The applicant literally sought to reargue the legal issues already
dealt with in the arbitration
proceedings and affirmed in the review
judgment. Moreover, the applicant raised three entirely new
considerations for the challenges.
In the Note on Argument in the
review proceedings that was referred to and dealt with in the
judgment, counsel for the applicant
indicated that a claim for
damages by an employer against an employee for a breach of contract
was an exceedingly rare occurrence.
Initially, they contended that
there was in fact no authority for such a claim but then retracted
and explained that the case law
on the issue was no more than sparse.
In the heads of argument in this application and in argument, counsel
for the applicant raised
three new considerations in support for
their contention that the SCA or another court will find that the
ordinary approach to
a breach of an employment contract should not
simply apply to such claims. The considerations were dealt with under
the following
subheadings (i) the approach of the Canadian courts to
such claims (ii) the statutory provisions applicable to employees of
organs
of state and (iii), applicable public policy considerations.
Mindful that none of these new considerations were raised before the

arbitrators nor in the review proceedings and more importantly, in my
view, do not and cannot detract from the findings of the
arbitrators
on both the facts and law on the pleaded case and the evidence, I am
constrained though to no more than to deal briefly
with each of them.
[13]
With reference to the Canadian authorities, reliance was placed on a
minority decision of Seaton
JA in the matter of
D.H Overmyer Co.
of Canada Ltd. v. Wallace Transfer Ltd.
(1975), 65 D.L.R. (3d)
717. There, an employee failed to give timeous notice for the
termination of a lease of a warehouse on a
30-day notice period. The
employer sued the employee for damages based on a breach of contract.
The majority court, in a perfunctory
one-page judgment upheld an
appeal by the employer and significantly did so on the application of
legal principles relating to
the reasonable duty of care in
establishing negligence on the part of the employee. Needless to
point out, principles of tort were
relied upon to establish liability
for a breach of contract. The minority judgment of Seaton J upon
which the applicant relied
in this matter and preferred, (as did
other Canadian courts), dealt at length with the law of tort in
Canada and decisions in English
law and disagreed with the approach
adopted by the majority. Seaton J’s views were summed up as
follows:
‘
If
an employee, by lack of care, causes loss to his employer, I do not
think that it should be presumed that the employee will be
liable,
and I do not think that we should look at decisions on other
employment contracts for the answer. We should look at the
hiring to
see what was said and at the circumstances to see what might properly
be implied. It follows that this employment and
this error must be
looked at to see what terms were in the contract and whether they
were breached.’
Two further Canadian
decisions were referred to by counsel for the applicant, that of
Douglas v. Kinger
90 O.R (3d) 721 (2008) and
Portage La
Prairie Mutual Insurance Company v Maclean
, 2012 NSSWC 341 both
of which dealt with principles of tort as opposed to that relating
damages for a breach of contract.
[14]
Counsel for the applicant contended that the import of the Canadian
authorities in the context
of this matter, and its relevance, was
that it demonstrated that in the context of employment law, the
ordinary remedy for a breach
of contract, is not damages. Damages,
they contended, for breach of an employment contract, are ordinarily
regarded in law as being
too remote to be recoverable. That, in order
for an employer to claim damages for breach, the employer would have
to show the special
circumstances attended at the conclusion of the
contract and that the parties had actually or presumptively
contemplated that the
damages would probably result from the breach.
Such damages, the applicant contended, would have had to be in the
contemplation
of the parties, when the contract was concluded.
Moreover, the employer would have to demonstrate that the terms of an
employment
contract was that the employee would be liable for any
damages that arose from the employee’s malperformance of its
obligations
under the contract. They contended further, that the
contractual terms would have to specify the level of care and type of
fault,
(negligence, intention or strict liability) necessary for a
claim for a breach to be sustainable. For those reasons, the
applicant
contended, consideration should be given in South African
law, to require that special damages be pleaded and proved where
damages
are sought for a breach of an employment contract.
[15]
Counsel for the University, as did the court, raised its concern at
the attempt by the applicant
on the particular facts of this matter,
to import the conundrum in the Canadian law on the issue and with the
conflation of principles
of the law of tort into South African law
relating to breaches of contract in the employment context. This
concern, is and was,
not meant to be a narrow chauvinism about South
African law as our law is richly infused with legal principles from
across many
jurisdictions. In fact, the Constitution encourages the
development of South African law with legal principles and precedent
from
other jurisdictions, where appropriate. However, in the context
of this matter, both the Initial Arbitrator and the Appeal Tribunal

found that the damages were general and not too remote to be
recoverable on the proven facts and application of the law. In this

regard, the Arbitrators were mindful of the decision of Corbett, JA
in
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670
(A) at page 687 paragraphs C to H:
‘
To
ensure that undue hardship is not imposed on the defaulting party…
and the defaulting party’s liability is limited
in terms of
broad principles of causation and remoteness to (a) those damages
that flow naturally and generally from the kind of
breach of contract
in question and which the law presumes the parties contemplated as a
probable result of the breach, and (b)
those damages that, although
caused by the breach of contract, are ordinarily regarded in law as
being too remote to be recoverable
unless, in the special
circumstances attending the conclusion of the contract, the parties
actually or presumptively contemplated
that they would probably
result from its breach (Shatz Investments (Pty) Ltd v Kalovyrnas
(1976) (2) SA 545
(A) at p 550). The two limbs, (a) and (b) of the
above-stated limitation upon the defaulting party’s liability
for damages
correspond closely to the well-known two rules in the
English case of Hadley v Baxendale
(1854) 150 ER 145
, which read as
follows (at p 151):
‘
Where
two parties have made a contract which one of them has broken, the
damages which the other party ought to receive in respect
of such
breach of contract should be such as may fairly and reasonably be
considered either arising naturally, ie according to
the usual course
of things, from such breach of contract itself, or such as may
reasonably be supposed to have been in the contemplation
of both
parties, at the time they made the contract, as the probable result
of the breach of it.’
As was pointed out in the
Victoria Falls case
[1915 AD 1
, 22] the laws of Holland and England
are in substantial agreement on this point. The damages described in
limb (a) and the first
rule in Hadley v Baxendale are often labelled
“general” or “intrinsic” damages, while those
described in
limb (b) and the second rule in Hadley v Baxendale are
called “special” or “extrinsic” damages.’
[16]
More recently, in
MV Snow Crystal: Transnet Ltd t/a National Ports
Authority v Owner of MV Snow
Crystal
[2008] ZASCA 27
;
2008 (4) SA 111
(SCA) par
35, the test was reiterated (and relied upon by the Initial
Arbitrator) as follows:
“
To
sum up therefore, to answer the question whether damages flow
naturally and generally from the breach one must enquire whether,

having regard to the subject-matter and the terms of the contract,
the harm that was suffered can be said to have been reasonably

foreseeable as a realistic possibility. In the case of ‘special
damages’, on the other hand, the foreseeability of
the harm
suffered will be dependent on the existence of special circumstances
known to the parties at the time of contracting.”
[17]
The second expanded ground proffered by the applicant with regard to
why special damages should
have been pleaded and proved by the
University related to the provisions of the Public Finance Management
Act (the PFMA) 1 of 1999
(in particular Chapter 10, Part 1). The
PFMA, provides that an accounting officer is guilty of financial
misconduct, if he or she
willfully or negligently makes or permits
unauthorized expenditure, irregular expenditure or fruitless and
wasteful expenditure.
Such conduct may result in exposure to
disciplinary action. Counsel for the applicant contended that it was
somewhat anomalous
that in contract law an employee may face a civil
claim for an entirely innocent or unauthorized expenditure when the
legislature
has limited their exposure in disciplinary action to
willful or negligent unauthorized expenditure. A similar reference
was made
to
Section 32
of the
Local Government Municipal Finance
Management Act 56 of 2003
which imposes liability on an accounting
officer of a municipality for unauthorized expenditure deliberately
or negligently incurred.
The applicant likewise contended that it was
inconceivable that the legislature regarded it as necessary to
introduce what it referred
to, as a finely crafted suite of statutory
remedies, if there existed all along a contractual claim for the full
amount of unauthorized
expenditure without the need to prove fault
and without the need to disprove compensating benefits.
[18]
The applicant contended that the statutory regime in the public
sector suggested that contractual
claims were not as straightforward
as the Initial Arbitrator and the Appeal Tribunal dealt with it and
contended that fault was
required to be proven and only the
overspending could be recovered. There is of course nothing, in my
view, that indicates in any
of the statutes referred by the applicant
that the common law remedy for a breach of contract is either
specifically or by implication
abrogated. In a country that has been
ravaged by corruption in the state and in many cases ably assisted by
those in the employment
of the private sector, it would, in my view,
be inconceivable, that the legislature would have abrogated a claim
for a breach of
contract (or made it in any way more onerous) in the
context of an employment relationship such that which existed between
the
applicant and the University. Importantly, in the context of this
matter the applicant was not held liable for a mere trivial breach
of
contract nor for that which he unwittingly committed. He had over a
period of close to eight years “deliberately, dishonestly
and
in bad faith” misappropriated the funds of his employer, the
University. The arbitrators found that he knew exactly what
he was
doing, did so dishonestly and even attempted to cover his tracks by
using software which would not easily reveal a misappropriation
of
the reserve funds. Counsel for the University emphasized that it was
only after Mr. Roux had left his employment and only in
the course of
an external audit was his dishonest conduct stumbled upon. It cannot,
in my view, be countenanced that the only remedy
by the University
would be that of disciplinary action or for that matter a delictual
claim for damages. More so, none of the statutes
referred to by the
applicant detract from the appropriate criminal remedies available to
the state. Moreover, in law, an employer
has always been entitled to
the remedy for a breach of contract which in the circumstances of
this matter, it pursued and correctly
so, with all the vigour
mustered against the impunity of the applicant.
[19]
The third consideration raised by the applicant related to that of
public policy in support of
its grounds of review. He contended that
from a public policy point of view the ordinary principles of damages
for breach of contract
should not apply to employment contracts. He
contended that it was simply not reasonable to impose liability for
damages to be
paid for a breach of contract on employees if the
issues of liability were simply to be determined in the same manner
as with any
other contractual claim. The applicant listed a series of
policy considerations none of which related to the principles of a
breach
of contract. To do so, would in my view, import the element of
wrongfulness into the law relating to a breach of contract that more

appropriately resides in a claim under delict. Once again, it would
be entirely inconceivable that in the particular circumstances
of the
applicant and in the context of this matter, his pleadings and the
evidence that he would be entitled to any “favourable”

policy consideration, contrary to the exacting and considered
findings of the arbitrators for his liability to the University.
[20]
Counsel for the University reiterated and appropriately so, that the
facts of this matter does
not assist Mr. Roux. Neither does it in his
rather vain attempt at championing the cause of employees/workers in
our law against
a breach of contract. The hallowed refrain, that each
case has to be decided on its own facts, applies equally in this
matter.
The applicant was hardly a defenseless nor hapless employee
who inadvertently misused the funds of his employer. Moreover, he
chose
his bed in his election of arbitration proceedings and that's
where he must lay. His attempt at invoking public policy
considerations
appears to be nothing more than a desperate and
cynical attempt at extricating himself from liability.
[21]
In dealing with the second ground of review relating to that of the
“onus” to prove
compensating benefits, counsel for the
applicant did no more than reargue and literally rehashed the claims
made in argument in
the review proceedings. Once again, they
contended that the expenditure was in the course of the business of
the University, contrary
to the clear findings of the arbitrators.
The findings of the arbitrators and the elaborate references to it in
the judgment bears
no repetition. Nothing more need to be said on
this ground other than as with that, relating to the ground of
special damages,
in my view, both enjoy little prospect of success on
appeal.
[22]
In respect of the development of the common law, the applicant
contended that the court was correct
in having found that the
arbitrators have the power to develop the common law even when not
explicitly raised on the pleadings.
The court however, held that the
arbitrators were only obliged to consider the development of the
common law if it arose either
expressly or by implication from either
or both the pleadings and the evidence before it. The court found
that it was neither implicit
in any of the pleadings (which was no
more than a bare denial of the claims made by the University) nor did
it arise in the evidence
for the need to develop the common law in
the context of the employment relationship that existed between Mr.
Roux and the University.
[23]
Counsel for the applicant, when dealing with the claim for the
development of the common law,
rather strangely, contended for the
first time that the applicant did not plead that the University
benefited from the expenditure
of the funds as “he did not need
to”, as his case was, assuming the expenditure was
unauthorized, that the University
“was required to plead
special damages” and had not done so and that the funds had
been used or at least in part in
the course of the business of the
University. Therefore, he contended, the onus should have been borne
by the University to prove
actual loss and not mere unauthorized
expenditure. It was not the contention in the review proceedings that
the applicant had not
pleaded compensatory benefits because he was of
the view that the University should have pleaded special damages. The
two grounds
were dealt with and relied upon separately. In fact, as
the record of the findings of the arbitrators point out, his plea was
that
of a bare denial of any expenditure, which in evidence he
falsely claimed to have been authorized to make. The arbitrators
emphatically
found on the evidence, that he never enjoyed any such
authority. They roundly rejected his version(s). Moreover, and
importantly,
it had not been proved nor found by the Initial
Arbitrator and reiterated by the Appeal Tribunal that the
misappropriated funds
were in fact, or could have been, used in the
course of the business of the University. Strangely too, in argument,
counsel for
the applicant sought to resurrect the entirely
unsubstantiated and ill-founded claim that it was common cause that
the expenditure
was made in the course of the business of the
University.
[24]
In contending that the common law ought to have been developed,
notwithstanding the factual findings
by the arbitrators and the
pleadings and having accepted in the review proceedings that the
common law could not simply be developed
in the abstract, counsel for
the applicant now contended that the arbitrators should nonetheless
have taken what they referred
to as “But if Mr. Roux was
wrong…the additional step to inquire whether the common law
required development in line
with the Constitution to reflect the
defenses Mr. Roux had raised”. In my view, no “additional
step” needed to
be taken and more so in the abstract. His
defences were that of a bare denial. In this regard, as was debated
with counsel at the
hearing of the review application, the court was
particularly mindful of the decision of the Constitutional Court in
the matter
of
Mighty Solutions CC t/a Orlando Service Station v
Engine Petroleum Limited and Another
2016
(1) SA 621
(CC
)
at paragraphs 38:
“
[38]
Furthermore, legal certainty is essential for the rule of law-a
constitutional value. It is also understandable
that litigants who
find themselves on the wrong side of the common law or customary law
will-often at a late stage in proceedings-seek
what they would call
its ‘development’.
Moreover, in the matter
of
Member of the Executive Council of Health and Social
Development Gauteng v DZ on behalf of WZ
2018 (1) SA 335
(CC),
the Constitutional Court set out the nature of the inquiry that the
court was required to engage in when the development
of the common
law was sought:
‘
[27[
To start the enquiry, one must be clear on (1) what development the
common law means; (2) what the general approach to such
development
is; (3)
what material must be available
to a court to enable the development
;
and (4) the limits of curial, rather than legislative, development of
the common law.
[28]
As O’Regan J explained in K, the common law develops
incrementally through the rules of
precedent, which ensure that like
cases are treated alike. Development occurs not only when a
common-law rule is changed altogether
or a new rule is introduced,
but also when a court needs to determine whether a new set of facts
falls within or beyond the scope
of an existing rule. Thus
development of the common law
cannot take place in a factual
vacuum
.’ (my emphasis)
In context, the
arbitrators would have required the “material”, based on
the pleadings and the evidence that would have
triggered and enabled
a development of the common law in the context of the applicant’s
case. As indicated in the judgment,
none existed or manifested.
[25]
The court found that the common law did not limit the section 25(1),
property rights, nor the
section 23(1), fair labour practice rights,
of the applicant because, as set out in
Japmoco,
as the
applicant need merely have pleaded and proved what the benefits were
that allegedly accrued to the University. The court
held that Mr.
Roux knew exactly how the money was spent. There was therefor no risk
of any unfair labour practice or arbitrary
deprivation of property on
that score. Counsel for the applicant contended that the court missed
the point as it was not whether
Mr. Roux could have pleaded benefits
to the University. “He could have and he did not”. That
contention, however, was
simply contrary to that what Mr. Roux
claimed in his replying affidavit where he dealt with the
University`s refusal to provide
him with any documents that he sought
relating to subsidies received by the University, which the
University refused on the basis
that it was neither relevant to any
matter in question nor defined in the pleadings. There, Mr. Roux
contended “In the light
of these responses and the fact that
the applicant has no access to Universities records it would have
been impossible for him
to prove compensation benefit.”
Needless to say, the argument submitted in this application does not
accord with the applicant’s
own claims in the review
application. In any event, there was no one better than the Mr. Roux
himself, who knew exactly what compensatory
benefits alleged accrued
to the University over the eight-year period in which he unlawfully
and dishonestly misappropriated the
funds of his employer.
To reiterate, the facts
of the applicant’s case, his pleadings, the evidence and more
importantly the findings made by the
arbitrators in respect of the
facts and the application of the law which they were mandated by the
arbitration agreement to apply,
derogates from the applicant’s
desperate bid for the development of the common law in these
proceedings.
[26]
In the concluding submissions in their heads of argument, counsel for
applicant contended that
all three errors committed by the Initial
Arbitrator and compounded by the Appeal Tribunal amounted to gross
irregularities in
the conduct of the proceedings. They contended that
in each instance the arbitrators had misconceived the true nature of
the inquiry.
Once again, this was yet another demonstration that the
applicant did not contend that he had not received a fair trial as
none
of the claims made by him throughout the review proceedings and
so too in the application for leave to appeal was there any claim

made that he had in fact not received a fair trial.
[27]
I am mindful that the applicant seeks to raise important and novel
issues in an employment context.
More so, in consideration of foreign
law. None of it, in my view, on the facts of this matter, would or
could have assisted him.
Mr. Roux was most certainly not the
disadvantaged underdog in his employment relationship with the
University. More importantly,
the legal issues determined in this
matter and any suggestion of the development of the common law could
only have taken place
in the actual context of the pleadings, the
evidence and the findings by the arbitrators. If anything, the
conduct of Mr. Roux,
besides not only having been found by the
arbitrators to be dishonest and in bad faith, is compounded by his
impunity, that demonstrates
a desperate refusal to accept
accountability for his unlawful conduct. Regrettably, in my view, his
resort to trawling the selective
choice of Canadian law and the
attempt to conflate principles of tort with that of the South African
law of contract, (mindful
though, of its instructive virtue) and by
the attempt to introduce policy considerations in the face of the
actual facts of this
matter, alludes in my view, to no more than a
delaying tactic (to put it politely) at avoiding liability for his,
unauthorized,
dishonest and surreptitious conduct. He received a fair
trial, before both the Initial Arbitrator and the Appeal Tribunal.
[28]
In the result, the application for leave to appeal is dismissed with
costs, including that of
two counsel, where so employed.
_______________________
VC SALDANHA
JUDGE
OF THE HIGH COURT
[1]
17
Leave to appeal
(1)
Leave to appeal may only be given where
the judge or judges concerned are of the opinion that –
(a)
(i) the appeal would have a reasonable
prospect of success;
[2]
The decision sought on appeal does not fall within the ambit of
section 16(2)(a).
[3]
Where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
[4]
17(1)(a)(ii). There is some other compelling reason why the appeal
should be heard, including conflicting judgments on the matter
under
consideration.
[5]
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote

the spirit, purport and objects of the Bill of Rights