THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case no: C821/2017
In the matter between:
VICTORIA AND ALFRED WATERFRONT (PTY) LTD First Applicant
V AND A WATERFRONT HOLDINGS (PTY) LTD Second Applicant
and
SIBONGISENI THOTSEJANE Respondent
Delivered: 18 September 2026
Summary: (Claim for delictual damages relating to a contract of employment
– fraudulent misrepresentations inducing conclusion of contract – fraudulent
misrepresentations made in t he course of employment - punitive cost order
warranted)
JUDGMENT
LAGRANGE, J
(1) Reportable: No
(2) Of interest to other Judges: Yes
18 September 2026
Signature Date
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Introduction
Nature of the case
[1] The first applicant (‘V&A’ or ‘the applicant’) allege s it was fraudulently
induced to employ the respondent1, Ms S Thotsejane (‘Thotsejane’)
because of misrepresentations she made relating to her previous
employment history . V&A had employed Thotsejane as its Chief
Information Officer in the Finance & Central Services Department (‘CIO’)
with effect from 12 October 2015. Her employment was summarily
terminated for misconduct on 12 December 2016 following a disciplinary
enquiry.
[2] V&A further alleges she did not even perform her contractual duties,
leading to it incurring damages equivalent to the value of the respondent’s
salary received during her employment , namely R 1 031,237.47 in
damages, equivalent to the remuneration received by Thotsejane from
V&A. In the alternative, V&A pleads that Thotsejane was unjustly enriched
by an amount equivalent to the gross remuneration she received during
her employment.
[3] In addition, in the course of her employment, V&A alleges that the
respondent fraudulently induced it to hire two IT consultants, Professor
Tiko Iyamu (‘Iyamu’) and Ms Nokubela Mchunu (‘Mchunu’) through
another entity , EOH MC Solutions (‘EOH’). Apart from the actions of
Thotsejane, Iyamu and Mchunu allegedly amounting to a conspiracy to
defraud V&A, Thotsejane’s inducement of Iyamu and Mchunu being
engaged, was in breach of her express and implied contractual duties,
including her duties to ac t in good faith, to avoid conflicts of interest, a nd,
to adhere to V&A procurement policies. As a result of her fraudulent
conduct, which was in breach of those duties, V&A paid EOH
R1,402,005.00 and R464,000.00 for the remuneration of Iyamu and
Mchunu, respectively.
1 The citation of the parties as ‘applicant’ and ‘respondent’ has been retained as the action was
instituted before the amendment of the Labour Court rules in terms of which they would be cited
as ‘applicant’ and ‘respondent’.
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[4] The applicant also claims interest on the amounts mentioned a temporae
morae costs on a punitive scale. The applicant also filed an application to
amend its pleadings to align the quantum claimed with the evidence led in
the trial. The application was not opposed.
[5] Although two applicant parties were cited, there was no evidence led to
demonstrate that the second applicant, V&A Waterfront Holdings (Pty) Ltd,
had any legal claim against the respondent, so the claim is confined to the
claim of Thotsejane’s former employer, Victoria and Alfred Waterfront (Pty)
Ltd, the first applicant.
The course of the trial proceedings
[6] The action was instituted on 17 January 2018 and a statement of defence
was filed on 20 November 2020. At that stage, the respondent was
represented by attorneys. On 31 May 2022 a pre -trial minute was
concluded. On 21 September 2022, her attorneys filed a notice of
withdrawal as her representatives. Since then, she has represented
herself. Arising from her statement of defence, a n in limine jurisdictional
point had to be determined, as she had claimed that the court had no
jurisdiction to hear the applicant’s claims, which fell under the jurisdiction
of the High Court.
[7] The matter was enrolled for trial from 31 October to 4 November 2 022.
The trial did not proceed and argument was presented on 4 November by
V&A opposing the jurisdictional point. Thotsejane neither filed heads of
argument nor appeared to defend her in limine objection. However, an
email from Phoosa Loots Inc attorneys of 1 November 2023 to V&A’s
attorneys of record, recording they had been approached by Thotsejane
on the morning, the trial was to commence. They were unable to take
instructions on such short notice but were aware that the court had
decided that the in limine objection had to be dealt with. They asked to be
kept informed of the outcome of the jurisdictional ruling, so they might
bring a postponement application if the ruling was in Thotsejane’s favour,
bring a postponement application if the ruling was in Thotsejane’s favour,
so they might bring a postponement application if necessary. In any
event, the trial did not proceed and argument on the in limine point was
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only heard on 4 November, and judgment was reserved. On 16 March
2023, Judge Rabkin -Naicker, dismissed the in limine objection, leaving
costs to be determined on a late r date2. The matter was then re-enrolled
for trial on 26 February 2024 , but on 21 December 2023 was removed
from the roll and re -enrolled on 22 April 25 when trial proceedings began.
Thotsejane collected the amended notice of set-down the same day it was
issued.
[8] V&A served a revised bundle of documents on Thotsejane on 12 April
2024 by email. O n Monday 22 April , Thotsejane did not appear in court
and, in the absence of any communications received from her to explain
her absence, the applicant proceeded to l ead the evidence of Lotter. The
trial then adjourned to the following day.
[9] On Tuesday 23 April, at the start of proceedings, the court recorded that it
had been advised that Thotsejane had arrived at court sometime during
lunchtime the previous day and had been advised to attend court.
However, she was not in attendance.
[10] However, part way through the evidence in chief of Stewart Robinson, the
court noticed a woman who had entered the court and was sitting in the
back row of the public seating. The court e nquired from her if she was Ms
Tunzelana. The woman replied that she was not. At that stage of the
proceedings, the respondent was cited as ‘ Sibongiseni Tunzelana’. When
the court persisted and asked, ‘I am sorry you are not the respondent in
this matter? ’ her answer was ‘ I am not Ms Tunzelana’¸ a response she
repeated twice more as she was not audible to the court. Counsel for V&A,
Mr Steenkamp SC, then alerted the court to the fact that the respondent
had officially changed her surname from ‘Tunzelana’ to ‘Thotsejane’,
sometime after 2020. Following a further enquiry from the court if she had
changed her name, the woman confirmed that she was indeed Ms
Thotsejane. Thus, her identity as the respondent was established.
Thotsejane. Thus, her identity as the respondent was established.
[11] The Court explained that the trial had begun in her absence the previous
day and asked whether she intended to actively participate by questioning
2 Victoria and Alfred Waterfront & Another v Sibongiseni Tunzelana (C 821/17), 15 March 2023,
Labour Court, unreported.
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witnesses and presenting evidence, or if she merely wanted to observe
the proceedings. The respondent expressed confusion, stating she did not
know why she was there in the first place and noting that she did not have
an attorney at the time. Expressing disbelief that she was unaware of the
case, the Court reminded her that her former attorney had concluded a
pre-trial minute based on her instructions and that she had formally
pleaded to the applicant's case. The Court also detailed the procedural
history, pointing out that she had been served a notice of set down which
she had refused to sign, that a practice note had been sent previously,
and that s he had not made any formal application to postpone the
proceedings. Highlighting her educational background, specifically her
PhD in information systems, the Court stated she ought to have fully
understood the implications of the pleadings exchanged under her
instructions and again asked her to make a decision on her participation
in the proceedings.
[12] In response, the respondent raised jurisdictional objections, arguing that
her previous legal team had advised her she did not belong in that court
and empha sising that V&A Waterfront had fired her on December 12,
2016, permanently ending their relationship. She stressed that she did not
live in Cape Town, viewed her inclusion in the case as unconstitutional
and unethical, and claimed she had already provided her responses in
2020. The Court then reminded her that the jurisdiction al issue had been
definitively settled in May of the previous year when the Labour Court
dismissed her jurisdictional objection . Because this judgment was never
appealed, the Court explained that it remained binding and the trial had to
proceed accordingly. The Court once again outlined her choices,
explaining she was free to participate and question witnesses —including
Lotter, who had testified for an hour the previous day , or she could simply
Lotter, who had testified for an hour the previous day , or she could simply
observe. The respondent rejected these propositions, insisting she had
never instructed any legal team to indicate she wanted to be in that court
and had never applied to be there, which prompted the Court to ask the
applicant's representative . Sh e repeatedly stated she did not want to
respond to the case or be in court, but she was forced to respond through
her legal team at the time and claimed she could not understand why she
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had to respond to the claim and that she did not have the capacity to deal
with legal issues.
[13] The court then explained that whether or not she wanted to be there, she
had options. If she wished to participate in the trial proceedings but felt
she lacked the competence to do so, she could apply to postpone the trial
to arrange legal representation. Alternatively, she could conduct her own
defence, or merely observe the proceedings.
The postponement application
[14] Eventually, the respondent decided to apply for a postponement and was
given leave to apply orally, advised on the issues she had to canvass in
support of her application and was given time to prepare her application.
When the court convened at the appointed time , an hour later, the
respondent was not in court , and the examination -in-chief of Stewart -
Robinson proceeded. A while later , the respondent did appear and was
given the opportunity to move her oral application for postponement.
[15] Thotsejane motivated for a postponement of the trial, raising several
jurisdictional, procedural, and personal objections. She submitted that she
was participating in the proceedings entirely against her will, as she
laboured under the belief that the matter had been permanently finali sed
when her previous legal representatives filed a response in November
2020. Furthermore, she raised a jurisdictional challenge, contending that
the Labour Court lacked both territorial and subject -matter jurisdiction to
adjudicate the dispute. She asserted that no active employment
relationship existed between herself and the applicant, characteri sing the
matter as a civil claim that ought properly to be instituted in the High Court.
Thotsejane further submitted that she lacked the requisite capacity to
navigate complex litigation and sought a postponement to secure the
services of an ‘incorruptible’ legal practitioner. She also pleaded financial
hardship, stating that she is currently unemployed and physically and
hardship, stating that she is currently unemployed and physically and
mentally exhausted, which she contrasted with the applicant's purportedly
unlimited resources. She also alleged that the proceedings were tainted by
unfairness, characterizing the process as reflective of ‘white supremacy ’
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and ‘white privilege ’, apparently because the documents she collected
from the court in December 2023 did not include the trial bundles relied
upon by the applicant. Finally, she accused the applicant of ‘forum
seeking’, arguing that the National Prosecuting Authority had previously
reviewed and dismissed the underlying fraud allegations against her.
[16] In opposing the application, counsel for the applicant submitted that the
respondent's request was made in bad faith and designed deliberately to
frustrate the administration of justice. The applicant forcefully rebutted the
respondent's assertion that she believed the matter had concluded in 2020
by outlining a timeline of her continu ed participation in proceedings .
Counsel noted that her original attorneys remained on record until
September 2022, after which she appointed new attorneys in November
2022. It was further submitted that the respondent had personally received
the notice of set down and uplifted the entire court file on 21 December
2023, keeping it in her possession until 12 February 2024, thereby proving
her awareness of the impending trial at least four months in advance.
Counsel characterised the respondent's conduct as a documented pattern
of evading proceedings, whereby she repeatedly appointed attorneys at
the eleventh hour who would subsequently withdraw due to a lack of
financial instructions. The applicant argued that granting a postponement
would serve no practical purpose, as the respondent's claims of destitution
meant she would remain unable to afford legal representation at a future
date, while her asset profile likely disqualified her from Legal Aid. The
applicant further disputed the respondent's claimed lack o f legal capacity,
citing her history of successfully initiating proceedings, representing
herself, and coherently cross -examining witnesses in previous CCMA and
National Bargaining Council arbitrations. Finally, counsel contended that
National Bargaining Council arbitrations. Finally, counsel contended that
the dispute was not legally complex but rather rooted in factual
misrepresentations to which the respondent had already comprehensively
pleaded with professional legal assistance in 2020. Counsel sharply
disputed her claims of poverty, noting her residence in Century City, her
past ownership of a luxury vehicle, and her active involvement in a
university council and various business ventures.
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[17] The court ultimately granted the application for a postponement, albeit with
profound reservations. In its reasons for the ruling, the court noted that the
Labour Court's power to adjudicate the claim had already been
established in the judgment of Rabkin-Naicker J in March 2023 judgment,
which, having never been appealed, was binding . The c ourt expressed
profound scepticism about the respondent’s bona fides, observing that she
appeared to have had no actual intention of seeking a postponement until
the court had raised it . The court did not accept the respondent ’s
allegations that she had not received all the trial documentation before her
arrival at court that day, and noted, in any event, that she was handed a
complete hard copy of the same by the applicant at court. The court
acknowledged the financial prejudice the applicant had suffered due to the
continuous delays and expressed some doubt as to whether the
respondent would secure legal counsel , given the reasons she had not
already engaged any prior to the commencement of the trial. The court
was confident, given her level of education and her proven history of
representing herself in arbitration proceedings, that she could deal with the
factual issues in dispute, which were set out in the pre-trial minute.
[18] Despite the court’s deep reservations, it agreed to postpone the
continuation of the trial until 5 to 8 August 2024 , because the ma tter
involved a somewhat unusual damages claim with a significant quantum .
Accordingly, the respondent was afforded a final opportunity to obtain
legal representation. However, this indulgence was granted subject to the
strict condition that upon the resumption of the trial, she had prepared to
proceed and represent herself in person should she fail to secure legal
representation or should her representatives prove unavailable.
[19] The court also ruled that the evidence led in the proceedings to date would
[19] The court also ruled that the evidence led in the proceedings to date would
form part of the evidence in the trial, subject to the respondent’s right to
cross-examine Loots who had concluded his evidence in chief on the first
day of proceedings. Thotsejane was also granted leave to listen to the
recording of the evidence given prior to the postponement, by
arrangement with the registrar.
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Subsequent proceedings on 5 to 8 August 2024
[20] On or about 19 July 2024, flash drives containing the audio record of the
trial to date were couriered to Thotsejane’s address in Bisho. The court
was also advised by a court stenographer that the respondent had come
to court on 1 August 2024 to collect the flash drives and was told they had
been sent to her residential address in Bisho. In turn, the respondent
apparently told the stenographer her house in Bisho had been broken into.
She did not request a duplicate copy of the audio record.
[21] In any event, Thotsejane did not attend court when the trial resumed on
Monday, 5 August nor was she legally represented. The court file showed
no attorney had come o n record for her. The applicant then continued to
lead evidence.
[22] On 6 August, the court noted that the registrar had advised that
Thotsejane had handed in a letter to the previous day. The letter dated 5
August demanded that the applicant’s claim be dismissed for lack of
jurisdiction. She also purported to notify the court she was ‘off ill today and
have been put on sick leave’. The letter also alluded to her alleged efforts
to obtain the audio record of proceedings. She did not dispute that the
recordings had been sent to her Bisho address but claimed not to have
received them and simultaneously alluded to ‘numerous break-ins to our
home since C 821/2017 began’ , without specifically claiming that the
recordings had been stolen. Despite claiming to have been ‘ booked off’ no
doctor’s certificate was attached to the letter. However, on 13 August
2024, a medical certificate apparently issued on 6 August 2024 and
booking her off duty from 5 August to 8 August 2024, was received by the
registrar.
[23] Thus, even though the respondent came to the court on 5 August, she
decided not to appear before the court and present the representations in
her letter . The letter, which was apparently not served on the applicant,
her letter . The letter, which was apparently not served on the applicant,
went into great length on the merits of her previous objection to this court’s
jurisdiction. It is quite apparent from the letter , despite the judgment of
Rabkin-Naicker J, that the respondent did not accept the judgment as
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binding and accordingly did not accept the court’s jurisdiction. Her
concluding statement on the issue was that:
‘It is not a great use of the Cape Town Labour Court’s time
to entertain C82/2017 as it lack’s jurisdiction. The repeated
Cape Town Labour Court set down dates and continuously
claiming that C821/2017 is on the court roll, while it is not,
seems like badgering and forum shopping for an outrageous
and ridiculous misplaced civil claim.’
The letter made no reference whatsoever to her failure to appoint legal
representatives. Having reasserted her view that the court lacked
jurisdiction, she asked the court to advise her on the ‘next actionable steps
required of me’.
[24] The applicant’s counsel, Mr Steenkamp SC, also placed on record an
email the respondent sent to her former attorneys at 4:00 PM on 5 August
(after court had adjourned), asking who had previously worked on her
case and that he and his attorney were advised by court staff that the
respondent was seen standing outside of the door of the court listening to
proceedings before the adjournment the previous day. After the conclusion
of proceedings the applicant’s attorneys filed a copy of the court security
staff’s entry control register indicating that Thotsejane had entered the
court building sometime after 14h40 on 5 August 2024.
[25] The applicant concluded its evidence on 6 August 2024, and the matter
was adjourned sine die for argument pending the transcription of the
evidence.
[26] On 20 September 2024, the court issued a directive specifically providing
for a final opportunity for the respondent to participate before the matter
was enrolled for oral argument. The directive required her to file an
affidavit by 30 September 2024 showing good cause for her failure to
appear on 5 and 6 August 2024 and explaining why the court should
reconvene to hear further evidence. She was also required to name any
witnesses she wished to cross-examine or call to testify on her behalf.
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[27] A subsequent court directive on 18 June 2025 noted that Thotsejane had
failed to take any steps in response to the last-mentioned directive. As a
result, the court ordered the matter to be enrolled for oral argument on the
merits. Nevertheless, the court still made provision for the respondent to
present oral argument, directing that the applicant must file its heads of
argument 15 court days before the hearing, and the respondent must file
her heads of argument no later than 5 court days before the hearing. The
matter was eventually enrolled for argument on 18 August 2025. the
respondent was furnished with the transcripts and had the opportunity to
present argument notwithstanding her failure to attend the trial after her
postponement application, but did not appear at the hearing of oral
argument, nor did she file any heads of argument.
Background
Overview of the evidence
[28] Mr W Lotter (‘Lotter’), former acting dean of the Business and
Management Faculty at the Cape Peninsular University of Technology
(‘CPUT’), Ms Stewart -Roberts (‘Stewart -Roberts’), Executive of Strategic
Relations and Human Resources for the V&A, and Ms L Hendricks
(‘Hendricks’), who worked in human resources and recruitment
administration, all gave evidence for the applicant. Apart from an
appearance on the second day of the trial, Thotsejane was absent for the
rest of the proceedings and neither gave evidence nor cross -examined
V&A’s witnesses, despite ample opportunities being afforded to her.
the respondent’s employment by V&A
[29] Lotter testified that the Respondent commenced full-time employment at
CPUT as a Co-ordinator on 1 August 2014, earning an annual
remuneration package of R606,374.96. He stated that by September
2016, the Respondent's absenteeism at CPUT had become so severe that
he instructed her to report to him daily in the dean's office to monitor her
attendance, an instruction with which she failed to comply. CPUT's
attendance, an instruction with which she failed to comply. CPUT's
employment contract explicitly required staff to inform their managers if
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they were off-campus during core hours and strictly prohibited engaging in
private remunerative work without written consent. The Respondent
neither disclosed nor applied for permission to perform any private work
while at CPUT.
[30] Stewart-Roberts and Hendricks provided extensive testimony regarding
the timeline of the Respondent's recruitment and subsequent misconduct.
The V&A was in dire need of a highly skilled Chief Information Officer. On
8 May 2015, the Respondent completed and signed the V&A employment
application, expressly acknowledging that she understood that providing
false information would render her employment contract null and void.
[31] Between 19 May and 1 June 2015, the IT recruitment agency Recru-it
compiled her curriculum vitae, noting her CPUT package at R630,000 per
annum.
[32] During June and July 2015, the Respondent was interviewed three times
by a V&A panel, including Hendricks and Stewart-Roberts, during which
she affirmed and elaborated on the fraudulent misrepresentations made in
her CV regarding her previous employment. Noteworthy amongst these
were the following:
32.1 In relation to Engen, she falsely claimed she left her job due to
‘political challenges’ and a merger that was underway, when she had
actually been dismissed for gross misconduct , as confirmed in a an
arbitration award.
32.2 She claimed on her application that she left Old Mutual because she
was headhunted. On investigation it was found she was dismissed
following a disciplinary inquiry for multiple misconduct charges,
including ins ubordination, unlawful possession of property,
unauthorised absence from work, and breaching various policies and
procedures. This was supported b y documentation provided to V&A
by Old Mutual, which included a tran script of the disciplinary
proceedings and the outcome thereof . As in the case of Engen , she
had referred an unfair dismissal claim to the CCMA, but in this case
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the claim was settled. In passing , I noted that the respondent’s
surname at that stage was recorded as ‘Dakela’.
32.3 She stated on her CV that she resigned Acceleration eMarketing: for
‘career development ’. However, she had been dismissed for
incapacity after missing training sessions, staying out of work without
a valid reason, missing deadlines, and delivering substandard work.
This was confirmed in an arbitration award obtained by V&A.
32.4 In relation to CPUT She concealed her ongoing employment with
CPUT and never resigned. She continued to receive her CPUT
salary there while employed at the V&A at least until February 2017.
[33] Prior to this, on 29 July 2014, Engen had obtained a High Court judgment
against the Respondent for motor vehicle finance under case number
9345/2014 for an amount of R503,786. When ITC checks done by V&A
revealed this judgment, the Respondent claimed during the interview that
the debts had been incurred in her name by her ex-husband and she was
busy resolving it with her attorney. Further, on 6 and 7 July 2015, Ms
Hendricks and the Respondent exchanged emails regarding the High
Court judgment, during which the Respondent falsely reiterated that the
judgments against her name were due to her divorce. V&A, in good faith,
accepted her explanation at the time. Thad pleaded in her answering
statement that she had told the interviewing pa nel the truth, namely that
the judgment was for a motor vehicle financed by the Engen SA Car
Scheme. However, Hendricks denied that the respondent ever disclosed
this during the interview
[34] On 27 July 2015, the V&A offered the Respondent the position at
R700,000 per year. On 30 July 2015, the Respondent submitted a
fraudulent counter-offer demanding R1,100,000, based on the false claim
that she had been offered a Head of Department position at CPUT. Mr
Lotter confirmed that a letter dated 31 July 2015 that the Respondent sent
to the V&A, claiming that CPUT had offered her a Head of Department
to the V&A, claiming that CPUT had offered her a Head of Department
position with a R65,000 salary, a housing allowance, vehicle and fuel
allowances, worldwide travel, and internet connectivity. was a complete
fabrication. CPUT had neither made such an offer nor provided such
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lavish benefits at that employment level. This misrepresentation
successfully induced the V&A to increase its offer to R850,000 per annum.
The V&A ultimately concluded her employment contract on 15 October
2015. However, from approximately 15 to 31 October 2015, the
Respondent failed to attend work for her first two weeks of employment
without permission, claiming she had suffered a nervous breakdown and
was admitted to a mental health clinic.
The Respondent's Tenure and the Employer's Investigations
[35] Stewart-Roberts testified that tenure of the respondent’s employment with
V&A, was characterised by late arrivals, missed meetings, high
absenteeism, and the submission of copious doctor's certificates.
[36] Around 28 October 2016, V&A's leasing agents, Fair Cape Leasing,
conducted internal vetting for a Breakwater Lodge apartment rental which
the respondent wanted to enter into. In the course of the vetting
Thotsejane’s credit rating, the Engen High Court judgment against her
came to light. The leasing agent referred the judgment to Ms Stewart-
Roberts, whose suspicions about the Respondent's claims regarding the
debt being one incurred by Thotsejane’s former spouse, were aroused.
[37] An enquiry to Mr P Du Plooy (‘Du Plooy’), the Head of IT at Engen,
confirmed the vehicle debt was owed by Thotsejane and told Stewart-
Roberts of her history of misconduct at the firm. Du Plooy warned Stewart-
Roberts that during her employment at Engen, the Respondent would
leave laptops and handbags in her office to create an impression she was
at work, when it fact she was not. Stewart-Roberts testified that an
identical pattern of this behaviour was repeated at V&A by the respondent.
When Thotsejane was suspended, it was discovered that she had four
laptops and multiple handbags in the boot of her car.
[38] The ensuing investigation revealed that the Respondent had lied on her
CV regarding her entire employment history. Arbitration awards
CV regarding her entire employment history. Arbitration awards
demonstrated that she had been dismissed by Acceleration in March 2007
for poor work performance, dismissed by Old Mutual in January 2012 for
insubordination and unlawful possession of property, and dismissed by
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Engen in January 2014 for gross misconduct and conflict of interest
involving her private business, FlavaLite Innovations.
[39] Concurrently, Hendricks discovered the Respondent's simultaneous
employment by CPUT while performing a reconciliation of Discovery
Health medical aid schedules. Hendricks noticed the Respondent was not
reflecting on the V&A's billing schedule. Upon inquiry, Discovery Health
confirmed that Thotsejane’s transfer from her ‘previous’ employer had
never taken place because she remained active on CPUT's medical aid
scheme. Following up on this medical aid discrepancy, on 28 October
2016, Hendricks conducted a web search and printed a page from the
CPUT website, which showed Thotsejane was ostensibly actively
employed and listed as an Information Technology Coordinator for the
university.
[40] Later, in November 2016, when Thotsejane was confronted about her
concurrent employment by CPUT, she produced a letter claiming she had
resigned from CPUT on 1 September 2015. This was sent to Lotter for
confirmation. He testified that this resignation was false and Thotsejane
continued to receive her full monthly salary from CPUT until her actual
resignation in February 2017.
Forensic audit of the respondent’s laptop and private business interests
[41] Forensic audits of the Respondent's V&A laptop conducted by Deloitte
revealed a comprehensive timeline of extensive, undisclosed private
business activities by the respondent conducted during V&A working
hours, often coinciding with periods of leave. Examples of this are:
41.1 On 25 and 26 November 2015, FlavaLite invoiced Elixir R40,000 for
seminar days.
41.2 After taking four days of annual leave from 28 to 31 December 2015,
the Respondent created a ‘to-do’ list on 8 January 2016 on her V&A
issued laptop, which detailed extensive tasks for her private ventures
and academic pursuits, while demonstrating a lack of execution on
her V&A-specific duties which detailed the following tasks:
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41.2.1 FlavaLite Innovations Priorities: Her list included proposing
meeting dates, applying for enterprise development program
funding, applying for UCT office space, getting a Neotel
landline, setting up emai l addresses, and preparing for a
‘Standard Bank digital transformation project’.
41.2.2 Lovealution Priorities: She listed tasks for her DJ business,
including applying for rural development funding and
sponsorships, planning 2016 events, and completing a
mixtape.
41.2.3 CPUT and Academic Priorities: The list included completing
a teaching portfolio, submitting cyber security assignments,
attending DBA classes in NMNU, and making corrections to
a ‘contingency theory paper’.
41.2.4 V&A Waterfront Priorities: Her V&A tasks in cluded setting up
meetings with the CEO and other executives, writing a memo
on ‘fibre project risks, ’ and completing the ‘IT strategy
together with tactical plans ’. However, Stewart -Roberts
confirmed that none of these V&A tasks were ever done,
completed, or submitted in any form of finality.
Further, none of the tasks listed in paragraphs 15.2.1 to 15.2.3 above
had anything to do with V&A business.
41.3 Thotsejane took five days of annual leave from 11 to 15 January
2016, culminating in a FlavaLite team workshop with Innovator
Trust on 15 January 2016. She then took six additional days of
annual leave from 22 to 29 January 2016. She facilitated FlavaLite
meetings with the Standard Bank Digital Analytics Team on 4-5
February and 17 February 2016. After taking sick leave from 29
February to 3 March 2016 and one day of annual leave on 14
March 2016, she met with CustomApp representatives on 4 April
2016 to discuss an IT strategy to be delivered by FlavaLite.
41.4 Notably, on 13 and 14 April 2016, while ostensibly on sick leave
from the V&A, she attended a Digital Marketing conference in
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Johannesburg as a panellist and co-founder of FlavaLite. On 14
April 2016 at 12:22 PM, she emailed the V&A claiming she was
booked off sick and sitting at home in bed doing V&A work, which
meant she missed a scheduled V&A customer service update
meeting.
41.5 On 20 April 2016, FlavaLite submitted a proposal to Old Mutual.
She took annual leave on 28 and 29 April 2016.
41.6 On 16 May 2016, she signed a letter confirming she was the
business owner of FlavaLite, and on 6 June 2016, FlavaLite held
another meeting with Old Mutual.
41.7 She gave interviews as FlavaLite's co-founder on 14 and 18 July
2016, and from 18 to 22 July 2016, she gave a presentation at a
CPUT workshop alongside Prof Iyamu.
41.8 Thotsejane coordinated a Silicon Cape showcase event via email
on 10 and 11 August 2016, and subsequently gave a presentation
at the event on 31 August 2016 between 06:30 and 08:00 PM.
41.9 From 26 to 28 September 2016, she attended the Gartner
Symposium for FlavaLite. On 28 September 2016, she requested
leave for this symposium, falsely claiming it ran from 27 to 30
September; however, Ms Taliep declined the request on 3 October
2016 citing Thotsejane’s severe performance challenges.
41.10 Nonetheless, Thotsejane took five days of annual leave from 3 to
7 October 2016.
41.11 On 25 October 2016, she signed a FlavaLite recommendation letter
for Ms Ndamase, attached to which was an annexure stating that t1
served serving on a UCT board for students was part of a steering
curriculum technology IT coordinator at CPUT.
41.12 Further, on 1 November 2016, the Respondent signed a Non-
Disclosure Agreement for FlavaLite with ABSA Bank, and a
FlavaLite commercialisation project plan listed 1 December 2016 as
its official kick-off date.
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The respondent’s non-performance of her duties
[42] In stark contrast to the respondent ’s active pursuit of private business
interests, Stewart-Roberts testified that she ‘never delivered a single piece
of work according to the scope that was given to her in terms o f her role
and responsibility’. Every piece of work she handed in was described as
‘incomplete,’ ‘broad and nebul ous,’ and an ‘utterly irrelevant ’ ‘academic
copy and paste from a textbook ’. Her work showed ‘no application or
understanding’ of the V&A's specific requirements. When her work was
reviewed by the CEO (David Green) and Stewart-Roberts, it was ‘blatantly
apparent’ that she did not understand the requirements and could not
translate technical academic knowledge into practical applications relevant
to the V&A Waterfront's IT. Despite being given ‘very specific guidance ’
by the CEO on what was expected, she failed to demonstrate
understanding at every review point. The respondent failed to meet any
deadlines. Stewart -Roberts testified that the V&A literally did not have ‘a
single piece of work’ to show what the respondent spent her time on. The
respondent failed to attend crucial IT Steercom (steering committee)
meetings, where decision -making took place and for which she was
responsible, often citing ill health or other excuses without prior
notification. She failed to deliver on any of the tasks listed on a to -do list
found on her computer dated January 8, 2016, which included items like
writing a memo on fiber project risks and completing the IT strategy.
[43] In a most diplomatically worded email dated October 3, 2016, Narriman
Taliep, the finance and central services executive and Thotsejane’s direct
superior, noted the respondent's ‘performance challenges’ and mentioned
that she had neither de clined nor accepted meetings arranged to discuss
the IT reforecast and capital expenditure, which were among her ‘top nine
the IT reforecast and capital expenditure, which were among her ‘top nine
priorities’. His email was responding to a late request from Thotsejane to
attend an IT symposium . In the email, Taliep reiterated that Thotsejane’s
last minute requests were neither professional nor appreciated. He also
noted ‘with your performance challenges it is more important that you have
presence in the business’ and recorded she had not responded to
meetings scheduled to discuss the way forward on ‘the IT reforecast and
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capital spent with both your IT colleague (sic) and FD’. The email stressed
the importance of knowing Thotsejane’s arrangements in advance and re -
emphasised the importance of her being ‘present in the business’.
Procurement Irregularities and Termination
[44] In relation to the allegedly fraudulent hiring of external associates and the
misappropriation of company funds, Ms Stewart-Roberts testified that
between 1 and 15 November 2015, the Respondent manipulated the
V&A's outsourced IT provider, EOH MC Solutions (‘EOH’) to engage
Thotsejane’s business associates.EOH was contracted to manage the
applicant's daily IT operations, which included maintaining servers, setting
up staff connectivity, and resolving general IT problems. EOH acted as the
formal hiring and billing intermediary for third -party consultants.
Thotsejane’s role was to work in direct partnership with EOH to oversee
the company's broader IT infrastructure and requirements.
[45] Although the CEO of EOH, Mr C Laza ri (‘Lazari’) did not testify, Stewart-
Roberts’s evidence about the initiating role Thotsejane played in getting
Iyamu and Mchunu employed is supported by the email correspondence
between Lazari and Thotsejane in November 2015. It shows that, within a
week of a job description of the Senior Enterprise Architect being drawn
up, she was specifically promoting the engagement of Iyama for
appointment to the position and asking Lazari to appoint him to start work
on 16 November. It is also apparent from the documentation referred to
that both Iyamu and Mchunu had been engaged by Thotsejane’s
company, Flavalite, on other work . A t no stage did she disclose the
business connection between herself and them to V&A , nor was there any
evidence she hinted at the connection when corresponding with Lazari
over the appointments.
[46] By the end of May 2016, the V&A had paid R1,402,005 for Prof Iyamu's
services (billed at R1,500 per hour) and R464,000 for Ms Mchunu (both
services (billed at R1,500 per hour) and R464,000 for Ms Mchunu (both
amounts excluding VAT), with Ms Mchunu billed via monthly invoices from
15 July 2016 to December 2016.
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[47] Additionally, the Respondent hired two Johannesburg-based companies,
Peppermint Source and Enlightened Poppy Network (EPN), ostensibly to
produce corporate IT literacy videos for the V&A. On 9 September 2016,
she received a disguised invoice from EPN featuring a 20% commission
(R20,000) for producing personal YouTube DJ videos under her alias ‘DJ
Sibs’. Ms Isabella Hawk, the owner of EPN, confirmed to the V&A that the
Respondent had demanded this kickback.
[48] Ms Stewart-Roberts testified that, ultimately, the Respondent never
completed a single piece of work for the V&A. During progress reviews
with V&A CEO Mr David Green and EOH CEO Mr Chris Lezari, the
Respondent's submissions were found to be incomplete, broad, and
copied directly from academic textbooks with no practical application to
the V&A's infrastructure. V&A formally placed the Respondent on
suspension on 24 November 2016. On 1 December 2016, she was served
with a disciplinary notice and charge sheet. In a final act of deceit, on 5
December 2016, she emailed a fraudulent resignation letter to CPUT,
backdated to 1 September 2015. Following a disciplinary enquiry held on 8
December 2016, the Respondent was formally dismissed on 12 December
2016 on nine charges of misconduct and fraud. By the end of December
2016, the V&A had paid her a total of R1,031,237.47 (cost to company),
equating to a nett amount of R597,114.40.
Evaluation
Damages for contract induced by a fraudulent misrepresentation.
[49] In essence the fir st claim of the applicant is for damages flowing from a
contract concluded on the basis of fraudulent misrepresentations , which
entitled it to cancel the contract and to restore it to the position it was
before the contract was concluded (restitutio in integrum).
[50] From the evidence , the ineluctable conclusion must be drawn that the
respondent was employed on the basis of her qualifications and prior
employment history. Had the applicant known the true version of her prior
employment history. Had the applicant known the true version of her prior
employment history, it would never have employed her. The version of that
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history represented by the respondent was that she had been employed
inter alia by some large, well -known companies and a university and her
employment with those businesses had not ended on account of any fault
or incapacity on her part. However, this was a blatant misrepresentation,
as detailed in paragraph 31 above. In two cases she had been dismissed
for misconduct and once for incapacity (for reasons which resonate with
her work history with V&A). In both cases wh ere an arbitration award was
handed down, the fairness of her dismissal was upheld and in once
instance a settlement was reached. In relation to CPUT she failed to
disclose that she was still employed by it. The inescapable conclusion
from the evidence is that, but for these important misrepresentations she
would not have been employed by V&A. Accordingly, it was induced to
offer her employment base on fraudulent misrepresentations. Moreover, it
was also induced to employ her on a higher salary than it had intended to,
because she falsely represented that she had been made a better salary
offer by CPUT.she had blatantly misrepresented what had transpired, that
she misrepresented her prior employment.
[51] The contract was concluded because of gross duplicity on the
respondent’s part and V&A was entitled to cancel it and to be placed in the
same position it would have been if it had not entered into the contract. In
the absence of any value being obtained from services rendered by the
respondent, the applicant is entitled to claim damages equivalent to the
value of the remuneration she received.
[52] It should be mentioned that V&A was also entitled to cancel the contract
solely on account of Thotsejane’s concurrent employment by CPUT . Not
only was that contrary to the express provisions of clause 12.1 of her
contract prohibiting any other private employment without the express
written consent of the employer but was also a fundamental breach of an
written consent of the employer but was also a fundamental breach of an
employee’s implied duty to act in good faith towards an employer and no t
work against the employer’s interest3.
3 Ganes And Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 617C-E and Sappi
Novoboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC) at paragraph 7.
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Damages for fraud connected with the contract of employment.
[53] In her in limine ruling in this matter 4, Rabkin -Naicker J cited the Labour
Appeal Court decision in Rand Water v Stoop & another 5, in which the
court held:
‘[35] The respondents also averred that the appellants' claim
is a delictual one and therefore cannot be entertained in
terms of s 77(3) of the BCEA. Once again the respondents
are wrong. There is no doubt that fraud is a delict but the
fraud alleged in the pleadings is connected to the contract of
employment between the appellant and the respondents.
This was not a fraud committed against the appellant by
persons unconnected to it. The allegation is that the
respondents abused their positions as servants of the
appellant. They committed fraud against their employer by
abusing the positions they held as employees.’
(emphasis added)
[54] The principle is equally applicable here. In the course of her employment
in her role as CIO she procured the employment of her private business
associates to render information technology services to V&A. The
evidence showed that Iyamu and Mchunu were business associates of
Thotsejane, having usually being engaged with Flavalite, Thotsejane’s
private business . Thotsejane actively solicited the appointment of
additional IT expertise by EOH in the service of V&A’s supposed IT needs,
and expressly sought the rapid appointment of Iyamu and thereafter the
filling of the business analyst post, which Mchunu ended up obtaining.
Whether it was established that she misled EOH to engage them on the
basis that V&A had expressly authorised their appointment, the fact
remains is that, but for the respondent’s conduct in getting EOH to employ
them both, EOH would not have been receiving reimbursement of their
fees or remuneration V& A, and V&A would not have been charged for
those services.
4 Footnote 1 at paragraph 8.
5 (2013) 34 ILJ 576 (LAC)
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[55] Clause 15.1 of the respondent’s contract of employment expressly stated
that she was subject to V&A’s policies and procedures. Claue 3 of the
V&A’s procurement policy expressly stressed that procurement standards
were comprised, amongst other things, of the qualities of ‘honesty, truth,
integrity and professionalism’ . Moreover, it was required that all
transactions between the company and employer were to be conducted at
‘‘arm’s length’, i.e, there will be not conflict of interest between an
employee involved in a purchase and the supplier involved;..’
[56] Thotsejane was obviously conflicted in promoting the appointment of
individuals who regularly worked wit h her in her own business, which was
completely incompatible with her duty to allow the recruitment process to
be conducted independently and objectively in the best interest of V&A.
What exacerbated the situation was that she did not disclose her
connection to persons she was encouraging EOH to engage, thereby
concealing from the employer that she was not a disinterested party in the
appointment process.
[57] Accordingly, it is most probable that the respondent’s conduct in promoting
the appointment of her busi ness associates, while simultaneously
concealing her own business association with Iyamu and Mchunu, led to
their appointment , which would not have occurred if she had acted in
accordance with her duties to act honestly, in good faith and in
accordance with V&A’s procurement standards . As mentioned, the
evidence was also that the two consultants failed to even render the
services they had been engaged to perform.
[58] Accordingly, V&A suffered financial damages in the amount of the costs
incurred owing to the fr audulently induced engagement of the two
consultants.
Costs
[59] The applicant seeks a punitive costs order against the respondent on the
attorney and client scale, advancing several distinct grounds for this relief.
Firstly, the applicant relies on an explicit contractual provision, namely
Firstly, the applicant relies on an explicit contractual provision, namely
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clause 17.1 of the respondent's employment contract, which expressly
provides for the recovery of attorney and client costs in the event that a
damages claim is instituted against the respondent. Second ly, the
applicant argu es that the respondent's underlying behavio ur warrants
severe judicial censure. The applicant contends that the respondent
deliberately set out to deceive and defraud the company on multiple
occasions, describing her actions as truly reprehensible and corrupt. In
this regard, the applicant aligns the matter with the precedent established
in the Umgeni Water v Naidoo and another 6 case, arguing that such
egregious behavio ur inherently justifies a punitive costs order. Third ly, it
argues the court should, as a mark displeasure not only with the initial
fraudulent conduct that culminated in the respondent's dismissal, but also
with her ongoing deceitful conduct throughout the entire course of the
present legal proceedings. It points out that even at the stage when final
argument was pending, the respondent fabricated an SMS messaged
designed to create the false impression that she had not been properly
served with the notice of set down for the court proceedings on 14 July
2025.
[60] The first point that needs to be m ade is that, despite a provision in a
contract providing for indemnification of a party for any legal costs incurred
on a punitive scale, it remains within the discretion of the court whether or
not to give effect to such a provision, when it makes a cost order 7. In this
case, the magnitude of the deceitful conduct of the respondent in
defrauding the applicant was serious. In any event, even if the contract did
not contain such a provision, a punitive cost award is warranted for the
additional reasons below.
[61] It is not uncommon where the underlying conduct of the judgment debtor
involves fraud or dishonesty for a court to ensure that the party defrauded
6 [2023] 1 All SA 857 (KZP)
6 [2023] 1 All SA 857 (KZP)
7 Intercontinental Exports (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) at paragraphs 25 to 27.
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is not out of pocket as a result of having to obtain a judgment in order to
obtain redress8.
[62] While the facts of this case are not entirely on all fours with those in
Umgeni Water in which the respondent persisted in insisting he had a valid
qualification in the face of overwhelming evidence to the contrary, the
respondent’s conduct during the trial is deservi ng of severe censure. She
failed to disclose her attendance in court until she could not avoid
admitting that she was the respondent , without making any attempt to
apologise for her deception. Having secured a postponement owing to the
court granting her one despite its reservations, the respondent did not
have the courtesy to appear in person when the trial resumed, to explain
why she was not in attendance or why she did not have legal
representation, even though she was present in person at the court
premises.
Order
1. The Applicant’s application to amend its statement of claim filed on
30 September 2024 is granted.
2. The amendment of the citation of the Respondent’s surname from
‘Tunzelana’ to ‘Thotsejane’ is confirmed.
3. The Respondent must pay the Applicant damages in the amount of
R 1,031,237.46 in respect of her fraudulent misrepresentations
which caused the Applicant to employ her.
4. The Respondent must pay the Applicant damages in the amounts
of R 1,402,005.00 and R 464,000.00 for the damages suffered by it
arising from the engagement of Professor Tiko Iyamu and Ms
Nokubela Mchunu, respectively.
8 See Nel v Waterberg Landbouwers Ko-Operatieve Vereeniging 1946 AD 597 at pages 609-
610 and Namasthethu Electrical (Pty) Ltd v City of Cape Town and Another (201/19) [2020]
ZASCA 74 (29 June 2020) at paragraph 40.
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26
5. The Respondent must pay the Applicant interest on the amounts in
paragraphs 3 and 4 of this order at the prescribed rate of interest, a
tempore morae.
6. The Respondent must pay the costs of the Applicant, including the
costs of counsel, on an attorney own client scale.
________________
R Lagrange
Judge of the Labour Court of South Africa.
Appearances:
For the Applicant: Adv M Steenkamp SC
Instructed by: Mcaciso Stansfield Inc.
For the Respondent: No Appearance