IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
REPORTABLE
CASE NUMBER: JS349/07
In the matter between:
SOUTH AFRICAN POST OFFICE LTD
Applicant
and
MAMPEULE, KHUTSO
Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
NGALWANA AJ
Introduction
[1]
In this application the applicant seeks a declaratory order that the
termination of the respondent’s employment, as a direct result of his
removal on 21 May 2007 from the applicant’s board of directors, does
2
not constitute dismissal for purposes of section 186(1)(a) of the Labour
Relations Act, 66 of 1995 (“the LRA”).
[2]
This proposition is founded on a term of the respondent’s contract of
employment with the applicant, read together with the applicant’s
Articles of Association, to the effect that his removal from the
applicant’s board gives rise unavoidably to the automatic and
simultaneous termination of his employment contract with the applicant.
[3]
It is in my view an extraordinary proposition but one which requires
careful consideration because it has implications far wider than
executives employed in state-owned enterprises and organs of state.
[4]
The respondent, unsurprisingly, opposes the application.
The Factual Background
[5]
The facts giving rise to this application are largely common cause.
[6]
The respondent was appointed as the applicant’s Chief Executive
Officer on a five-year fixed-term contract commencing on 20 June 2005.
In terms of the contract of employment concluded between the parties
3
on 30 October 2005, the employment relationship could be terminated
on any one of four grounds, namely,
(a) automatically upon expiry of the five-year period reckoned from 20
June 2005;
(b) incapacity resulting from poor work performance or ill-health;
(c) misconduct; or
(d) the applicant’s operational requirements.
[7]
Upon his appointment as the applicant’s Chief Executive Officer the
respondent was also consequentially appointed as executive director on
the applicant’s board of directors, thus giving effect to article 8.3 of the
applicant’s Articles of Association which makes it “an inherent
requirement” of an executive’s employment by the applicant that he also
holds the office of executive director.
[8]
On 17 November 2006 the Minister of Communications suspended the
respondent as Chief Executive Officer of the applicant and
commissioned a forensic audit into his conduct. The trigger for this
ministerially induced audit is the subject of dispute in a multi-million
4
Rand claim for alleged breach of contract and unfair dismissal. That
dispute is still pending before this Court. The applicant’s version is that
the Minister of Communications has “lost confidence” in the respondent
and believes that
“his failure to provide the Post Office Board of Directors with
relevant, appropriate and accurate information regarding the work
at the Post Office, resulted in a breakdown in trust between him
and the Board”.
[9]
The respondent’s version points to an entirely different trigger. He says
the trigger was certain protected disclosures, within the meaning of the
Protected Disclosures Act, 26 of 2000, made by him in good faith to the
Minister of Communications (in January and March 2006), the South
African Police Service (in February 2006) and the Communications
department’s Director-General (in October 2006) about procurement
irregularities by the applicant involving former employees of the
applicant as well as a disinformation campaign and threats against him.
The applicant denies knowledge of any such disclosures and disputes
that, if made, they were made in good faith and constituted protected
disclosures under the Protected Disclosures Act.
5
[10]
On 3 May 2007 the respondent, through its Acting Company Secretary,
gave a second written notice to the respondent of a meeting to table a
resolution to remove him as a director of the respondent. The first,
scheduled for 23 April 2007, had been postponed. The notice, given
pursuant to section 220 of the Companies Act, 61 of 1973, (“the
Companies Act”) invited him to attend the meeting and to make written
representations. The meeting was scheduled to take place on 21 May
2007.
[11]
The respondent made written representations prior to the meeting and
oral representations at the meeting on 21 May 2007.
[12]
At the meeting the Minister of Communications tabled a resolution that
the respondent be removed as director and that the chairperson of the
applicant’s board be authorised to give effect to the resolution. The
Minister, representing the sole shareholder of the applicant (the state),
then approved the resolution.
On 22 May 2007, the day after the
meeting, the chairperson of the applicant’s board formally informed the
respondent in writing that following his removal as member of the
applicant’s
board
his
employment
contract
has
terminated
“automatically and simultaneously with the cessation of [his] office as
director”.
6
[13]
In September 2007 the respondent launched a multi-million Rand claim
against the applicant in this Court arising from an alleged breach of
employment contract and unfair dismissal. The factual basis for the
claim is, in part, that set out in paragraphs [8] to [12] above. The
applicant resisted the claim by filing a response in October 2007. In
December 2007 and again in March 2008 the parties held a pre-trial
meeting and in the end produced a pre-trial minute in which the issues
were neatly delineated.
[14]
The issues in that case are not the subject of this application. But for the
sake of completion it is necessary to set out the issues in that main
application. They are
[14.1] whether the respondent’s contract of employment was terminated
by the applicant and, if so, whether or not the termination was
lawful;
[14.2] if the applicant has terminated the respondent’s employment
contract unlawfully, whether he has suffered any damages and
what the quantum of those damages is;
[14.3] if the respondent has suffered any damages, whether he failed to
mitigate any damages he may have suffered;
7
[14.4] whether the applicant dismissed the respondent within the
meaning of section 186(1)(a) of the LRA;
[14.5] if so, whether such dismissal was automatically unfair or,
alternatively, unfair either substantively or procedurally or both;
[14.6] what the appropriate measure of compensation is if the
respondent was unfairly dismissed by the applicant; and
[14.7] whether the respondent is entitled to any other relief he seeks.
The Issue
[15]
The parties then agreed that an endeavour be made substantially to
curtail the trial in the main action by disposing separately, and by way of
an interlocutory application, of a preliminary point of law in terms of
Rule 11 of the Rules for the Conduct of Proceedings in this Court.
Thus, the issue that requires determination in this application is whether
the termination of the respondent’s employment contract in the
circumstances set out above constituted a dismissal as contemplated in
section 186(1)(a) of the LRA. If it did, then the other issues set out in
paragraphs [14.5] and [14.6] above can be determined in the main action
8
in due course. If it did not, then those aspects of the main action that
relate to unfair dismissal are at an abrupt end.
[16]
Mr P Pretorius for the respondent, who appeared together with Mr A
Myburgh, took the view that the applicant’s approach in this application
is in the nature effectively of an exception in the main action. That
being so, so the argument goes, the facts as pleaded in the main action as
regards dismissal must be accepted by this Court. (In the main action,
the respondent asserted that he had been dismissed by the applicant
within the meaning of section 186(1)(a) of the LRA, that his dismissal
was automatically unfair in terms of section 187(1)(h) of the LRA or,
alternatively, unfair in terms of section 188 of the LRA.)
[17]
Such a proposition as is advanced by counsel for the respondent is in my
view untenable as it requires this Court to reach a conclusion (based
purely on an agreement between the parties that aspects of the main
action be disposed of by way of an approach resembling a stated case)
before the premise for such a conclusion has even been properly
ascertained.
This is no exception.
It is an application for the
determination of a point of law on essentially common cause facts.
Thus, principles that usually apply in an exception can find no
application here.
9
[18]
So then, was the respondent dismissed by the applicant within the
meaning of section 186(1)(a) of the LRA?
Was there a dismissal?
[19]
Section 186(1)(a) of the LRA defines “dismissal”, as far as is relevant to
the facts of this case, to mean that
“(a) an employer has terminated a contract of employment with
or without notice;
(b) . . . .”
[20]
Mr Franklin for the applicant, who appeared together with Mr Sisilana,
submitted that termination of the respondent’s contract of employment
was not occasioned by an act of the employer. In other words, so the
argument went, the applicant did not terminate the respondent’s contract
of employment. Rather, termination of the respondent’s contract of
employment came about as an automatic and simultaneous result of his
removal from the applicant’s board of directors pursuant to the terms of
the contract of employment. Put simply, the argument as I understand it
is this: it was the respondent’s removal from the applicant’s board of
directors by operation of a contractual term that brought about the
termination of his contract of employment, not a deliberate act of
10
severing the employment relationship on the applicant’s part.
Consequently, there has been no “dismissal” of the respondent by the
applicant.
[21]
It is, with respect, a cerebrally attractive argument but that is about all
that can be said about it. Persuasive it is, I’m afraid, not.
[22]
The various grounds on which the respondent’s contract of employment
can be terminated are dealt with in clause 9 thereof. Clause 9.1 lists the
four grounds adumbrated in paragraph [6] above. It is common cause
that the respondent’s contract of employment did not terminate on any
of those grounds.
[23]
Significantly, the clause says the termination of the respondent’s
contract of employment is “regulated by” article 8 of the applicant’s
Articles of Association. In other words, the provisions of clause 9 of the
contract of employment are subject to article 8 of the applicant’s
Articles of Association.
It has been held that the “conventional
contractual meaning” of that phrase is that of “creating a suspensive
condition” (Pangbourne Properties Ltd v Gill and Ramsden (Pty) Ltd
1996 (1) SA 1182 (A) at 1188E-F). The context created by the phrase
“regulated by” when used in relation to termination of the respondent’s
contract of employment on the one hand, and the provisions of article 8
11
of the Articles of Association on the other, point ineluctably to that
meaning of “subject to”. Thus, it can safely be said, I think, that clause
8 of the applicant’s Articles of Association constitutes a suspensive
condition pending the fulfilment of which, to the extent relevant, no
termination of the respondent’s contract of employment shall be valid.
[But this I must emphasise lest I be misunderstood. The invalidity of
termination of a contract of employment does not mean the absence of a
“dismissal” within the meaning of section 186(1)(a) of the LRA. In
other words, that an employee’s contract of employment has been
invalidly terminated does not mean the employee has thus not been
dismissed. In fact, allegations of invalid terminations of employment
contracts are the stuff of which disputes at the CCMA are made.]
[24]
Thus understood, sub-articles 8.2 and 8.3, which must be read together,
introduce a fifth ground upon which the respondent’s contract of
employment may be terminated and that is upon his removal from the
board of directors by “the member” (effectively the state as represented
by the Minister of Communications) or resignation from the board at the
Minister’s request. Now, the detail as regards how this can be effected
is provided for in section 220 of the Companies Act which reads:
“220 Removal of directors and procedures in regard thereto
12
(1) (a) A company may, notwithstanding anything in its
memorandum or articles or in any agreement between it and any
director, by resolution remove a director before the expiration of
his period of office.
(b) The provisions of paragraph (a) shall not be construed as
authorizing the removal of a director of a private company who
was holding office for life on the thirteenth day of June, 1949.
(2) Special notice shall be lodged with the company of any
proposed resolution to remove a director under this section or to
appoint any person in the stead of a director so removed at the
meeting at which he is removed, and, on receipt of notice of such
a proposed resolution, the company shall forthwith deliver a copy
thereof to the director concerned who shall, whether or not he is a
member of the company, be entitled to be heard on the proposed
resolution at the meeting.
(3) Where notice is given of a proposed resolution to remove a
director under this section, and the director concerned makes
representations with respect thereto not exceeding a reasonable
length in writing to the company and requests their notification to
members of the company, the company shall, unless the
representations are received by it too late for it to do so(a) in any notice of the resolution given to members of the
company, state that such representations have been
made; and
(b) send a copy of the representations to every member of
the company to whom notice of the meeting is sent,
whether such notice is sent before or after receipt of
the representations by the company.
(4) If a copy of such representations is not sent as aforesaid
because it was received too late or because of the company’s
default, the director concerned may (without prejudice to his right
13
to be heard orally) require that the representations be read at the
meeting.
(5) No copy of such representations shall be sent out and the
representations need not be read out at any meeting if, on the
application of the company or of any other person who claims to
be aggrieved, the Court is satisfied that the rights conferred by
this section are being abused to secure needless publicity for
defamatory matter.
(6) The Court may order the company’s or the said other person’s
costs on an application under subsection (5) to be paid in whole
or in part by the director concerned, notwithstanding that he is
not a party to the application.
(7) Nothing in this section shall be construed as depriving a
person removed thereunder of compensation or damages which
may be payable to him in respect of the termination of his
appointment as director or of any appointment terminating with
that of director or as derogating from any power to remove a
director which may exist apart from this section.”
[25]
The relevant excerpts of articles 8.2 and 8.3 to which clause 9 (relating
to the termination of the respondent’s contract of employment) is subject
or, by the ipssissima verba of the clause itself, by which the termination
of the respondent’s contract of employment is regulated, are these:
“8.2
. . . . Subject to the provisions of the Statutes, the member
may by notice to the company remove any director before
the expiration of his period of office or request such
person to resign, whereupon the director shall be deemed
14
to have resigned, and appoint another person in his stead. .
..
8.3
. . . . It is an inherent requirement of an executive
director’s employment by the company that he holds the
office of an executive director. If an executive director
ceases to be a director of the company for any reason
whatsoever, including removal or resignation in terms of
Article 8.2, his contract of employment shall terminate
automatically and simultaneously with the cessation of his
office as an executive director of the company.”
[26]
One of the statutes to which article 8.2 is subject is, self-evidently, the
Companies Act, specifically section 220 thereof, which deals with the
procedure for the removal of a company director and which are
reproduced at paragraph [24] above.
[27]
Mr Franklin for the applicant persisted in the argument that the
automatic and simultaneous termination of the respondent’s contract of
employment as a consequence, founded on the terms of the employment
contract, only of the removal of the respondent as director of the
applicant by the Minister, qua “the member”, pursuant to article 8.2,
does not constitute a dismissal within the meaning of section 186(1)(a)
of the LRA. The direct and proximate causes of the termination, so the
argument goes, are not so much the termination of the contract of
employment by the employer, or even the removal of the employee as
director, as the operation of the terms of the employment contract.
15
[28]
I do not agree. In my view any act by the employer which results,
directly or indirectly, in the termination of the employee’s contract of
employment constitutes a dismissal within the meaning of section
186(1)(a). That is why the LRA recognises the concept of constructive
dismissal (section 186(1)(e)of the LRA). I do not want to be understood
as saying what happened here constitutes constructive dismissal. I am
not saying that. The point I make is that a dismissal does not come
about only when the employer tells the employee “you’re fired”. Thus,
when the Minister removed the respondent from the applicant’s board of
directors, thereby triggering an automatic and simultaneous termination
of his contract of employment with the applicant, she effectively
dismissed him. With that there can be no quarrel.
[29]
It seems to me this elaborate and clever argument is advanced, at least in
part, to avoid a damages claim by the respondent which, as already
indicated, is pending still before this Court. This much is clear from
paragraphs 30 and 31 of the applicant’s heads of argument where the
following submission is made:
“30.
Another important aspect of section 220 [of the
Companies Act] is the right to claim compensation for
removal in appropriate circumstances given by section
220(7). Commenting on sub-section (7), Blackman et al
16
[in Commentary on the Companies Act, Vol. 2] concludes
that compensation is payable if and only if there is, inter
alia, a contract with the director whose breach is the result
of the removal. If – as in our submission it is – this is
correct, then it means that where, as here, there has been
no breach of the employment contract (because it
terminated in accordance with its own terms), then no
compensation or damages are payable.
31.
The proposition is therefore that no action lies for
compensation under sub-section (7) in the absence of a
breach of an agreement with the removed director, as a
consequence of such removal. If, by contrast, a director is
able to show that his removal led to an unlawful
termination of his employment contract, he may be
entitled to compensation if he can show his removal as
director was the sole cause of the unlawful termination of
his employment agreement.”
(underlining in original text and footnotes omitted)
[30]
Well, whether or not there has been a contractual breach is not an issue I
need decide here. That is an issue to be determined in due course in the
main damages claim. All I need concern myself with is whether or not
the respondent has been dismissed by the respondent within the meaning
of section 186(1)(a) of the LRA. I believe he has been so dismissed.
[31]
Since the applicant has advanced these submissions as regards the
respondent’s entitlement to compensation, I should point out en passant
17
that the applicant’s counsel put the threshold that the respondent must
clear in order to earn a right to compensation rather too high. I do not
believe that the double threshold of showing not only that the removal as
director “led to an unlawful termination of [the] employment contract”
but also that “his removal as director was the sole cause of the unlawful
termination of his employment agreement” is the appropriate test. It
seems to me the respondent should be entitled to compensation by
showing merely that he has been unfairly (not even unlawfully)
dismissed.
[32]
The primary defence put up on behalf of the respondent by Mr P
Pretorius, who appeared together with Mr A Myburgh, is that the
contract of employment between the parties does not permit automatic
termination. On a plain reading of the contract this proposition is hard
to sustain. As pointed out earlier, clause 9 of the contract which deals
with the grounds for the termination of the employment relationship is
by its ipssissima verba “regulated by” (in the sense of “subject to”)
article 8 of the applicant’s Articles of Association. Article 8.3, read
together with article 8.2, in turn provides for automatic termination of
the employment contract upon removal of the respondent as director.
There can be no question that the contract does permit automatic
termination as alleged by the applicant. The question is whether that is
permissible in law.
18
[33]
The respondent’s counsel say if it were permissible, then the entire
provisions of chapter 8 of the LRA, and the constitutional right to fair
labour practices, could be easily circumvented. This could be achieved,
so the argument goes, by including a clause in every employee’s
contract that his employment will terminate automatically on the
occurrence of some or other event, for example, a prescribed act of
misconduct or incapacity. There is much to be said for this submission.
Such clauses are eminently undesirable in the labour relations context.
The progressive disciplinary measures for which schedule 8 to the LRA
makes provision would be rendered otiose and the labour relations clock
in this country would have been turned back some three decades.
[34]
The issue with which this Court is here confronted arose, substantially,
in the English Court of Appeal in Igbo v Johnson Matthey Chemicals
Ltd [1986] IRLR 215 (CA).
In that case, the employee requested
extended holiday leave from the employer. The employer drew up a
contract (termed the “contractual letter for the provision of extended
holiday absence”) which provided that if the employee failed to return to
work on the appointed day then his “contract of employment would
automatically terminate on that date”. When the employee had not
returned to work on the appointed date, the employer took the view that
her employment contract was terminated in terms of the “contractual
19
letter”. She referred an unfair dismissal claim to the Industrial Tribunal
which found, following an earlier decision of the Employment Appeal
Tribunal (an English equivalent of the Labour Appeal Court) there had
been no dismissal since her employment terminated by operation of a
consensual contractual term. On appeal the Court of Appeal upheld the
employee’s appeal and overturned the earlier decision of the
Employment Appeal Tribunal. It held at paragraph 17:
“If the [employer’s] contention [of a contractual automatic
termination] is correct, it must follow that the whole object of the
[Employment Protection (Consolidation)] Act can be easily
defeated by the inclusion of a term in a contract of employment
that if the employee is late for work on the first Monday in any
month, or indeed on any day, no matter for what reason, the
contract shall automatically terminate. Could it be said that such
a provision did not limit the operation of ss.54 and 55? In our
judgment it could not. Such a provision would vitally limit the
operation of s.54(1), for the right not to be unfairly dismissed
would become subject to the condition that the employee was on
time for work on the first Monday in each month, or every day, as
the case might be.”
[35]
Section 54(1) of the Employment Protection (Consolidation) Act confers
on employees the right not to be unfairly dismissed by the employer.
Section 55 defines “dismissal” in similar terms as in section 186(1)(a),
(b) and (e) of the LRA.
20
[36]
At paragraph 19 of the judgment the Court of Appeal continued:
“[I]n substance, the effect of the automatic termination provision
is the same as if it had said in terms ‘in the event of failure to
return to work on 28 September, termination of the employee’s
employment on that ground shall not constitute dismissal under
s.55’, or ‘shall not give rise to any claim for unfair dismissal’.
Any such provision would without doubt have been void as
limiting the operation of the sections. We can see no ground for
saying that a provision which has the like effect does not limit
such operation.”
[37]
Clearly this must be correct both in law and in logic. The argument
pressed upon me by counsel for the applicant is not materially different
(if at all different) from that advanced for the employer in Igbo’s case. I
associate myself with the views expressed in that case by the Court of
Appeal thereanent.
[38]
Counsel for the applicant sought to distinguish the decision of this Court
in PG Group (Pty) Ltd v Mbambo NO and Others [2005] 1 BLLR 71
(LC) on the ground that in that case the Court assumed the correctness
of the very question it had to decide, namely, whether the employee had
been dismissed by the employer within the meaning of section 186(1)(a)
of the LRA. The circumstances in which the employee’s contract of
employment in that case came to be terminated were similar to those
with which we are here concerned. The employee’s employment was
21
terminated following his removal from the board of the employer by the
employer’s holding company.
[39]
The Court found that the employee had indeed been dismissed by the
employer.
But that finding was premised on the question: “Who
dismissed the [employee]?” and not “Was the employee dismissed
within the meaning of section 186(1)(a)?”. On that ground, Mr Franklin
submitted that the question here in issue was not settled in the PG
Group case. I agree, with respect, for the reasons advanced by Mr
Franklin. Mr Franklin then submitted that I am at large to consider
afresh the question of whether the termination of an employee’s contract
of employment in the circumstances of this case (as in the PG Group
case) constitutes “dismissal” within the meaning of section 186(1)(a) of
the LRA. I have. It does.
[40]
Mr Franklin then sought to rely on another decision of this Court in
Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC), and
of the Labour Appeal Court in National Union of Leather Workers v
Barnard and Perry NNO [2001] 9 BLLR 1002 (LAC), for the
proposition that an employee who alleges “dismissal” within the
meaning of section 186(1)(a) of the LRA must show some overt act by
the employer that is the “sole or proximate cause” of the termination of
employment. He says the sole or proximate cause of the termination of
22
the respondent’s employment in this case were the terms of his
employment contract with the applicant (clause 9) and not his removal
from the applicant’s board of directors.
[41]
But, as I have already shown, the terms of the employment contract
cannot neatly be construed in isolation from the applicant’s act of
removing the respondent from the board. First, the termination of the
respondent’s employment is “regulated by” article 8 of the applicant’s
Articles of Association (see clause 9.1 of the contract of employment).
Second, because membership of the board is “an inherent requirement”
of his employment as Chief Executive Officer (article 8.3 of the Articles
of Association), the respondent’s membership of the board is
inextricably intertwined with his employment. Thus, third, his removal
from the board – which is one of the grounds on which the respondent’s
employment may be terminated (see clause 9.1 read together with article
8.3 of the applicant’s Articles of Association) – must of necessity mean
an end to his employment as Chief Executive Officer.
[42]
The fact is that the employer (in the form and shape of the Minister of
Communications representing the sole shareholder, the state) terminated
the respondent’s contract of employment by severing the umbilical
chord that ties the respondent’s employment contract to his membership
of the applicant’s board of trustees. But for that act of severance, the
23
respondent’s employment would not have terminated because none of
the other four grounds have been invoked. Thus, that act of severance
of the umbilical chord constitutes dismissal within the meaning of
section 186(1)(a) of the LRA.
[43]
The proximate cause test (usually used in insurance cases to determine
the actual trigger for a loss in respect of which a claim is submitted)
does not assist the applicant in this case. It is sometimes referred to as
the effective cause test or the actual cause test. It has been held by the
Courts that the cause that latest in time may not necessarily be the
effective cause of the result. Conversely, an act that may on the face of
it seem remote to the result may in fact be the effective cause. When a
fishing trawler is lost after being arrested when the owners failed to pay
the fine to release it, the proximate or effective cause of the loss is not
confiscation of the trawler but a failure to pay the fine even though
confiscation is nearer in time to the loss than failure to pay a fine
(Incorporated General Insurances Ltd v Shooter t/a Shooter’s Fisheries
1987 (1) SA 842 (A) at 862C-863B).
[44]
So, too, in this case the fact that operation of the contractual term may
seem closer in time to the termination of the employment contract does
not make the term of the employment contract the proximate or effective
cause of termination of employment. Effectively, had the Minister not
24
removed the respondent from the board of directors, the respondent’s
employment would not have terminated. It is, in my view, the removal
of the respondent as a director that triggered, proximately or effectively,
the termination of his employment. In Commercial Union Assurance
Co of South Africa Ltd v Kwazulu Finance and Investment Corporation
and Another 1995 (3) SA 751 (A) the Court said:
“The proximate cause is not merely the one which was latest in
time, but the one which is proximate in efficiency. . . .”
[45]
The effective cause of termination of the respondent’s contract of
employment was clearly the Minister’s removal of him from the
applicant’s board of directors.
The automatic termination clause is
impermissible and cannot rightly be invoked to stave off the clear and
unambiguous effect of the Minister’s overt act.
[46]
In the result, the automatic termination provisions of article 8.3, which
regulates the termination of the contract of employment and is thus
incorporated by reference therein, are impermissible in their truncation
of provisions of chapter 8 of the LRA and, possibly even, the
concomitant constitutional right to fair labour practices (cf Igbo v
Johnson Matthey Chemicals Ltd [1986] IRLR 215 (CA)). Provisions of
this sort, militating as they do against public policy by which statutory
rights conferred on employees are for the benefit of all employees and
25
not just an individual, are incapable of consensual validation between
parties to a contract by way of waiver of the rights so conferred.
[47]
Because I have made a finding in relation to the respondent’s first
alternative defence (albeit in a wider form than that advanced by the
respondent), it is unnecessary to deal with the other alternative
arguments advanced on his behalf.
Relief
[48]
The application in limine is thus dismissed.
[49]
The issue involved warranted, in my view, the employment of two
counsel. Thus, the applicant is ordered to pay the respondent’s costs
including the costs occasioned by the employment of two counsel.
____________________
Ngalwana AJ
Appearances
For the applicant:
Instructed by:
Messrs A Franklin SC and L Sisilana
Webber Wentzel Bowens
26
For the respondents:
Instructed by:
Messrs P Pretorius and A Myburgh
Perrott Van Niekerk Woodhouse
Date of hearing:
Date of judgment:
21 November 2008
12 December 2008