IN THE SOUTH GAUTENG HIGH COURT,  JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
Case number: 28154/2011

	 

DELETE WHICHEVER IS NOT APPLICABLE

(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED: 

____________________        ____________________
DATE				        SIGNATURE

               		      

In the matter between:
PERIE, CAROLYN									Plaintiff

and 

URAMIN INCORPORATED IN BRITISH COLUMBIA                                                                                                               
t/a AREVA RESOURCES SOUTHERN AFRICA				Defendant

JUDGMENT
______________________________________________________________________________

SATCHWELL  J:
INTRODUCTION

1.	Plaintiff was an employee of defendant.  She brings a  claim for specific performance based upon  contract and not upon an unfair labour  practice.   She avers that,  when it employed her,  defendant agreed to compensate her  for certain  benefits  accruing to her from her previous employers  which she would lose upon departure.  She relies upon a partly written and partly oral agreement.  She claims that defendant failed to compensate her for the loss of those benefits.    Defendant disputes the claim averring that the written contract of employment is decisive of her  claims and that  she was  financially compensated  for the loss of her share options.  

2.	Plaintiff was employed by BHP Billiton Limited (‘BHPB’)  as Project Manager  dealing with human resources matters during which  time she participated in certain BHPB  incentive schemes  for senior executives.   There is some disagreement over the number of share options awarded to her by BHP but it  is common cause that  these share options would  only vest  at future dates   and that she would forfeit all rights to these options if she left the employment  of BHPB  before  the dates when the share options would vest.   

3.	She was approached by a recruitment agency (“Blackie”) with a view to taking up employment as Human Resources Manager for defendant which was then without  either HR capacity or  executive  incentive plans  such as  share options or allocations.   There were negotiations during November and December 2007 and a written    agreement   (‘the  document’) was concluded in December 2007.    This contract made  no reference to any benefits accruing to plaintiff from her previous employer.  

4.	 She commenced employment with defendant in February 2008 prior to the vesting date of the BHPB share options with the result that these were forfeited by herself.     Plaintiff avers these benefits were dealt with in the oral portion of  the employment agreement which provided for compensation  for the loss of value of the BHP share options  (“the oral terms’).   No share scheme was implemented by defendant whilst plaintiff was in its employ. During May 2011 plaintiff  was retrenched and concluded a written retrenchment agreement (‘the retrenchment contract’) which, defendant contends  settled  the  claims  now made by plaintiff but which plaintiff c responds was  subject to amendment  which  reserved to her the right to pursue her claims in respect of  compensation for the shares. 

THE EMPLOYMENT AGREEMENT 
The Written Document

5.	The written document     consists in an offer made on   7 December 2007   by  J. Macpherson,  then Managing Director of defendant,  and accepted by plaintiff on the same date.   The document, which is in letter format, purports to set out “the basic terms and conditions for the position”  of ‘Human Resources Manager’.     Thirteen bullet points are set out as the “basic terms” .      

6.	Relevant to this litigation  are the  third and sixth bullet points:

“ You will receive a sign on bonus of ZAR 500 000.  The first ZAR 300 000 will be paid on engagement, the balance on the first anniversary of the date of engagement.”

“You will be granted options in accordance with company practice in the event that Areva completes an IPO.  This is currently estimated for the first half of 2008.”

7.	This agreement    makes   no reference to and is silent with regard to compensation  in  respect of any benefits  which had or which might accrue  to plaintiff from her previous employer which she would forfeit on  departure from that employment. Those form the subject matter of the disputed verbal portion of the agreement.

8.	The first point of departure in understanding the complete employment agreement  are the words used in the written document.    Counsel for both parties have advanced a number of arguments in respect of this document.

9.	The document purports to be “basic” terms and conditions and  anticipates  a further “formal service agreement” which, it is common cause,  was never prepared nor signed.  I am unpersuaded by the argument that this document is   no more than a basic or preliminary precursor to a more  detailed employment agreement which would set out  all terms including those agreed verbally pertaining to compensation by defendant to plaintiff for loss of her BHPB share options.  The thirteen bullets in the document provide  for issues ranging from annual salary to relocation costs to notice periods. It is difficult to conceive what other issues pertaining to employment  were reserved for the less basic and more expansive document  counsel contends was still to be prepared.   The only  issue which it is claimed  has been omitted  is  the disputed  compensation for forfeited BHPB share options.

10.	It is common cause that  the Areva Group,   of which defendant is a part,    is 80% owned by the French Government.   Neither Areva nor defendant was,  at the time of concluding the agreement,  listed   and capable of offering  share options or such benefits to  any employee.  The written document   provides for the anticipated eventuality that  Areva would “complete an IPO”  which was,  at time of writing,  “estimated” for the first half of 2008.  “In the event”   that such IPO was completed by Areva the document states that plaintiff would be “granted options in accordance with company practice”.   It is clear that the document records no more than a conditional undertaking if and when Areva concluded an IPO with no more than an estimation given for such event.  The clear wording of the document   does not impose any obligation upon defendant to list and/or to grant share options to  the plaintiff. 

11.	The upshot of this brief commentary on the written document is  not only  to conclude that it is silent on any compensation in respect of  the  BHPB share options which  plaintiff would forfeit on taking up employment with defendant.   In addition, the document  is clear that  the  implementation, if at all, of an Areva share incentive scheme was anticipated but not guaranteed.  The offer to “grant options”   could only be in “accordance with company practice” as and when the company was listed and therefore in a position to   develop and implement a practice.     

12.	However, over and above the  written document,   plaintiff has pleaded “express oral terms”  agreed between herself and defendant.    The  “ defendant would compensate the plaintiff for the loss of value of her allocated BHP Billiton shares (‘Shares’)    in one of two ways.   Either defendant would  implement a new “Regional Compensation and Benefits structure” within a period of one year  from commencement of her employment  “to compensate her for the loss of her Shares”   or defendant would pay plaintiff “the cash value of her shares”. 

13.	There are a number of difficulties in reconciling the written document and the pleadings which must be mentioned before there is any discussion of the evidence.

14.	Firstly,   the oral portion of an agreement cannot contradict the written portion.    The reasoning for this approach    has been set out in a number of authorities.   Of course  this  statement has  been predicated upon  the proposition that “the document was intended to provide a complete memorial”  of the agreement between the parties.  I understand that plaintiff maintains that it is not such a complete memorial whilst defendant contends that it is. 

15.	 On the one hand, plaintiff’s case   is that there were express oral terms in the complete employment agreement to the effect that  “the defendant would compensate the plaintiff for the loss of value of her allocated BHPB shares”  by  “implementing a new Regional Compensation and Benefits Structure (which would include the development of an AREVA Long Term Incentive  Plan Scheme) within a period of one year from the commencement the plaintiff’s employment.”    On the other hand, the written document  records no such agreement and instead  offers no more than a conditional grant of share options – perhaps in the first half of 2008.   Defendant contends that this conditional offer is the “exclusive embodiment” of the transaction and that nothing more remains to be added. 

16.	The particulars of claim  assert a firm agreement to  introduce and implement  a named  new benefits structure whereas the written document  gives no such undertaking.   Yet the oral terms as pleaded go further than this.    Paragraph 8.1 of the particulars of claim has an “either…or” component.   The oral agreement was that defendant would either  implement the new benefits structure  or  that defendant would pay “the cash value of her shares” to plaintiff.     In that sense,   I find that the particulars do not contradict the  written document.  In the event that there is no IPO as anticipated for in the written document then defendant was to make payment of the cash value of the forfeited shares.

17.	Secondly,   the reference to the proposed IPO  and the anticipated grant of share options is premised upon nothing more than  “company practice”.       The possible grant is not premised upon   past employment with BHPB as a named previous employer and the   identified share options allotted during 2005, 2006 and 2007 which were now to be forfeited.    Not only does the document makes no mention  that the grant of options,  if and when there was an IPO,  would be linked to plaintiff’s previous employment benefits. It also makes no mention of   cash payments if there  was no IPO – in respect of compensation for the forfeited  BHPB shares  or the non-grant of Areva shares.  The silence is deafening.

18.	It was argued that  the terms of this written document are clear and unambiguous in that the document regulates the remuneration and benefits structure of defendant  and that there is no need to  resort to  contextual evidence  in this regard.   I agree. 

19.	However,   I take the view that it is necessary to examine the evidence as to any oral terms not because this gives context to the written document but because these terms are pleaded as additional to the written document.
The Oral  Terms

20.	Plaintiff herself gave evidence on the “express oral terms”  agreed between herself and defendant.    David Dragone (‘Dragone’)   who was  Head of HR (Mining) at defendant at the time testified on behalf of defendant.

21.	There was  some evidence as to plaintiff’s employment with BHPB and   her reasons for being open to  the offer of employment from defendant.   I do not find this relevant to the issues which I am asked to decide.  After all,   everyone negotiates in their own particular way  and settles in their own particular way.  At the end of the day,   the issue  for decision by myself is the nature of the settlement  resulting in an agreement between plaintiff and defendant.

22.	Plaintiff’s version is  that  Dragone assured her that the listing of Areva was definite but if the listing did not happen  a ‘phantom scheme’ was possible  resulting in matching of the value of plaintiff’s BHPB  shares with Areva shares.   Dragone’s version is that  the listing was not definite  and that  he informed  plaintiff  that she  would be granted share options in the event that Areva did complete an IPO   as confirmed in the written document.  

23.	Plaintiff’s version is that  it was agreed that she would be compensated for her forfeited shares on the basis of an independent valuation which she obtained.  Dragone says  that  he received Plaintiff’s valuation of R 1.3 million which led to further negotiations  resulting in the agreement to pay the sign on bonus of R 500 000 in two tranches.

24.	The chronology is  neither lengthy nor complicated.    

25.	Four candidates were interviewed by Macpherson   for the position in HR at defendant early   in November.   One was the plaintiff.   By 28th November  Macpherson invited plaintiff to  call him to discuss any concerns she had  concerning  a document which he sent her at that time.

26.	Plaintiff had participated at BHPB in a Group Incentive Scheme (‘GIS’), Short Term Incentive  (‘STIP’)  and Long Term Incentive  (‘LTIP’).   She had acquired performance and deferred share options in 2005, 2006 and 2007.   She knew that the shares had not vested and that they would be lost to her on termination of her employment with BHPB.   In addition,  she  was accustomed to received  bonus awards, the STI,  of not less than 40% of her annual salary which awards were calculated on performance over the period July to July and were paid out in September.  She knew that she could not receive any bonus from BHPB in September 2008 in respect of her work over the period July 2007 to January 2008 and so this STI would also be forfeited by her move to defendant.

27.	On   28th November she responded to Macpherson  with a “few questions”.  The first asked for details on the annual bonus offer;   the second  asked whether  “the value of her shares at  BHPB [would] be considered when awarding shares for the listing in  2008”; the third asked for detail on healthcare cover;  the fourth concerned relocation costs and the fifth asked about executive accommodation.

28.	Macpherson replied by email the next day by inserting his answers against her questions:
Q - “Will the value of my shares at BHPB be considered when awarding shares for the listing in 2008?
A – “The scheme is obviously not yet defined, but I am sure that it will be based on our own guidelines and will not take into account any previous schemes that you have enjoyed.”

29.	On 30th November 2007   Dragone wrote an encouraging email to plaintiff.     She  emailed him on 3rd December with  “the following additional queries”.  She posed questions about the annual bonus, company contributions to medical aid, details on  issue of shares on listing to compare the value with her BHPB shares and the company contribution to retirement funding.   Dragone forwarded plaintiff’s questions to Macpherson on  the same day suggesting Macpherson respond to the queries but “I’ll call her to explain the point 3”.   The communication was therefore:

Q – “Could I please have more detail on how the share issuing on listing will work as I need to make a fair value assessment on that versus my BHPB share options”
A – [Iain Macpherson] David will call you to discuss how this is evolving.”

30.	 On  4th  December   Dragone emailed Macpherson  advising that “In terms of welcome bonus to compensate her stock I think we should give her around 300,000 she will get back to me with the figure of her plan.  … we can not increase the base but a welcome bonus is ok to me you?.”   Macpherson responded that he was in agreement with the proposal    Later that evening    Dragone emailed Macpherson advising that he had “asked her the amount of her stocks”.   A document was apparently attached indicating  this value because Dragone’s email went on to comment   “ you can see it is huge of course we can not give her a welcome bonus of 1,3M ZAR… I think the max we can do if you agree is ZAR 300 000 when she signs and 200,000 in one year.  It does not compensate her current level of stock but compensate a part..what do you think?”   

31.	These emails were not copied to plaintiff and were exchanged within  defendant only.  

32.	The recruitment  consultant  emailed plaintiff on 7th December  setting out the defendant’s  offer  “as discussed with you earlier”.   That offer reported on the “welcome/sign on bonus”  in two tranches   and advised that “You will also participate in the Areva share option scheme but as this is yet to be defined and the company is as yet unlisted any further comment is not possible”.

33.	Plaintiff testified that she was prepared to “come across” from BHPB to defendant and  once she had designed the  defendant’s  remuneration and benefits scheme  for Sub-Saharan Africa  there were indications of “matching shares”.   She and Dragone had numerous phone calls.   She sent him values of her  BHPB shares.   He was, she said, not interested in the numbers.   

34.	She discussed this issue of shares with her boss, the HR director at BHPB and he prepared a manuscript comparison of  the pros and cons at both BHPB and defendant including  queries  such as “how will the share issuing work on lilting.  What if the share listing does not happen.”.     This document was emailed to Dragone who passed it on to Macpherson.

35.	One of the questions she raised with Dragone was whether a phantom scheme would be designed  if the Areva listing did not take place.  His response was that she was needed to design for Sub-Saharan  Africa.   She said that he told her “for him [the listing] would definitely happen.  If it did not then  [we would] put a phantom scheme in place.”.  

36.	Plaintiff  testified   there was no incentive for her to leave BHPB   if she would sustain the loss of her share options.   She made  this very clear to Dragone and she says that his response was that  Areva would be putting a scheme in place and  her “shares would be matched”,     that they would do “like for like”.     Her understanding was that  her  BHPB shares were evaluated  and then if there was a listing “then my shares would be matched” and if there was no listing then “my shares would be matched with phantom shares”.

37.	 Plaintiff was adamant that the ‘welcome/sign on bonus’  was not to compensate her for her BHPB stock but  was to compensate for her “walking away” from eight months of STI – i.e. July to February – at BHPB as  she said  was  discussed with Dragone.

38.	As far as the  written document is concerned,  plaintiff  took the view that “this is hardly an employment contract” and reflects the absence of an HR department at defendant.    She  did not need to point out to Macpherson that  this document had omitted this important term about compensation for forfeited shares  “because I had conversations  with Dragone”.   

39.	Dragone  gave evidence that he  explained to plaintiff that she would receive  “a welcome bonus to compensate for the past”.    Plaintiff asked him about new stock options and he told her that Areva was about to be listed   and then a share plan for South Africa would be put in place but no details could be given because  the IPO was no ready. 

40.	He  recalled that plaintiff was “pushing”  “to make up the package”.  He  says he refused to increase her base salary but were prepared to compromise on her stock  and pay the welcome bonus  to “compensate for stock options” with the result that “she didn’t leave anything behind”.   

41.	On this  evidence  (over and above the written document itself)  I can find that there were  plenty of questions and answers and negotiating on both sides.   This all resulted in  the written document.  I cannot find that plaintiff has  shown,  on the probabilities, that there  were additional express oral terms  agreed  as part of the  total employment agreement. 

42.	Firstly, it  would be surprising if plaintiff had not been concerned about the forfeiture of her stock options  (due to mature over a period of years in the future – 2010, 2011, 2012).  The manuscript comparison of the two employment positions and her queries about arrangements for compensation for these BHPB shares  are  to be expected.    There is everything to show that she   raised this issue because she wanted compensation.   But there is nothing to show that any such compensation was agreed  would take place as a result of the listing of Areva  failing which a phantom incentive scheme would be instituted or a cash payment made. There is not one word recorded from Dragone  which gives any indication of his assent to her claims.     

43.	 Secondly, in  response to her earliest queries,  Macpherson  indicated  to her that   he was “sure” that the scheme “ will not  take into account any previous schemes that you have enjoyed.”    There is no indication that plaintiff ever reported on or queried  Macpherson’s view with Dragone.    She apparently never sought clarity as between Macpherson (the managing director and the person to whom she would report)  and Dragone  (head of HR).    When she received the written document from Macpherson,  she  apparently did not seek to clarify  whether he and  Dragone had the same understanding.    It is unlikely that anyone would sign this written  document  emanating from Macpherson without ensuring that the commitment she avers was made by Dragone was the same commitment tendered by Macpherson.   All this suggests that there was no  contradiction between the views and undertakings of the managing director and the HR director and that Dragone had not entered into the verbal agreement as alleged.

44.	Thirdly, it was submitted that  the exchange of emails between Dragone and Macpherson   regarding the welcome bonus had not been sent to plaintiff who was therefore unaware of his mental reservation  concerning the compensation of BHPB shares.  This submission ignores  the  very clear denial by Dragone that he ever agreed to compensate plaintiff for her BHPB shares through the proposed Areva listing or  a phantom share scheme or a cash payment in the event these options did not materialize.  The authorities cited in support of this argument are not of assistance since  there must be an apparent  agreement in relation to which there is a mental reservation.  Here this is no agreement on this topic. It is not a case of  the parties apparently  agreeing on compensation through a share scheme  and the one party deciding by himself to  effect that compensation through the welcome bonus. There was neither contradictory “external manifestation” on the part of Dragone nor “mental reservation”.     Dragone disputes any offer  of  compensation for BHPB shares through an Areva scheme.  He says that  he never acceded to this request.   There is no suggestion that Dragone had a mental reservation in respect of the written or any other agreement. He says that he attempted to accommodate her concerns by introducing the “sign on”  or “welcome” bonus.     Certainly, these emails confirm his version.

45.	Fourth,  if the sign on or welcome bonus was compensation for plaintiff’s STI bonus expected  from BHPB for the period July 2007 to January 2008,   then it, too  must have been verbally agreed and entirely out of the blue.      The STI bonus was never raised  by her in any of her emails.  In none of the negotiations is there any reference to   her expected STI bonus, and  no reference  to  the calculations offered at trial that the R 500 000 was  in respect of this bonus.    There is no record that this was ever mentioned by her  before signing the written document.   There is however, evidence to support Dragone’s version as to the basis upon which the sign on bonus was arrived at and calculated. 

46.	 Fifth,    much evidence was tendered by plaintiff as to her actions subsequent to  conclusion of the written document in December 2007.  There are principled difficulties  in relying thereon.    Subsequent conduct is hardly of assistance in understanding the prior context which gave rise to the written agreement itself.     Ex post facto conduct should only play a role where the written document is ambiguous or unclear and    where there is insufficient  contextual evidence prior to the document.  In any event,  subsequent  conduct of one party alone cannot alter  what went before the written document or the apparent objective meaning of that document.    However,  I deal with the following three series of events  upon which plaintiff partially relied  in her evidence because I am of the view that it does not assist her cause. 

47.	 She arranged in March 2008  for payment of a sign on bonus for an executive recruited from Anglo Platinum  to compensate him for the shares which he had forfeited.   That this was spelt out indicates that he was not reliant upon or expecting to be compensated through the Areva share scheme still to implemented upon listing in the first half of 2008 and that she did not expect him to be compensated in this manner.  That this was recorded in writing indicates that she knew that such matters should be so recorded and that she was professional enough to so record the arrangement.  But she did not, three months earlier,  ensure that this was done for herself.    In any event, I cannot find that all executives  receive compensation for share options which they may forfeit on leaving a previous employer – the reasons for concluding  contracts are different and have different content.

48.	Plaintiff relied upon   her approaches in October 2008,   the valuation of her BHPB shares by Icely in December 2008,  her correspondence with Dragone on this valuation,   further  correspondence in May 2010,    her notation on her evaluation of January 2011.   It was argued that  this conduct subsequent to her taking up employment with defendant supports her version.  It  certainly supports  her concern over the failure by Areva to list during the expected first half of  2008 which had not taken place.   She gave evidence that she understood she had taken a risk in hoping for the Areva listing but the risk materialized in the sense that she was now working for an employer who  was not going public and  was not in a position to grant the anticipated share options.    Interestingly,  she writes on 7 May 2010 “As you know I was brought across from BHP on a like for like basis, i.e. I would in addition to my salary and other benefits also receive bonus shares and share options as I had left behind at BHP”.    This wording suggests that  the “like for like”   was that  not only the basic package should be roughly the same but that  defendant  was to implement an executive incentive scheme as she had previously enjoyed at BHPB.   There is no mention of an outstanding match or compensation to be paid over.  She writes “Since the company has not listed I have yet to receive the bonus shares and share options (or compensation of similar value)”.   She asked for Dragone’s  “thoughts as to how this matter would be resolved”.   His response five days later was to remind her that  “to put in place such a program we need to be listed”   which indicates that,  from his point of view,  the Areva scheme  was the only vehicle for any share options to be forthcoming.    Interestingly,  plaintiff  makes no reference  in her initial email or in response  that  they had agreed prior  to the written document being concluded that  the alternative to  the Areva  share  structure  would be the introduction of a ‘phantom’ share scheme.     She was silent in this regard.

49.	Reliance was placed upon  the absence of any real  or useful response from Dragone and his failure to  terminate  her approaches by clearly stating that there never  had been and never would be any compensation for her BHPB shares .  It was argued that this was  not only poor human resources management but also indicative that there was no disagreement .   It was argued that   defendant cannot point out when or where plaintiff was told there would be no compensation as claimed by her.    This argument, to my mind,  misses the point.  It is not for defendant to prove a negative.  It is for plaintiff to show that there was an express oral agreement over and above the written document to which the parties had committed themselves.    Furthermore,   no court could assume that  silence in response to proposals or demands  indicates acceptance or agreement especially when  a written contract had been concluded.   The absence of  a   categorical   denial  by Dragone in  answer to plaintiff’s emails and approaches from October 2008 onwards  may  indicate that plaintiff never spelt out  that she believed that the two of them had agreed, over and above the written document,  that she would be  granted shares by Areva to match her BHPB shares alternatively that a phantom share scheme would be created.   Accordingly,   Dragone responded as he did  because there was no clear  averment of any agreement which he had to confront head on. Dragone’s  responses  may indicate that Dragone was  careless with staff,   too busy to focus,  was impatient of her continuing approaches  (as Barbaglia said he had become).  Dragone’s evidence was that he had no particular recollection  of receipt of some documents or his responses thereto and  that he  was simply not interested in what he considered to be a nonissue which had been resolved  months and years before when the written document was concluded. 
Conclusion

50.	I am satisfied that the written document  covers all the essentials of the contract of employment  between the parties.     This document  purports to regulate the  issue of grant of share options going forward.    This document is silent on  any compensation for share options awarded by BHPB.

51.	Insofar as the contextual evidence prior to conclusion of the written document is concerned,   there is nothing to support the  version of plaintiff that she and Dragone reached a verbal agreement that she would be compensated for her BHPB shares either through the proposed Areva scheme or through a phantom scheme or through cash payments if the Areva scheme did not materialize.   There is, however, support for  Dragone’s version that the sign on bonus was introduced to cover plaintiff’s insistence that  she was not prepared to simply abandon the value in her BHPB shares.

52.	It is inexplicable that plaintiff would  be so concerned about her BHPB share options  that she would raise this several times in her emails prior to concluding the written document and then  fail to  require the written document to record the verbal agreement which she says she and Dragone had reached in this regard.    It is even more improbable that she would not take such an elementary step when Macpherson, author of the written document,  had already expressed a view contrary to  that which she contends was accepted by Dragone.   Her reliance upon her amendment to the retrenchment agreement  as well as the  documentation in respect of  de Jonckheerre indicates the importance she attaches to the written recordal of the obligations of a contracting party.  It is highly unlikely that  her concern for  compensation for the BHPB share options  would go unrecorded if an agreement was reached  which was solely verbal.

53.	There is nothing to support plaintiff’s version that the sign on bonus  was in respect of her STI bonus expected from BHPB for the period July 2007 to January 2008.   The STI bonus  was never raised  by her in any of her emails.  In none of the negotiations is there any reference to   her expected  STI bonus, and  no reference  to  the calculations offered at trial that the R 500 000 was  in respect of this bonus.    There is no record that this  was ever mentioned by her  before signing the written document.   There is however, evidence to support Dragone’s  version as to the basis upon which the sign on bonus was arrived at and calculated. 

54.	The clear wording of the written document imposes no obligation upon the defendant to introduce and implement a structure which would include the development of an AREVA Long Term Incentive Plan Scheme within a period of one year  from the commencement of plaintiff’s employment    either to provide plaintiff  with a package at defendant  comparable to that which she had enjoyed at BHPB or   to compensate her for the loss of the value of her BHPB share options.   I have already discussed the conditional nature of  any grant of  shares and the absence of an  obligation to ensure the scheme was introduced.   Therefore the claim as pleaded in paragraph 8.1.1 of the particulars of claim must fail.

55.	The contextual evidence  adduced by plaintiff on events prior to  conclusion of the written document  and her  “accepting the offer of employment”  in December 2007 do not  support the averment that  defendant would pay to plaintiff the cash value of her 
BHPB shares or introduce a phantom scheme to compensate therefore.     For the reasons I have set out above I find that plaintiff has failed  to discharge  the onus upon her of proving that  defendant agreed to pay her the cash value  of her BHPB shares   or  to introduce the phantom scheme  to provide compensation  and has  failed so to do  as alleged in paragraphs 8.1.2  and 9.2 of  the particulars of claim.    That claim must therefore also fail.
THE RETRENCHMENT AGREEMENT

56.	Defendant raised a special plea  that the Settlement Agreement signed in May 2011 dealing with the retrenchment of plaintiff from  defendant’s employ   constituted “full and final settlement of all claims whatsoever which either  party may have”  and “constitutes the entire agreement between the  parties ”.   Accordingly,  defendant has pleaded that  “the plaintiff’s present cause of action has been settled by agreement”.

57.	In plaintiff’s plea to defendant’s counterclaim, it was pleaded  that the settlement agreement deleted  certain clauses in that agreement and that  the agreement “reserved the plaintiff’s rights in respect of her claim for losses relating to shares and the long term incentive plan”. 

58.	Evidence was  heard from plaintiff and Enrico Barbaglia (“Barbaglia”) on the conclusion of this agreement.   The dispute was whether or not Barbaglia accepted, on behalf of the defendant,  the amendments and insertions made by plaintiff to the settlement agreement.

59.	By reason of the view I have taken in  respect of the employment agreement,  it is not necessary for me to decide the issue of the retrenchment settlement agreement.

60.	Although this was   raised as a special plea and  the balance of the defendant’s plea was set out “in the event of this court finding that the plaintiff’s present cause of action has  not been settled by agreement” ,   I am satisfied that it is  advisable to have determined the main issues raised in the particulars of claim and in respect of which the plaintiff bears the onus. 

QUANTUM   AND COUNTERCLAIM
61.	Evidence was led  by a remuneration consultant,  McGorian,   on the appropriate manner of calculating the value of plaintiff’s  financial loss based upon  share options.   By reason of  my finding on the alleged oral terms of the employment agreement,  I do not need to make any finding on these calculations. 

62.	Defendant brought a counterclaim   for repayment  of certain monies  paid over as part of the retrenchment package.   I view this counterclaim  as having been brought in terrorem  to end the litigation.   By reason of my finding on the alleged oral terms of the employment agreement,  I do not need to make any finding on this counterclaim.

 VIDEO EVIDENCE

63.	I heard an interlocutory application  early on in this trial  in respect of hearing evidence by video from France (Dragone) and Dubai (Barbaglia).    I made my ruling at the time so that there would be no delays in the conduct of the trial.

64.	The evidence was heard  at the offices of attorneys Webber  Wentzel.   

65.	I have still to give reasons for my ruling on this interlocutory application.   Unfortunately, I have been  engaged  without   break in civil trials,  opposed motion court or appeals since this trial concluded.    I have also researched, written and handed down some  six or so reserved judgments  in the interim.    I  had thought this judgment would not be ready  before the end of the court term and would have to be dealt with during  the recess.  Fortunately,  a weekend has made it possible to produce this judgment.

66.	The reasons for the ruling on video evidence will be handed down in the first term of the new court year after the administrative recess.

ORDER
An order is made as follows:

                 ‘Plaintiff’s claim is dismissed with costs.’

Dated at Johannesburg on this day the 9th of  December  2013.

_____________ 
K.SATCHWELL

Counsel for Plaintiff: Adv. N.J. Graves SC
Counsel for Defendants: Adv F.A. Boda 
Attorneys for Plaintiff: Glyn Marais Incorporated 
Attorneys for Defendants: Webber Wentzel 
Date of hearing: 4th November  2013
Date of Judgment:  11th  December 2013