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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

                                                                                                                                                                                  CASE NO: 16704/2012

14/3/2019

 

In the matter between:

 

CHARLES VAN DEN BERG                                                                      PLAINTIFF

(Applicant in the application for leave to appeal)

 

and

 

TSHWANE UNIVERSITY OF TECHNOLOGY                                         DEFENDANT

(Respondent in the application for leave to appeal)

 

 

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

 

AC BASSON, J

[1]          The plaintiff (Mr. Charles van den Berg) instituted action against and claims damages from the defendant in the sum of R8 126 735.00 (eight million one hundred and twenty six thousand seven hundred and thirty five rand) (alternatively R10 241 336.00 (ten million two hundred and forty one thousand three hundred and thirty six rand)), being damages allegedly suffered by him as a result of an alleged breach of contract by his former employer (the Tshwane University of Technology - the “TUT”). 

[2]          This Court concluded as follows:

 

“[127] The plaintiff has not succeeded in proving that the TUT has breached his employment contract in respect of the complaints raised in paragraph 6.4, 6.5, 6.6, 6.7 and 6.8 of the particulars of claim. The claim of the plaintiff therefore falls to be dismissed. I can find no reason why costs should not follow the result.”

 

[3]          The plaintiff now seeks leave to appeal on the limited basis that this Court concluded that the defendant had not breached the plaintiff’s contract by denying him the right to appeal against the guilty finding, inter alia, on the basis that the plaintiff had waived/ abandoned his right to an appeal in circumstances were this was not pleaded.

 

Context

[4]          The plaintiff was dismissed by the TUT on 5 August 2009, after he was found guilty by a disciplinary hearing that was held in his absence, on various charges relating to several financial irregularities in respect of the Hartebeeshoek training facility utilized by the Department of Horticulture for practical training purposes.[1]

[5]          The guilty finding pertaining to these severe financial irregularities stands and has not been successfully challenged in any forum.

[6]          In this Court the plaintiff confined his claim for damages to alleged procedural breaches in that the defendant had not followed certain procedural requirements during the disciplinary process and which culminated in his dismissal.

[7]          The issue before this Court therefore was not whether the plaintiff was in fact guilty of the charges preferred against him. In fact, as already pointed out, the plaintiff has elected not to challenge the guilty finding preferred against him following a disciplinary enquiry. This Court pointed out that this election not to dispute the reason for his dismissal, is not without consequence and is particularly significant in light of the fact that the charges preferred against the plaintiff (and of which he was found guilty by a disciplinary hearing) are undoubtedly of a serious nature especially in so far as they relate to financial mismanagement and dishonesty.[2]

[8]          Although an employee has the contractual right to pursue a claim for damages pertaining to alleged procedural breaches of his contract of employment, such claims must be considered in its proper context in determining the merits pertaining to alleged procedural breaches.

[9]          Firstly, an employee owes a duty to act in good faith towards his or her employer. Where an employee has been found guilty of conduct involving dishonesty, financial mismanagement or conduct amounting to a conflict of interest (as in this case) the relationship of trust will usually be destroyed. In terms of the common law, an employer will generally have the right to terminate the contract of employment (dismissal) as such conduct, as already pointed out, usually destroys the relationship of trust that is inherent and fundamental to the employment relationship.

[10]       Secondly, the mere fact that there was non-compliance with certain procedures prior to dismissing an employee, particularly where there has been a material breach or repudiation by the employee which justified the employer to cancel the contract (as there was in this case), non-compliance with a procedural requirement prior to such a termination will not necessarily be considered as material or causative at common law and unless a procedural breach results in damages, such breach will normally be of little consequence. (See the decision of the Labour Appeal Court in SA Football Association v Mangope).[3]

[11]       The question before this Court was whether the plaintiff had demonstrated that, having regard to all the elements necessary to succeed with the claim for damages, he should succeed with his claim.

[12]       The plaintiff initially approached this Court alleging a breach of contract on eleven different grounds.  After evidence was led only five remained contentious. This Court concluded that the plaintiff has not succeeded in proving that the TUT has breached his employment contract in respect of the complaints raised in paragraph 6.4, 6.5, 6.6, 6.7 and 6.8 of the particulars of claim and dismissed the claim with costs.

[13]       The only issue under consideration in this application for leave to appeal is this Court’s finding that, having regard to the facts of this case, that the applicant had waived/ abandoned his right to an appeal in circumstances were this was not pleaded.

[14]       This Court concluded firstly, that no evidence was placed before the Court indicating that the plaintiff disputed at any time the instruction that the TUT did not have an appeal process in place. In fact, the evidence before the Court showed that neither the plaintiff nor his trade union or trade union representative disputed the information conveyed to the plaintiff that no right to an appeal existed. Although the plaintiff was represented by an attorney, neither did they dispute the denial of the plaintiff’s right to an internal appeal hearing. Secondly, and despite the fact that the plaintiff had been legally represented throughout the entire disciplinary process, the plaintiff elected not to make use of the remedy provided for in terms of section 77(3) of the Basic Conditions of Employment Act[4] (the “BCEA”) for an order for specific performance (which includes an order compelling the employer to convene an appeal hearing). Thirdly, the plaintiff elected to refer his unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) for conciliation and arbitration on the basis that his dismissal constituted a substantively and procedurally unfair dismissal. The plaintiff’s unfair dismissal dispute was heard by the CCMA on 2 October 2009.

[15]       In paragraph [123] this Court posed the question whether the TUT breached the employment contract by not affording the plaintiff his right to an appeal under these circumstances set out in the previous paragraph and concluded that the TUT did not, to recap briefly: The plaintiff was at all times aware of his procedural rights, is borne out by the facts. He was represented throughout and at all times during the disciplinary process that stretched over many months. He was also represented by counsel during the CCMA proceedings. At no stage did the applicant made any attempt to enforce his contractual right. Instead he approached the CCMA (whilst being represented by counsel) and sought a full rehearing of the matter by the CCMA[5]. Under these circumstances it can hardly be said that the TUT had breached the contract. Even if had, (which is not the case in my view in the present matter), the breach must be viewed in light of the fact that the plaintiff had been dismissed for serious financial misconduct which ordinarily entitles an employer to terminate the contract in terms of the common law. As was pointed out by the Labour Appeal Court in SA Football Association v Mangope: where a contract had been lawfully terminated on account of an employee’s conduct, he would have suffered no contractual damages arising from the procedural breaches. I, reiterate what the Labour Appeal Court held in respect of procedural non-compliance in such circumstances:

“[39] The respondent and the court a quo placed much store on the appellant's failure to follow the evaluation procedure in clause 5 of the contract prior to terminating the contract. The reliance is to a certain extent misplaced in a suit for breach of contract as opposed to one for unfair dismissal. Accepting that the appellant did not properly evaluate the respondent's work performance or provide reasonable instruction or opportunity to improve, such breaches of contract by the employer would not necessarily be construed as material or causative at common law. Non-compliance with procedural provisions in a contract of employment ordinarily will ground a claim for unfair dismissal in terms of the LRA, even where there is a justifiable substantive reason for dismissal; but at common law a procedural breach will be of no contractual consequence unless it results in damages, particularly where there has been a material breach or repudiation by the employee entitling the employer to cancel.[6] In the law of contract there must be a causal nexus between the breach (procedural or otherwise) and the actual damages suffered. A contractant must prove that the damage for which he is claiming compensation has been factually caused by the breach. This involves a comparison between the position prevailing after the breach and the position that would have obtained if the breach had not occurred. Accordingly, if the respondent's contract is found to have been lawfully terminated on account of his repudiation of the warranty of competence, he would have suffered no contractual damages arising from the procedural breaches. As I have just explained, he may have been entitled to compensation (not damages) in terms of the LRA for a procedurally unfair dismissal, but then he needed to refer an unfair dismissal dispute to the CCMA in terms of s 191 of the LRA.”

 

[16]       It is therefore in light of these facts that the Court held that there was no breach of contract. The fact that the waiver was not specifically pleaded is of no consequence in this particular matter. The fact of the matter is that the plaintiff committed a material breach of the contract; he has never placed the TUT on terms to perform in terms of the provisions of the code in circumstances where he had alternative remedies at this disposal to enforce the terms of the contract and lastly, where a contract has been lawfully terminated, as it has been done in this case, he would not have suffered contractual damages arising from procedural breaches, even if there had been any.

[17]       I must lastly also briefly point out that this matter confirms the dangers an employee faces when he elects to craft a cause of action relying on the common law (although he has the right to do so) instead of pursuing his employee rights through the dispute resolution mechanisms provided for in the Labour Relations Act.[7] This much was pointed out by the Constitutional Court in Steenkamp and Others v Edcon Ltd[8]:

 

“[130] The scheme of the LRA is that if it creates a right, it also creates processes or procedures for the enforcement of that right, a dispute resolution procedure for disputes about the infringement of that right, specifies the fora in which that right must be enforced and specifies the remedies available for a breach of that right. A well-known example is every employee's right not to be unfairly dismissed which is provided for in s 185. In s 186 there is a definition of what dismissal means. In s 187 there is a special category of dismissals, namely automatically unfair dismissals. In s 188 other categories of dismissals are created, namely dismissals that lack a fair reason and procedurally unfair dismissals.”

 

Should leave to appeal be granted?

[18]       In deciding whether to grant leave to appeal, this Court has to take into account the provisions of section 17(1)(a)(i) of the Superior Courts Act.[9] The legal position is that leave to appeal may only be granted where the Court is of the opinion that the appeal would have reasonable prospects of success in respect of its findings.

[19]       I am not persuaded that this appeal would have a reasonable prospect of success or that there is any other compelling reason why this appeal should be heard.

[20]       In the event, the application for leave to appeal is dismissed with costs, such costs to include the costs of two counsel where so employed.

 

 

 

 

 

 

                                                            AC BASSON

                                                            JUDGE OF THE HIGH COURT

 

 

 

Appearances:

For the plaintiff:                   Adv. E van As

Instructed by:                         Len Dekker & Associates Attorneys.       

 

For the defendant:                Adv. H Gerber (SC)

Adv. U Lottering

Instructed by:                      Gildenhuys Malatji Incorporated.

 

 

 

 

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