De Lange v ABSA Makelaars (Edms) Bpk (262/09) [2010] ZASCA 21; [2010] 3 All SA 403 (SCA) ; (2010) 31 ILJ 885 (SCA) (23 March 2010)

De Lange v ABSA Makelaars (Edms) Bpk (262/09) [2010] ZASCA 21; [2010] 3 All SA 403 (SCA) ; (2010) 31 ILJ 885 (SCA) (23 March 2010)

The Supreme Court of Appeal held that clause 16.6 of the employment contract does not exclude the possibility of importing the tacit term pleaded by De Lange. The court found that the tacit term requiring ABSA to take into account all relevant facts, including the employee's version, and to respect the audi alteram partem principle, is necessary to give efficacy and fairness to the contract. The evidence showed that ABSA failed to comply with this tacit term, as De Lange was not given an opportunity to present his side before ABSA formed its opinion and paid damages to clients. The court rejected ABSA's argument that the tacit term only applies while the broker is still employed, finding...

Citation
[2010] ZASCA 21
Parties
Appellant: Johan de Lange; Respondent: ABSA Makelaars (Edms) Beperk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 March 2010
Case Number
262/09
Procedural Posture
Civil Appeal / Appeal From Western Cape High Court (griesel J)
Outcome
Appeal upheld; ABSA's claims against De Lange dismissed with costs.
Judges
Harms, Van Heerden, Cachalia, Shongwe, Theron
Legal Topics
Contract of Employment, Tacit Terms, Audi Alteram Partem, Liability of Employee
Commercial and Corporate Labour Law Contract of Employment Tacit Terms Audi Alteram Partem Liability of Employee

Case Brief

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Parties

Johan de Lange

Appellant

ABSA Makelaars (Edms) Beperk

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape High Court (griesel J)

Legal Issues

  1. 1 Whether clause 16.6 of the employment contract obliges ABSA to give De Lange a hearing before holding him liable for damages paid to clients.
  2. 2 Whether a tacit term requiring ABSA to hear De Lange's version should be imported into the contract.
  3. 3 Whether ABSA's discretion to form an opinion of legal liability is subject to objective standards and procedural fairness.

Ratio Decidendi

The Supreme Court of Appeal held that clause 16.6 of the employment contract does not exclude the possibility of importing the tacit term pleaded by De Lange. The court found that the tacit term requiring ABSA to take into account all relevant facts, including the employee's version, and to respect the audi alteram partem principle, is necessary to give efficacy and fairness to the contract. The evidence showed that ABSA failed to comply with this tacit term, as De Lange was not given an opportunity to present his side before ABSA formed its opinion and paid damages to clients. The court rejected ABSA's argument that the tacit term only applies while the broker is still employed, finding...

Court Disposition

Appeal upheld; ABSA's claims against De Lange dismissed with costs.

Orders

  • The appeal succeeds with costs.
  • The order of the high court is set aside and replaced with: 'Claims 4 to 15 are dismissed with costs.'