Mokoroane v Department of Social Development: North West Provincial Government and Another (J 880/2022) [2022] ZALCJHB 220 (5 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 880/2022

In the matter between:

TSHEPO JAMES MOKOROANE

Applicant

And

DEPARTMENT OF SOCIAL DEVELOPMENT:

NORTH WEST PROVINCIAL GOVERNMENT

First Respondent

MEC FOR SOCIAL DEVELOPMENT NORTH

WEST PROVINCE: MS BOITUMELO

THEODORA MOILOA

Second Respondent

Heard: 27 and 29 July 2022

Delivered: 05 August 2022

This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour

Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 05 August 2022.)

JUDGMENT

PRINSLOO, J

Background facts

[1] The Applicant was appointed by the First Respondent (Department) with effect from 1 December 2019, as a Legislative Support Officer on salary level 11. Government positions on salary levels 11 and 12 are referred to as Medium Management Service (MMS).

[2] On 7 August 2020, the Applicant entered into a fixed term contract (contract) with the Department, as duly represented by the Second Respondent (MEC), wherein the Applicant was appointed as a Technical Specialist in the private office of the MEC, with effect from 7 August 2020.

[3] For purposes of giving context to this matter, certain clauses of the contract of employment are relevant and will be referred to specifically.

[4] Clause 1 of the contract provides for the appointment of the Applicant as follows:

‘1.1 The Employer hereby appoints the Employee as Technical Specialist in the Private Office of (Executive Authority) with effect from 07 August 2020.

1.2 The contract period shall be commensurate with the term of office of Member of the Executive Council (executive authority).

1.3 The Employee’s other terms of employment and conditions of service shall be governed by the Public Service Act 1994 as amended, regulations and policies emanating therefrom, and any other provisions of the employment laws pertaining to the Public Service which may be in force from time to time.’

[5] The Applicant was appointed on salary level 13. Government positions, on salary levels 13 to 16 are referred to as Senior Management Service (SMS).

[6] Clause 5 of the contract provides for the termination of employment as follows:

‘Termination of Employment

5.1 This contract may be terminated under the following circumstances:

5.1.1 At the end of its term as stipulated in clause 1.2; or

5.1.2 At the instance of the Executive Authority relinquishing his/her office for any reason whatsoever before the end of term of the current democratic government, in which event this agreement will automatically lapse 30 days from the date that the Executive Authority so relinquishes the portfolio; or

5.1.3 At the instance of either party giving notice of its intention to terminate this contract. The notice period in this regard shall be shall be thirty (30) days. But where circumstances necessitate a shorter period of notice, the Employer shall use its discretion to waive such notice period at the request of the Employee; or

5.1.4 on death of the Employee.’

[7] In clause 6.2 of the contract, the issue of good faith is recorded as follows:

‘In the implementation of the contract, the parties undertake to observe utmost good faith and they warrant that in their dealing with each other they will refrain from doing anything that might prejudice their respective rights, assets or interests.’

[8] On 30 June 2022, the MEC issued a letter of termination to the Applicant wherein he was informed that his term of contract would be ending on 31 July 2022, in accordance with the notice period provided for in the contract.

The relief sought

[9] The Applicant approached this Court on 19 July 2022 on an urgent basis, for hearing on 27 July 2022. The relief sought by the Applicant is three-fold.

[10] The relief sought in Part A of the Applicant’s notice of motion was of an interim nature, seeking inter alia to suspend the operation of the termination letter dated 30 June 2022, pending the determination of the relief sought in Part B.

[11] In Part B the Applicant seeks a declarator as follows:

‘B1. Declaring that the decision of the MEC, purporting to terminate the applicant’s employment with the Department with effect from 31 July 2022, null and void- ab initio with no force and effect for want of compliance with the terms and conditions of the Employment Contract entered into between the

Department and the applicant on 7 August 2020 read together with the Common Law Principle of Audi Alteram Partem and further read with section 14 and 17 of the Public Service Act, 1994 and further read with section 23 (1) of the Constitution of the Republic of South Africa, 1996;

B2. Declaring that the MEC Contravened section 14 of the Public Service Act, when she purported to terminate the applicant’s Employment Contract, instead of approving and/or rejecting his application for transfer within the Department;

B3 Setting aside the MEC’s decision communicated in the letter, dated 30 June 2022 on the same grounds as stated in paragraph B1.’

[12] In Part C the Applicant seeks the following relief:

‘C1. Declaring that the conduct of the Department in deducting the monthly PNPA Role Playing Allowance (“Allowance”) in the amount of R7 035.00, since end February 2022, from the applicant’s salary package without his consent, is invalid and unlawful and in contravention of section 34 of the Basic Conditions of Employment Act, 75 of 1997 (“BCEA”) when read together with the Constitutional Court judgment in Public Servants Association Obo Ubogu v Head of Department of Health, Gauteng and Others (2018) 39 ILJ (CC) (“Ubogu”).

C2. Directing the Department to stop deducting the applicant’s monthly allowance in the amount R7 035.99 with immediate effect.

C3. Directing the Department, to payback the applicant’s allowance in the total amount of R35 175.00, which it unlawfully deducted from the applicant’s salary package from end of February 2022 up until end June 2022.’

[13] The relief sought in Part A is interim, pending the determination of Part B, wherein the Applicant seeks a declaratory order. The Applicant requested an opportunity to file a replying affidavit, which was granted and the matter was heard on 29 July 2022. This Court directed the parties to deal with Part B of this application, as to determine Part A (on an interim basis) and B (as final relief) on separate occasions, would be a duplication and would burden the Court unnecessarily, more so where a full set of pleadings was available at the hearing of the matter. Dealing with and deciding Part B of the application renders Part A superfluous and the relief sought will be dealt with as final relief. The relief sought in Part C of the application is not urgent and does not

deserve the attention of the urgent Court. Part C can be pursued in the normal course.

This application

[14] The Applicant pleaded specifically that this application is in respect of a claim that arises from the breach of his fixed term contract and that he seeks to enforce the provisions of the contract. The application is brought in terms of the provisions of section 77(3) of the Basic Conditions of Employment Act[1](BCEA). The Applicant has denounced any reliance on his rights in terms of the Labour Relations Act[2] (LRA). The relief the Applicant pursues relates to the alleged unlawful termination of his contract of employment.

[15] A contractual claim in terms of the BCEA is a cause of action different and separate from an unfair dismissal claim in terms of the LRA or a review application, albeit that all the causes of action could arise from the same conduct.

[16] I already alluded to the fact that the Applicant had signed a fixed term contract. Clause 6.4 of the contract is a variation clause that states that the contract is the whole agreement between the parties and no amendment, alteration, addition or variation of any right, term or condition of the contract will be of any force or effect unless reduced to writing and signed by both parties. The fact that the contract contains a non-variation clause is not insignificant.

[17] Notwithstanding the aforesaid non-variation clause, the Applicant pleaded tacit and /or implied terms and conditions of employment. In my view, this is problematic as the Applicant pleads and introduces terms that are not contained in the contract signed by the parties. For instance, and to illustrate the difficulty with the Applicant’s pleaded case, his case is that he is appointed in terms of section 9 of the Public Service Act[3] (PSA) with effect from 7 August 2020 and that he would remain in the employment of the Department for a period of five years. The Applicant pleaded further that his contract would expire at the end of June 2024 or would be extended in accordance with any employment laws of the Republic of South Africa. In reality, the contract he signed makes no mention of section 9 of the PSA, nor does it stipulate that the contract would expire at the end of June 2024 or that it would be extended.

[18] The Applicant further pleaded that his contract of employment would be terminated as envisaged in clause 3 of annexure 2, part 3. The contract that appears in annexure 2, part 3 is the employment contract for a fixed term or specific project in accordance with Part II of Chapter 4 of the Public Service Regulations, 2001, for members of the senior management service, which was published in the Government Gazette[4]. The said contract provides for termination in clause 3 thereof on completing a term or extended term of office, discharge in terms of section 17 of the PSA or death.

[19] The Applicant’s plea in this regard is mistaken and ill-advised. This is so for a number of reasons. Firstly, the Applicant never signed a contract as envisaged in annexure 2, part 3, published in the Government Gazette. Secondly, the contract signed by the Applicant is for appointment as a Technical Specialist in the private office of the MEC and the contract period is to commensurate with the term of office of the MEC. The contract as envisaged in annexure 2, part 3 does not apply to an appointment in the private office of the MEC and is not linked to the term of the MEC. Thirdly, the Applicant’s contract provides specifically for termination in clause 5 thereof and clause 3 of a contract not signed by him, is of no relevance. The Applicant pleaded terms of a contract that he did not sign and which do not apply to him.

[20] The Respondents’ case is that the termination of the Applicant’s contract is lawful as it accords with the express terms of the employment contract the parties had entered into.

Analysis

[21] The Applicant’s case is that he was appointed in terms of section 9 of the PSA, which is disputed by the MEC, who avers that his appointment was in terms of section 12A of the PSA. The parties made much of this issue and identified it as an issue for this Court to decide. In my view, not much turns on this issue for purposes of the current application. The dispute before this Court is a contractual dispute and must be decided by applying the principles applicable to contractual disputes. It matters not which section of the PSA applies, as this Court is concerned only with the contractual terms and the alleged unlawful termination of the Applicant’s employment.

[22] For the Applicant to succeed with his contractual claim, he must show that there was a breach of contract in that the MEC was not entitled to terminate his contract of employment on notice.

[23] I already alluded to clause 5.1.3 of the contract of employment, which clause the Respondents invoked when the Applicant’s contract was terminated on notice. The question is whether the Respondents breached the contract of employment and acted unlawfully when the Applicant was given 30 days’ notice of the termination of the contract.

[24] The Supreme Court of Appeal (SCA) in Natal Joint Municipal Pension Fund v Endumeni Municipality,[5] affirmed the principles applicable to the interpretation of legislation and contracts. What the judgment underscores is that the exercise of interpretation does not require a court to discern the intention of the legislature or the parties to a contract only by reference to the plain meaning of words with a deferential nod, if necessary, in the direction of the Oxford English Dictionary, as was said at paragraph 18:

'The present state of the law can be expressed as follows: interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document… The "inevitable point of departure is the language of the provision itself", read in context and having regard to the purpose of the provision and the background to the preparation and production of the document…'

And further at paragraph 26:

'In between these two extremes, in most cases the court is faced with two or more possible meanings that are to a greater or lesser degree available on the language used. Here it is usually said that the language is ambiguous, although the only ambiguity lies in selecting the proper meaning (on which views may legitimately differ). In resolving the problem, the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation. An interpretation will not be given that leads to impractical, unbusinesslike or oppressive consequences or that will stultify the broader operation of the legislation or contract under consideration.'

[25] In his founding affidavit, the Applicant submitted that the MEC’s termination of his contract is unlawful because it is not authorised in section 14 or section 17 of the PSA, was taken in bad faith, that there was no observation of section 23 of the Constitution[6] and there was no agreement to terminate the agreement. I will deal with these averments in turn.

Section 14 of the PSA

[26] Section 14 of the PSA deals with the transfer of employees within the public service and provides as follows:

‘(1) Subject to subsections (2), (3) and (4), any employee of a department may be transferred –

(a) within the department, by its executive authority;

(b) to another department by the executive authorities of the two relevant departments.

(2) Such transfer shall be made in such manner and on such conditions as may be prescribed.

(3) An employee may be transferred under subsection (1) only if –

(a) the employee requests the transfer or consents to the transfer; or

(b) in the absence of such request or consent, after due consideration of any representations by the employee, the transfer is in the public interest.

(4) Before employees may be transferred in terms of subsection (3) (b) as a result of a determination regarding an allocation, abolition or transfer of a function, contemplated in section 3 (4) (b) or (c) or 3A (b), consultation shall take place in the applicable bargaining council established in terms of the Labour Relations Act for the public service as a whole or for a particular sector in the public service.

(5) (a) The transfer of an employee in terms of subsection (1) who is on probation shall remain subject to probation as prescribed.

(b) Any regulation so prescribed shall take due regard of the respective functions before and after the transfer to avoid detriment to the employee concerned.

(6) An employee who has been transferred to a post with –

(a) a lower salary than his or her salary before the transfer shall not upon such transfer suffer any reduction in salary, except if he or she requested the transfer or he or she consented to the reduction; or

(b) a higher salary than his or her salary before the transfer shall not by reason only of that transfer be entitled to the higher salary.’

[27] On 3 June 2022, the Applicant requested a transfer from his current position to another position of Deputy Director: Youth Development within the Department. His application for a transfer was contained in a submission for approval by the relevant authority. However, before his transfer was approved and on 30 June 2022, the MEC terminated his contract with effect from 30 June 2022.

[28] The Applicant’s case is that section 14 permits the transfer of an employee, but it does not permit the arbitrary dismissal or termination of an employee’s employment if that employee applies for a transfer within a department. The MEC misused her powers when she terminated the contract because the Applicant requested a transfer to another position. These averments accord with the relief sought by the Applicant in the following terms: “[d]eclaring that the MEC contravened section 14 of the Public Service Act, when she purported to terminate the applicant’s employment contract, instead of approving and/or rejecting his application for transfer within the Department”.

[29] The Respondents submitted that the termination of the Applicant’s contract was lawful and accords with the express terms of the contract.

[30] In my view, the Applicant’s submissions are flawed. The Applicant seeks to locate his right to the declaratory relief he seeks in section 14 of the PSA. Section 14 however does no more than to provide for the transfer of employees within the public service. It has no bearing on the termination of employment, nor does it provide for termination in any manner whatsoever. It is evident from the termination letter issued to the Applicant, that the MEC did not terminate his contract in terms of section 14 of the PSA. The contract was terminated on notice, as per clause 5.1.3 of the contract.

[31] It is trite that an applicant may approach this Court to review a decision or conduct. Section 158(1)(h) of the LRA provides that the Labour Court may review any decision taken or act performed by the State in its capacity as employer, on such grounds that are permissible in law. Section 6 of the Promotion of Administrative Justice Act[7] (PAJA) permits any person to institute proceedings in a court or tribunal for the judicial review of an administrative action on various grounds if, inter alia, the action was taken irrationally, in bad faith, arbitrarily or capriciously. Various grounds for review are specified in PAJA, for instance section 6(2)(f)(ii) (the action was not rationally connected to the purpose of the empowering provision, the information before the administrator and the reasons given) and sections 6(2)(e)(v) and (vi) (on grounds that the action was taken in bad faith, arbitrarily and capriciously). Where the decision is challenged as arbitrary and capricious, the relief could equally be granted in a legality review.

[32] In casu, the Applicant made averments relating to an arbitrary dismissal, bad faith and misuse of powers, yet he did not approach this Court with an application to review, based on the aforesaid principles. Instead, he made the election to approach this Court on purely contractual grounds and his averments relating to misuse of powers, bad faith and arbitrary conduct are of no relevance in a contractual dispute.

Section 17 of the PSA

[33] The Applicant seeks an order declaring the termination of his employment to be unlawful, null and void ab initio, with no force and effect for want of compliance with the terms and conditions of employment of his contract, read with sections 14 and 17 of the PSA. The reasons why the Applicant’s reliance on section 14 of the PSA is misplaced, have been set out supra.

[34] Section 17(1) and (2) of the PSA deals with the termination of employment as follows:

‘17. Termination of employment

(1)(a) Subject to paragraph (b), the power to dismiss an employee shall vest in the relevant executive authority and shall be exercised in accordance with the Labour Relations Act.

(b) The power to dismiss an employee on account of misconduct in terms of subsection (2) (d) shall be exercised as provided for in section 16B (1).

(2) An employee of a department, other than a member of the services, an educator or a member of the Intelligence Services, may be dismissed on account of –

(a) incapacity due to ill health or injury;

(b) operational requirements of the department as provided for in the Labour Relations Act;

(c) incapacity due to poor work performance; or

(d) misconduct.’

[35] The Respondents raised the issue of jurisdiction and submitted that the Applicant approached this Court based on ‘unlawfulness’, but he is effectively seeking to circumvent the dispute resolution mechanisms created by the LRA.

[36] In my view, there is merit in the jurisdictional point. It is evident that section 17 of the PSA provides for the dismissal of an employee in accordance with the provisions of the LRA and on account of incapacity, operational requirements or misconduct. Not only does section 17 of the PSA provide specifically that the dismissal of an employee should be effected in accordance with the LRA, it also mirrors the legitimate grounds for termination as set out in Schedule 8 of the LRA.

[37] The Applicant’s reliance on section 17 of the PSA is misplaced. He denounced any rights he may have in terms of the LRA for purposes of this application and his application is premised firmly on section 77 of the BCEA and the unlawful termination of his contract. Instead of focusing his application on the terms of his contract, the Applicant seeks an order declaring the termination of his employment to be unlawful, null and void ab initio, with no force and effect for want of compliance with section 17 of the PSA, and in doing so he is effectively seeking relief in terms of the LRA, as the provisions of the LRA are incorporated into section 17 of the PSA.

[38] The Constitutional Court held in Steenkamp and others v Edcon Ltd[8] (Steenkamp) that:

‘The LRA created special rights and obligations that did not exist at common law. One right is every employee's right not to be unfairly

dismissed which is provided for in s 185. The LRA also created principles applicable to such rights, special processes and fora for the enforcement of those rights. The requirement for the referral of dismissal disputes to conciliation is one of the processes created by the LRA. The CCMA, bargaining councils and the Labour Court are some of the fora. The principles, processes, procedures and fora were specially created for the enforcement of the special rights and obligations created in the LRA. Indeed, the LRA even provides for special remedies for the enforcement of those rights and obligations. The special remedies include interdicts, reinstatement and the award of compensation in appropriate cases. These special rights, obligations, principles, processes, procedures, fora and remedies constitute a special LRA dispensation.’

[39] The Labour Appeal Court in Wardlaw v Supreme Mouldings (Pty) Ltd[9], confirmed that this court does not have jurisdiction in respect of disputes which must be referred to arbitration in terms of the provisions of the LRA:

‘It is clear from s 157(1) that the Labour Court does not have "exclusive jurisdiction where this Act provides otherwise". It has "exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined" by it. However, all of this is subject to the Constitution and s 173 of the Act. Section 173 of the Act deals with the jurisdiction of this court and is of no relevance to the issue before us. Section 157(5) is very important. It provides:

"(5) Except as provided in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration.”

This provision lays down a general rule to which there is only one exception. The general rule is that "[t]he Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act requires the dispute to be resolved through arbitration”.’

[40] In Steenkamp, the Constitutional Court confirmed the principle that where the true nature of a dispute is one that concerns the breach of an obligation established by the LRA, a remedy must be sought in terms of the LRA and in accordance with the dispute resolution mechanisms established by the LRA. It was held that:

‘The second basis for my conclusion is that the applicants’ appeal should be dismissed is a principle that, for convenience, I call “LRA remedy for an LRA breach”. The principle is that, if a litigant’s cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA. It cannot go outside of the LRA and invoke the common law for a remedy. A cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute-resolution mechanisms of the LRA to obtain a remedy provided for in the LRA.’[10]

[41] If the Applicant seeks to invoke the provisions of section 17 of the PSA and the provisions of the LRA which are incorporated therein, he has to seek a remedy in the LRA and he is obliged to utilise the dispute resolution mechanisms of the LRA to obtain a remedy provided for in the LRA. He cannot obtain such a remedy under the guise of a contractual claim as this Court has no jurisdiction to entertain a claim for unfair dismissal, as set out in the authorities supra.

Section 23 of the Constitution

[42] The Applicant’s case is further that the termination of his contract was unconstitutional in that it was a tacit or implied term of his contract that the termination clause was subject to the audi alteram partem principle and section 23(1) of the Constitution. Section 23(1) of the Constitution guarantees that everyone has a right to fair labour practices.

[43] The Applicant’s reliance on the Constitution is misplaced.

[44] It is trite that section 23 of the Constitution provides for fair labour practices and that the LRA was enacted to give effect to and regulate the fundamental rights so conferred by section 23 of the Constitution. To the extent that the LRA gives effect to the fundamental rights in section 23, an applicant is not entitled to place direct reliance on the Constitution, except to the extent that the constitutionality of the LRA is challenged or where the issue falls outside of its ambit.

[45] It is astonishing that the Applicant seeks to rely on section 23 of the Constitution and the right to fair labour practices in circumstances where he has approached this Court in terms of the provisions of the BCEA and a contractual claim. Evidently, the Applicant lost sight of the claim he pursued in this application, alternatively, he has no understanding of the difference between a contractual claim and alleged unlawfulness and a claim relating to unfairness, for which the remedy lies in the provisions of the LRA.

[46] In Old Mutual Limited and Others v Moyo and Another[11] (Old Mutual) the appeal arose as a result of Old Mutual’s termination of Mr Moyo’s contract of employment in terms of clause 24.1, which provided that either party may, on six months’ notice, terminate the agreement. The Full Bench on appeal held that[12]:

‘[59] It seems to me, with respect, that despite Mr Moyo's express disavowal of any reliance on his rights under the LRA, the court a quo viewed the interdict application through a labour-law prism, i.e. the perceived unfairness of Old Mutual having raised allegations

of a conflict of interest and misconduct on the part of Mr Moyo, and then proceeding instead to terminate the employment contract on notice in terms of clause 24.1.1 without first affording him a hearing before the termination. However, there is no such self-standing common-law right to fairness in employment contracts. A right to be treated fairly when a contract is terminated only exists if it is expressly or impliedly incorporated in the contract.

[60] In South African Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA) paragraphs 32-33 and 55-58, the Supreme Court of Appeal had occasion to consider a contract of employment which provided for termination on notice. Wallis AJA held that a right to be treated fairly upon termination could only be held to exist if it is expressly or impliedly incorporated in the contract and that such a term should not be imported into a contract by developing the common law. It was held that the contract in question had been lawfully terminated on notice and there was no requirement for fairness, expressly or impliedly, incorporated into the contract.

[61] In Transman (Pty) Ltd v Dick and another 2009 (4) SA 22 (SCA); [2009] 7 BLLR 629 (SCA) para 18, any reliance on the LRA was also abandoned. It was argued that the employee nevertheless was entitled to a hearing before the termination of his employment contract and that such entitlement arose from an implied term of the contract. But Jafta JA held that there was a duty on him "not only to plead the contractual claim but also to prove facts from which the contended tacit term could be inferred", which "he has failed to do and as a result there is no factual basis for importing into the employment agreement the term that he was entitled to a hearing before the board terminated his employment". Accordingly, so it was held, "the court below erred in assuming that his employment contract "was subject to an implied term that he would be afforded a fair hearing before he was dismissed".

[62] No implied term of fairness has been pleaded in Mr Moyo's founding affidavit. Had he intended to rely upon such a term, it was his duty not only to plead the contractual term, but also to establish facts from which such a term could be inferred. The court a quo, in my respectful view, erred insofar as it might have assumed that the contract of employment was subject to an implied term that Mr Moyo would be afforded a hearing before the employment contract was terminated by providing six months' notice to that effect. The questions whether Old Mutual was contractually entitled to invoke the no-fault termination on six months' notice provision of the employment contract (clause 24.1.1) as it did, and whether clause 25.1.1 expressly affords Mr Moyo a right to a prior internal disciplinary enquiry or a pre-dismissal arbitration before the invocation of the no-fault termination, as I have mentioned, depend on an interpretation of the employment contract, to which I now turn.’

[47] The Applicant failed to make out a case that his contract was subject to an implied term that he would be afforded a hearing before his contract was terminated by providing notice to that effect, as contemplated in clause 5.1.3 of the contract. Equally so, there is no clause in the contract that provides that the parties have to agree to the termination of the contract on notice. I re-iterate that the non-variation clause in the contract is not insignificant and has to be kept in mind.

[48] Ms Dzai for the Applicant referred to Ndara v Acting National Commissioner for the Department of Correctional Services and others[13](Ndara) in support of her argument. In Ndara, the termination of the applicant’s employment was declared unlawful and of no force and effect. Ms Dzai submitted that the Applicant in casu is entitled to the same relief.

[49] The facts in Ndara differ in material respects from the facts in casu. In Ndara the terms of the contract specifically stipulated that “[s]ubject to the provisions of the PSA and the LRA, either party may, after consultation and agreement, terminate the contract before the expiry of an original term of office or an extended term of office, by giving the other party one month’s notice of termination…”

The Court found that the termination was not effected for any reason contemplated in section 186 of the LRA and that the contract was terminated prematurely without affording the applicant his contractual rights. The termination of the employment contract was set aside on the basis that the employer failed to follow the due process, as contractually agreed to. The relief granted was for the status quo ante to be restored in order that due consultation could take place. Not only are the facts different, but the terms of the contract differ materially from the Applicant’s and the relief granted in Ndara is not the same as the relief sought in casu.

[50] Ms Dzai’s blind reliance on Ndara is opportunistic, more so where she made no effort to show that there are material differences, as alluded to supra. Ndara finds no application on the facts before this Court.

Conclusion

[51] The Applicant has to prove that the terms of his contract of employment do not allow for the termination of his employment on 30 days’ notice and that it provides for a process whereby he is to be engaged in some form of negotiation prior to the termination of his contract.

[52] Applying the principles applicable to the interpretation of contracts, it is evident that clause 5 of the contract of employment provides for termination of employment and that clause 5.1.3 provides specifically for termination on a notice period of 30 days. In my view, the wording of the contract is clear and entitles the Respondents to terminate the Applicant’s employment prior to the expiry of the agreed term of the contract period. In terminating the Applicant’s contract in accordance with the said clause, the Respondents exercised a contractual right to terminate the contract. This did not constitute a breach or repudiation of the contract.

[53] The Applicant cannot show that the notice of termination is unlawful because the Respondents, or the MEC specifically, was not entitled to terminate his employment contract on notice, according to the terms of the contract and his case has to fail. Whether that was fair or done in an arbitrary manner, is a different question and not one this Court is required to consider in this application

Costs

[54] The last issue to be decided is the issue of costs.

[55] This Court has a wide discretion in respect of costs. In my view, this is a case where the interest of justice will be best served by making no order as to costs.

[56] In the premises I make the following order:

Order

1. The application is dismissed;

2. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant:

L X Dzai

Instructed by:

Nonozo Potelwa Attorneys

On behalf of the Respondents:

M L Mashele

Instructed by:

Moetsi Inc Attorneys

[1] Act 75 of 1997, as amended.

[2] Act 66 of 1995, as amended.

[3] Proclamation No 103 of 1994.

[4] Government Gazette No 21951, dated 5 January 2001.

[5] 2012 (4) SA 593 (SCA).

[6] The Constitution of the Republic of South Africa, 1996.

[7] Act 3 of 2000.

[8] (2016) 37 ILJ 564 (CC) at para 105.

[9] (2007) 28 ILJ 1042 (LAC) at para 17.

[10] Steenkamp at para 137.

[11] (2020) 41 ILJ 1085 (GJ).

[12] Supra Old Mutual at para 59 – 62.

[13] Unreported judgment under case no: C149/2022 delivered on 29 April 2022.