Zono v Minister of Correctional Services and Others (2477/13) [2019] ZAECGHC 38 (28 March 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no. 2477/13

Dates heard: 5-6/2/19

Date delivered: 28/3/19

Not reportable

In the matter between:

VUYANI KENNETH ZONO Plaintiff

and

MINISTER OF CORRECTIONAL SERVICES First

Defendant

NATIONAL COMMISSIONER OF

CORRECTIONAL SERVICES Second

Defendant

REGIONAL COMMISSIONER OF

CORRECTIONAL SERVICES

Third Defendant

DIRECTOR OF CORPORATE SERVICES,

CORRECTIONAL SERVICES

Fourth Defendant

JUDGMENT

Plasket J:

[1] Mr Vuyani Zono, the plaintiff, was employed by the Department of Correctional Services (the Department). In 2005, he was charged with a number of disciplinary infractions. After a disciplinary hearing, he was dismissed from the Department. His dismissal was upheld by a Bargaining Council arbitrator and his application, in the Labour Court, to review that decision failed. In 2011, however, he enjoyed success: the Labour Appeal Court (the LAC) found that the Labour Court’s decision had been erroneous. It set aside the Bargaining Council arbitrator’s decision and reinstated him with retrospective effect. He resumed his duties.

[2] Mr Zono instituted a delictual claim against his emplower, in which he alleged that, as a result of him not being paid from when he was dismissed until when he was reinstated, he suffered damage in various forms, both economic and personal. The defendants denied that they were liable to Mr Zono. They instituted a counter-claim in which they

pleaded that, following Mr Zono’s reinstatement they had overpaid him. They sought to recover the overpayment. Mr Zono denied

that he had been overpaid and alleged that, in fact he had been underpaid.

[3] The two broad issues before me are whether the defendants are liable to Mr Zono delictually on the basis of their failure to pay him between his dismissal and reinstatement, and whether the defendants have established that Mr Zono was overpaid.

The pleadings

[4] The plaintiff cited four defendants, namely: the Minister of Correctional Services (the first defendant); the National Commissioner of Correctional Services (the second defendant), the Regional Commissioner of Correctional Services (the third defendant); and the Director of Corporate Services of Correctional Service (the fourth defendant)

[5] He alleged that the first defendant was vicariously liable for the acts and omissions of the second, third and fourth defendants who, at all material times, were acting within the course and scope of their employment as employees of the first defendant. These allegations were admitted by the defendants.

[6] The claim is based on the dismissal and subsequent re-instatement of the plaintiff as an employee of the Department. He alleged in his particulars of claim that the second and third defendants were aware, or ought to have been aware, that his dismissal would have caused him ‘damages and financial loss’ and that the third defendant

owed him ‘a duty of care’ to ensure that he was ‘treated at all material times in terms of his rights as an employee’.

[7] The particulars of claim proceed to state that the fourth defendant and his staff were aware or should have been aware that ‘the failure on the part of the fourth defendant to compensate the plaintiff timeously in terms of Awards obtained from the relevant Bargaining Council, the Labour Court, and the Labour Appeal Court would result in damages and financial loss to the Plaintiff’; and the second, third and fourth defendants owed the plaintiff ‘a duty of care’ because he was an employee.

[8] Paragraph 9 of the particulars of claim deal with damages. It states:

‘9.1 The Plaintiff’s claim herein relates to damages and/or loss occasioned by the Plaintiff as a result of the wrongful and unlawful acts and/or omissions in connection with the actions of the Third and Fourth Defendants;

9.2 In terms of the common law of the Republic of South Africa, the State, duly represented by the First Defendant in these proceedings, is liable in damages and/or loss caused as a result of such wrongful and unlawful acts/omissions in connection with, the actions of the First Defendant’s servants.’

[9] The following facts, which are largely common cause, are set out in the particulars of claim.

[10] On 8 November 2005, the plaintiff was charged before a departmental disciplinary committee with five counts of misconduct. On 7 June 2006, he was found guilty of the first four counts and was dismissed by the first, second and third defendants. (The plaintiff alleges that the dismissal was wrongful and unlawful.)

[11] On 31 October 2007, a Bargaining Council arbitrator upheld the dismissal ‘at the instance and request of the Second and Third Defendant’.

[12] On 9 July 2009, the Labour Court ‘upheld the decision of the [Bargaining Council] arbitrator at the instance of the First, Second and Third Defendants’.

[13] On 29 June 2011, the LAC held that the Labour Court had erred. It set aside the Labour Court’s dismissal of the plaintiff’s application to review the Bargaining Council decision. (The plaintiff alleges that ‘a finding was made that the dismissal of the plaintiff was wrongful and unlawful’. This is incorrect.) The LAC ordered the re-instatement of the plaintiff with effect from 31 October 2017, the date of the Bargaining Council decision.

[14] The plaintiff then alleged that: (a) the first and fourth defendants did not pay the plaintiff ‘his salary and benefits per month, as from the 1st of November 2007 to the 30th of April 2011, despite demand, and the Plaintiff has instituted a claim in the Labour Court, Port Elizabeth, for payment of these salaries and benefits; (b) the fourth defendant did not pay the plaintiff his ‘salary and benefits as awarded by the Labour Appeal Court for the period from 1 November 2007 to 30 April 2011 for reasons only known to the fourth Defendant’.

[15] These omissions, the plaintiff stated, were wrongful because: (a) the omission to pay in terms of the Labour Court proceedings ‘caused financial prejudice to the Plaintiff in an unreasonable manner’; (b) the failure to pay, when the plaintiff ‘had a reasonable expectation that he would be paid’ infringed his interests and ‘caused a harmful result’; and (c) the ‘failure to pay the salary had, as its direct and foreseeable consequence the factual infringement of the Plaintiff’s personal and financial interests’.

[16] The particulars of claim state that the ‘fact that the Plaintiff’s interests were, in fact infringed, without excuse or justification, establishes wrongfulness on a prima facie basis’ and that the defendants ‘had a legal duty to prevent any foreseeable loss to its employees’.

[17] Finally, the particulars of claim set out various effects of the plaintiff’s dismissal. In the result, he claimed a total of R390 417 in damages.

[18] In their plea, the defendants admit the factual allegations concerning the plaintiff’s dismissal and re-instatement but deny that the dismissal was wrongful and unlawful as ‘the dismissal took place in pursuance of a lawful and procedurally fair process’.

[19] The defendants continued to plead as follows in respect of the disciplinary process as a whole:

‘From 7th June 2006 to 29th June 2011, the Defendants were in law obliged to recognise and enforce the findings of respectively the Disciplinary Committee, the Bargaining Council and the Labour Court that the Plaintiff had been dismissed from his employment. The Defendants were accordingly not entitled or empowered to pay the Plaintiff any salary, benefits or other entitlements of his employment from 7th June 2006 to 29th June 2011.’

[20] The defendants denied that the plaintiff had not been paid for the period concerned, pleading that he was in fact overpaid, referring to a counter-claim for R800 730.09.

[21] The counter-claim relates to an order that quantified the amount due to the plaintiff as arrear salary consequent upon his retrospective reinstatement. That order directed the defendants to pay the plaintiff R2 453 291.60 ‘less any PAYE to be deducted from such an amount; less any payments made by [the defendants] to date’. The order also directed that interest be paid on the amount due at the legal rate from 22 June 2013 to the date of final payment.

[22] The defendants pleaded that in giving effect to this order they, ‘in the bona fide reasonable, but mistaken belief that the amounts were due,’ paid the plaintiff more then what was due. In his plea to the counter-claim, the plaintiff admitted the terms of the order but denied that he had been overpaid.

The claim

[23] In order to properly contextualise Mr Zono’s claim, it is necessary to analyse the LAC judgment. Once I have done that, I shall consider the evidence before making my conclusions on the claim.

The LAC decision

[24] The respondents in the appeal were Johnathan Gruss NO who, I surmise, was the arbitrator in the Bargaining Council proceedings, and whose decision had been taken on review to the Labour Court; the General Public Services Sectoral Bargaining Council, the National Commissioner of Correctional Services and the Regional Head: Corporate Services, Department of Correctional Services.

[25] It appears from the LAC judgment that Mr Zono had been found guilty, by the departmental disciplinary committee, of having misused a vehicle; having been grossly insubordinate in having failed to obey an instruction to return the vehicle; having been absent without leave; and having addressed indecent and derogatory remarks to his supervisor.

[26] The LAC (Landman AJA, Mlambo JP and Mailua AJA concurring) found that the nub of the first count – the misuse of the vehicle – was that the use of the vehicle had not been authorized by Mr Zono’s supervisor. That was factually correct, the court held, because the supervisor had not been available. Mr Zono had, however, used the vehicle for official purposes and had been granted permission to use it by two people other than his supervisor. That being so, it concluded that there ‘was no unauthorized use of the vehicle and certainly there was no misuse of the vehicle’.[1]

[27] The second count was gross insubordination in failing to obey an instruction to return the vehicle. Mr Zono was instructed by his supervisor to return the vehicle, and he did not do so. That was common cause. The reason for his failure, however, was because he was ill and had been booked off work. The court’s finding, in these circumstances, was:[2]

‘The appellant could have been more co-operative, depending on the nature of his illness. But this was not properly explored so it cannot be said that he was obliged to arrange for the return of the vehicle while he was off duty on sick leave. Clearly there was also no merit to this charge.’

[28] The third count was absence without leave. It was common cause that Mr Zono was absent from work for the period from 18 April 2005 until 6 May 2005. His medical certificate was only faxed to his employer on 9 May 2005. His supervisor was not aware of his whereabouts and Mr Zono did not contact him while he was away from work. He was, the LAC found, charged with absence from work ‘without prior permission’ or a ‘valid reason’ or staying away from work ‘for longer than the leave granted’. He should instead have been charged with ‘not proving that he was ill for the entire period of his absence’.[3] The LAC concluded:[4]

‘The Department rules do not require employees, who fall ill, to submit medical certificates immediately. Even if this was a requirement the appellant was unable to do so because he did not have a fax machine at his home. Medical certificates for the period concerned were ultimately submitted. Similarly there was no merit to this charge’.

[29] Count 4 was the making of derogatory remarks to his supervisor. It was common cause that when he had faxed his medical certificate to his supervisor he had included certain derogatory remarks such as saying: ‘Dear Doctor Kiva (Hayi Suka, a fong kong doctor, gossip doctor or a witch doctor, I suppose’, and other similar gratuitous insults. The LAC found that the seriousness of this infraction was overstated by the presiding officer, holding:[5]

‘The offence relates to an interpersonal communication between a supervisor and subordinate; but one outside the public eye. An aggravating factor is the appellant’s sustained justification of the communication and his failure to apologize. The contravention

does not warrant the dismissal of the appellant. But it does not mean that appellant’s conduct should not be sanctioned.’

[30] The LAC found that the Bargaining Council arbitrator had misdirected himself and that his award was to be set aside. The court concluded:[6]

‘In the result the appeal should be upheld and the order of the court a quo replaced with an order reviewing and setting the award aside and replacing it with an order reinstating the appellant. Having regard to the obnoxious remarks made about and conveyed to Kiva, I would not be inclined to reinstate the appellant from the date of his dismissal. By dating his reinstatement to the date the award was handed down it will bring home to him the consequences of belittling one’s superior.’

[31] What emerges from the LAC judgment is that the person who drafted the charges that Mr Zono faced had not done a particularly good job as he had been charged in some instances under the incorrect section of the disciplinary code; that the presiding officer had erred in his factual findings; but that Mr Zono was perhaps rather fortunate in respect of the fourth charge, in respect of which his conviction was not set aside.

[32] In the particulars of claim, it was asserted that the LAC had found Mr Zono’s dismissal to have been ‘wrongful and unlawful’. That is not correct. In ordering his reinstatement the LAC was exercising its jurisdiction in terms of the Labour Relations Act 66 of 1995 to adjudicate on the fairness of his dismissal. There is, furthermore, no suggestion in the judgment that any of the defendants, or anyone else, acted in bad faith in relation to Mr Zono and there is certainly no suggestion that he was hounded and victimized, as had been suggested in the evidence and in argument.

The evidence

[33] Two witnesses testified in respect of the claim, Mr Zono, on the one hand, and Mr Johannes Job, the Human Resources Manager in the Department in the Eastern Cape province, on the part of the defendant.

[34] From the evidence, it emerged that when Mr Zono was reinstated, he was paid his monthly salary as well as about three months arrear salary. This was done as soon as he had been placed back on the Department’s system, and the short delay was due to the anti-corruption safeguards built into the system that required special National Treasury authorization. As stated, the full (or close to full) amount of his arrears took some time to pay and expert evidence had to be adduced in the Labour Court in order to quantify the amount due. The delay in the payment of arrear salary is not a basis of any alleged harm suffered by Mr Zono, as far as I could make out from the evidence (or from the pleadings).

[35] From Mr Zono’s evidence, it seems fairly clear that his principal complaint – and the only complaint of legal significance – is that he suffered harm as a result of not being paid a monthly salary from 31 October 2007 to the effective date of his reinstatement. He claimed to have suffered economic harm as a result of being unable to pay the premiums of insurance policies; the forced sale of his motor vehicle; the levying of bank charges as penalties; and the attachment of his furniture when he was unable to pay his attorney’s fees. In addition, he also claimed general damages arising from post-traumatic stress and other similar factors of a personal nature, all of which arose as a result of the Department’s failure to pay him his salary during the period from when he was dismissed to his reinstatement.

[36] The wrongful conduct attributed to the defendants is, according to paragraph 23.2 of the particulars of claim, the defendants’ omission ‘in failing to pay the Plaintiff’s salary on a monthly basis from November 2007 until April 2011’. The defendants’ defence is that its failure to pay Mr Zono during that period was sanctioned by ‘valid findings of a Commissioner of the relevant Bargaining Council and of the Labour Court’.

Conclusion

[37] Not all conduct that causes harm to a person is actionable: the general rule is that harm lies where it falls and liability in delict is an exception to this general rule.[7] In order to establish delictual liability on the part of the defendants, Mr Zono is required to establish: (i) the conduct of the

defendants of which he complains; (ii) the wrongfulness of that conduct; (iii) fault on the part of the defendants; (iv) harm suffered by him; and (v) a causal connection between the conduct and the harm.[8]

[38] The conduct complained of by Mr Zono is an omission – a failure on the part of the defendants to pay him a monthly salary between 1 November 2007 and 30 April 2011. The defendants admit that they did not pay Mr Zono during this period. They plead that their omission was not wrongful, because it was justified.

[39] They denied that Mr Zono’s dismissal was ‘wrongful and unlawful’ as alleged by him. They pleaded that they were ‘in law obliged to recognize and enforce the findings of respectively the Disciplinary Committee, the Bargaining Council and the Labour Court that the Plaintiff had been dismissed from his employment’; and that they were not ‘entitled or empowered to pay the Plaintiff any salary, benefits or other entitlements of his employment from 7th June 2006 to 29th June 2011’.

[40] A contract of employment is ‘an agreement between two parties in terms of which one of the parties (the employee) undertakes to place his or her personal services at the disposal of the other party (the employer) for an indefinite or determined period in return for a fixed or ascertainable remuneration, and which entitles the employer to define the employee’s duties and to control the manner in which the employee discharges them’.[9] The payment of remuneration by an employer in exchange for the performance of work by the employee is fundamental to the contract of employment.[10] As the duty to pay remuneration stems from the contract of employment, that duty ends when the contract of employment ends.[11]

[41] In terms of s 96 of the Correctional Services Act 111 of 1998, ‘the relationship between the Department as employer and every correctional official in the service of the Department is regulated by the provisions of the Labour Relations Act and the Public Service Act’.

[42] In terms of s 8(1) of the Public Service Act 1994 (Proclamation 103 of 1994), the public service consists of ‘persons who are employed’ in either posts on the establishment of departments or additional to the establishment of departments. Section 37(1) provides that employees shall be paid salaries and allowances in accordance with the appropriate salary scales. Section 17(1) allows for the dismissal of employees, providing that dismissals shall be effected in accordance with the Labour Relations Act. When an employee is dismissed on account of misconduct, s 16B(1) applies. It provides that when a chairperson of a disciplinary hearing pronounces a sanction in respect of an employee who had been found guilty of misconduct, either the relevant executive authority if the employee is a head of department or, in the case of other employees, the relevant head of department ‘shall give effect to the sanction’.

[43] From this legislation it is clear that the defendant who dismissed Mr Zono had no choice but to give effect to the sanction imposed in the disciplinary hearing. Once that had been done, the employment contract between Mr Zono and the Department came to an end. That in turn brought to an end any obligation to pay him. None of the defendants had the power, once Mr Zono had been dismissed, to pay him a salary. As a result, the defendants’ failure to pay him was not wrongful because it was authorized by the legislation, and justified.[12]

[44] Mr Zono exercised his rights in terms of the Labour Relations Act with the result that he was reinstated with retrospective effect by the LAC.

[45] The breach of a statutory duty, such as the right created by the Labour Relations Act not to be unfairly dismissed, does not necessarily equate to wrongfulness in the delictual sense. The enquiry involves asking whether the legislature, in enacting the legislation concerned, intended that a person should have ‘a claim for damages in respect of loss caused by the negligence’ (or intentional conduct) on the part of the defendant.[13] The test was set out as follows by Cameron JA in Olitski Property Holdings v State Tender Board & another:[14]

‘Where the legal duty the plaintiff invokes derives from breach of a statutory provision, the jurisprudence of this Court has developed a supple test. The focal question remains one of statutory interpretation, since the statute may on a proper construction by implication itself confer a right of action, or alternatively provide the basis for inferring that a legal duty exists at common law. The process in either case requires a consideration of the statute as a whole, its objects and provisions, the circumstances in which it was

enacted, and the kind of mischief it was designed to prevent. But where a common law duty is at issue, the answer now depends less on the application of formulaic approaches to statutory construction than on a broad assessment by the court whether it is “just and reasonable” that a civil claim for damages should be accorded. “The conduct is wrongful, not because of the breach of the statutory duty per se, but because it is reasonable in the circumstances to compensate the plaintiff for the infringement of his legal right”. The determination of reasonableness here in turn depends on whether affording the plaintiff a remedy is congruent with the court’s appreciation of the sense of justice of the community. This appreciation must unavoidably include the application of broad considerations of public policy determined also in the light of the Constitution and the impact upon them that the grant or refusal of the remedy the plaintiff seeks will entail.’

[46] I am of the view that the breach of an employer’s statutory duty not to unfairly dismiss an employee is not wrongful in a delictual sense. The Labour Relations Act creates a comprehensive system for remedying unfair dismissals. That involves not only what Ncgobo J in, Chirwa v Transnet Ltd & others,[15] called a ‘one stop court for labour and employment relations’ but also procedures unique to labour and employment (such as conciliation in the Commission for Conciliation Mediation and Arbitration (the CCMA)). Ngcobo J also stated:[16]

‘When enacting the LRA, Parliament did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply the law. It went on to entrust the primary interpretation and application of its rules to specific and specially constituted

tribunals and forums and prescribed a particular procedure for resolving disputes arising under the LRA. Parliament evidently

considered that centralised administration and adjudication by specialised tribunals and forums was necessary to achieve uniform

application of its substantive rules and to avoid incompatible and conflicting decisions that are likely to arise from a multiplicity of tribunals and diversity of rules of substantive law.’

[47] The Labour Relations Act provides for a process by which alleged unfair dismissals can be adjudicated and it creates remedies specific to, inter alia, the breach of the right not to be unfairly dismissed.[17] The primary remedy is that of reinstatement.[18] Inherent in the concept of reinstatement is the payment of arrear salary. Being placed back in employment and remunerated as though a person had never ceased being an employee is thus one way in which the right not to be dismissed unfairly is remedied. Furthermore, s 193 contemplates one or other of the remedies provided for and not a combination of remedies. So, when reinstatement is considered appropriate, no additional compensation can be ordered.[19]

[48] There is nothing in either the purpose or the content of the Labour Relations Act that suggests that the legislature intended that victims of unfair dismissals would, in addition to its specific remedies, also have a common law delictual claim for damages.

[49] In conclusion, as the omission of the defendants to pay Mr Zono his salary on a monthly basis during the period between his dismissal and reinstatement was not wrongful, his claim must fail with costs. I do not believe that the matter warranted two counsel. I turn now to the counter-claim.

The counter-claim

[50] The LAC order did no more than direct that Mr Zono be reinstated ‘as from 31 October 2007 being the date of the [Bargaining Council] award’. It became necessary to quantify the arrear salary due to Mr Zono and an order was made in this regards by the Labour Court. On 26 February 2014, Lallie J ordered:

‘The Respondents jointly and severally, the one paying the other to be absolved are ordered to:

2.1 Pay the sum of R2 453 291. 60 to the Applicant less any PAYE to be deducted from such an amount; less any payments made by the Respondents to date.

2.2 Interest on the aforesaid amount at the legal rate from the 22nd of June 2013 until the date of final payment;

2.3 The costs of the default proceedings, including the costs of the expert, Kroon.’

[51] Two different methods were used to determine the ultimate amount due to Mr Zono. Mr Simon Kroon, an actuary engaged on his behalf, simply deducted a lump sum as PAYE from the gross amount of R2 453 291.60. On this calculation, he concluded that Mr Zono was still owed in the region of R70 000. (This amount has not been claimed in these

proceedings.)

[52] Ms Candice Mullins, a chartered accountant who specializes in taxation, was engaged by the Department. She reasoned that, in determining the amount that the Department was to pay Mr Zono, the amount of R2 453 291.60 had to be broken down into equal monthly amounts to represent his salary and, from those monthly amounts, further amounts representing PAYE should be deducted. The effect of this method of quantification was that the Department had overpaid Mr Zono by about R400 000 (once certain adjustments and corrections had been made). This was the amount claimed in the counter-claim as amended.

[53] Each expert accepted the correctness of the other’s calculations based on their respective starting premises. I raised with counsel the difficulty of me having to decide which method was correct, in the absence of appropriate accounting expertise on my part and in the absence of any guidance.

[54] Mr Van Der Linde’s answer to the problem, which I believe to be correct, is that the issue is a legal issue, rather than a factual issue; and that the answer is to be derived from an interpretation of the Labour Court’s order of 26 February 2014.

[55] He argued that Ms Mullins’ approach was correct because PAYE, in reality, is paid monthly. Mr Cole, on the other hand, argued that Mr Kroon’s calculation was based on exactly what the Labour Court had ordered.

[56] The principles applicable to the interpretation of orders are well-known. In Firestone South Africa (Pty) Ltd v Genticuro AG[20] Trollip JA set them out as follows:

‘The basic principles applicable to construing documents also apply to the construction of a court's judgment or order: the court's intention is to be ascertained primarily from the language of the judgment or order as construed according to the usual, well-known rules. Thus, as in the case of a document, the judgment or order and the court's reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, it was common cause that in such a case not even the court that gave the judgment or order can be asked to state what is subjective intention was in giving it. Of course, different considerations apply when, not the construction, but the correction of a judgment or order is sought by way of an appeal against it or otherwise - see infra. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading up to the court's granting the judgment or order may be investigated and regarded in order to clarify it; for example, if the meaning of a judgment or order granted on an appeal is uncertain, the judgment or order of the court a quo and its reasons therefor, can be used to elucidate it. If, despite that, the uncertainty still persists, other relevant extrinsic facts or evidence are admissible to resolve it.’

[57] The order of the Labour Court must be interpreted consistent with its context. That context was the reversal of Mr Zono’s dismissal and his reinstatement. Reinstatement implies that the employee is paid what he or she ought to have earned while out of employment. The only way that this can be done is by the quantification of a lump sum that represents what would have been paid to the employee over the period concerned had he or she not been dismissed. Deductions for tax and perhaps other deductions also have to be made from the lump sum.

[58] The intention of the order was to quantify the amount that was due to Mr Zono. In order to do that, it determined a gross amount of arrear salary and then made provision for the deduction of PAYE. In doing so, the order states, with reference to the arrear salary lump sum, that PAYE is to be deducted ‘from such an amount’.

[59] In my view, because this case concerns reinstatement and the payment of arrear salary, the Labour Court must have intended that a simple deduction be effected of one amount representing PAYE (howsoever that was calculated) from the lump sum representing arrear salary This strikes me as the most obvious and plausible way of interpreting the order. If the Labour Court had intended that an exercise to simulate the actual payment of salary on a monthly basis and the actual deduction of PAYE on a monthly basis be undertaken, I am sure that it would have made this plain by spelling it out.

[60] In the result, the counter-claim must fail.

The order

[61] I make the following order.

(a) The plaintiff’s claim is dismissed with costs.

(b) The defendants’ counter-claim is dismissed with costs.

___________________________

C Plasket

Judge of the High Court

APPEARANCES

For the plaintiff:

S H Cole

Instructed by:

Wheeldon Rushere & Cole, Grahamstown

For the defendants:

H van der Linde SC and R Laher

N N Dullabh & Co, Grahamstown

[1] Para 19.

[2] Para 22.

[3] Para 26.

[4] Para 27.

[5] Para 36.

[6] Para 38.

[7] Telematirx (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 12.

[8] WTO Forestry (Pty) Ltd v Swart NO 2017 (5) SA 76 (SCA) para 12.

[9] Grogan Employment Rights (2 ed) at 54.

[10] Grogan Workplace Law (10 ed) at 55. See too Du Bois (ed) Wille’s Principles of South African Law (9 ed) at 925-926: ‘Irrespective of form, the distinguishing features of a contract of employment are the rendering of personal services, remuneration and subordination’.

[11] Grogan Workplace Law (10 ed) at 56.

[12] Neethling, Potgieter and Visser Law of Delict (7 ed) at 114-115; Van der Walt and Midgley Delict: Principles and Cases (2 ed) (Vol 1) at 101; Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 at 172-173.

[13] Knop v Johannesburg City Council 1995 (1) SA 1 (A) at 31C-D.

[14] Olitski Property Holdings v State Tender Board & another 2001 (3) SA 1247 (SCA) para 12.

[15] Chirwa v Transnet Ltd & others [2007] ZACC 23; 2008 (4) SA 367 (CC) para 119.

[16] Para 111.

[17] Labour Relations Act, s 193(1).

[18] Labour Relations Act, s 193(2). See too Grogan Workplace Law (10 ed) at 174-175.

[19] Grogan Workplace Law (10 ed) at 175; Grogan Dismissal at 522.

[20] Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 304D-H. (References omitted.)