Article 16/2021

Labour Edge

In the scenario where an employee alleges that, as a result of a misrepresentation by his or her employer, a termination agreement was concluded, why, according to the labour appeal court in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), would it be the wrong approach to seek a declarator that the agreement is void and what should be the correct approach?

  1. Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC) held that, ordinarily, when pleading that sort of case in a contractual dispute, such a contention would be the foundation for a cancellation of the agreement and a tender of the return of any performance received by the aggrieved party in order to re-establish the status quo ante. This would typically be an action for restitutio in integrum (see L A Lambiris, Orders of Specific Performance and Restitutio in Integrum in South African Law (1989) Butterworths, Durban, page 182. The remedy is an exercise of equitable jurisdiction. It has three elements: A justa causa, sustaining of material damage and may require restoration of benefits received).
  2. This is not how the appellant chose to articulate his claim. He sought a declarator that the agreement was void. He did not allege that he had elected to resile for good cause. He did not unequivocally tender a return of the respondent’s performance. That performance was the payment of money. The appellant did not allege that it had been impossible to repay the sums, though he alluded to a set-off of future receipts of salary upon reinstatement of his employment, a tender that had, therefore, to be contingent on an order of specific performance of the initial employment contract, a remedy which was itself discretionary (Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)). Indeed, none of the ordinary language of a contractual cause of action was evident. The labour court noted the omission to properly tender a return of performance and, in consequence, held that the appellant’s case fell on that ground alone. Because of the view the labour appeal court took of the matter, it was unnecessary to make definitive findings on this aspect of the case. The case was decided on the misrepresentation question, the true dispute between the parties.



In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?