Case Comments: ‘To Meet Is to Part’: Resignation by SMS Constitutes Notice in Writing as Required by the Basic Conditions of Employment Act: Mafika v SA Broadcasting Corporation Ltd

• Jurisdiction: South Africa
• Pages: 521-528
• Author: ME Manamela
• Citation: (2011) 23 SA Merc LJ 521
• Date: 25 May 2019
• Published date: 25 May 2019

‘To Meet Is to Part’: Resignation by SMS

Constitutes Notice in Writing as Required by the

Basic Conditions of Employment Act: Mafika v

SA Broadcasting Corporation Ltd

ME MANAMELA

University of South Africa

1 Introduction

An employment contract can be terminated in different ways by either the

employer or the employee. An employment contract for an indef‌inite period

may be terminated by one party giving another notice of intention to terminate

the contract (A Basson et al Essential Labour Law 5 ed (2009) 56; PAK le

Roux ‘Resignations – an Update: the Final, Unilateral Act of an Employee’

(2010) 19(6) Contemporary Labour Law 51). A f‌ixed-term contract may also

be terminated this way, if the contract contains a provision to that effect (John

Grogan Workplace Law 10 ed (2009) 68). If termination is done by the

employer, it is termed dismissal (s 186(1)(a) of the Labour Relations Act 66

of 1995 (‘LRA’). If termination is voluntarily done by the employee, it is

termed resignation (see Bosch v Brick Centre t/a Brick Marketing [2001] 1

BALR (CCMA) at 3). If termination is involuntarily done by the employee, it

is termed constructive dismissal (s 186(1)(e) of the LRA)). Section 37(4)(a)

of the Basic Conditions of Employment Act 75 of 1997 (‘BCEA’) requires

that notice of termination of an employment contract be given in writing,

except when it is given by an illiterate employee.

In Mafika v SA Broadcasting Corporation Ltd [2010] 5 BLLR 542 (LC),

the employee, who was the head of the legal department for the SABC,

terminated his f‌ixed-term contract through an SMS, but changed his mind six

weeks later and tried to withdraw the resignation. The court had to decide on

whether notice by SMS constituted notice in writing or a valid resignation in

terms of the BCEA, and, if so, whether the notice could be revoked once it

came to the employer’s attention. In this note I will set out the facts and

summarise the decision of the court and then evaluate and comment on the

decision.

2 The Salient Facts of Mafika v SA Broadcasting Corporation

The applicant (‘Maf‌ika’) was employed by the respondent (‘the SABC’) as

the head of the legal department on a three year f‌ixed-term employment

contract concluded on 1 August 2006. In April 2007, Maf‌ika was advised that

a resolution was taken to investigate the law f‌irm of which he was a director

521

(2011) 23 SA Merc LJ 521

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