Case Notes: When the letter cannot speak: Determining the duration of the contract and whether dismissal has taken place

• Jurisdiction: South Africa
• Date: 16 August 2019
• Author: Lux Kubjana
• Pages: 368-376
• Citation: (2018) 30 SA Merc LJ 368
• Published date: 16 August 2019

WHEN THE LETTER CANNOT SPEAK:

DETERMINING THE DURATION OF THE

CONTRACT AND WHETHER DISMISSAL

HAS TAKEN PLACE: MAMELODI

SUNDOWNS FOOTBALL CLUB (PTY) LTD V

NGOMANE & CCMA (UNREPORTED CASE

NO JR 2710/10) [2015] ZALCJHB 53

LUX KUBJANA

Senior Lecturer, Department of Mercantile Law,

University of South Africa

I INTRODUCTION

Just like a calendar, an employment relationship has the beginning and

the end. The end may be triggered by the employee’s retirement, by time

passing, or by the employee’s dismissal, which often gives rise to a

dispute between the employer and the dismissed employee. Only a

person who is or has been in an employment relationship can be said to

have been dismissed from employment. An employment relationship

begins when the parties agree to the terms and conditions of their

relationship, either orally or in writing (Goldblatt v Freemantle 1920 AD

123 at 128; Southgate v Blue IQ Investment Holdings (2012) 33 ILJ 2681

(LC) para 44; Rumbles v Kwa Bat Marketing (Pty) Ltd (2003) 8 BLLR 811

(LC) 815; Grogan, Employment Rights (Juta 2014) 56; Basson et al,

Essential Labour Law (Labour Law Publication 2017) 38). The terms of

an employment contract normally include its nature and duration. For

example, whether the contract is permanent or for a f‌ixed term, and so

forth. This makes it easy for the courts of law to make a decision on the

nature of the contract should a dispute regarding its termination arise.

Where there is no or conf‌licting provisions regarding the duration of the

contract or its termination date — as was the case in Mamelodi

Sundowns Football Club (Pty) Ltd v Ngomane & CCMA (unreported case

no JR2710/10) [2015] ZALCJHB 53 (‘Mamelodi Sundowns’)), it is the

duty of the courts to use interpretation tools to determine the termina-

tion date, and whether or not the employee has been dismissed. The aim

of this discussion is consider what approach the courts should use to

determine the issues raised in the Mamelodi Sundowns case,ie, whether

368

(2018) 30 SA Merc LJ 368

© Juta and Company (Pty) Ltd