NSP Unsgaard (Pty) Ltd v Aziz and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Lagrange J
• Judgment Date: 03 March 2023
• Citation: 2023 JDR 2472 (LC)
• Hearing Date: 03 March 2023
• Docket Number: C142/2020

Lagrange J:

Background

[1]

In or about October 2018, Green Tissue, a family business situated in Bellville which produced a variety of paper tissue products was sold to the applicant company (‘NSP’). As part of share purchase agreement, the applicant was intending to relocate the personal-care side of its business

2023 JDR 2472 p2

Lagrange J

to the Bellville site and renovate those premises in line with its requirements and brand.

[2]

The first respondent, Mr M Aziz (‘Majid’) and two of his brothers, Messrs Zahier Aziz (‘Zahier’) and S Aziz (‘Samad’) who were part the Green Tissue management team, were employed by NSP on fixed term contracts to assist with the transition of the business. Zahier was employed as administration manager and Majid as operations manager for tissue operations. Both reported to Mr G Lemon, the general works manager for tissue operations. Majid’s fixed term contracts was due to run from 1 November 2018 to 30 June 2020. He was dismissed on 2 October 2019 after being found guilty of two charges, which may be summarised as:

2.1

Removing company property from the premises himself or permitting others to do so without the necessary authorisation or agreement of any senior managers, or failing to apply measures to ensure that this did not happen.

2.2

Dereliction of duty for failing to apply himself in accordance with his overall responsibility as operations manager of the site in view of the unauthorised removal of the property.

[3]

The property in question consisted of a boardroom table and chairs, some kitchen equipment that was kept in a kitchen upstairs, an aerial picture of the company premises and a laptop computer.

[4]

It was common cause that, around mid-December 2018, Zahier removed a boardroom table and chairs from the boardroom adjacent to Majid’s office, and they were taken off site. In addition, he removed a fridge, microwave and kettle. It was not disputed that he donated the items to a charity which collected them. An aerial photo of the business premises was also taken off the wall in Majid’s office, but was not removed from the site.

2023 JDR 2472 p3

Lagrange J

[5]

Lemon had instructed Zahier to prepare the site for renovations and remove all old equipment and furniture. His understanding was that NSP would not be needing the items in question which were old and worn, because Lemon said the upgrade would be a complete one. Majid said he h ad th e items removed and a charity came to collect them from the premises. This was not disputed.

[6]

Zahier temporarily replaced the old board room furniture with plastic chairs and the like. During a board meeting in April 2019, which Majid and Lemon were both attending, the managing director told Majid to find out from Zahier where the old furniture was. Majid got hold of Zahier on the phone. Zahier said that he had removed them on Lemon’s instruction. Majid relayed Zahier’s response to the board meeting. The present whereabouts of the items were not discussed. Majid was under the impression Zahier might have stored them elsewhere on the premises.

[7]

Zahier testified that if he had he been told this was not the intention earlier he could have retrieved them.

[8]

Majid only became personally aware the furniture had been removed from the board room, shortly before the shutdown, but had no knowledge where it had been taken. He was unaware even of the existence of the kitchen items which had been kept in a kitchen upstairs that he never entered.

The arbitrator’s award

[9]

The arbitrator found the two charges related to the same act of alleged misconduct, namely that he failed to protect the company’s assets by allowing them to be removed without the necessary authorization. She concluded that the only item Majid had personally removed from the site was his own daughter’s laptop which was not part of the firm’s assets. The aerial picture in question had been set aside in another office for a copy to be made and had not been removed from the premises.

2023 JDR 2472 p4

Lagrange J

[10]

The arbitrator decided that Majid could only have failed in a duty to protect company assets in the following circumstances:

10.1

he was responsible for the premises from which they were removed;

10.2

he knew the items were being, or had been, removed from the site, and

10.3

he had a reasonable explanation for not enquiring about their whereabouts.

[11]

The arbitrator accepted Majid was the most senior person on site, but that did not mean he had overall responsibility for all the assets on it. From the time the old business was transferred to the applicant, Lemon was in charge, and all the other managers on site reported to him. Lemon had in fact testified Zahier should have asked him, not Majid, about removing the items if he was unsure what he meant when he told Zahier to clear the area for painting and renovations. Accordingly, the arbitrator found Majid was not responsible for all assets on site but was expected to exercise care of assets in his area of responsibility, namely the factory, boardroom and his office.

[12]

The arbitrator found it was not disputed Majid was unaware of the contents of the kitchen and therefore would not have been known if they had been removed. He would have been aware of the removal of the boardroom table and...