Seloadi and Others v Sun International (Bophuthatswana) Ltd

• Jurisdiction: South Africa
• Citation: 1993 (2) SA 174 (BG)

Seloadi and Others v Sun International (Bophuthatswana) Ltd
1993 (2) SA 174 (BG)

1993 (2) SA p174

Citation	1993 (2) SA 174 (BG)
Court	Bophuthatswana General Division
Judge	Lawrence AJ
Heard	June 14, 1990
Judgment	August 9, 1990

Flynote : Sleutelwoorde H

Employment law — Summary dismissal — Whether audi alteram partem rule applicable to decision to dismiss — Oral contract of employment — One I months' notice of termination of contract of service may be given by employer — Applicability of audi alteram partem rule cannot be implied in such a contract — No averment of any express or implied terms therein suggesting that employees to be given a hearing before their dismissal — Not proved that it had been practice of employer in the past to accord such a hearing — Legitimate expectation of such a hearing not established J — Employees

1993 (2) SA p175

A accordingly not entitled to hearing before their dismissal on one month's notice.

Employment law — Summary dismissal — Application for order directing employees' reinstatement — Such equivalent to grant of specific B performance — Although Court has discretion whether or not to grant such order, principle is that, generally speaking, Court will not grant specific performance of contract of service where employee had been dismissed — Sole remedy is damages — Court exercising discretion against ordering reinstatement where to do so would result in confrontation between employer and employees over conditions of service. C

Headnote : Kopnota

The Court in an application for an order, inter alia, declaring that the summary dismissal of the applicants from their employment with the respondent was unlawful on the ground, inter alia, that the respondent had not complied with the audi alteram partem rule, held that where an oral contract of employment (as were the applicants' contracts) provided that one month's notice of termination of the contract of employment could be D given by the employer (respondent), it being common cause that such was the position in the present case, there could be no necessary implication that the audi alteram partem rule applied to such a contract. The Court held further that, as the applicants had averred no terms, either express or implied, in the contract suggesting that a hearing was necessary before their dismissal by the respondent, the audi alteram partem rule did not apply to the decision to dismiss them. The Court further held that the applicants had not established that they had a 'legitimate expectation' of E being heard where it had not been proved that such had been the practice of the respondent in the past.

In regard to a prayer by the applicants for an order directing their reinstatement as employees of the respondent, the Court held that such an order was equivalent to the grant of specific performance and the Court further reaffirmed the principle that, generally speaking, where an employee had been wrongfully dismissed, the sole remedy was damages: the Courts would generally not decree specific performance. The Court had a F discretion, however, whether or not to grant specific performance. Taking the facts of the present case into consideration, particularly the fact that it was the attitude of the applicants that their grievances concerning their conditions of employment were not being redressed and that they were not prepared to accept their present conditions of service, the Court held that a grant of specific performance would amount to ordering a confrontation between the applicants and the respondent and that such would create an impossible situation. In such circumstances, the Court's discretion should be exercised against the grant of specific G performance in the form of an order directing that the applicants be reinstated in their employment.

Case Information

Application for an interdict and other relief arising out of the applicants' dismissal from service by the respondent. The facts appear H from the reasons for judgment.

R L Selvan SC (with him N Cassim) for the applicants.

P Blieden SC (with him N A Cassim) for the respondent.

[The application was dismissed on 14 June 1990 and the following reasons for judgment were handed down on 9 August 1990.] I

Judgment

Lawrence, AJ.:

Applicants brought an application against the respondent for the following relief:

'1.

Directing that the forms and services provided for in the Rules of the above honourable Court be dispensed with and that the matter J be heard as one of urgency.

1993 (2) SA p176

Lawrence AJ

2.

A The respondent be interdicted from unlawfully evicting the applicants employed by it from the accommodation occupied by them at respondent's premises.

3.

The order in terms of para 2 hereof is to operate as an interim interdict.

4.

B A rule nisi, returnable on a date to be determined by the above honourable Court, do issue calling upon the respondent to show cause:

(a)

why the purported dismissal of the applicants by the respondent on 3 April 1990 should not be declared unlawful and, by reason thereof, null and void and of no force and effect;

(b)

C why the respondent should not be directed to reinstate the applicants forthwith to their respective offices of employment with the respondent;

(c)

why the interim orders in terms of prayers 2 and 3 above should not be made final;

(d)

D why the respondent should not be ordered to pay the costs of this application;

(e)

why further or alternative relief should not be granted to the applicants.

5.

Pending the said return date of the rule nisi in para 4, an order directing the respondent forthwith to allow the applicants to E resume their duties with the respondent in terms of their contract of service with the respondent.'

The matter was set down as one of urgency on 26 April 1990. On that date, by consent, the matter was postponed to a date to be fixed by the Registrar of this Court and affidavits were to be filed by the parties on F or before fixed dates, which was duly done. The Registrar fixed the date of hearing to be 14 June 1990 when the matter was duly heard by the Court. The costs on 26 April 1990 were reserved.

On 14 June 1990, after the Court heard full argument by both senior counsel for the applicants, Mr R L Selvan SC, and counsel for the respondent Mr P Blieden SC, the Court made the following order:

G 'The application is dismissed with costs, the said costs are to include the costs of two counsel. Full reasons will be given at a later stage.'

The following are the full reasons for the order made by the Court.

The applicants are all employees of the respondent. It is common cause that notice of termination of the employee's contract of service with H respondent may be given subject to notice to such employee of one calendar month. On 3 April 1990 each of the applicants was summarily dismissed by respondent.

Mr Selvan contended that, subject to a point in limine which he wished to take which could dispose of the matter, the matter could not be decided I on affidavit as there were many material points in dispute and for that reason, if his preliminary point was not upheld, the matter should be referred to evidence under Rule 6 of the Rules of the above honourable Court and the costs should be reserved.

Mr Blieden submitted that the matter could be decided on the papers; that on the applicants' own version and on the admitted facts the J applicants were not entitled to reinstatement and that in any event, on the

1993 (2) SA p177

Lawrence AJ

A facts of this application, the Court exercising a judicial discretion would not order the reinstatement of any of the applicants; further that the relief in respect of accommodation cannot be granted as this right only flowed from the employment and, once there was a dismissal of the applicants, this right of accommodation automatically ceased. Hence this matter could also be disposed of on the papers. B

It is to be noted that what the applicants claim on the main prayers is relief of a permanent nature. If the main relief of reinstatement is not granted then it is not seriously disputed that the incidental relief relating to accommodation cannot be granted.

Applicant chose the procedure of bringing an application for C reinstatement by way of motion proceedings, a procedure which is somewhat hazardous and risky. It is obvious that the matter was going to be strenuously opposed by respondent. This is clearly not a case where temporary relief can be granted, for reasons which will be more fully referred to hereinafter. If applicants are entitled to be reinstated, and only in that event, will the incidental relief of accommodation be open to D them. But if applicants are denied reinstatement then there can be no interim relief of the nature sought, since the grant of such interim relief would be the equivalent of deciding the matter at this stage in favour of applicants, even if only for a temporary period, which is clearly not permissible on the facts of this matter. An interdict is granted as interim relief where applicant desires his position to be E protected in the interim and the subject-matter preserved in the interim, and further where a respondent cannot be prejudicially affected. In my view, interim relief cannot be considered unless the applicants can at least show a probability of success in the main relief and even then without the respondent suffering irreparable prejudice. This will be fully dealt with hereinafter.

F It is clear from the authorities that where permanent relief is sought, as in this matter, the general rule of our practice is that where the material facts are in dispute a final interdict will not be granted merely on the affidavits. See Prinsloo v Shaw1938 AD 570. However, it is open even where motion...