COSTS IN LABOUR MATTER FOR DELAYING TACTICS
Fidelity Fund Security Services v Ngqola [2022] JA 61-21 (LAC)
In 2011 Ms Ngqola was employed as a security officer but not long after her appointment she was reprimanded for poor work performance. It was decided that she be transferred to another division and was offered a lower salary. She was advised that if she declined the offer, her contract of employment would be terminated. She did not report at the new station and was dismissed. At the CCMA the arbitrator found the dismissal procedurally and substantively unfair. Reinstatement was ordered as well as arrear salary. Ms Ngqola approached the Labour Court, which made the award and order of court, however the matter dragged on for years while Fidelity sought to review the award and rescind the Labour Court order. During this time Ms Ngqola obtained a writ of execution and Fidelity paid the arrear salary.
In February 2017 she reported for duty but was required to sign a new contract with less favourable conditions and in a lower position to that prior to her dismissal. Her attorneys wrote to Fidelity that she was forced to resign. The decision to resign was as a result of the downgrading. The Labour Court ordered Fidelity to pay arrear salary for a period in 2012 and from 2013 to February 2017. Fidelity appeals this order.
Tokota AJA notes that it has been more than 11 years since Fidelity was ordered to reinstate and compensate Ms Ngqola; and Fidelity’s argument that she was never reinstated. The court finds that in February 2017 Fidelity requested Ms Ngqola to report for work and she did. The fact that Fidelity requested her to sign a new contract does not negate its stated intention at the time of requesting her to report for duty, namely to reinstate her in compliance with the court order. The Labour Court’s calculation of arrears until she resigned could not be faulted. The appeal has no merit and must fail.
Fidelity’s wilful refusal to comply with the court order and its deliberate and apparent delaying tactics are deplorable and merit sanction. It was obviously hell-bent on unfairly exhausting, draining and frustrating Ms Ngqola. This was one of those rare cases in labour law where costs should follow the result. The appeal is dismissed with costs.
(Coppin JA and Savage AJ concurred.)
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PRESCRIPTION AND CLAIM AGAINST AUDITORS
WK Construction v Moores Rowland [2022] ZASCA 44
WK Construction employed Mr Maartens as its financial director and between 2006 and 2013 he included fraudulent transactions in its books of account, defrauding the company of R80 million. It recovered R26 million from Mr Maartens, leaving a net loss of R54 million. The auditors failed to report on the fraudulent transactions during its term as auditor, rendering a clean audit report each year. WK Construction sued the auditors in the High Court and the auditors entered a special plea that the claim had been extinguished by prescription. As an alternative, it contended that WK Construction was time barred from claiming from Mazars on the basis of a clause in the contract governing their relationship. The High Court upheld the special plea of prescription and also held that that WK Construction was time barred under the contract.
Gorven JA discusses extinctive prescription; that a debt is deemed due once a creditor acquires, or could reasonably have acquired, knowledge of facts from which the debt arose; professional negligence; that the test was whether the creditor had knowledge of facts which would give rise to a reasonable suspicion of possible negligence; that the knowledge of large scale fraud over a number of years by the financial director had been reflected in the company accounts; the duties of the auditors; and that knowledge of facts leading to a reasonable suspicion of possible negligence was established. The special plea had been correctly upheld.
The appeal is dismissed.
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COMMON LAW CLAIM AND CONSUMER PROTECTION ACT
Erasmus ta First Engineering & Stainless v Euro Steel Services [2022] 1139-2018 (ECP)
Plaintiff claims damages for replacing balustrades at various premises due to the alleged supply of defective products by the defendant and also includes damages suffered due to harm to the plaintiff’s good name and business reputation. The plaintiff had applied for credit with the defendant, which application was approved. A voetstoots clause excluded the liability of the defendant for the supply of defective goods. Plaintiff contends that in terms of provisions of the Consumer Protection Act 68 of 2008 the voetstoots clause does not apply.
Schoeman J discusses the exception that there is no averment in the particulars that all other remedies available to the plaintiff have been exhausted. Section 69 of the Act provides that a person may approach a court with jurisdiction if all other remedies available to that person in terms of national legislation have been exhausted. The contention is that the particulars lack an essential averment which would confer the court with jurisdiction.
The court notes that the claim is based on a common law remedy of inferior balustrades and that the previous decisions to the effect that a consumer cannot approach the High Court unless they have exhausted the remedies in s 69 dealt with matters where the cause of action was based in the Act itself and not where the cause of action was grounded in the common law. The plaintiff could not be precluded by the section from pursuing a right that he always had. See para [12] in particular.
The exception is dismissed with costs.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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