DISMISSAL AND SHARING OF COMPUTER PASSWORD
LABOUR – Dismissal – Sharing computer password – Dishonesty and failure to comply with the IT policy – Computer used in attempt to access municipality’s bank account – Two sets of charges and two referrals to bargaining council – Second charges on new information from the first arbitration hearing – Principle of double jeopardy not applying – Dismissal appropriate.
SAMWU obo Malatsi v SALGBC [2023] ZALCJHB 63 at [31]-[77]
Facts: Mr Malatsi was employed at the municipality as an accountant and was allocated a computer with his own password. A forensic investigation revealed irregularities with a potential loss of R9,7 million. It was found that several attempts were made from Mr Malatsi’s computer to access the cash focus internet portal. He was charged with misconduct, found guilty and dismissed. An arbitrator at the bargaining council found dismissal too harsh and he was reinstated. Further charges followed for sharing his password and for failure to comply with IT policy and he was dismissed. Another unfair dismissal dispute was referred to the bargaining council.
Application: Seeking to review and set aside the arbitration award where the arbitrator found that Mr Malatsi’s dismissal was substantively and procedurally fair and his case was dismissed.
Discussion: The contentions by Mr Malatsi that he was introduced to a culture of teamwork and his colleagues could use his computer as much as he could use their computers and that about ten of his colleagues knew his password; the evidence that it was normal practice to share computers and passwords, which were written on the calendars on the computer desks; whether Mr Malatsi’s dismissal was substantively fair and whether charging him twice constituted double jeopardy; and that Mr Malatsi effectively admitted that he had contravened the IT policy, which specifically prohibited the sharing of passwords.
Findings: Mr Malatsi was first charged for failing to conduct himself with honesty and integrity in that he attempted to access the municipality bank account. The second charges related to dishonesty with the intention to deceive by sharing his password and failure to comply with the IT policy by sharing his password. The second charges emanated from information the municipality did not have at the time of the first enquiry and of which it only became aware as a result of Mr Malatsi’s evidence at the first arbitration hearing. The principle of double jeopardy finds no application. The municipality viewed the conduct in a serious light and Mr Malatsi persisted with his view that he had done nothing wrong and showed no remorse or insight into his own wrongdoing and the risks it exposed the municipality to. Dismissal was an appropriate sanction.
Order: The application for review is dismissed, with the applicant to pay the municipality’s costs.
PRINSLOO J
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MAINTENANCE AND END OF A ROMANTIC RELATIONSHIP
FAMILY – Maintenance – Romantic relationships – Applicant sought maintenance after termination of relationship – Development of the common law not required and appropriate in the instant case – Permanent romantic relationship not synonymous with permanent life partnership wherein the parties undertook reciprocal duties of support to one another within the context of a familial setting.
EW v VH [2023] ZAWCHC 58 at [20]-[51]
Facts: Applicant and respondent were in a romantic relationship for a period of 8 to 9 years until respondent vacated the erstwhile common home. Three young children were born from their relationship. Applicant instituted an action seeking an order declaring that they were partners in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and directing defendant to maintain the plaintiff for a period of 10 years or until her death or remarriage.
Application: Applicant launched the present application for hearing on an expedited basis, seeking to develop the common law such that partners in unmarried opposite-sex permanent life partnerships, in which the partners had undertaken to each other reciprocal duties of support during the existence of the life-partnership, are entitled to claim maintenance from one another following the termination of the life-partnership. A supplementary note sought to reformulate the pray (see para [10]).
Discussion: Final relief sought in interlocutory proceedings in a pending action where substantially the same final relief is sought; whether development of the common law is required and appropriate in the instant case; the contention by the applicant that the lack of legal recourse for life partners to claim maintenance from one another following the termination of their partnership is constitutionally unacceptable since it discriminates on the basis of marital status and gender and constitutes unequal protection before the law; and the court’s position that a “permanent romantic relationship” is not synonymous with a permanent life partnership wherein the parties undertook reciprocal duties of support to one another within the context of a familial setting.
Findings: On the applicant’s own version, there is no need to develop the common law. This has already been done in the Bwanya case. She appears to misunderstand the extent of the further development in that case. The court is not persuaded that it is in a position to make a properly informed decision about whether the common law development is required. The applicant already has a common law remedy and her entitlement or otherwise to maintenance rests squarely on that remedy. She must first prove facts establishing that the duty of support existed, and that it existed in a familial setting. If proven, her right to legal protection will be established. The pending action affords her the perfect opportunity to do so. It is in that forum that the fundamental dispute between the parties, whether or not a permanent life-partnership existed, can be fully canvassed.
Order: The application is dismissed with no order as to costs.
CLOETE J and SLINGERS J
WILLE J dissenting from para [54]
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WINDING UP – JUST AND EQUITABLE
COMPANY – Winding up – Provisional – Just and equitable – Company set up to facilitate White enclave – Founder diluting the shareholding significantly and stripping out substantial portion of shareholding and having criminal conviction – Municipality seeking to demolish apparently unlawfully erected structures – Unlawful exchange for sale of shares – Provisional winding up ordered – Companies Act 61 of 1973, s 344(h).
Lombard v Eureka Limited [2023] ZAWCHC 61 at [41]-[67]
Facts: Sensing an economic opportunity, Mr Nieuwoudt created a White enclave in the arid landscape of South Africa’s West Coast and founded a settlement called “Eureka” and set up Eureka Limited. The scheme of the company was to make shares available to the public who would then be entitled to erect dwellings and live in harmony with their White kin. Ms Lombard purchased shares but became concerned about the legality of the erection of her dwelling when she found out that the Kamiesberg Municipality was in the process of obtaining demolition orders for the structures on the farm.
Application: Initially an urgent application by Ms Lombard for a final order of liquidation, the proceedings ended up moving for a provisional winding-up order.
Discussion: The indebtedness alleged for the amount paid to the company for Ms Lombard’s shares and amounts paid for the construction of the two dwellings which she and her daughter occupy; the company’s purchase of Mr Nieuwoudt’s intellectual property and the complaint that this sale was an unlawful mechanism whereby he effectively stripped the company of a substantial portion of its assets; the way that shares in Eureka were traded; whether Eureka conducted an internal stock exchange dealing with its shares in contravention of the Financial Markets Act 19 of 2012; and that the relief available to a shareholder under section 344(h) of the Companies Act 61 of 1973 does not give the court carte blanche to exercise of an unbounded discretion.
Findings: Ms Lombard has demonstrated, at least at a prima facie level, that immediately after establishing the company, Mr Nieuwoudt set about diluting the shareholding significantly and stripped at least 65% of its shareholding through a questionable agreement for the sale of his alleged intellectual property. The very shares he had stripped out of the company with no quid pro quo were offered back to the members of the company at a price determined by him. Then there were other factors such as Mr Nieuwoudt’s criminal conviction, the apparently unlawfully erected structures and the unlawful exchange for the sale of the company’s shares. This was a situation par excellence where it was just and equitable to provisionally wind up the company in order that its affairs be properly examined by a duly appointed liquidator.
Order: Eureka Limited is provisionally wound up and is to be placed in the hands of the Master.
GAMBLE J
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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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