CASE LAW UPDATE

Facts: The State charged Mr Ntamehlo with the murder of his wife, one Tsipa. They were married and had one child, L, who was a minor at the time when the trial began. The court convicted the accused, Ntamehlo, of the planned murder. In the judgment on sentence, the court a quo mentioned that not only is L a victim, but his maternal family were also victims. The court a quo found support for what it thought was the development of the common law, regarding forfeiture of the benefits of the marriage on death of a spouse and regarding a convicted murderer not inheriting from his victim, in section 173 of the Constitution. The court a quo then went on to explain that the paternity of the father of the deceased and the paternity of the father of the accused were in doubt and that had caused the child, L, to have an identity crisis. The court a quo, then concluded that the issue of grandfathers' paternity had the potential to deny the child a home. The offences for which the accused was charged in the court a quo did not include damage to, or loss of, property to some other person.

Appeal: This is an appeal against the paragraph 3 of the orders that the court a quo made mero motu, which orders were made at the end of sentence proceedings in the criminal trial. In the grounds of appeal, it is alleged that the court a quo as a criminal trial court lacked jurisdiction to grant the order being challenged in this appeal, namely paragraph 3 which orders the mayor to establish a Trust for the minor child of the deceased and the accused and to assist in having the immovable property transferred to the trustees, which order relies on the order of forfeiture of ownership of the property made in paragraph 1 of the court a quo's orders and is supplemented by paragraph 6 which grants the mayor leave to approach the court a quo should he find the order in paragraph 3 not feasible.

Discussion: It is not clear whether the court a quo was alive to the principle and maxim that already exists in the common law and that has been applied by the courts. It is a recognised common law principle that someone who intentionally and unlawfully murders another can't benefit under the will of the deceased nor in terms of the laws of intestacy. There was accordingly no need to develop the common law on that aspect. There were no grounds, on the facts of the case, that served before the court a quo, that calls for the development of the common law, to specifically prohibit a person in the position of the accused from inheriting because he perpetrated gender-based violence on his late wife to derive an economic advantage. The common law prohibits him from inheriting anyway because he is not entitled to benefit from his own mischief. The court a quo failed to examine and make a finding on whether the sentence proceedings, designed specifically for the punishment of the accused, could be properly considered to be a matter relating to the child.

Findings: The mayor can only act within the confines of the powers bestowed on him in terms of national legislation. There is no provision in the municipal budget for the establishment of trusts for minor children and if the mayor were to comply with paragraph 3 of the order a quo, he would have to utilise municipal funds in contravention of the Municipal Finance Management Act 56 of 2003. The order in paragraph 3 effectively compels the mayor to act ultra vires or to be in contempt of court by not complying with the order. Paragraph 3 of the order of the court a quo is dependent on paragraph 1, therefore, if paragraph 1 is unsustainable in law, the court a quo equally did not have jurisdiction to make the order in paragraph 3. The court a quo had no jurisdiction to make the orders that it said were made in the interests of justice. In so doing, the court a quo exceeded the bounds of its powers and failed to apply the rule of law and the principle of legality; therefore, the orders fall to be set aside on the basis that they are wrong in law and constitute a nullity.

Order: The appeal succeeds. Paragraph 3 of the order a quo is set aside. Orders 1,2, 4, 5 and 6 of the court a quo are declared to be nullities.

ALLIE J (HENNEY J and NUKU J concurring)

Facts: The applicant employed the third respondent (Mtombe), as a tractor driver. Mr Wiggill, while doing his normal checks at the farm, passed Mtombe and saw him using his cell phone while operating the tractor. He confronted Mtombe, who apologised for the incident. Mtombe was, pursuant to the incident, notified to attend a disciplinary hearing where he was charged with various counts of gross misconduct, stemming from the same incident. A disciplinary hearing was convened and Mtombe was dismissed, after pleading guilty to the charges preferred against him. Mtombe challenged his dismissal at the CCMA and the commissioner found his dismissal to have been substantively unfair and ordered his reinstatement with back-pay. Wiggill testified in relation to the charges as preferred against Mtombe that he (Mtombe) was made aware of the rules and that he signed for it. He testified that the traffic rules state that nobody was allowed to operate a vehicle while using a cell phone.

Application: The commissioner found that the employer did not provide any workplace rule that prohibits the employees from using phones while driving, only relying on the Road Traffic rule. The commissioner found that misconduct was not established and that the dismissal of Mtombe was harsh. Unhappy with that decision, the applicant instituted review proceedings to set aside the commissioner’s award.

The workplace rule: The arbitrator’s reasoning is competing with the evidence that was placed before him. The commissioner incorrectly found that Mtombe was not guilty of misconduct, in circumstances where Mtombe himself pleaded guilty to misconduct. In addition, the commissioner somehow conflated the existence of the rule with the requirements of section 1(a) of Regulation 308A of the Act National Road Traffic Act 93 of 1996. Whether or not the specific regulation applies to operating a vehicle on a farm, is immaterial to the question whether an employer can require compliance with such a rule within its premises. An employer is well within its rights to establish rules that are fair and reasonable and to expect compliance. There is nothing unreasonable in an employer introducing a rule such as the one it contends was breached by Mtombe. The commissioner’s conclusions that the applicant failed to prove that the rule exists, because it was unable to produce a document in which the rule is stipulated, is perplexing. This difficulty was effortlessly overcome by the evidence of Wiggill and Leon. Moreover, there would have been no need for Mtombe to have offered an apology, if he did not appreciate his wrongdoing.

Gross misconduct: On the evidence before the commissioner, there is sufficient evidence that Mtombe was guilty of misconduct, but not gross misconduct, and certainly not misconduct that could result in his dismissal, for a first offence. The employer’s labelling of misconduct as “gross” does not in and of itself make it so. It is the nature and extent of the misconduct that renders it gross, not the employer’s labelling thereof. It is immediately apparent that the incident giving rise to the dismissal of Mtombe could quite easily have been corrected, without resorting to his dismissal. A written warning would have sufficed. Dismissal in the circumstances was extraordinarily harsh. The incident that Mtombe was guilty of does not remotely meet the standard for gross misconduct. The dismissal of Mtombe was unfair.

Order: The third respondent is guilty of misconduct and issued with a written warning valid for 6 months. The dismissal of the third respondent was substantively unfair. The applicant is ordered to reinstate the third respondent retrospectively, with back pay in the amount of R14,200 with interest.

FORD AJ

Facts: The applicant was employed as a training manager until he was dismissed for allegations of bribing the security guard by offering him two cans of Dragon drink. The respondent held a formal disciplinary hearing against the applicant and the chairperson of the disciplinary hearing issued a sanction summarily dismissing the applicant with immediate effect. Aggrieved by the decision to dismiss him, the applicant approached the CCMA to refer an unfair dismissal dispute. The CCMA held the arbitration proceedings and issued the arbitration award which found that the dismissal of the applicant was procedurally fair but substantively unfair and ordered the applicant’s reinstatement and remuneration of two months’ salary. The applicant reported for duty and was denied access to the respondent’s premises to render his services. In terms of the reasoning of the commissioner, the respondent failed to prove the allegations of bribery against the applicant and the witnesses that ought to have been called to substantiate the respondent’s case were not called for inexplicable reasons, albeit being available.

Application: The applicant seeks to make an arbitration award an order of the court as contemplated in section 158(1)(c) of the Labour Relations Act 66 of 1995. The respondent contends that there is a supervening impossibility that makes compliance with the arbitration award impossible. The respondent contends that the reason for not reinstating the applicant is that it has no work for the applicant to perform as the contract it had with Redpath Mining has not been renewed.

Discussion: The respondent has not instituted any review proceedings as provided for in section 145(1) of the LRA. The respondent’s failure to institute review proceedings in terms of section 145(1) of the LRA only means that the respondent sees no defects in the arbitration award. If there is no defect identified by the respondent in the arbitration award, the final and binding nature of the arbitration award takes effect as if the arbitration award itself is an order of court. In the circumstances, the respondent is obliged in law to comply with the arbitration award. The respondent’s defence is untenable. In the absence of the employment contract between the applicant and respondent indicating that their employment relationship was dependent on the commercial contract between the respondent and Redpath, the court is obliged to respect the contractual autonomy of the applicant and respondent.

Findings: The respondent’s reliance on the doctrine of supervening impossibility is impermissible for an arbitration award issued in terms of the LRA. If an arbitration award is not subject to review by any litigant, it is final and binding as if it were an order of the court. The arbitration award must be respected and duly be complied with expeditiously to avoid the accrual of interest as contemplated in section 143(2) of the LRA. Arbitration awards, if not reviewed by aggrieved litigants must be complied with without any delay to accord with the rule of law. It is not open to an aggrieved litigant to ascertain which part of the arbitration award to comply with or disregard. The LRA provides remedies for any aggrieved litigant and such legal remedies must be expeditiously exploited to enforce employment rights. The issuance of arbitration awards is not the province of the litigants.

Order: The application is granted. The arbitration award is made an order of the court. The respondent is ordered to pay the costs.

SETHENE AJ

Facts: The applicant’s case originates in an additional tax assessment imposed for 2015. He became aware of this when submitting his income tax return for the following year. The explanation received was that business expenses were disallowed and that there was no explanation for his decline in turnover. The applicant took issue with the additional assessment. The applicant filed an objection in March 2017. He was advised that this was refused as it was outside the time period prescribed by Tax Administration Act 28 of 2011 (TAA). The applicant applied to Allan Gray for the withdrawal of his retirement benefit as he had reached the age of 55. He was informed that the full amount due had been paid over to the South African Revenue Service (SARS) following receipt of a notice in terms of section 179(1) of the TAA.

Application: The applicant seeks repayment of an amount of R145,934,99 paid by Allan Gray Retirement Annuity Fund to the respondent. He claims that the notice for payment of the funds, in terms of section 179(1) of the TAA violates other provisions of the TAA and contravened section 37A(1) of the Pension Funds Act 24 of 1956 (the PFA) so that it was invalid and a violation of the constitutional right to have access to social security.

Discussion: The applicant contests the section 179(1) notice on the basis that it was not written by a senior SARS official, as required by the legislation, is "a product of artificial intelligence" and is null and void. Moreover, there was non-compliance with sections 179(4) and 179(5) of the TAA, a violation of section 37A of the PFA and section 27 of the Constitution. SARS is an organ of state within the public administration. The TAA provides for the effective and efficient collection of tax, including measures for the recovery of tax. SARS is afforded further powers to enforce the collection of taxes due, including the appointment of a third party as an agent of the taxpayer in terms of section 179 of the TAA. If a taxpayer’s obligation to pay tax pending an objection or an appeal is not suspended, SARS can actively take steps to enforce the collection of tax. Various demands were issued to the applicant for an unpaid tax debt in accordance with section 179(5). The correspondence included the prescribed details and in each instance the applicant was put on clear and unequivocal terms to settle his debt.

Findings: The respondent is permitted to appoint a third party to act as an agent for the taxpayer. SARS was entitled to issue the third-party notice and thereby recover the funds in question to satisfy an existing tax debt. Allan Gray, upon receipt of what it considered to be due notice, effected the payment to SARS. In attaching proof of its payment to SARS, Allan Gray also informed the applicant of the link between the IT88 directive and section 179(1) of the TAA. The complaint that the respondent did not afford the applicant another opportunity to raise his personal circumstances overlooks the purpose of the notice and its intended recipient. The applicant had received notification of a final demand for payment prior to the issue of the notice, as required by the legislation. The argument that the respondent acted unconstitutionally fails to consider the limitation of rights envisaged by section 36 of the Constitution. The respondent’s conduct constitutes a reasonable and justifiable limitation of the right to have access to social security.

Order: The application is dismissed.

GOVINDJEE J