THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 147/08

In the matter between:

TRANSMAN (PTY) LTD

APPELLANT

v

GRAHAM DICK

1st RESPONDENT

THE CHAIRPERSON OF THE TRANSMAN
(PTY) LIMITED DISCIPLINARY ENQUIRY        2nd RESPONDENT

Neutral citation:
Transman v Graham Dick (147/2008) [2008] ZASCA 38
(31 March  2009)

Coram:
Mpati P, Jafta, Maya, Mhlantla JJA et Hurt AJA

Heard:
10 March 2009

Delivered: 31 March 2009

Summary:
Jurisdiction – the high court has jurisdiction to entertain administrative
reviews – dismissals from employment cannot be challenged by means
of review – non-compliance with administrative law rules incorporated
into employment agreements constitutes a contractual breach giving rise
to ordinary remedies.

ORDER

On
appeal
from:
High
Court,
Witwatersrand
Local
Division
(Van Oosten J)

In the result the following order is made:

1.
The appeal is upheld with costs, including the costs of two counsel.
2.
The order of the court below is set aside and replaced with the
following order:
‘(a)
The application is dismissed with costs, including the costs
consequent upon the employment of two counsel.’

JUDGMENT

JAFTA JA (Maya and Mhlantla JJA concurring)

[1] This is an appeal against a judgment of the High Court,
Witwatersrand Local Division (Van Oosten J) in terms of which the
verdict of the employer’s disciplinary body was set aside and replaced
with a different verdict by the court. The first respondent (the employee)
challenged – by means of a review application – the findings and
recommendation of the disciplinary body and the employer’s decision to
terminate his employment. The appeal is with the leave of the court
below.

THE FACTS

[2]    The employee and his wife were both employed by the employer
while they were at the same time also its directors. The employee’s wife
held the position of managing director. The employee was chairman
before his removal from the board of directors. He was removed from the
board on 10 October 2005.

[3]    The employer carries on a labour broking business in terms of
which it provides temporary workers to various clients. It places about 11
000 such workers daily with clients who require temporary labour. Its
annual turnover is approximately R400 million. The business started in
1983 as a partnership between the employee and his wife. In 1988 they
formed a close corporation through which they operated the business.
Later they established the employer company as a vehicle through which
they ran the business. The employee and his wife held equal shares in the
company. Such shares were later transferred to a trust controlled by them.

[4]    As from 2001 the employee and his wife experienced marital
problems which also affected their relations at work. There were
complaints and counter-complaints made by them against each other.
Some of these complaints had to be resolved by the employer’s board.
During 2005 the employer became aware of certain allegations of
misconduct against the employee. On 15 August 2005 it addressed to him
a notice of suspension in terms of which he was suspended on specified
conditions pending an investigation into the allegations.

[5]    The employee was later charged with 13 counts of misconduct and
was instructed to appear before a disciplinary enquiry chaired by the

second respondent. After a number of postponements for various reasons,
the disciplinary hearing commenced on 13 February 2006. After hearing
evidence from the employer’s witnesses the second respondent received
argument from the parties’ legal representatives. She handed down her
verdict on 10 March 2006 in terms whereof she found the employee
guilty of misconduct in respect of some charges and acquitted him on
others. Having considered the mitigating and aggravating factors the
second respondent recommended that the employee be dismissed.

[6]    The employer’s board considered the findings and recommendation
before terminating the employee’s employment on 27 March 2006.
Although the second respondent had recommended dismissal, the board
took a softer line against the employee and decided to retire him. In a
letter addressed to the employee the board stated:

‘As you are aware the chairperson of the disciplinary enquiry recommended that
your services with this company be terminated. The Board has considered the
recommendation and resolved to accept the recommendation and accordingly
terminate your employment.

The Board resolved further that in view of your status as one of the founding
members of the company and as a former Chairman of the Board, you would not be
summarily
dismissed.
The
Board
shall
comply
with
the
Chairperson’s
recommendation by retiring you. Your employment with Transman (Pty) Ltd is
accordingly terminated with effect from today, 27th March 2006 at 10h00.’

[7]    There is a dispute on the papers about whether the employee was
dismissed or retired. For present purposes the dispute is however
immaterial. There can be no doubt that the employee’s employment was
terminated. As stated earlier the employee instituted a review application

challenging the termination and the second respondent’s verdict which
underpinned it.

PROCEEDINGS IN THE HIGH COURT

[8]    There can be no dispute regarding the nature of the proceedings
instituted by the employee in the court below. He sought an order in the
following terms:

‘1.
Reviewing and setting aside and/or correcting the verdict and decision of [the
chairperson] and [the employer] in terms of which:

1.1
[The chairperson] found the applicant guilty of certain charges and
recommended the dismissal of the applicant.

1.2
[The employer] retired the applicant.

2.
Setting aside and/or substituting the verdict and dismissal of [the chairperson]
and/or [the employer] with a verdict of not guilty and/or substituting the
recommendation of [the chairperson] with a recommendation that no sanction
should be imposed on the application or a sanction other than dismissal.

3.
Directing [the employer] to re-instate the applicant as an employee of [the
employer] with effect from the date of his retirement and on the same terms
and conditions as existed at the time of his retirement.’

[9]    In challenging the verdict and termination the employee raised a
number of review grounds. In his founding affidavit he alleged:

‘GROUNDS FOR REVIEW

43    I respectfully state that [the chairperson], in finding me guilty in her verdict of
certain of the charges and certain of the individual counts:

43.1
acted grossly unreasonably, alternatively, unreasonably; and

43.2
could not reasonably or logically have done so on the evidence before her; and

43.3
displayed a biased attitude during my disciplinary enquiry;  and

43.4
was well aware of the fact that the disciplinary enquiry was initiated for
ulterior motives and unlawful purposes and that her verdict and
recommendation justify the conclusion that she failed to apply her mind to the
matter in a judicial manner.’

[10] Apart from disputing each ground relied upon by the employee the
employer objected to the jurisdiction of the high court in this matter and
the competence of the relief sought. It contended that both the
chairperson’s verdict and the termination of the employment were not
susceptible to review because those decisions did not constitute
administrative action and principles of administrative law do not apply to
the matter. Regarding jurisdiction the employer argued that in the light of
s 157 of the Labour Relations Act 66 of 1995 the high court lacked
jurisdiction to hear the matter.

[11] Proceeding from the premise that in our law courts are entitled to
review proceedings of domestic tribunals, the court below held that it had
jurisdiction to hear the matter and set aside the verdict of guilty and
replaced it with the verdict of not guilty. Relying on Feinsberg v African

Bank and Another1 and Klein v Dainfern College and Another2 – to which
I shall later return – the court held not only that principles of
administrative law applied to this case but also that the impugned
decisions could be reviewed and set aside in the same way as
administrative actions.

[12] The court below reasoned thus:

‘Counsel for Transman did not take issue with this Court’s power to review the
decision of the chairperson. He in my view correctly, submitted that it must be
assumed in favour of the applicant that his contract of employment with Transman is
subject to an implied term that he would be afforded a fair hearing before he was
dismissed. Authority for the proposition is again to be found in a recent decision of
the Supreme Court of Appeal in Old Mutual Life Assurance Company SA Limited v
Gumbi3 where Jafta JA, writing for the Court, held as follows:

“An employee’s entitlement to a pre-dismissal hearing is well recognized in our law,
such right may have as its source the common law or a statute which applies to the
employment relationship between the parties (Modise & Others v Steve Spar
Blackheath 2001 (2) SA 406 (LAC) ((2000) 21 ILJ 519; [200] 5 BLLR 496 in para 21
and the authorities collected there)”.

Finally on this aspect, I agree with counsel for Transman that this Court in reviewing
her decision, can concern itself only with the relief the applicant would be entitled to
at common law. The nature of the relief that the applicant may be entitled to is
contractual in nature as opposed to the relief provided for in the Labour Relations Act
of 1995.

1 (2004) ILJ 217(T).
2 2006 (3) SA 73 (T).
3 2007 (5) SA 552 (SCA).

The grounds of review relied upon by the applicant are, firstly, malice, secondly, bias
and thirdly, unreasonableness or gross unreasonableness. In the view I take of the
matter only gross unreasonableness requires determination.’

[13] Before considering the issues raised in this appeal it is necessary to
remark on the findings and reasoning of the court below. Before the
decision of this court in Gumbi4 the right to a pre-dismissal hearing was
not implied at common law and this necessitated the development of the
common law in terms of s 39(2) of the Constitution. As from the date of
delivery of the judgment in Gumbi the right of every employee to a pre-
dismissal hearing is implied at common law. Since that judgment was
delivered after the cause of action had arisen in the present matter
reliance on Gumbi was misplaced.

[14] Secondly, in its reasoning the court below conflated the concept of
extending the application of administrative law principles to employment
contracts with administrative review. It spoke of the employee being
entitled to a contractual relief and yet it approached and decided the
matter as if it amounted to administrative action. It reviewed and set aside
the chairperson’s verdict on the basis that it was grossly unreasonable.
Taking a step further than just setting aside the verdict, the court
substituted such verdict with its own verdict of not guilty. The relief
granted is not in keeping with a contractual claim and there was no legal
basis for replacing the verdict with one of not guilty. For reasons that are
not apparent from the judgment the court below left the termination intact
after rescinding its underlying reason – the verdict of guilty.

4 Above n 3.

THE ISSUES

[15] Three issues were raised in this court. The first issue is whether the
high court had jurisdiction to adjudicate the case. The second relates to
the competence of the relief claimed in view of the nature of the
impugned decisions. The issue is whether the validity of such decisions
can be challenged by invoking administrative review procedure. The third
issue is whether on the papers – as they presently stand – the employee
has made out a case for a pre-dismissal hearing based on the terms of the
employment agreement.

JURISDICTION

[16] Counsel for the employer conceded, correctly so in my view, that
in so far as the employee’s claim for a review is concerned, the high court
had jurisdiction to hear the matter. The proposition that administrative
action disputes are justiciable in the high court is without controversy.
What has been controversial is whether a set of facts supporting a claim
of an unfair dismissal could at the same time give rise to a violation of
administrative justice rights.5 As it appears below the controversy has
been settled by the Constitutional Court.

[17] In Chirwa v Transnet Ltd and Others6 the Constitutional Court
held that public servants can no longer challenge their dismissals by
invoking administrative review procedures because they now enjoy the

5 Claase v Transnet Bpk en ‘n Ander 1999 (3) SA 1012 (T); Mgijima v Eastern Cape Appropriate
Technology Unit and Another 2000 (2) SA 291 (Tk) at 309; Minister of Correctional Services and
Another v Ngubo and Others 2000 (2) SA 668 (N); Runeli v Minister of Home Affairs and Others
2000  (2) SA 314 (Tk); NAPTOSA and Others v Minister of Education, Western Cape 2001 (2) SA 112
(C).
6 2008 (4) SA 367 (CC).

same protection afforded employees in the private sector under the
Labour Relations Act. Writing for the majority in that matter Ngcobo J
stated:
‘Support for the view that the termination of the employment of a public sector
employee does not constitute administrative action under s 33 can be found in the
structure of our Constitution. The Constitution draws a clear distinction between
administrative action on the one hand and employment and labour relations on the
other. It recognises that employment and labour relations and administrative action
are two different areas of law….
In my judgment labour and employment relations are dealt with comprehensively in s
23 of the Constitution. Section 33 of the Constitution does not deal with labour and
employment relations. There is no longer a distinction between private and public
sector employees under our Constitution. The starting point under our Constitution is
that all workers should be treated equally and any deviation from this principle should
be justified. There is no reason in principle why public sector employees who fall
within the ambit of the LRA should be treated differently from private sector
employees and be given more rights than private sector employees. Therefore, I am
unable to agree with the view that a public sector employee, who challenges the
manner in which a disciplinary hearing that resulted in his or her dismissal, has two
causes of action, one flowing from the LRA and another flowing from the
Constitution and PAJA.
I conclude that the decision by Transnet to terminate the applicant’s contract of
employment did not constitute administrative action under s 33 of the Constitution.’

[18] It is important to note that in Chirwa the Constitutional Court
deprecated the proposition that civil servants have two causes of action,
but only in so far as the second cause of action is based on s 33 of the
Constitution or the Promotion of Administrative Justice Act 3 of 2000
(PAJA). The decision in Chirwa prohibits the use of review process in
challenging the validity of a dismissal from employment. What this
means is that a cause of action based on a contractual breach is still

permissible.7 But for purposes of determining jurisdiction the fact that
incompetent relief is sought is immaterial. Such enquiry does not entail
the outcome of an adjudicative process. The issue that is essential to the
enquiry is whether the court has authority to adjudicate a particular
dispute. The incompetence of the claim made in the present case,
therefore, plays no part in the determination of the high court’s
jurisdiction. As stated earlier, the employee has instituted review
proceedings over which the high court unquestionably has jurisdiction.

WAS THE REVIEW APPLICATION COMPETENT?

[19] The answer to this question lies in whether the chairperson’s
verdict and the termination of employment constitute decisions which are
reviewable in administrative law. On the authority in Chirwa we know
that such decisions cannot be reviewed either under PAJA or s 33 of the
Constitution. Although Chirwa dealt with employment in the public
sector there is no reason why the same principle should not apply to the
private sector employment.

[20] In this case the employee eschewed any reliance on the Labour
Relations Act 66 of 1995, and as stated above, the court below found that
that Act did not apply to the matter. It dealt with the case on the basis that
the relief claimed was competent at common law. Proceeding from this
premise the court below then invoked the common law standard of gross
unreasonableness as a basis for setting aside the chairperson’s verdict.
The question that arises is whether it is permissible to do so in the light of
the decision in Chirwa. Does the review procedure at common

7 Fedlife Assurance Limited v Wolfaardt 2002 (1) SA 49 (SCA).

law continue to exist side by side with the system entrenched in the
Constitution?

[21] In Container Logistics8 this court held the view that judicial review
could be claimed either under the Constitution or at common law. In this
regard Hefer JA said:

‘Judicial review under the Constitution and under the common law are different
concepts. In the field of administrative law constitutional review is concerned with the
constitutional legality of administrative action, the question in each case being
whether it is or is not consistent with the Constitution and the only criterion being the
Constitution itself. Judicial review under the common law is essentially also
concerned with the legality of administrative action, but the question in each case is
whether the action under consideration is in accordance with the behests of the
empowering statute and the requirements of natural justice.…

No doubt administrative action which is not in accordance with the behests of the
empowering legislation is unlawful and therefore unconstitutional, and action which
does not meet the requirements of natural justice is procedurally unfair and therefore
equally unconstitutional. But, although it is difficult to conceive of a case where the
question of legality cannot ultimately be reduced to a question of constitutionality, it
does not follow that the common-law grounds for review have ceased to exist. What
is lawful and procedurally fair within the purview of s 24 is for the courts to decide
and I have little doubt that, to the extent that there is no inconsistency with the
Constitution, the common-law grounds for review were intended to remain intact.’

[22] The above proposition was, however, rejected by the Constitutional
Court in Pharmaceutical Manufacturers.9 In that case Chaskalson P,
writing for the unanimous court, said:

8 Commissioner of Customs and Excise v Container Logistics (Pty) Ltd, Commissioner of Customs and
Excise v Rennies Group Ltd t/a Renfreight 1999 (3) SA 771 (SCA).
9 Pharmaceutical Manufacturers Association of SA and Another : In re ex parte President of the
Republic of South Africa and Others 2000 (2) SA 674 (CC).

‘I cannot accept this contention, which treats the common law as a body of law
separate and distinct from the Constitution. There are not two systems of law, each
dealing with the same subject-matter, each having similar requirements, each
operating in its own field with its own highest Court. There is only one system of law.
It is shaped by the Constitution which is the supreme law, and all law, including the
common law, derives its force from the Constitution and is subject to constitutional
control.’10

[23] But even if Chirwa did not stand in the way of the relief sought by
the employee in this matter, it would be equally incompetent to grant
such relief at common law. Barring public sector employment contracts,
our common law has always drawn a clear line of distinction between the
branches of law which govern employment matters on the one hand, and
administrative action on the other. The former is governed by the labour
or employment law rules and the latter by administrative law rules. But
before the decision in Chirwa there was an overlap between the two
branches of law when it came to public service contracts.11 The
application of administrative law rules was extended to employment
matters for two reasons. First, the employment and dismissal of public
servants was regulated by statute. Second, public servants were denied
the procedural fairness process that applied to dismissals of employees in
the private sector under the Labour Relations Act of 1956.

[24] Since the decision in Chirwa public servants can no longer invoke
administrative review to challenge the validity of dismissals. However
this does not mean that parties cannot incorporate administrative law
requirements into their employment agreements. In that event the failure

10 Id in para 44.
11 Administrator Transvaal and Others v Zenzile and Others 1991 (1) SA 21 (A).

to comply with such requirements would, however, be a breach of
contract and ordinary contractual claims would be available to the
aggrieved party.12 The incorporated requirements cannot convert what is
essentially a contractual claim into an entitlement to judicial review on
any of the grounds recognised in law. As stated earlier the court below
failed to draw this distinction. It was influenced by decisions of the North
Gauteng High Court in Feinberg and Klein referred to in para [10] above.

[25] In Feinberg, without referring to any authority, the high court
reviewed and set aside a dismissal based on the verdict of guilty reached
by a disciplinary body, on the basis that the employee was denied a fair
and just hearing. This was done after the court had rejected the argument
that it had no jurisdiction to entertain the matter. The issue of whether the
relief sought was competent was not considered at all.

[26] In Klein the high court, proceeding from the premise that coercive
decisions of domestic tribunals in entities such as churches and recreation
clubs have always been susceptible to review,13 held that ‘no rational
reason exists to exclude individuals from the protection of judicial review
in the case of coercive actions by private tribunals not exercising any
public power’. Having found that the employment agreement between the
parties before it included principles of natural justice, the court held that
the employer’s decision to dismiss the employee did not constitute
administrative action contemplated in PAJA and therefore PAJA did not
apply. It proceeded to review and set aside the verdict of guilty and the
sanction imposed pursuant to such verdict. That case was concerned with

12 Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA); Nakin v MEC, Department of Education,
Eastern Cape 2008 (6) SA 320 (Ck) para 11 and the authorities there cited.
13 Jockey Club of South Africa and Others v Feldman 1942 AD 340 and Taylor v Lurstag NO and
Others 2005 (1) SA 362 (W).

a challenge mounted against the verdict of a disciplinary enquiry in a
private sector employment setting.

[27] Although the Klein judgment was delivered before the decision in
Chirwa, the high court lost sight of the fact that none of the domestic
tribunal decisions that it relied on dealt with employment contracts. As it
appears above, in concluding that parties to an employment agreement
can incorporate administrative law rules, the high court was correct. But
it was wrong to assume that once this happens a dismissal of the
employee may be reviewed as if it were administrative action. There can
be no doubt that the object of administrative law rules such as the rules of
natural justice is to afford procedural fairness to the party against whom
the decision is taken. It is also true that judicial review is not the only
mode through which such procedural fairness can be achieved in an
employment setting. The Labour Relations Act imposes a duty on
employers to act in a fair manner when effecting dismissals.14 As does the
common law since its development in Gumbi. In addition, where the
parties have agreed to incorporate rules of natural justice into their
employment agreement, the employee can insist on compliance with such
rules by means of a contractual claim. I conclude therefore that there is no
need to permit a challenge based on judicial review in employment
dismissals. It follows that in this regard the employee has misconceived
his cause of action.

14 Section 188 of the Labour Relations Act 66 of 1995.

HAS
THE
EMPLOYEE
MADE
OUT
A
CASE
FOR
A
CONTRACTUAL PRE-DISMISSAL HEARING?

[28] Counsel for the employee argued that the employee was entitled to
a second hearing before the board terminated his employment. He
submitted that this entitlement arose from an implied term of the
employment agreement. As mentioned earlier the parties to an
employment contract may set a standard of procedural fairness applicable
to their employment relationship by incorporating principles of natural
justice into their agreement. Such incorporation may either be express or
tacit.15

[29] Where – as in the present matter – the incorporation is claimed to
have been tacit, the test ordinarily applicable to a determination of a tacit
term applies.16 That test was restated in a recent decision of this court in
City of Cape Town (CMC Administration) v Bourbon – Leftleyh and
Another NNO.17 In that case Brand JA said:

‘(A) tacit term is based on an inference of what  both parties must or would
necessarily have agreed to, but which, for some reason or other, remained
unexpressed. Like all other inferences, acceptance of the proposed tacit term is
entirely dependent on the facts. But as also appears from the cases referred to, a tacit
term is not easily inferred by the courts. The reason for this reluctance is closely
linked to the postulate that the courts can neither make contracts for people nor
supplement their agreements merely because it appears reasonable or convenient to do
so….
It follows that a term cannot be inferred because it would, on the application of the
well-known “officious bystander” test, have been unreasonable of one of the parties

15 Lamprecht and Another v McNeillie 1994 (3) SA 665 (A) at 668.
16 Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 645H-648B.
17 2006 (3) SA 488 (SCA).

not to agree to it upon the bystander’s suggestion. Nor can it be inferred because it
would be convenient and might therefore very well have been incorporated in the
contract if the parties had thought about it at the time. A proposed tacit term can only
be imported into a contract if the court is satisfied that the parties would necessarily
have agreed upon such term if it had been suggested to them at the time…. If the
inference is that the response by one of the parties to the bystander’s question might
have been that he would first like to discuss and consider the suggested term, the
importation of the term would not be justified.’18

[30] In the present case the duty was on the employee not only to plead
a contractual claim but also to prove facts from which the contended tacit
term could be inferred. This the employee has failed to do and as a result
there is no factual basis for importing into the employment agreement the
term that he was entitled to a hearing before the board terminated his
employment. In fact he has failed to plead the terms of the employment
agreement between himself and the employer. Therefore he has not
satisfied the requirements of the test for importing terms into a contract.
Accordingly the court below erred in assuming that his employment
contract was ‘subject to an implied term that he would be afforded a fair
hearing before he was dismissed’. It follows that the appeal must succeed.
This finding is reached without adjudicating the merits of the complaint
by the employee.

[31] In the result the following order is made:

1.
The appeal is upheld with costs, including the costs of two counsel.

2.
The order of the court below is set aside and replaced with the
following order:

18 Id in para 19.

‘(a)
The application is dismissed with costs, including the costs
consequent upon the employment of two counsel.’

________________________
C N JAFTA
JUDGE OF APPEAL

HURT AJA (Mpati P concurring):

[32] I have read the judgment of my brother Jafta and agree with the
order which he proposes. I consider, though, that justification for the
order can be found on a more simple basis. I will refer to the parties by
the designations used in the judgment of Van Oosten J in the high court,
viz to the appellant as 'Transman' and  to the first respondent as 'the
applicant'.

[33] The background facts material to the decision of the matter are set
out in the judgment of Jafta JA and need not be repeated here. The
essence of the approach adopted by van Oosten J is set out thus in the
early part of his judgment:

‘Counsel for Transman did not take issue with this Court's power to review the
decision of the chairperson. He in my view correctly, submitted that it must be
assumed in favour of the applicant that his contract of employment with Transman is
subject to an implied term that he would be afforded a fair hearing before he was
dismissed.19  . . . . Finally on this aspect, I agree with counsel for Transman that this
Court in reviewing her decision, can concern itself only with the relief the applicant

19 The learned Judge referred, in this regard, to Old Mutual Life Assurance Co of SA Ltd v Gumbi 2007
(5) SA 552 (SCA).

would be entitled to at common law. The nature of the relief that the applicant may be
entitled to is contractual in nature as opposed to the relief provided for in the Labour
Relations Act, 66 of 1995.20 The grounds of review relied upon by the applicant are,
firstly,
malice
secondly,
bias
and,
thirdly,
unreasonableness
or
gross
unreasonableness. In the view I take of the matter only gross unreasonableness
requires determination.’21

[34] Having thus stated his approach, the learned Judge proceeded to
consider the evidence in the record of the disciplinary enquiry and the
evidence and submissions in the review application. He concluded that
the chairperson's decisions  to find the applicant guilty on what may be
referred to the 'main charge' as well as on various other charges of a less
serious nature  were either grossly unreasonable (the main charge) or not
based fairly upon the evidence adduced by the employer.22 The learned
Judge also found that a decision to suspend the applicant pending the
resolution of the disciplinary proceedings and a decision by the Board of
Directors to retire the applicant from service as an employee were
irregular and unlawful because the audi alteram partem rule had not been
followed before these decisions were taken.

[35] Based on these findings, the following order was made:

'1.
The verdict of [the chairperson] in terms of which the applicant
was found guilty on certain charges as well as the decision to retire the
applicant, are set aside;

20 In this regard the learned judge cited Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA)
21 That the applicant's claim was, indeed, based on contract is quite clear from paragraph 12
of the applicant's founding affidavit in the application, where he explicitly asserted that the
high court had jurisdiction to deal with the application and the Labour Court did not.
22 On certain of the charges she had made ‘no finding’ and these were not considered further, save for a
comment by the Judge that the applicant was actually entitled to a formal acquittal on these.

2.
The verdict of [the chairperson] referred to in para 1 above is
substituted with a verdict of not guilty.'

[36] There are two features of the situation in which an employee
challenges disciplinary proceedings and/or dismissal on a contractual
basis as opposed to the 'unfair labour practice' with which the Labour
Relations Act 66 of 1995 and proceedings in the Labour Tribunals are
concerned. The first is that, having based his claim on contract, it is
incumbent on the employee to prove the terms of the contract on which
he relies and the breach which entitles him to relief. The second is that
the relief which he seeks must be relief in terms of the common law of
contract. This much is clearly established in the judgments of this court in
Lamprecht v McNeillie  1994 (3) SA 665 (AD), Fedlife (above, footnote
2) and Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) at 488.

[37] There is no evidence in the founding papers which establishes the
terms of the applicant's contract of employment with Transman.  In
paragraph 8.2.2 of her answering affidavit, the deponent for Transman
specifically pointed out that:
'. . . the relief sought by the applicant (sc the review of the disciplinary
proceedings) is, in any event,  not based on any right identified in the
founding papers.'

[38] In this situation, the simple question may be asked of the applicant:
'In what respects did the disciplinary hearing constitute a breach of
Transman's contractual obligations toward you?'  The question could
certainly not be answered by reference to anything in the applicant's
papers.  It is not enough for him to contend for a general implied term
that he would be 'afforded a fair hearing' because what constituted a fair

hearing in this particular situation would plainly depend on the
contractual provisions read as a whole.  There is clearly an infinite variety
of ways in which steps can be taken to ensure that an employee is given a
fair hearing in matters which may affect his interests, particularly in the
cases of disciplinary action or dismissal. Where the contract contains
express provisions in this regard, these must be followed.23  Where such
provisions must be implied, their nature and extent must be gauged by
reference to the contract as a whole so that a 'clear and exact formulation'
can be arrived at.24 It follows that the applicant cannot establish his case
as a breach of contract without taking the primary, elementary step of
proving the contract on which he relies. As was decided in Lamprecht,
the applicant's case must fail at its threshold for want of proper proof of
his contract.

[39] I think I should add, in this connection and as further support for
the view that I take, that the very relief granted by Van Oosten J was
plainly not contractual.  If he could establish a breach of contract, the
applicant was entitled to an order that Transman perform its obligations
under the employment contract and such damages as the applicant may
have suffered by virtue of the breach, or an order declaring the contract
cancelled and appropriate compensation to the applicant pursuant to such
cancellation.

[40] I agree fully with what my brother Jafta has said in paras 28 to 30
of his judgment, in relation to the applicant's contention that the decision
to retire him without first affording him the right of making
representations to Transman's Board was a breach of contract. My view is

23 Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA), particularly at 488.
24 Desai & Others v Greyridge Investments (Pty) Ltd. 1974 (1) SA 509 (A) at 522.

simply that the same approach should be adopted to the issues arising out
of the applicant's attempt to review the disciplinary proceedings.

________________________
N V HURT
ACTING JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:
P J van Blerk SC

A C Botha

Instructed by

Bowman Gilfillan Inc,
Sandton, Johannesburg

McIntyre & Van der Post

Bloemfontein

FOR RESPONDENT:
J L C J van Vuuren SC (1st Respondent)

M Smit

Instructed by

Feldman Nance-Kivell,
Parktown, Johannesburg

Lovius-Block Attorneys
Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
31 March 2009

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Today, the Supreme Court of Appeal (the SCA) has upheld an appeal against
judgment of the Johannesburg High Court in terms of which a verdict of a
disciplinary enquiry was set aside.

Mr Graham Dick was an employee of Transman (Pty) Ltd, a company he established
together with his wife. Having been charged with various counts of misconduct, he
was found guilty and the chairperson of the disciplinary committee recommended
that he be dismissed. Because he was the chairman of Transman’s board of
directors, the board decided to retire him instead of a dismissal.

Mr Dick instituted a review application in the Johannesburg High Court, challenging
the termination of his employment on the basis that the chairperson was biased and
that her decision was grossly unreasonable. Transman opposed the application and
objected to the high court’s jurisdiction to hear the matter and the competence of the
relief sought. The high court found that the verdict was grossly unreasonable and
replaced it with the verdict of not guilty.

On appeal, the SCA found that the high court had jurisdiction but that the termination
could not be challenged by way of review.