THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
CASE NO 211/2006

In the matter between

OLD MUTUAL LIFE ASSURANCE CO SA LTD

Appellant

and

THAMELA ADVOCATE GUMBI

Respondent

Coram:
Howie P, Cameron, Brand, Cloete and Jafta JJA
Heard:
23 MARCH 2007
Delivered: 17 MAY 2007

Summary: Dismissal – procedural fairness – employee’s deliberate absence from a
disciplinary enquiry not affecting validity of ensuing dismissal

Neutral citation: This judgment may be referred to as Old Mutual v Gumbi
[2007] SCA 52 (RSA)

____________________________________________________________________

JAFTA JA

[1] The central issue in this appeal is whether the termination of the respondent’s
employment by the appellant (Old Mutual), was procedurally fair. The respondent
(the employee) does not contend that the employer lacked a fair reason to dismiss
him. His attack was confined to the process that culminated in his dismissal. Initially
Old Mutual raised jurisdictional and other challenges to the claim, all of which it has
abandoned. The sole focus of the appeal – given that the employee eschewed his
statutory remedies under the Labour Relation Act, Act 66 of 1995 (the LRA)
(compare Transnet Ltd v Chirwa 2007 (2) 198 (SCA)) – was therefore the
employee’s right to a pre-dismissal hearing under the common law.

[2] On 29 April 2004 Old Mutual dismissed the respondent following a
disciplinary enquiry in which he was found guilty of misconduct and dismissal was
recommended as the appropriate sanction. He instituted an application in the Transkei
High Court challenging the dismissal on the basis that the enquiry was held in his
absence, and as a result he was denied a hearing before the decision to dismiss was
taken. Miller J dismissed the application on, inter alia, the ground that the employee
had ‘wilfully and voluntarily excluded himself from the disciplinary hearing’ because
he failed to return to it after a short adjournment.

[3] The employee appealed to the Full Court. Maya J (Kemp AJ concurring)
reversed the decision of the court of first instance. The learned Judge held that the
employee’s absence from the disciplinary hearing was neither wilful nor voluntary,
and that the medical certificate, handed to the disciplinary tribunal by his
representative, could not be rejected when its authenticity and correctness had not
been disputed at the hearing. In a dissenting judgment Somyalo JP found that the
employee ‘evinced a determination to postpone, stampede and/or derail the
disciplinary enquiry’, and that his absence from the hearing was wilful and voluntary.
The present appeal is with the special leave of this court.

[4] An employee’s entitlement to a pre-dismissal hearing is well recognised 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 and Others v Steve’s Spar,
Blackheath 2002 (2) SA 406 (LAC) at para 21 and the authorities collected there). In
cases such as the present, the parties may opt for certainty and incorporate the right in
the employment agreement (Lamprecht and Another v McNeillie 1994 (3) SA 665
(A) at 668).

[5] In Slagment (Pty) Ltd v Building, Construction and Allied Workers’ Union and
Others 1995 (1) SA 742 (A) this court stated the principle in the following terms at
755B-C:

‘It is within the province of the employer who holds a disciplinary enquiry to determine its form
and the procedure to be adopted, provided always that they must be fair. Fairness requires, inter
alia, that the employee should be given an opportunity of meeting the case against him: the
employer must obey the injunction audi alteram partem.’

Slagment and other previous cases in this court concerned the right to a hearing
developed under the old Labour Relations Act, 28 of 1956. It is clear however that
coordinate rights are now protected by the common law: to the extent necessary, as
developed under the constitutional imperative (s 39(2)) to harmonise the common law
into the Bill of Rights (which itself includes the right to fair labour practices (s
23(1)).
[6] In recognising this right our law is consistent with international law relating to
pre-dismissal hearings as set out in Article 7 of the International Labour Organisation
(the ILO) Convention on Termination of Employment 158 of 1982. It provides:

‘The employment of a worker shall not be terminated for reasons related to the worker’s conduct or
performance before he is provided an opportunity to defend himself against the allegations made,
unless the employer cannot reasonably be expected to provide this opportunity.’

Two observations may be made in this regard. The first is that South Africa is a
member of the ILO and our Constitution requires the courts to have regard to
international law when interpreting legislation, including the common law (s 233).
The second is that the convention itself recognises that the right is not absolute: there
are circumstances where it may not apply.

[7] Of importance is the fact that by extending the requirement of the audi alteram
partem principle to employment relationships, our law promotes justice and fairness
at the workplace. In doing so, the law promotes the primary objects of the LRA,
namely, giving effect to South Africa’s obligations as a member state of the ILO and
promoting social justice at the workplace (s 2 of the LRA). In this context fairness
must benefit both the employee and the employer. The process of determining the
actual content of fairness in matters such as this involves the balancing of competing
and sometimes conflicting interests of the employee, on the one hand, and the
employer on the other. The facts of a particular case determine the weight to be
attached to such interests on each side of the scale. Expressing the view of this court
on this topic in National Union of Metalworkers of SA v Vetsak Co-operative Ltd and
Others 1996 (4) SA 577(A) Smalberger JA said at 589C-D:

‘Fairness comprehends that regard must be had not only to the position and interests of the worker,
but also those of the employer, in order to make a balanced and equitable assessment. In judging
fairness, a court applies a moral or value judgment to established facts and circumstances….
And in doing so it must have due and proper regard to the objectives sought to be achieved by the
Act. In my view, it would be unwise and undesirable to lay down, or to attempt to lay down, any
universally applicable test for deciding what is fair.’

[8] The right to a pre-dismissal hearing imposes upon employers nothing more
than the obligation to afford employees the opportunity of being heard before
employment is terminated by means of a dismissal. Should the employee fail to take
the opportunity offered, in a case where he or she ought to have, the employer’s
decision to dismiss cannot be challenged on the basis of procedural unfairness

(Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Others
(1991) 12 ILJ 806 (LAC) at 813C-D).

[9] In the present case Old Mutual had offered the employee a chance to defend
himself against the allegations of misconduct which led to his dismissal. The
employee did not take the opportunity. The crucial question is whether his absence
from the hearing was, in the circumstances of this case, justified; or, differently put,
whether fairness to both parties demands that his dismissal be set aside or not. In
order to determine this issue a comprehensive summary of the facts is necessary.

[10] Old Mutual appointed the employee as a sales advisor on 1 February 1995. He
was stationed at its branch in Mthatha and Mr Sandile Ntombela, the sales manager,
was his superior. The evidence led at the hearing held on 29 April 2004 reveals that
on 5 March 2004, the employee submitted claims for subsistence and travelling
expenses which had to be perused by his superior before payment could be
authorised. His superior spotted a discrepancy in the distance allegedly travelled by
the employee from Mthatha to Mqanduli. He then invited the employee to his office
to discuss the matter. The latter refused to have any discussion with him. Later in the
day the employee confronted him in his office about why he had not authorised
payment of the claim. When he said he needed some explanation regarding the claim,
the employee became aggressive, shouted and threatened him with assault.

[11] Following this behaviour, charges of misconduct were preferred against the
employee. He was notified of the charges and invited to a disciplinary hearing set
down for 31 March 2004. The employee produced a medical certificate before the
enquiry commenced and he failed to attend. He was summarily dismissed following
the hearing which proceeded in his absence. His representative made written
representations to Old Mutual for his reinstatement. In the light of the fact that he did
not attend the hearing, apparently due to illness, Old Mutual withdrew the dismissal
and reinstated him but with a view to recharging him. He returned to work on

25 April 2004 and on the next day he was given notice of a disciplinary enquiry to be
held on 29 April.

[12] At the enquiry the employee was represented by Mr Balekile Mbebe, who
described himself as a public defender. From the moment the hearing started, the
employee’s representative adopted an aggressive and combative attitude towards the
disciplinary tribunal. He raised spurious objections which were designed to stop the
tribunal from proceeding with the hearing. First, he demanded that the chairman
should produce a letter by the employer appointing him to preside over the hearing.
When this was overruled he complained that the employee was given short notice and
that he had not been furnished with the information he had requested from the
employer. The information in question included copies of statements by the
employer’s witnesses and a document authorising that the employee be recharged.

[13] Displaying contempt for the tribunal, Mbebe stated that the hearing could not
proceed without him being furnished with statements. In this regard the oral exchange
between him and the chairman went as follows:

‘Mr Mbebe: We don’t continue if there are no statements, we can’t hide information.
Mr Mfaise [the chairman]: I don’t think we can deny witnesses the right to give evidence verbally.
Mr Mbebe: They must give statements and then come verbally. [If] you refuse to give us those
statements then I will ask for 10 minutes.
Mr Mbebe: You know why we came here; we said we wanted to go to court, that is real law.
Mr Mbebe: If you call your witnesses then we will just keep quiet and we will take this matter to
court.’

[14] The chairman granted an adjournment for the employee to consult with Mbebe.
The employee failed to return and because of Mbebe’s lateness the hearing resumed
half an hour late. He produced a medical certificate the contents of which I refer to
more fully below. It referred to ‘tension headache and enteritis’. Having perused it
the chairman adjourned the hearing further for about an hour to enable the employee

time to recover. The chairman had hoped that the hearing could resume provided that
the employee had recovered from the alleged tension headache.

[15] Mbebe, whose intention was clearly to prevent the hearing, was unimpressed
by the chairman’s gesture. He made it plain that neither he nor the employee would
return. At that stage of the proceedings the following oral exchange occurred between
him and the chairman:

‘Mr Mfaise: Welcome back, thank you Mr Mbebe for coming back, according to this medical
certificate Mr Gumbi is suffering from tension headache and I will give you until 14h00 for your
client to take headache tablets, so that by 14h00 we may come back, hopefully he would have
recovered as that is an hour from now.
Mr Mbebe: I won’t be coming back as my client is booked off sick, so you may continue without
me.
Mr Mfaise: You say we may continue without you?
Mr Mbebe: Yes you may continue.’

[16] The court below held that the representative’s ‘consent’ that the hearing should
continue in their absence did not constitute waiver of the right to a hearing. I agree.
The employee’s conduct as a whole was inconsistent with waiver. At the moment he
challenged the first dismissal, the employee’s complaint was that he had been denied
a hearing and therefore that the dismissal was invalid for that reason alone. In essence
what he was saying was that he was denied a chance to defend himself. However,
when Old Mutual offered that opportunity to him, the employee had a complete
change of heart which was evidenced by the following facts. He refused to take the
notice for the second hearing; and with the intention of stopping the hearing, his
representative raised spurious objections of all sorts and was guilty of aggressive and
contemptuous behaviour towards the tribunal, threatening it with legal action. All
these facts ineluctably lead to the conclusion that the employee wanted to have the
hearing aborted so as to prevent the fulfilment of the condition – a fair disciplinary
hearing – upon which dismissal by the employer was contractually dependent. In our

law a contractual condition is deemed to have been fulfilled where a party
deliberately frustrates its fulfilment. By analogy this may also be the position in a
statutory setting. In Scott and Another v Poupard and Another 1971 (2) SA 373(A)
Holmes JA said at 378G-H:

‘I come now to the issue of fictional fulfilment of the condition upon the occurrence of which the
money was to be paid and the shares to be transferred to Poupard and Lobel, ie to say, the grant of
mining rights….
In essence it is an equitable doctrine, based on the rule that a party cannot take advantage of his own
default, to the loss or injury of another. The principle may be stated thus: Where a party to a
contract, in breach of his duty, prevents the fulfilment of a condition upon the happening of which
he would become bound in obligation and does so with the intention of frustrating it, the unfulfilled
condition will be deemed to have been fulfilled against him.’

See also South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA)
in paras 33-36.

[17] Returning to the medical certificate, I agree with the finding by Somyalo JP
that little evidential value can be attached to it. It does not reflect an independent
medical diagnosis of the illness or an opinion as to the fitness of the employee to
perform his normal work, let alone his fitness to attend a disciplinary hearing. The
certificate appears to be in standard form containing printed and handwritten parts. It
reads:

‘MEDICAL CERTIFICATE

Undersigned hereby certifies that
THAMELA GUMBI
was examined by me on 2004/04/29 (date of first examination)
and again on

____________ (date of last examination)
According to my knowledge, as I was informed he/she was unfit to work
from 2004/04/29 to ________________
due to ILLNESS / OPERATION / INJURY
Nature of illness / operation / injury
TENSION HEADACHE
ENTERITIS’

The printed words are in ordinary script and the handwritten insertions are in bold.

[18] As was found by Somyalo JP with whose finding I agree, as I have said, the
chairman of the inquiry justifiably doubted the reliability of the medical certificate
and inferred that the employee was malingering. The question whether the employee
was really so ill that he could not attend the hearing must also be assessed against his
entire conduct towards the inquiry. I have already found that both his conduct and
that of his representative at the hearing established clearly that he intended to prevent
the hearing from being held. This must be considered together with the fact that he
and his representative contradicted each other about the time at which he became
affected by illness. The employee said he was already ill when he woke up on the
morning of the hearing whereas his representative said he fell ill during consultation
after the first adjournment. The employee also said he was taken home by his
representative after seeing the doctor but the latter said he did not know where the
employee went. The employee made this allegation in his founding affidavit, contrary
to what was said by his representative in the record of the enquiry, which he attached
as an annexure to the same affidavit. The relevant part of the record reads as follows:

‘Mr Mfaise: Welcome back from this recess, which was supposed to take 30 minutes.
Mr Mbebe: We were still consulting as we requested and my client felt sick and most unfortunately
I had to rush him to the doctor and here is a medical certificate he is booked off.
Mr Mfaise: When did he get sick?
Mr Mbebe: Today.
Mr Mfaise: Where is he now?

Mr Mbebe: I don’t know, hasn’t he got home? May be he went home.’

[19] It was the duty of the employee to ask for a postponement of the hearing if he
was unable to attend due to illness. This he failed to do despite the matter having
been adjourned for the second time due to his absence. Instead, his representative
dared the chairman to continue with the hearing in their absence. A mere production
of the medical certificate was not, in the circumstances of this case, sufficient to
justify the employee’s absence from the hearing. As the certificate did not allege that
he was incapable of attending at all, the chairman was entitled to require him to be
present at the resumed hearing so as to himself enquire into his capacity to participate
in the proceedings. These facts play a major role in determining unfairness when the
interests of both parties are taken into account.

[20] Before us the employee (through counsel) attempted to distance himself from
the unacceptable behaviour of his representative. In my view, he cannot do that at this
stage. He did not disapprove of the representative’s conduct at the hearing while he
was present nor did he do so in his founding affidavit after reading the record of the
enquiry. Moreover, the representative was his agent of choice and when he appeared
at the tribunal he was acting on his behalf. His conduct must be attributed to him (cf
Saloojee and Another v Minister of Development 1965 (2) SA 135 (A) at 141C-E).

[21] When all these facts are viewed objectively, it cannot be said that Old Mutual
has acted procedurally unfairly in continuing with the hearing in the employee’s
absence and dismissing him for the misconduct of which he was found guilty. The
employee and his representative are the only persons to blame for his absence. It
follows that the appeal must succeed.

[22] The following order is made:

1.
The appeal is upheld with costs.

2.
The order of the court below is altered to read:
‘The appeal is dismissed with costs.’

____________________
C N JAFTA
JUDGE OF APPEAL

CONCUR: )
HOWIE P

)
CAMERON JA

)
BRAND JA

)
CLOETE JA
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:
17 May 2007

Status:
Immediate

OLD MUTUAL v THAMELA GUMBI

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 delivered a judgment reversing
an order of the Transkei High Court (Full Court) which set aside an order dismissing
Mr Thamela Gumbi’s application for reinstatement in the employ of Old Mutual. The
order dismissing his application was issued by a single Judge of the same High Court.

Mr Gumbi was employed as a sales advisor by Old Mutual since February 1995 and
stationed at its branch in Mthatha. In March 2004 he was charged with misconduct
after he threatened his superior with assault for failing to approve his claim for
travelling and subsistence allowance. He did not attend a disciplinary enquiry
arranged for 31 March 2004 on the basis that he was ill. He submitted a medical
certificate before the hearing which continued in his absence and at the conclusion of
which he was dismissed. However, after making representations, Old Mutual
reinstated him with a view to recharging him. The second enquiry was on 29 April

2004. He and his representative attended the enquiry but it became clear from the
outset that his representative wanted to prevent the hearing from being held.

When the objections raised failed to have the hearing stopped, his representative
asked for adjournment which they were given. But the employee failed to return and
a medical certificate was produced on his behalf. Suspecting that the employee was
malingering, the chairman proceeded with the hearing in his and the representative’s
absence. The latter had made it clear that neither him nor the employee would return.
The employee was again dismissed at the conclusion of the second enquiry.

In challenging his dismissal the employee complained that he was denied a hearing
before he was dismissed. The SCA held that the employee and his representative
were to blame for his absence from the hearing as the medical certificate did not
allege that he suffered from a serious illness which incapacitated him from attending
the hearing.