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/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 22/11/2005

CASE NO: 14995/2004

UNREPORTABLE

In the matter between:

RAYMOND EUGENE LOURENS PLAINTIFF/

RESPONDENT

And

BAISCH ENGINEERING (PTY) LTD DEFENDANT/

EXCIPIENT

JUDGMENT

DE VOS, J

This is an exception taken by the defendant against the plaintiff’s particulars of claim on the basis that the claim is not sustainable as a matter of law. For purposes of convenience the excipient is referred to as the defendant and the respondent as the plaintiff.

Plaintiff alleges that the parties entered into a written employment contract which containes certain terms inter alia that the agreement will be subject to the Labour Relations Act 66 of 1995 read with the Basic Conditions of Employment Act 75 of 1977. The plaintiff also alleges that the parties agreed that the disciplinary policy and code will be applicable to the agreement. The plaintiff then alleges that the defendant repudiated the agreement by dismissing him summarily without:

1. Giving him notice in terms of the written employment agreement as amended;

2. Following disciplinary policy and code; and

3. Following the procedures set out in the Labour Relations Act and the Basic Conditions of Employment Act.

It is to these particulars of claim that the defendant accepted in the following manner:

“The plaintiff’s claim for damages arising out of the failure to comply with the disciplinary code or procedure and/or with the provisions of the Labour Relations Act and/or the Basic Conditions of Employment Act is not sustainable as a matter of law.”

During argument Mr Strydom who appeared on behalf of the plaintiff conceded that the plaintiff’s claim based on the provisions of the Labour Relations Act or the Basic Conditions of Employment Act may not be sustainable. He argued, however, that it is clear from the particulars of claim that the plaintiff’s case is that because the defendant did not comply with the disciplinary policy and code which was applicable to the contractual relationship between the parties the defendant not only breached the contract, but repudiated the contract, which repudiation was accepted by the plaintiff. Although the contract of employment states that the defendant has the right to summarily dismiss the plaintiff in certain circumstances it is clear from the disciplinary policy and code that the defendant was supposed to follow the particular procedure. A failure to comply with the disciplinary code is a breach of contract. The question is whether it was a repudiation at the contract.

In the matter of Van Rooyen v Minister van Openbare Werke en Gemeenskapsbou 1978 2 SA 835 (A) 845-846, RABIE JA stated:

“Om ’n ooreenkoms te repudieer, hoef daar nie, soos in die aangehaalde woorde uit Freeth v Burr tekenne gegee word, ’n subjektiewe bedoeling te wees om ’n einde aan die ooreenkoms te maak nie. Waar ’n party, byvoorbeeld, weier om ’n belangrike bepaling van ’n ooreenkoms na te kom, sou sy optrede regtens op ’n repudiëring van die ooreenkoms kon neerkom, al sou hy ook meen dat hy sy verpligtinge behoorlik na kom.”

I am of the view that by failing to comply with the procedures set out in the disciplinary code it can be argued that the defendant repudiated the contract. It was thereafter open to the plaintiff to accept the repudiation and to claim damages. It is in view of the fact that the plaintiff left the employ of the defendant because of the plaintiff’s acceptance of the repudiation and not because of the fact that the plaintiff was fired (that is in terms of the particulars of claim) that the argument raised by Mr Jammy on behalf of the defendant cannot be accepted. In terms of this argument it is said that the plaintiff should have alleged that no circumstances existed to give the defendant the right to summarily dismiss the plaintiff. Furthermore it was argued that all the plaintiff had established was a right to be given notice and therefore any claim for damages that the plaintiff could have arising out of termination would be limited to one month’s notice and would only arise where the plaintiff could prove that notice had not been paid and that summary dismissal was not justified.

This argument does not take into account that on the plaintiff’s version the plaintiff cancelled the agreement and is now claiming damages. Whether in fact this is correct is not the issue. I am of the view that the claim as set out is sustainable in law and if proven entitles the plaintiff to the damages as claimed.

The exception cannot succeed and is therefore dismissed with costs.

A DE VOS

JUDGE OF THE HIGH COURT

14995/2004

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