IN THE LAND CLAIMS COURT OF SOUTH AFRICA Held at RANDBURG CASE NUMBER : LCC9R/98 In the matter concerning M P DU TOIT Plaintiff and LEWAK LE KAY alias LEWAK LANGTREY Defendant JUDGMENT MOLOTO J : [1] The Plaintiff obtained judgment by default in the Magistrate s Court, Oudtshoorn on the 2nd June 1998 against Defendant for the latter s eviction in terms of section 10 of the Extension of Security of Tenure Act, 1997 (No 62 of 1997) hereinafter Athe Act@. The full order of the Court reads as follows : - ANa oorweging van die pleitstukke, word bevind : (a) Dat betekening aan die verweerder geskied het; (b) Die verweerder nie kennis van voorneme om te verdedig in die voorgeskrewe tydperk gegee het nie; (c) Dat aan die bepalings van artikel 8 en 9 op die Wet op die Uitbreiding van Sekerheid van Verblyfreg 1997, (Wet 62 van 1997) voldoen is. Die hof beveel :
2 (i) Ingevolge artikel 10 van gemelde Wet, dat die verweerder en alle ander okkupeerders van die woonhuis op die plaas Thylitishia, Volmoed, Oudsthoorn, ontruim en eiser in besit daarvan gestel word; (ii) Ingevolge artikel 12(1)(a) word 10 Julie 1998 as n regverdige en billike datum beskou waarop die woning ontruim moet wees en dus gelas dat die okkupeerder die woning voor of op 10 Julie 1998 moet ontruim. (iii) Indien die okkupeerder nie voor of op 10 Julie 1998 die woning ontruim het nie, word 17 Julie 1998 bepaal waarop die uitsettingsbevel uitgevoer kan word. (iv) Koste deur verweerder betaal te word.@ 1 [2] The eviction is sought in terms of Section 10(1)(d) of the Act. To succeed, Plaintiff has to show that Defendant, being a person who was an occupier on 4 February 1997, was an employee whose right of residence arose solely from that employment and has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the Labour Relations Act. [3] Plaintiff has satisfied the first requirement, namely that the Defendant was an employee whose 2 right of residence arose solely from that employment. As to the second requirement that Defendant has voluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the Labour Relations Act, the following appears from the record : (1) a disciplinary hearing was held on behalf of the Plaintiff on Monday 8 September 1997 at which the Defendant was to answer to certain charges. The Defendant was in default of appearance and a verdict of guilty was returned and the sentence 3 was dismissal of the Defendant. 1 2 3 See par 3 of the Particulars of Claim and annexures to the said Particulars of Claim. See par 13.3 and 13.4 of the service contract. See record of the disciplinary hearing - Annexure AA@to the Particulars of Claim.
3 4 (2) On the same day, that is 8 September 1997, a letter was addressed to the Defendant by the Plaintiff in which the latter stated that the former resigned of his own free will. I quote from the letter : A(2) As gevolg van u optrede ten opsigte van die dissiplinêre verhoor, en ook dat u vir meer as 5 dae afwesig was, aanvaar ek M P du Toit (werkgewer) dat jy self bedank het uit eie vrye wil.@ The above paragraph flies in the face of the express dismissal according to the record of the disciplinary hearing which reads, in part, as follows : - Awerknemer afwesig van verhoor - nie opgedaag nie uitspraak : skuldig vonnis : ontslag van werknemer@ (3) Paragraph 3 of the particulars of claim also confirms that Defendant s services were terminated after disciplinary steps had been taken against him. (4) Paragraph 3 of the particulars of claim goes on to state that in terms of the written service contract between the parties the Defendant had to vacate his residence 5 within one month after termination of his services. Plaintiff relied on this provision of the service contract to evict defendant, hence the concluding paragraph of his letter of 8 September 1997 where he says : A(4) Die gevolg is, dat u voor of op 8 Oktober 1997 die huis sal ontruim.@ [4] It remains to investigate the meaning of Avoluntarily resigned in circumstances that do not amount to a constructive dismissal in terms of the Labour Relations Act@, in order to determine whether the second requirement of Section 10(1)(d) of the Act has been satisfied. The concept of constructive dismissal is accepted by the Labour Appeal Court to be Aactions on the part of the 4 5 Annexure AB@ to the Particulars of Claim. Par 13.4 of the service contract - Annexure AC@ to the Particulars of Claim.
4 6 employer which drive the employee to leave (whether or not there is a form of resignation)@ It 7 is noteworthy that the Labour Relaitons Act itself does not use the words constructive dismissal. What is said to refer to constructive dismissal in the Labour Relations Act is section 186(1)(e) which reads Atermination of a contract by an employee where the employer has made continued employment intolerable@. Quite clearly, the defendant in casu, has not terminated employment, but was actually dismised by his employer. He can, therefore, not be said to have voluntarily resigned in circumstances that do not amount to a constructive dismissal [5] Moreover, what seems to have escaped Plaintiff s attention is the effect of clause 2.2 of the service contract which states that - AIndien enige bepalings van hierdie kontrak in stryd sou wees met enige huidige of toekomstige statutêre voorskrifte, sal die statutêre voorskrifte geldig wees ten opsigte van daardie betrokke bepaling of bepalings, maar sal dit nie die geldigheid van die ander bepalings van hierdie kontrak raak nie.@ This clause 2.2 of the contract obviously affects the provisions of clause 13.4 of the service contract, in that, whereas clause 13.4 stipulates that in the event an employee s services are terminated on whatever grounds (my emphasis), the employee undertakes to vacate the residence within one month after such termination of services; section 10(1)(d)(ii) of the Act stipulates otherwise. Section 10(1)(d)(ii) specifically states that the employee must have resigned in circumstances that do not amount to a constructive dismissal as against the Awhatever grounds@ stipulation of clause 13.4 of the contract. [6] Section 10(1)(d)(ii) of the Act is a statutory provision which, in terms of clause 2.2 of the contract, supersedes clause 13.4 of the contract. Clearly, Defendant was dismissed after a disciplinary hearing was held and did not resign of his own accord and his eviction is then sought on the grounds that he no longer works for the plaintiff. The provisions of sub-paragraph (ii) of 6 7 Amalgamated Beverage Industries Ltd v Jonker (1993) 14 1LJ 1232 (LAC) 1248H, citing Edwin Cameron Halton Cheadle & Clive Thompson The New Labour Relations Act (1989) 144. No 66 of 1995
5 section 10(1)(d) of the Act have not been complied with, therefore, the order of the Magistrate dated 2nd June 1998 cannot stand. [7] By notice dated 17 June 1998, the Court afforded the parties an opportunity to make written submissions in terms of the proviso to section 19(3) of the Act. The notice specifically directed the attention of the parties to the question - Awhether, to succeed, plaintiff should or should not satisfy the requirements of section 10(1)(d) of Act 62 of 1997 and if he should, whether plaintiff has satisfied such requirements.@ [8] The plaintiff has filed his written submissions dated 26 June 1998, but no submissions were received on behalf of the defendant. [9] The effect of paragraphs 2.1 to 2.5 of plaintiff s submissions is that defendant s right to residence arose out of his employment by plaintiff, and as stipulated in section 8(2) of the Act; that he was dismissed in accordance with the provisions of the Labour Relations Act for being absent from work without good cause; that defendant did not resign but was dismissed. I have already dealt with this situation above and need not repeat myself here. [10] However, the submission in paragraph 2.6 of plaintiff s submissions, that we are dealing with a situation where Adie verweerder (okkupeerder) so n verbreking van die werkgewer-werknemer verhouding tussen homself en eiser (die eienaar) gepleeg het, dat dit nie prakties moontlik is om dié verhouding te herstel nie@ is a major departure from Plaintiff s case as presented before the magistrate. This is a cause of action in terms of section 10(1)(c) and not 10(1)(d) of the Act. Plaintiff s case before the magistrate was that defendant s right of residence arose solely from an employment agreement and that the employment agreement having terminated, defendant should vacate the residence, failing which he (plaintiff) seeks an order of eviction against defendant. This is a cause of action in terms of section 10(1)(d) of the Act, and is different from the one of a fundamental breach of the relationship between the parties which is mentioned in section 10(1)(c).
6 [11] Plaintiff should not, on review, be allowed to change his cause of action from that which is brought to this court for review. In any case, the facts from the pleadings do not support the Afundamental breach of the relationship@ cause of action. Therefore, I cannot agree with plaintiff s submission that - AUit bogenoemde blyk dit dus dat die Agbare Hof in hierdie saak te doen het met n geval soos bedoel in Artikel 10(1)(c), saamgelees met Artikel 8(2) en dat Artikel 10(1)(d) van Wet 62 van 1997 nie van toepassing is nie.@ [12] The magistrate s court dealt with a situation which is regulated by section 10(1)(d), read with section 8(2) of Act 62 of 1997 and in that situation I have already found that the order of the magistrate cannot stand. [13] Accordingly, the order of 2nd June 1998 in terms of which Defendant is ordered to vacate his residence on Plaintiff s property is hereby set aside in whole in terms of section 19(3)(b) of the Act. JUDGE J MOLOTO Handed down on: 1 July 1998 For the plaintiff : James King & Partners For the defendant : Hennie Jacobs & Badenhorst Inc
7