Appellant admitted in evidence that he had received this letter on 23 June 1995. On the face of it, therefore, the appellant’s
request for finality on the share issue had been met by the respondent, insofar as it was able to do so, by 23 June 1995. Nothing
further prevented him from exercising the choice he says he was entitled to.
[19]
Three reasons may be advanced why this letter did not dispose of the objection raised by the appellant
about the shares. The first is that a copy of the resolution of the trustees to make the necessary allocation was not enclosed in
the letter. The second is that the trustee’s decision was based on the fact that appellant’s employment with the respondent
had been terminated by 23 June 1995, which, in fact, was not the case. The third is that the appellant handed a cheque of R17 000
to Jaye on 27 June 1995 in payment of the outstanding purchase price for the remaining shares and that he was thus entitled to his
full complement of shares.
[20]
It was not necessary for the respondent to attach a copy of the trustees’ resolution to Jaye’s
letter. The appellant could have dealt directly with the trustees and, strictly speaking, this is the course he should have followed.
[21]
If the trustees’ decision was based on a misconception of the true facts relating to the termination
of his employment, the appellant’s remedy lay against them and the trust, not the respondent. The respondent was requested
to obtain a final decision from the trustees on the share issue, but the decision was that of the trustees, not the respondent. In
any event, the trustees’ decision clearly indicated to the appellant what would happen if he opted for retrenchment and not
for the temporary lay-off. This was the information he sought to make an informed decision. He nevertheless still refused to make
a decision.
[22]
The fact that appellant handed a cheque to Jaye on 27 June 1995 did not change matters. The cheque was
never deposited. By 27 June 1995 the trustees had already made their decision. Jaye could not change the decision, nor could the
respondent itself. Only the trustees could, and there is no evidence that the appellant at any stage asked them to do so, nor is
there any evidence that appellant requested the respondent’s officials to make representations to the trustees to change their
decision.
[23]
It follows that by 23 June 1995 the appellant knew what his position was in regard to the shares. If
he was dissatisfied with the decision it was open to him to challenge the trustees’ decision on legal grounds, or make representations
to them in order to convince them to change their minds, or ask respondent’s officials to do so on his behalf. He did nothing
of the sort. He did not tell the respondent that he needed further time to make his election because he wanted to take the matter
up again with the trustees. Instead, he sat tight, refusing to make a choice. It is true that it might have been better for the respondent
to have given the appellant a further ultimatum to make his final choice, but this factor should be weighed up against the unreasonable
delay by the appellant, his failure to request further time to consider his options, and the fact that by delaying his choice he
was, in effect, forcing the respondent to pay him a salary while still employed, in addition to his eventual retrenchment package.
[24]
Under those circumstances it was not unreasonable that the respondent decided to make up its own mind.
Despite appellant’s evidence to the contrary, I am not convinced at all that he would have accepted an alternative position
at the J D Export plant if that had been offered to him. His evidence is that he required a properly mandated offer to be made to
him. Mackay’s evidence was that he was told that Van Tonder, who made the offer, had the necessary authority. The matter was
not taken further. It seems that the most likely reason for this was that appellant considered the position as too onerous and tenuous
in nature.
[25]
The commercial rationale for retrenchment was thus established. The dismissal on 4 August was not unfair,
nor was the retrenchment package unreasonable. The appeal would have been unsuccessful.
[26]
Mr Heyns, who appeared for the respondent, did not file heads of argument on the merits of the dismissal,
because he considered the notice of appeal to be null and void. When the matter was called he indicated that in the event of condonation
and leave to amend the notice of appeal being granted, he would seek a postponement in order to deal with the merits. That approach
was not well considered. There were several applications for condonation of procedural lapses by the appellant. The merits of the
dismissal were relevant to these applications in the sense that had a reasonable explanation been given for the lapses, the prospects
of success on appeal could have become decisive. A deliberate decision not to deal with the prospects of success would not have been
sufficient reason to grant a postponement. The conclusion I have come to, however, saves Mr. Heyns any embarrassment in this regard.
[27]
In the result the various applications, set out in appellant’s notice of application, bearing this
court’s date stamp of 22 December 1997, are dismissed with costs.
J C FRONEMAN DJP.
I agree
J F MYBURGH JP
I agree
F KROON JA
Date of hearing:
9 February 1998
Date of judgment:
13 February 1998
Appellant’s attorneys:Langstaffe Bird & Company
For the appellant:
Mr Wilke
For the respondent:
Mr A G Heyns
Respondent’s Attorneys:
Snyman Van Der Heever Heyns Inc
This judgment is available on the Internet at Website: http://www.law.wits.ac.za/labour crt.
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