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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES:

ZANDISILE RICHARD TWANI Plaintiffs

AND OTHERS

and

THE PREMIER FOR THE PROVINCE OF Defendants

THE EASTERN CAPE AND OTHERS

1. Case Number: 460/99

2. High Court: Transkei Division

3. DATE HEARD:

DATE DELIVERED:

JUDGE(S): Kroon J

LEGAL REPRESENTATIVES –

Appearances:

• For the Appellants(s):

• for the Respondent(s):

Instructing attorneys:

• Appellant(s)

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings :

• Topic:

• Key Words:

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

CASE NO: 460/99

and Others

IN THE MATTER BETWEEN:

ZANDISILE RICHARD TWANI Plaintiffs

and Others

and

THE PREMIER FOR THE PROVINCE OF Defendants

THE EASTERN CAPE AND OTHERS

________________________________________________________________________

JUDGMENT

KROON J:

INTRODUCTION:

[1] This judgment concerns a consolidated action embracing the separate claims of eleven plaintiffs in terms of which the recovery of alleged damages was sought as against the Premier for the Province of the Eastern Cape, the first defendant in all the proceedings ("the Premier"), and, in certain cases, in the alternative, as against the Member of the Executive Council for Agriculture and Land Affairs for the Province of the Eastern Cape, the second defendant in all the proceedings (“the MEC”). For convenience, the Premier and the MEC will, at stages during this judgment, be referred to as “the defendants” and the department in question as “the Department”; the eleven plaintiffs will be referred to as the first plaintiff, the second plaintiff, etc., and they are, respectively, Messrs Twani, Chagi, Mapekula, Cekeshe, Gatyeni, Dzedze and Pulusente, Ms Zangqa, and Messrs Mkhwambi, Zantsi and Kiva.

[2] At the conclusion of the plaintiffs’ case an order for absolution from the instance was applied for by the defendants in respect of all the claims made against them by the respective plaintiffs. In my judgment on the application I granted the order sought in respect of two of the alternative claims made by the ninth to eleventh plaintiffs against the MEC, but otherwise dismissed the application.

[3] The judgment referred to (“the earlier judgment”) set out a comprehensive exposition of the historical background to the proceedings, the issues which arose on the pleadings (in their final form) and the legal principles applicable to the matter. It is unnecessary to repeat that exposition in the present judgment and save for what follows later in this judgment I will content myself with referring the reader thereof to the earlier judgment.

[4] (a) A correction of a date referred to in the earlier judgment is necessary. In paras [8] and [94] I recorded that the application launched by a number of employees affected by Proclamation 10 for an order setting aside the proclamation and reinstating them in their employment (i.e., Cekeshe) was launched on 25 July 1997. In fact, the proceedings referred to were commenced on 21 August 1997;

(b) Para [54] of the earlier judgment further incorrectly reflected that the replication of the tenth plaintiff also contained the averments set out in the paragraph. In fact, the tenth’s plaintiff’s replication was amended during the hearing to reflect a denial that he had ever been a member of SAAPAWU and was therefore not bound by the settlement agreement between SAAPAWU and the Eastern Cape Government referred to in para [53] of the earlier judgment;

(c) The preamble to para [58] of the earlier judgment further incorrectly reflected that the eighth plaintiff did not file a replication; in fact, she did do so and the response therein to the Premier’s reliance on the discharge forms signed by her as constituting a waiver of her rights to pursue her claims against him, coincided with the response of the first four plaintiffs. The words in brackets in the preamble should have read “(excluding the fifth to seventh plaintiffs, whose replications are dealt with below)”.

INTERLOCUTORY RULINGS:

[5] During the course of the proceedings I was called upon to make a number of rulings on a variety of issues that had arisen. In certain instances I intimated that the reasons for the ruling made would be furnished later. In one instance I provisionally received certain evidence and recorded that I would decide later on the admissibility thereof, furnishing reasons for my decision. The reasons in question now follow.

[6] Reasons for one such ruling (that despite the judgments in Cekeshe - see paras [8] to [12] of the earlier judgment - cross-examination and evidence in support of the allegation in the defendants’ pleas that there had in fact been proper consultation with, and a proper hearing afforded to, the plaintiffs prior to the making of the decision to issue Proclamation 10, was admissible) were furnished in the earlier judgment - see paras [110] to [118] thereof.

[7] Subsequent to the delivery of the earlier judgment the decision in Man Truck & Bus (Pty) Ltd v Dusbus Leasing CC and Others 2004 (1) SA 454 (W) appeared in the law reports. During argument at the conclusion of the resumed hearing I invited counsel to address me on the bearing the decision might have on the ruling referred to.

[8] Two aspects arise. The first relates to the question whether, for the purposes of upholding the exceptio rei judicatae, the Court may relax the requirements that the two proceedings in question must involve the same cause of action and the recovery of the same relief. In National Sorghum Breweries the minority judgment (paras [12] and [13], where the earlier decisions in Boshoff v Union Government 1932 TPD 345 and Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) were cited) referred to the principle that the Court may relax the requirement that the relief claimed be the same. The majority judgment did not address the question of relaxation of the requirements. Man Truck, however, devoted comprehensive attention thereto dealing, inter alia, with Boshoff and Kommissaris as also the later decision in Bafokeng Tribe v Impala Platinum Ltd and Others 1999 (3) SA 517 (B), the approach in which was endorsed. That approach embraced the following dictum (quoted in Man Truck at 467G):

“... where there is a likelihood of a litigant being denied access to the courts in a second action, and to prevent injustice, it is necessary that the said essentials of the threefold test (i.e., (1) same parties, (2) same cause of action and (3) same relief) be applied. Conversely, in order to ensure overall fairness, (2) or (3) above may be relaxed.”

[9] In my judgment, the ruling in question promoted justice and fairness, and provided justified access to the Court by the defendants.

[10] The second aspect relates to the first requirement for a successful invoking of the res judicata principle, that the litigation be between the same persons. In Man Truck, at 472B, it was affirmed that the requirement does not mean that the litigation be between the identical individuals; it is sufficient if the persons in the two proceedings are in law to be identified with each other, a question to be decided on the facts of each case. (Thus, in that matter it was decided on the facts, particularly the right of control by a sole member of a close corporation over the affairs of the corporation and the member’s participation in the earlier litigation in which the corporation was involved, that in the subsequent litigation in which the member was cited, the member was in law to be identified with the corporation). In the present matter, it is a fact that some of the plaintiffs were not parties to the application in Cekeshe. In the earlier judgment (para [115]) I took the view that in the light of the evidence of the plaintiffs’ attorney, Mr Tshiki (that it was decided during consultation prior to the launch of the Cekeshe application that a number of employees, as representatives of the entire work force, would bring the application), it would, for the purposes of the application for absolution from the instance, be too technical an approach to exclude the plaintiffs referred to from a reliance on the judgment in Cekeshe. That issue requires now, at the end of the case, to be revisited. In the first place, there is no evidence that the plaintiffs in question were in fact parties to the decision referred to by Mr Tshiki and the evidence of the first plaintiff was that after the application had been launched approaches were made to employees other than those who were applicants, for contributions to the costs of the litigation. In the second place, even if the decision referred to was reached with the concurrence of the plaintiffs concerned, such plaintiffs could not, in my judgment, in law be identified with the applicants in Cekeshe for the purposes of an application of the res judicata principle. In respect of those plaintiffs, therefore, there is an additional reason why the exceptio rei judicatae could not successfully be invoked.

[11] The next issue concerned the admissibility of certain evidence given by the first plaintiff which was tendered as constituting expert opinion evidence. Objection to the reception of the evidence was registered by Mr Smuts. I allowed the evidence to be given on the basis that I would rule later on the admissibility thereof.

[12] The issue may be shortly disposed of, and I consider it necessary to refer to only one objection raised by Mr Smuts to the admissibility of the evidence, viz., that the evidence was irrelevant. The essential import of the evidence was that in principle and in vacuo the termination of an employee’s employment without proper antecedent consultation with him or her has the potential, for the reasons furnished by the witness, of occasioning an impairment of the employee’s dignity. It may further be noted that the opinion was not sought to be linked to the specific circumstances of any of the plaintiffs other than the first plaintiff himself. In my judgment, I do not need the evidence in question to decide, and it is of no assistance to me on, the issue whether a particular plaintiff’s dignity was impaired. The value judgment which that issue entails can be made by me on the alleged facts placed before, and accepted by me, and, whatever the background of the first plaintiff, my appreciation and assessment of the facts would not, and could not, be enhanced by his opinion. The evidence in question is accordingly ruled to be inadmissible. The costs occasioned by the filing of the Rule 36 (9) (a) and (b) notices in respect of the evidence dealt with above will be paid by the plaintiffs jointly and severally.

[13] The next ruling to be mentioned is the grant of an application for leave to amend the replication of the tenth plaintiff.

[14] The amendment related to the tenth plaintiff’s reply to the first special defence of waiver raised by the defendants referred to in para [47] of the earlier judgment. That defence alleged that in accepting an ex gratia severance package the tenth plaintiff signed a discharge form the effect of which was a waiver of his rights, if any, to claim any amount arising out of his employment as against the government of the Province of the Eastern Cape. The plaintiff’s replication set out a confession and avoidance, viz., (a) an admission that he did sign the document and (b) grounds on which it was contended that the document did not constitute a waiver. The application for leave to amend sought to delete these portions of the replication and replace them with the allegations set out in para [51] of the earlier judgment, viz., a denial that the plaintiff signed the discharge form, the averment that his severance package was collected by Mr Dintsi (the correct date being December 1998 and not 1988 as set out in the earlier judgment) and the contention that the latter’s signature on the discharge form did not bind the plaintiff to the contents thereof.

[15] The application for leave to amend was opposed on behalf of the defendants and a substantive application ensued, viz., on 21 October 2003.

[16] The application was made before the tenth plaintiff entered the witness box.

[17] The founding affidavit in the application was deposed to by Mr Tshiki. The essence thereof was as follows. Prior to the institution of these proceedings he was consulted by group of former QIS employees who advised him that they constituted a committee representing the QIS work force (some 170 in number). Various consultations with members of this committee took place thereafter. On occasion the plaintiff “would be available”. At a stage it was conveyed to him, Mr Tshiki, that the employees had been required to sign a discharge form when they received their severance pay, which they did under protest. He could not recall if the plaintiff was present on that occasion. During August 2003 he briefed counsel to prepare a replication on behalf of the plaintiff dealing, inter alia, with the special plea of waiver invoked by the defendants. (It is to be inferred that he instructed counsel that the case of the tenth plaintiff was the same as that of the other QIS employees, i.e., that the discharge form was signed under protest; hence, the initial replication referred to above). At a subsequent consultation between him, counsel and the plaintiff it transpired that the plaintiff had in fact not signed the discharge form and that his severance pay had been collected on his behalf by a colleague, Mr Dintsi. (It may be noted that the discharge form reflects that Mr Dintsi did indeed collect the plaintiff’s severance pay and that under that endorsement an identity number appears different from the plaintiff’s number, which appears elsewhere on the form. The signature on the form, although undecipherable, differs from the form of the name “M.M. Zantsi”, the plaintiff’s name, which was signed on what was pleaded by the defendants to be an addendum to the discharge form). No prejudice would enure to the defendants were the amendment sought to be granted whereas the plaintiff would be prejudiced as the evidence he would seek to give would conflict with his pleadings.

[18] The answering affidavit was deposed to by Mr Petse, the defendants’ attorney. He pointed out that the amendment sought the withdrawal of an admission. He contended that the explanation proffered by Mr Tshiki was unsatisfactory and he emphasised that the plaintiff could certainly have shed light on the matter, yet no affidavit by him was filed. (Mr Petse also sought to place reliance on the fact that when, at an earlier stage in the proceedings, the issue of amendments to various replications was raised, Mr Dukada advised me that the amendments were not being pursued and that the then replications properly reflected the cases of the plaintiffs in question. That reliance was misplaced. The replications then involved were those of certain of the Tracor plaintiffs and not those of the QIS plaintiffs, including the tenth plaintiff). The affidavit contained the further comment that the withdrawal of the admission at what was stamped as a late stage in the proceedings would require further consultation on behalf of the defendants and might occasion an unwarranted postponement.

[19] A replying affidavit by the tenth plaintiff was then forthcoming. He confirmed that he had not signed the discharge form in question. He recorded that he had been advised that it had not been necessary for an affidavit by him to be filed in that the discharge from reflected that his severance pay had been received by Mr Dintsi. (It may be noted that the signature of the discharge form differs markedly from that of the plaintiff appended to the replying affidavit). The plaintiff further denied that he signed the addendum annexed to the discharge form. Lastly, he confirmed that he was not present when the committee referred to by Mr Tshiki briefed the latter on the discharge form and that it was during the consultation with counsel in September 2003 that the latter became aware that he had not signed the form.

[20] The following principles applicable to the question whether an amendment which is opposed should be granted may be recorded. The Court has the greatest latitude in granting amendments and it is very necessary that that be so. The object of the Court is to do justice between the parties. Court proceedings are not a game in which, if some mistake is made, the forfeit is claimed. Subject to what follows, the general approach of the Court is to grant the amendment in order to promote the proper ventilation of the dispute between the parties and to have the true issues between them the subject of decision. An amendment is, however, not be had merely for the asking; some explanation therefor must be offered. This is especially so where the proposed amendment involves the withdrawal of an admission and the Court will generally require to have before it a satisfactory explanation of the circumstances in which the admission was made and the reasons for seeking to withdraw it. The explanation offered must demonstrate the bona fides of the applicant. The applicant must show that prima facie the amendment sought discloses “something deserving of consideration, a triable issue”. The amendment must not cause prejudice to the other side which cannot be met by a postponement and/or an order for costs. See, e.g., Whittaker v Roos and Another; Morant v Roos and Another 1911 TPD 1092 at 1102; Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at 1150F-G; Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk) at 77F-I.

[21] As to the sufficiency of the explanation for the contents of the initial replication and whether it excluded mala fides on the part of the plaintiff, I considered that the severe strictures passed by Mr Smuts on the founding affidavit of Mr Tshiki were not misplaced. In short, the affidavit reflects an inability on the part of Mr Tshiki to say whether the plaintiff was a party to the instructions given to him by the committee (that the discharge forms were signed under protest) (which, if that were so, would have meant that the plaintiff had subsequently changed his instructions, a state of affairs that was not explained) or whether, inferentially, he assumed, without having instructions to that effect from the plaintiff, that the latter’s case was in accordance with what the committee had conveyed to him. And, notwithstanding that Mr Tshiki recorded in terms that he was duly authorised by the plaintiff to depose to the affidavit, conspicuous by its contemporaneous absence was any statement by the plaintiff that he did not initially instruct Mr Tshiki that he had signed the discharge form. The matter had, however, to be decided on all the information finally placed before me including the plaintiff’s replying affidavit. Reading the two affidavits together the interpretation thereof (notwithstanding that the plaintiff did not in terms canvas what instructions, if any, he gave to Mr Tshiki prior to the filing of the replication) is that the plaintiff in fact gave no instructions to Mr Tshiki and that the latter proceeded on the assumption referred to earlier. While, it need hardly be said, such conduct on the part of the attorney (who, at the time the initial replications in this matter were filed, was only dealing with a small number of QIS plaintiffs) was deserving of unmistakeable censure, the explanation, vis-a-vis the plaintiff, adequately explained the error in the initial replication. At the same time the explanation, read with what follows in the succeeding paragraph, reflected the bona fides of the plaintiff.

[22] The question whether the amendment disclosed a triable issue does not require detailed discussion. Not only did the plaintiff state in his affidavit that he did not sign the form, but, having regard to what has been set out earlier, the form itself offered support for his assertion.

[23] On the question of prejudice to the defendants I was persuaded that I should set no store by Mr Petse’s statement that further consultations on behalf of the defendants would have to be undertaken or his mere postulation that a postponement might become necessary. The required prejudice, i.e., prejudice in the conduct of the case as opposed to prejudice that could be met by a postponement and/or order for costs, was not constituted thereby.

[24] In the result, the considerations relating to the ventilation of the true dispute between the parties and the interests of justice dictated, in my judgment, that the leave to amend should be granted.

[25] On the question of costs Mr Dukada, making the concession that the tenth plaintiff had sought an indulgence, accepted that the plaintiff should bear the costs of the application on an unopposed basis. He contended, however, that the costs occasioned by the defendants’ opposition should be paid by them on the basis not only that they were unsuccessful but also that their opposition was unreasonable; indeed, he submitted that the opposition was frivolous, to the extent that a punitive order for costs on the scale as between attorney and client was justified. Mr Smuts submitted that the opposition was not unreasonable, not even after the founding affidavit had been filed, and that accordingly the plaintiff should pay all the costs of the application.

[26] There are, of course, authorities that state that a party wishing to amend pleadings seeks an indulgence. I am not convinced that that view is necessarily correct. Be that as it may, it is proper that the plaintiff be ordered to pay at least the costs of the application on an unopposed basis. The defendants were fully entitled to require the plaintiff to bring a substantive application and to place the explanation for seeking the amendment on oath. The question of the costs of the opposition thereafter is not as easily resolved. Mr Dukada submitted that had the defendants, as they were obliged to do, taken proper stock of their position after having sight of Mr Tshiki’s founding affidavit, they should have realised that the application ought not to be opposed. In addition to what was contained in that affidavit counsel placed reliance on the fact that ex facie the discharge form itself, which the defendants had annexed to their plea, there was support for the plaintiff’s stance. I consider, however, that this latter factor is of limited benefit to the plaintiff with respect to the position after the founding affidavit was filed. And the contents of Mr Tshiki’s affidavit rather operate in favour of the defendants in the matter of costs. As already indicated, the explanation set out therein was materially deficient in respect of both the question of how the initial replication came to be couched in the form in which it was and the plaintiff’s bona fides in bringing the application. Continued opposition to the application was therefore reasonable. One line of authorities is to the effect that that circumstance is sufficient for the opposer to be awarded costs. There are also authorities to the effect that unsuccessful opposition, albeit reasonable, is insufficient to justify a departure from the general rule that costs follow the event. But where the opposition is both reasonable and justified, as I find to have been the position in casu, then in the exercise of the discretion I have in the matter I consider that the defendants are entitled to their costs up to the stage of perusal of the tenth plaintiff’s replying affidavit, same to be paid by the tenth plaintiff.

The position is, however, different in respect of the continued opposition of the defendants after the replying affidavit of the tenth plaintiff was filed. Although not free from criticism that affidavit effectively cured the deficiencies in the affidavit of Mr Tshiki. And the circumstance that the discharge form on which the defendants relied itself constituted substantial support for the plaintiff’s averments then assumes importance. I consider that a proper assessment of the matter should have prompted the defendants to withdraw the opposition to the application. Their failure to do so was unreasonable and caused unnecessary costs to be incurred, which must be for their account. I am not persuaded, however, that the punitive order sought by Mr Dukada is justified.

[27] The further interlocutory ruling was made on 21 November 2003 on the application of the defendants despite opposition by the plaintiffs. It was ordered that the action of a further plaintiff be consolidated with the then consolidated action. The further action to be joined was to be either case no. 770/99 or case no. 790/99, the decision as to which of the two would be joined to be made by the plaintiffs’ attorney. In the result, the action of Mr Kiva, the plaintiff in case no. 790/99, was added to the consolidated action.

[28] As recorded in para [17] of the earlier judgment, the present proceedings commenced with twenty-eight actions making up the consolidated action.

These actions had been consolidated in terms of two earlier applications, the purpose having been to secure a representative spread of the various categories of Tracor and QIS employees who had instituted action, as plaintiffs in the consolidated action, the decisions in which would inform the attitudes to be adopted in the remainder of the cases. As recorded in the founding affidavit of Mr Petse, at an early stage I expressed concern in chambers as to how long the trial would last if twenty-eight actions remained part of the consolidated action. I exhorted the legal advisors to explore whether the number could not be pared and yet the representative spread be retained. That was done and the number was reduced to nine. (Subsequently, for reasons which need not be detailed, a tenth action was added, that of Ms Zangqa, who was referred to in the earlier judgment as the eighth plaintiff). In reducing the number to nine and retaining the now tenth plaintiff’s action as part of the consolidated action, the parties agreed (as recorded in the minute of the 9^th pre-trial conference dated 8 September 2003) that he represented a particular category of plaintiff, viz., a QIS employee who was not a member of SAAPAWU, but who had signed the relevant discharge form.

[29] The essential basis put forward for the grant of the application was that in consequence of the amendment to the tenth plaintiff’s replication referred to above (and specifically the excision of the admission that he signed the discharge form in question) there was no longer a plaintiff who represented the category of plaintiff that the parties envisaged at the Rule 37 conference would be represented by the tenth plaintiff.

[30] Mr Smuts argued, firstly, that the joinder of a further plaintiff would implement the common intention of the parties at the Rule 37 conference and, secondly, that the joinder would complete the required representative picture.

[31] Mr Dukada in the first place pointed to the fact that the joinder of a further action would of necessity bring in its train a prolongation of the trial and additional expense which would work hardship for his clients. I was not unmindful of that consideration, but took the view that if the joinder were otherwise called for, that consideration could not constitute a bar thereto.

[32] Mr Dukada’s second submission was that each of the three characteristics referred to at the end of para [28] above was already catered for by the cases of one or other of the plaintiffs whose actions were embraced in the consolidated action. Mr Smuts accepted that submission, but his counter thereto was that the position nevertheless remained that a plaintiff who had the combination of the three characteristics was absent. He pointed to the fact that in structuring my judgment I would be required to have regard to a large variety of considerations some of which might only bear on the cases of some of the plaintiffs or bear differently on the cases of different plaintiffs because of other considerations applicable. He submitted further that having regard to the possible permutations that my judgment might entail, it could not be excluded that in the result the position of a plaintiff who had the combination referred to might not be covered. I considered that Mr Smuts’s argument had merit.

[33] It was not in dispute that in both of the actions referred to in para [27] above (which, incidentally, were included previously in the consolidated action) the plaintiff had the required combination of characteristics. However, Mr Dukada validly pointed out that at that stage he was unable to advise me what logistical problems might be encountered in respect of either of the two plaintiffs in question and investigations on that score were required; hence, my direction referred to in para [27] above that the decision as to which action was to be joined was to be made by the plaintiffs’ attorney.

[34] Each counsel submitted that the costs of the application be borne by the other side and various criticisms of the opposing camp’s conduct were voiced by each counsel. It is unnecessary to advert to the detail thereof. Mr Dukada’s alternative submission was that the costs should lie where they fell. Mr Smuts’s emphasis on the circumstance that the defendants were successful was, however, not misplaced, and I consider that no good reason exists why the general rule that costs follow the event should not apply. The liability of the first to tenth plaintiffs to pay such costs will be joint and several.

ALLEGED CONTRACTUAL CLAIM BY THE QIS PLAINTIFFS AGAINST THE MEC:

[35] As set out in the earlier judgment, this claim against the MEC was pleaded by the plaintiffs in question (i.e., the ninth, tenth and eleventh plaintiffs) as an alternative to the main claim contained in their particulars of claim, which is the Aquilian claim made against the Premier. The cause of action relied upon for the alternative contractual claim appears from the details set out in para [37] of the earlier judgment.

[36] As was the case when absolution was applied for (see para [94] of the earlier judgment), Mr Smuts, invoked the pleaded defence (see para [39] (c) of the earlier judgment) that the plaintiffs had not established that they had tendered their services to the Department as alleged, and that accordingly they were not entitled to the relief they sought. The submission was that while the MEC had been unsuccessful on this point on the test applicable when absolution was sought (see para [94] of the earlier judgment, to be emended as set out in para [4] above), on the test now applicable, viz., proof on a balance of probabilities, the point fell to be decided in favour of the MEC. However, for reasons that appear below, it is unnecessary to decide this issue.

[37] Repeating the argument proffered when absolution was applied for, Mr Smuts submitted, firstly, that the claim was premised on the allegation that the plaintiffs were employed by the Department and if that premise were in fact absent, the claim had necessarily to fail; secondly, that on the evidence the plaintiffs had failed to establish on a balance of probabilities that they had been employed by the Department, as opposed to Tracor, which was the contention of the MEC. (For the sake of completeness, it may be recorded that Mr Smuts did not argue in the alternative, and on the premise that the contract of employment alleged by the plaintiffs had been established, that the further allegations of a repudiation by the MEC of that contract and the cancellation thereof by the plaintiffs had not been established).

[38] Mr Dukada, for the plaintiffs, did not seek to cross swords with the first submission of Mr Smuts. That attitude was correct. The claim was founded squarely on the alleged contract of employment between the plaintiffs and the Department (and the alleged repudiation of that contract by the MEC as representative of the Department, which repudiation was allegedly accepted by the plaintiffs, thereby resulting in the cancellation of the alleged contract); it need hardly be said that absent such a contract, the claim would be unsustainable.

[39] Mr Dukada submitted, however, that the plaintiffs had established on a balance of probabilities that they were in fact employed by the Department, on one or both of the bases to be discussed below.

[40] As a starting point it is necessary to consider the nature of Tracor as a legal persona and what certain of its powers and functions were. As recorded in paras [2] and [3] of the earlier judgment, Tracor owed its existence to the CA, as amended by the CTPA and other legislation. Relevant provisions of the amended CA were the following:

1. s 1:

““relevant Member” means -

(a) “the member of the Executive Council of the Province of the Eastern Cape responsible for economic matters who shall administer the provisions of this Act, other than sections 6, 7 (2), 7 (4), 8, 9 and 11 ……”;

(b) in relation to sections 6, 7 (2), 7 (4), 8, 9 and 11, the member of the Executive Council of the Province of the Eastern Cape to whom, subject to (a), the administration of the said sections, or the powers, duties and functions therein mentioned, have been assigned in terms of sections 2 (2) and 16”;

2. s 2 (2):

“The Premier may, by proclamation in the [Provincial] Gazette –

(a) assign to a specific [Member of the Executive Council] the powers, duties and functions set out in sections 6, 7 (2), 7 (4), 8, 9 and 11 in respect of a corporation”;

(The provisions of s 16 had the same effect. As will appear later in another context no such assignment was in fact effected).

3. s 2A (1):

“A corporation shall prescribe the general conditions of service of its employees, including conditions relating to retirement and sick benefits, housing and accommodation and a disciplinary code for such employees.”;

4. s 3:

“The objects of a corporation shall be to plan, finance and carry out, or to assist in planning, financing and carrying out, the undertaking or project for which it has been established.”;

5. s 4:

“A corporation shall be a corporate body with limited liability and perpetual succession and capable of suing and being sued in its own name.”;

6. s 5 (1) (a):

“Subject to the provisions of this Act each corporation shall be under the management and control of a board of directors appointed by the Premier…..”;

7. s 6:

“(1) A board may, at any time, submit to the relevant Member for decision any matter falling within the powers of a corporation and shall do so when the relevant Member so requires.

(2) The [relevant Member] may, after consultation with the board, refer the matter to the Premier for his consideration.

(3) The Premier when giving a decision may impose such conditions as he may deem fit.

(4) A decision given or condition imposed by the Premier under subsection (3) shall be deemed to have been given or imposed by the board: Provided that no such decision or condition may be withdrawn or amended by the board except with the approval of the Premier.”;

8. s 6A:

“(1) The determination by a board of the remuneration and general conditions of service (including conditions relating to retirement and sick benefits, housing and accommodation) of employees of a corporation including any revision of such remuneration or conditions shall be subject to the approval of the Premier.

(2) The Premier may refer to a board for reconsideration any matter submitted to him for approval in terms of subsection 1, with such comments and recommendations as he may wish to make.

(3) If the Premier and the board concerned fail to reach consensus on the matter the decision of the Premier shall be final.”;

9. s 7 (3):

“Subject to the provisions of Presidential Proclamation R12 of 1985, only the Government and other corporations shall be capable of becoming shareholders in a corporation.”;

10. s 12 (3):

“The Premier may when prescribing conditions of service, designate the instrument or method by which the conditions so prescribed shall be notified, failing which they shall be published in the Gazette.”;

11. Items 1 to 4 of the Schedule to the Act:

“POWERS WHICH MAY BE ASSIGNED TO A CORPORATION

1. To pay all expenses in connection with its establishment and administration.

2. To employ persons and remunerate them.

3. ……….

4. To suspend or discharge its employees.”

(The original item 3 referred to the power to prescribe the general conditions of service of employees, but was deleted by Decree No 2 of 1991, which at the same time inserted s 2A (1) into the Act).

[41] As recorded in para [64] of the earlier judgment, it was agreed by the parties at a pre-trial conference that Tracor did employ and remunerate persons and prescribe their general conditions of service.

[42] It was not in dispute at the hearing that Tracor’s profit making activities were minimal; for all practical purposes its funds emanated from the Eastern Cape Government. This was effected by a subsidy paid by the Government to Tracor on a monthly basis.

[43] It was further not in dispute that the QIS was a Government owned scheme.

[44] Mr Smuts invoked, inter alia, the following evidence which emerged during the plaintiffs’ case:

(a) The testimony of the first plaintiff, who was the personnel manager at

Tracor at the time of its dissolution, and the three QIS plaintiffs, read together, embraced the following aspects:

(1) Tracor, as the “management agent” of the Department, administered the QIS “on behalf of the Department”;

(2) In order to fulfil that role Tracor employed people;

(3) Tracor had the autonomy to determine its own conditions of service for its

employees, and it did exercise that autonomy;

(4) Those conditions of service applied equally to the employees at the QIS, which included the three plaintiffs in question;

(5) Tracor had its own disciplinary code, which also applied to QIS employees;

(6) Disciplinary inquiries held in terms of the disciplinary code could result in the dismissal of employees, including QIS employees;

(7) Disciplinary inquiries held at the QIS in terms of Tracor’s disciplinary code, were presided over by Tracor officials conducting such inquiries;

(8) Disciplinary inquiries held in respect of QIS employees, were not held in terms of the Public Service Act;

(9) Applications for employment at the QIS were dealt with by Tracor’s personnel department;

(10) Employees appointed on such applications would be placed on the Tracor payroll and receive their salaries from Tracor;

(11) The persons who oversaw what was taking place at the QIS on a day to day basis were employees of Tracor; the tenth plaintiff, a section manager at the QIS, was one such overseer; these overseers controlled the manner in which work was performed at the QIS;

(12) The Department played no role in the hiring, disciplining or dismissal of QIS employees, or in fixing their conditions of service;

(13) Employees at QIS who were retrenched would look to Tracor for a retrenchment package;

(b) The ninth plaintiff’s further testimony proceeded as follows: He joined the QIS in 1981; at that stage his salary was paid by the “Government”, because the QIS was part of the agricultural department; subsequently, his manager advised him that his employer was Tracor; at the time he stopped working at the QIS at the end of July 1997 he was employed by Tracor; he was advised that he was losing his employment because Tracor was being dissolved;

(c) The tenth plaintiff stated that Tracor was administering the QIS when he

commenced his employment at the latter; this included the payment of his salary; he received a letter of appointment from Tracor, not from the Department;

(d) The eleventh plaintiff testified that his emoluments and salary were paid by Tracor and that he worked for Tracor at the QIS; he was told that he was losing his employment because Tracor was being dissolved.

[45] Mr Myande was called as a witness on behalf of the MEC. Posts held by him from time to time were Chief Director of the Transkeian Public Service Commission, Deputy Director-General, and subsequently Director-General, of the Transkeian Department of Education, and during the years 1990 to 1994 Director-General of the Transkeian Department of Agriculture and Forestry (the precursor of the Department), whereafter he was appointed Director-General of the Public Service Commission. Public servants in the former Transkei were, so he testified, employed in terms of that territory’s Public Service Act. He sketched the procedure that was followed when a person sought appointment to a post in the Transkeian public service: the application for such appointment was lodged with the Public Service Commission; the latter would send a letter of recommendation to the department concerned; the department would in turn submit a memorandum to the Minister of the department for approval of the applicant’s appointment; on such approval the head of the department would address a letter of appointment to the applicant in which the terms of the employment would be set out. The witness’s further evidence embraced, inter alia, the following: When he became Director-General of the Department of Agriculture and Forestry in 1990 the QIS was being administered and managed by Tracor. The persons who worked at the QIS were employed by Tracor; the appointment of such persons did not follow the procedure for appointment to the public service set out above, specifically they did not apply to the Department for employment, nor did the Public Service Commission make recommendations to the relevant Minister about such applications; instead, application would be made to the manager of the QIS and the application would be processed through the regional manager until it reached the head office of Tracor, and Tracor, an independent body established in terms of the CA, would, in accordance with the powers accorded to it by that Act, determine the conditions of service of personnel and do the hiring and firing of personnel; in undertaking such functions it would not report to the department nor would the latter intervene in appointments and dismissals at the QIS. The conditions of service and salary scales at the QIS differed from those in the public service. It would be incorrect to suggest that QIS employees were employed by both Tracor and the department; an employee of a corporation could not possibly validly suggest that he was also a public servant. Whilst Tracor and the QIS fell under the department and policy issues might be discussed between the board of Tracor and the department, Tracor would not account to the department in respect of the employment of personnel at Tracor or the QIS or their conditions of service. In contradistinction to QIS employees certain public service officers who performed specified duties at the QIS, viz., extension services, were employed by the department. While the department allocated a subsidy to Tracor to enable it to run its affairs, including the payment of salaries to Tracor and QIS staff, the manner in which the funds allocated were expended fell within the sole province of Tracor. While the department had a representative on the board of Tracor, usually a Chief Director in the department, that representative had no right of veto in respect of decisions taken by the board in respect of policy and the day to day running of Tracor’s affairs.

[46] Evidence of a similar ilk was given by Mr Memka, who previously held a post in the Transkeian Department of Agriculture and Forestry, but resigned from the public service in 1984 to take up the post of general manager of Tracor and in 1986 was appointed managing director, a post he held until his resignation in 1992, whereafter he applied for, and was reappointed to, a post in the public service, viz., as a deputy director. In particular he testified as follows: When he joined Tracor the QIS, which had previously been administered directly by the department itself, was under the management of a private concern styled Inter-Science Management (Pty) Ltd, and the workers at the QIS were employed by that concern. (I interpose here to record that the evidence did not canvas the basis on which such management was undertaken). However, the concern fell into disfavour with the farmers at Qamata and the management of the QIS was transferred to Tracor. The employees at the QIS then became, in terms of new contracts of employment, and letters of appointment issued by Tracor, employees of Tracor; the latter paid their salaries; their conditions of service became those applicable to other Tracor employees; these were different from those applicable to public servants working in the department, as were their salary scales. Vacancies that occurred at the QIS were filled by Tracor management (via the process recorded by Mr Mnyande) and persons so employed were advised of their appointment by letter signed by either the managing director of Tracor or an officer in its personnel division (in contradistinction to appointments to the public service, where the letter of appointment emanated from the head of the department concerned). The approval of the department for such appointments was not required, nor was the department advised thereof. QIS employees were subject to Tracor’s disciplinary procedures and dismissal of employees was effected by Tracor management without reversion to the department. In carrying out the activities referred to, Tracor did not act as the agent of the department nor was it referred to as such by the department; instead, Tracor operated in terms of the CA. The above position obtained as at 10 July 1997.

[47] Mr Smuts further pointed out the following:

(a) The reintegration of the territory of Transkei into the Republic of South Africa in 1994 was, as regards the public service of the former, governed by the provisions of the Public Service Act, 1997 (“the PSA”) as proclaimed in the Government Gazette of 3 June 1994;

(b) S 43 (1) of the PSA repealed, inter alia, the Transkei Public Service Act, No 43 of 1978, but the original s 43 (2) (to which the provisions of s 43 (1) were subject) provided that any departments, administrations, or other institutions established by or under or functioning in accordance with a law repealed would continue to exist until abolished by direction of the Public Service Commission or otherwise dealt with by the PSA;

(c) Since June 1994 the organization and composition of the South African Public Service have, respectively, been as determined by the PSA.

[48] It was also pointed out that the evidence was that the management agents appointed after Proclamation 10 was issued, to manage the Ncora, Qamata and Keiskammahoek irrigation schemes were instructed to distinguish between the first two and the third schemes as the Keiskammahoek staff were employed by the Department and accordingly did not fall within the process in respect of severance packages that was undertaken by the agents. See exh D2 780, a letter dated 31 July 1997 addressed by the defence witness, Mr Ramoo, on behalf the management agents, Messrs Coopers & Lybrand, to SAAPAWU inviting the latter to attend meetings to discuss leave payments and the calculation of severance packages for employees at Ncora and Qamata and stating in respect of Keiskammahoek staff as follows:

“As the employees at this scheme are employed under the Public Service Act they are not affected by any packages and will be absorbed into the Department.”

[49] Finally, reference should be made to the evidence of Mr Gebeda, who held the post of Permanent Secretary in the Department and was called as a witness on behalf of the defendants. At a stage during his cross-examination Mr Dukada canvassed with him the issue of exh E2 1829 (continued on p 1842). This was a notice dated 30 June 1997 and addressed by the MEC to “All Employees” of the QIS and the two other irrigation schemes referred to above. The body of the notice read as follows:

“SUBJECT: CLOSURE OF THE IRRIGATIONS SCHEMES: NCORA, QAMATA AND KEISKAMMAHOEK BY 31 JULY 1997:

The Government has decided that due to financial constraints it can no longer fund the following irrigation schemes:

* Qamata

* Ncora Irrigation Scheme

* Keiskammahoek Irrigation Scheme

and that Government will cease payment of grants on 31 July 1997.

In consequence the Department of Agriculture and Land Affairs is compelled to consider cessation of its farming operations on the irrigation schemes. All persons working on the schemes other than holders of a permission to occupy and persons falling under the Public Service Act will be visited shortly by agents appointed by Government in order to determine their status and the terminal benefits which are due to them in the event that their services are terminated.

It is the responsibility of Management to ensure that this Circular reaches all the employees of the Irrigation Schemes aforementioned.”

Counsel queried with the witness why, specifically with regard to the QIS, the MEC had issued the notice in the light thereof that Tracor had been “dealing with” the QIS. The response was that “the schemes belonged to Government, they were not in terms of the Act (i.e., the CA) that set out Tracor and the other corporations”. The following exchange then took place:

“And the employees who were at Qamata Irrigation Scheme were paid by the Government? ... They were part of Government, employees of Government.

And their conditions of service was (sic) determined by the Government, is that correct? ...... Correct.

.......................

What I am saying is that because these were employees of the Government, then the Department was, because these were employees of the Department, so the Department had to issue the notice advising them about the termination of their employment? ......... Yes.”

The above evidence was given immediately prior to a luncheon adjournment. When the hearing resumed after the adjournment, the witness volunteered a correction of the earlier evidence. He retracted the statement that the QIS employees were employees of the Government and proffered the explanation that what had been present to his mind when he gave the earlier evidence was the fact that the schemes and their assets belonged to the Government as opposed to the assets of the corporations which were the property of the corporations, and he stated that the reason for the issue of the notice was that with closure of the schemes there would be Government assets that would have to be taken care of, and in fact a management agent to take care of the assets was subsequently appointed. The QIS employees were in fact employed by Tracor.

[50] Mr Smuts submitted:

(a) that, in accordance with the approach set out in the extract from Camdons Realty, quoted in para [99] (b) of the earlier judgment, the circumstance that Tracor received its operating funds from the Department and utilised same, inter alia, to pay the salaries of the QIS employees, was neither here nor there, and was not an indicium that the Department was the employer of the QIS employees; the fact that the provincial government was the sole shareholder of TRACOR was neither here nor there, they remained discrete legal personae; the fact that the QIS was a scheme owned by the government was similarly not of assistance to the plaintiffs;

(b) that while Tracor was described by certain of the plaintiffs as being the “management agent” of the Department to administer the QIS “on its behalf”, its capacity in that regard was akin to that of an independent contractor; that as appears from what was recorded in paras [40] and [44] to [46] above, Tracor, a separate legal persona from the Department, was an autonomous body that ran its own affairs, including the employment of staff at the QIS, and did so without any intervention by the Department; that the circumstance that in terms of the CA (see para [40] above) the Department might have had a theoretical right of control over Tracor’s affairs was also neither here nor there in such that control was never sought to be exercised and Tracor did not account to the Department in any manner; that the factors and evidence detailed in paras [44], [45], [46] and [48] above (to which may be added the corrected evidence of Mr Gebeda referred to in para [49] above), read in the light of the criteria detailed in para [99] of the earlier judgment, had inevitably to lead to the conclusion that the three QIS plaintiffs were employed by Tracor and not the Department;

(c) that what was incorporated by the PSA into the new public service of South Africa was, as far as the former Transkei was concerned, that which was functioning in terms of the Transkei Public Service Act, and not that which was functioning under the CA; that on the evidence none of the plaintiffs in question fell within the parameters of s 8 of the PSA; they had therefore not been incorporated into the South African Public Service, nor had that been possible.

[51] Mr Dukada’s response was a two-fold one. First, he invoked the decision in SAAPAWU v Premier (Eastern Cape) & Others, referred to in para [13] of the earlier judgment, and a passage in the judgment of Locke J in the Full Bench decision in Cekeshe, referred to in para [11] of the earlier judgment, and submitted that, accepting the premise that the plaintiffs in question were employed by Tracor, they were also employed by the Department. Second, he pointed to the fact that as against the factors and evidence relied upon by Mr Smuts, there was other evidence that the plaintiffs were employed by the Department, viz., the initial evidence of Mr Gebeda referred to in para [49] above (read with the fact of the notice issued by the MEC dealt with by Mr Gebeda as well as the further circular by the MEC referred to in paras [69] and [73] below), the evidence from employees in management positions at Tracor that through Tracor as its agent, the Department employed the QIS employees and evidence by the tenth plaintiff that he was employed by the Department. I will consider these responses in turn.

[52] The first aspect to be noted in regard to the SAAPAWU case is that the defence taken by the present defendants (who were included as respondents in that matter) to the grant of relief in the form of an interdict to restrain the prosecution of the process of the liquidation of Tracor pursuant to the issue of Proclamation 10, was that the grant of the relief was incompetent as against them, on the grounds that they were not the employers of the employees on behalf of whom SAAPAWU brought the application, including Tracor employees. This defence was rejected on the basis that will appear below.

[53] The passages of the judgment in the matter (per Landman AJ) stressed by Mr Dukada were the following:

At 1230E-F:

“At this juncture, it is perhaps important to observe that an employee can have more than one employer. See Boumat Ltd v Vaughan 1992 (13) ILJ 934 (LAC). It is also possible, or at least notionally possible, that the employer of an employee may consist of more than one juristic person. This was considered in Association of Professional Teachers and another v Minister of Education and another 1995 (16) ILJ 1031 (LC) at 1069 where the conglomeration was referred to as a “composite employer”.”;

At 1231E-G:

“The corporations which employ the members of the applicant union are dependent upon the provincial government for the proper exercise of their mandate and, of particular importance for this case, for their continued existence. It is clear that these corporations are corporate bodies with limited liability and perpetual succession and are capable of suing or being sued in their own names. They are, however, not independent corporations, although they have a legal personality, for they are manipulated and controlled by the Provincial Government of the Eastern Cape acting through its Executive Committee and its Premier. In this particular instance, the State (the Province of the Eastern Cape) has decided to perform certain activities by using a corporation which is a juristic person. It is not in a strict sense the State itself.”;

At 1232F-G:

“I am of the opinion that the employees who are members of the applicant union are employed by a composite employer comprising the relevant corporation and the Province of the Eastern Cape as represented by its Premier and the Member of the Executive Committee responsible for Agriculture and Land Affairs for that province.”

Counsel accordingly submitted, on the authority of this decision, that I should find that, notwithstanding the evidence invoked by Mr Smuts, it had in fact been established that the Department had been the employer of the QIS plaintiffs, albeit as part, together with Tracor, of a “composite employer”.

[54] Mr Smuts had a number of counters to the above argument. The first aspect concerned a statement by Landman AJ at 1232E-F that the matter before him was distinguishable from that of Ndlovu v Transnet Ltd t/a Portnet (now reported at [1997] 7 BLLR 887 (LC)), which concerned the application of the Bill of Rights in the Constitution in relation to Transnet, and in which it was found, by the same learned Judge, that it was not an organ of State. The applicant in the matter sought, inter alia, an order that Transnet furnish her with certain information allegedly necessary to enable her to prepare for a disciplinary inquiry. It was held that in terms of item 23 (2) of Schedule 6 of the Constitution she would only be entitled to the information if Transnet were an organ of State; it was not, however, not even as a functionary or institution “exercising a public power or performing a public function in terms of any legislation”, which is part of the definition of a State organ in s 239 of the Constitution. Counsel pointed out that the learned Judge did not motivate why he distinguished Ndlovu and, drawing a parallel between Transnet and Tracor, he submitted that no distinction was to be drawn. I, too, with respect, have difficulty in understanding the distinction. Be that as it may.

[55] The main burden of counsel’s argument related to the context of the matter before Landman AJ, which, he submitted, was quite different from that of the present proceedings. He stressed that the essence of what Landman AJ had to concern himself with was (a) the concept of the State as employer for the purposes of the Labour Relations Act (“the LRA”), and (b) an application brought within the purview of the LRA (s 158 (1) (h) provided that the Labour Court may “review any decision taken or any act performed by the State in its capacity as employer on such grounds as are permissible in law”).

S 213 defined an “employee” as:

“a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

b) any other person who in any manner assists in carrying on or conducting the business of an employer, and ‘employed’ and ‘employment’ have meanings corresponding to that of employee.”

At 1229E Landman AJ stated the following:

“The concept of “employer” is not defined in the LRA. However, it may be deduced from the definition of an employee that an employer is a natural or artificial person who employs an employee in the broad sense of that meaning conveyed by the definition of an employee. An employer includes the State. See the definition of an employee cited above.”

[56] Counsel had no quarrel with portion (a) of the definition of “employee” set out above, as being in accordance with the ordinary and accepted meaning of the word and our common law. He, however, stamped portion (b) as being extremely wide. His submission was that while it was applicable for the purposes of the LRA and an application brought thereunder, it was impermissible to import it into other legislation or our common law and proceedings brought thereunder. Specifically, he said that it did not, and could not, have any application in proceedings such as the present, which were ordinary civil proceedings, quite discrete and distinct from proceedings in the Labour Court, which operates in a specific sphere. Correlatively, so the argument ran, the wide concept of “employer” Landman AJ adopted (on the basis of the wide definition of “employee” contained in portion (b)) was, in law, unacceptable for the purposes of the present proceedings. Counsel further submitted that the following comment by the learned Judge, at 1232G:

“In my view, the exclusive jurisdiction which is conferred by section 157 of the LRA on this Court is a further reason for interpreting the concept of the State broadly.” ,

underscored his argument by confirming that Landman AJ recognized that he was concerned with an application of the provisions of the LRA and therefore he was of the view that a broad interpretation of the concept of the State as an employer was warranted. Reference may also be had to the comment in Camdons Realty, at 1016, that the coming into existence of an employment contract with one entity does not mean, for the purposes of the LRA, that the employee is not employed by another entity; the question was whether the latter was the “employer” of the employee as defined in the Act.

[57] Counsel next joined issue with part of the passage in the judgment at 1231E-G, quoted in para [53] above. He pointed out that the basis on which it was found that the corporations referred to, including Tracor, were “manipulated and controlled by the Provincial Government of the Eastern Cape acting through its Executive Committee (sic - read Council) and its Premier”, is not revealed in the judgment, and further that (whatever the evidence placed before Landman AJ might have been) the evidence in casu was to the opposite effect, that the provincial government did not in fact exercise any control over Tracor’s running of its affairs (other than providing it with funds) and allowed it to go its own autonomous way.

[58] With reference to the following passage in the judgment at 1231H:

“I do not think that the present case is one where one needs to pierce the corporate veil and therefore to deal directly with the shareholders or the foundational legal personality although what I propose doing comes close to it.” ,

counsel said that on analysis the learned judge had embarked on just such an exercise, but that the exercise had no place in proceedings such as the present.

[59] A further comment by the learned Judge, at 1232I, was the following:

“At the very least, the applicants have made out a case on a prima facie basis, even though open to some doubt, that the employer of the members of the applicant union are the corporations which have been dissolved and in respect of which the fourth, fifth and sixth respondents act as liquidators and the Premier and Member of the Executive Committee responsible for Agriculture and Land Affairs of the province of the Eastern Cape.”

Counsel stated that the learned Judge was applying a test applicable to the issue whether a temporary interdict should be granted. However, the test applicable in the present proceedings was proof on a balance of probabilities.

[60] The final point invoked by counsel was that the plaintiffs’ pleadings did not advance the case of a “composite employer”, a component of which was the Department.

[61] The response by Mr Dukada to the above was two-pronged:

(a) The finding by Landman AJ that Tracor was “manipulated and controlled by the Provincial Government”, was not necessarily based on evidence before him, but was rather based on his interpretation of the CA;

(b) The fact that Landman AJ was concerned with an application brought under the LRA did not, if I understood the argument correctly, inform his decision that the provincial government was the employer, as part of a composite employer, of the employees in question.

[62] One aspect may be disposed of shortly, i.e., the point taken by Mr Smuts that the plaintiffs’ pleadings did not advance the case of the Department being part of a “composite employer” of the QIS plaintiffs. I am not persuaded that the point is a good one. The plaintiffs’ pleaded case was that the Department was their employer. Proof of that allegation was a matter for evidence and argument. A case that the MEC was a party to a “composite employer” of the plaintiffs, is properly to be viewed as part of such proof. (And on the facts repudiation of the contracts of employment by the MEC would have brought in its train the termination of the co-existing contracts of employment with Tracor).

[63] Similarly, the submission of Mr Dukada that the fact that Landman AJ was faced with an application in terms of the LRA did not have a bearing on the conclusion reached by him (that the provincial government, as part of a “composite employer”, was an employer of Tracor employees), must be rejected. It is, in my view, not to be gainsaid that a consideration of Landman AJ’s judgment immediately reveals that the fact that he was concerned with an application under the LRA was, in his view, not only material to the question whether his conclusion should be the one to which he came, but was also, indeed, the crucial consideration.

[64] Two aspects, which are interrelated, require closer consideration. The first is the validity of the translation by counsel of Landman AJ’s comment that the provincial government “manipulated and controlled” Tracor, to the present case. In my judgment, on neither of the bases canvassed during argument, is such validity to be endorsed:

(a) If the finding was based on evidence placed before Landman AJ, then I consider that the response of Mr Smuts thereto, must be upheld: the evidence in casu was, indeed, to the effect that, as a factual question, no such manipulation or control was exercised by the provincial government in respect of the running of the affairs of Tracor;

(b) Nor am I able to accept that the finding was based, or was validly based,

on an interpretation of the provisions of the CA. The only reference in the judgment to the legislation was to those provisions that provided for the establishment of Tracor (i.e., by way of a reference to the provisions of a corresponding Act of the former Ciskei, relating to corporations in that then State) and to the provisions in s 13 of the CA which accorded to the Premier the power to issue a proclamation dissolving a corporation such as Tracor. No other provision in the CA was referred to, or relied upon, by Landman AJ for the conclusion reached by him. It may be that counsel had in mind those provisions of the CA, referred to in para [40] above, that accorded to the provincial government, per the person of the Premier or a member of the Executive Council, the “right of control” in certain circumstances over the affairs of a corporation such as Tracor; as counsel put it, the Premier was the “administrative head” of Tracor. It cannot be disputed that some “right of control” by the provincial government was provided for in the CA. However, although, in the article by Brassey, referred to in para [99] (a) of the earlier judgment, reference was made to “control, more accurately the right of control” constituting an indicium of an employer/employee relationship, it should not be forgotten, first, that the learned author added the rider, in my view correctly, that although the element of control must necessarily be present in an employment relationship, its presence is not decisive of the question whether an employment relationship does in fact exist; second, that although in casu the right of control was, in theory, there, the more important question is whether there was any attempt, as a fact, to exercise that theoretical right of control. That question, and the further question whether the Department in any other way purported to do acts qua employer of the employees, must, in the light of the evidence detailed above, be answered in the negative. The indicium referred to has, therefore, no force in casu. In regard to the provision in s 6A of the CA that the determination by Tracor’s board of the remuneration and conditions of service of its employees was subject to the approval of the Premier, it may be noted that there was at least tacit approval thereof; such approval cannot, however, be equated with control as required to render the provincial government the employer of the employees.

[65] The other aspect relates to the acceptability of the contention that the conclusion of Landman AJ is to be applied in the present case. As already stated, that conclusion was indeed informed by the fact that what the learned Judge was seized with was an application in terms of the LRA; hence, his acceptance of the wide interpretation of the concept of employer, based, as it was, on the wide definition of employee in that Act. Assuming for the nonce, but without expressing any view thereon, that the decision was correct in that context, I consider that the SAAPAWU case is clearly distinguishable from the present, to the extent that I should not apply the decision to the issues before me in the present proceedings. In my judgment, the submissions of Mr Smuts, referred to in paras [55] and [56] above, are sound and must be upheld. In short, the decision, reached in the context of a specific sphere, that of labour relations and an application of the provisions of an Act specifically relating thereto, has no application in the present proceedings, which are ordinary civil proceedings.

[66] The passage in the judgment of Locke J in the Full Bench decision in Cekeshe relied upon by Mr Dukada, which appears at 93G-H, reads as follows:

“There was no board in place at the time of termination of the employment. Whilst it is correct that there was no contract of employment between the appellants and the respondents, the appellants certainly played a role in the administration of the corporation in terms of ss 6, 7(2), 7(4), 8, 9 and 11 of Act 10 of 1985 as amended, notwithstanding the fact that there was never a proper assignment of the duties and (sic – read “in”) terms of the Act in the Provincial Gazette.

Whilst therefore there may be no de jure employment relationship between the appellants and the respondents, there certainly was a de facto one requiring fair labour practices and decisions affecting the respondents.”

The reference to “assignment” harked back to an earlier passage in the judgment at 68A-C where, after setting out the provisions of ss 1 (i.e., subparagraph (b) of the definition of “relevant member” – the learned Judge in fact referred to a section in the CTPA which introduced the definition into the CA) and 2 (2) of the CA (see para [40] above) the learned Judge recorded that no such powers, duties and functions had been so assigned in the Provincial Gazette.

[67] The short submission of counsel was that the comment in the above extract relating to the appellants (the defendants in the present matter) playing a role in the administration of the corporation, was equally of application in the present matter and that I should accordingly hold, in keeping with Locke J’s further finding, that there was a de facto employment relationship between the Department and the plaintiffs in question (and for that matter between the Department and all Tracor employees).

[68] I am unable to agree.

(a) The circumstance that there was no board in place at the time of the termination of the employment (the board having resigned a few days earlier) is neither here nor there. The legal entity Tracor remained the employer of the employees after the resignation of the board, and there was no evidence that the Department embarked on any of the functions of an employer;

(b) The only section referred to by Locke J that might, in theory, have had a bearing on the issue of actual control of Tracor employees by the provincial government was s 6. The other sections dealt with such matters as the share capital of a corporation, payment for shares therein, the expenditure of the board of a corporation, the application by a corporation of its income and profits and its acquisition of property, loans by a corporation and the books of account of a corporation. Leaving aside the effect of the absence of an assignment of the administration of any of the sections in question to any member of the Executive Council (a question not argued before me), the mere fact of the theoretical existence of such administrative powers in respect of the latter mentioned sections (and whatever role in the administration of a corporation such powers covered in theory) cannot be translated to constitute actual control over the employees of Tracor. In regard to s 6, the evidence reflected that in fact there was no utilization of its provisions and, as already recorded, specifically not in respect of matters relating to the employment of employees of Tracor. It bears repetition that, as a fact, there was no attempt at any stage by the Department to exercise control over the employees or otherwise to do any acts qua employer of the employees;

(c) It would seem that Locke J’s conclusion that there was a de facto employment relationship rested solely on his interpretation of the provisions he referred to without any consideration of what in fact took place. The existence of a de facto employment relationship is, however, a question of fact. On the evidence before me that question cannot be answered affirmatively.

[69] I return to the second leg of Mr Dukada’s argument referred to in para [51] above. I will deal first with the evidence of Mr Gebeda concerning the notice of 30 June 1997 issued by the MEC to the employees of the three irrigation schemes in question (see para [49] above). I have some difficulty with Mr Gebeda’s explanation, as I understood it to be, that concern for the assets of the QIS was the reason for the issue of the notice and that because that aspect was what was exercising his mind he initially inadvertently stated that the QIS employees were employed by the Department: the notice nowhere adverts to the aspect of assets that required to be protected. Possibly, Mr Gebeda rather had in mind the contents of a subsequent circular (exh D2 775A–B) sent by the MEC to “MANAGEMENT AND EMPLOYEES” of the three irrigation schemes on 17 July 1997 in which there was a reference to State assets at the schemes and an intimation that the terms of reference of a management agent to be appointed to manage the schemes would include the instruction to take all possible measures to secure those assets. Possibly, too, there was confusion in Mr Gebeda’s mind arising from the fact, stated by him with reference to the distinction drawn in the notice between employees at the schemes who were public servants and those who were not, that the other two schemes referred to in the notice did have employees who were public servants (or the fact, stated by Mr Mnyande, that there were public servants employed at the QIS, viz., extension officers), and he may have had those employees in mind when he made the statement that the QIS employees were employed by the Department. Be that as it may, four factors weigh with me. First, the submission by Mr Dukada that in retracting that statement Mr Gebeda sought to mislead me and commit perjury, is, in the light of my observation and assessment of Mr Gebeda as a witness and a person, an unpalatable one. Second, it is a fact that the QIS employees did receive “terminal benefits”. They had therefore to fall outside the public service, employees in which were not to receive benefits and were to be redeployed elsewhere: c.f: the reference to the employees at Keiskammahoek, who were public servants, in exh D2 780 referred to in para [48] above. Third, Mr Gebeda’s initial evidence did not square with the distinction drawn in the very notice itself, between persons falling under the PSA and other employees. Fourth, the initial statement that the QIS employees were employed by the Department cannot, in my view, weigh up against the factors relied upon by Mr Smuts.

[70] As to Mr Dukada’s further argument, it is true that there was testimony by the first, second and fourth plaintiffs, all of whom were in management positions at Tracor, to the effect that the QIS employees were employed by the Department, but that Tracor administered their employment as agent for the Department. As the first plaintiff put it, the Government had outsourced the managerial function in respect of the QIS to Tracor; accordingly, every managerial process and decision for the scheme was carried out by Tracor as the “agency” of the Government, and on its behalf; that was what he “witnessed and experienced”. In my judgment, however, the evidence in question is of little assistance to the plaintiffs. I agree with Mr Smuts that the word “agency” was used loosely by the witnesses, and not in its legal sense. It should be stamped as no more than the mere expression of an opinion, a basis for which, other than the fact that the salaries of the QIS employees were paid from funds made available by the Government, and that in a broad sense Tracor, an agricultural parastatal, was an “arm” of the Department, was lacking. It does not, and cannot, weigh up against the other, unambiguous, evidence invoked by Mr Smuts, which established that the QIS employees were not employed by the Department, but by Tracor independently of the Department.

[71] The evidence of the tenth plaintiff invoked by counsel was indeed, at one stage, to the following effect: prior to joining the QIS in 1987 he was employed by the then Department of Agriculture and Forestry; on joining the QIS he heard that Tracor had just become involved with the QIS; he remained, however, an employee of the Government, although Tracor assumed responsibility for the payment of his salary, i.e., with funds made available by the government; like him, the other employees at the QIS were also employed by the government.

[72] I am unable to accept the evidence.

(a) In the course of the testimony the plaintiff made the following two statements:

“[T]he Government would pay us our salaries, and then we would pay TRACOR; in other words, we were paying for the services which TRACOR were (sic) doing for us.”

“We would make a budget and send it to the Government for approval. Then the money would be sent to TRACOR and then TRACOR would make cheques for us.

MR DUKADA: …. By us, Mr Zantsi, are you referring to the scheme or are you referring to the employees? …… I am referring to the scheme, my Lord.”

The first statement was a confusing one, enjoyed no support in any other evidence, and was contradicted by the second statement. The second statement also enjoyed no support in any other evidence and was in fact contradicted by evidence, embracing also documentary evidence, and including evidence that emerged from the plaintiffs’ own case, that TRACOR presented the provincial government with a budget, which catered for the salaries to be paid to QIS employees as well as those working at TRACOR itself, together with all of TRACOR’S other expenses, and that the provincial government would pay TRACOR a monthly subsidy in accordance with the former’s own budget. (As from April 1997, the monthly subsidy was not budgeted for and was paid from funds made available by the national government from another account);

(b) The evidence does not, and cannot, weigh up against the wealth of evidence invoked by Mr Smuts referred to earlier;

(c) The evidence was also directly contradicted by subsequent evidence given by the plaintiff himself under cross-examination. It should be pointed out that earlier the first plaintiff had testified that those persons who were at the QIS to oversee what was taking place there on a day to day basis were employees of TRACOR, i.e., those in management positions, and that the tenth plaintiff was one of those persons. This evidence was put to the tenth plaintiff and Mr Smuts then asked him whether he confirmed the first plaintiff’s evidence that in his, the tenth plaintiff’s, capacity as a member of the management of the QIS, he was an employee of TRACOR. The reply was: “Yes, I confirm”.

[73] The further circular (exh D2 775 A-B) referred to in paras [51] and [69] above read as follows:

“APPOINTMENT OF A MANAGEMENT AUTHORITY

This serves to advise Management and employees of the abovementioned Irrigation Schemes that:

1. The Executive Council has decided to liquidate the Agricultural Corporations, and as such, a team of liquidators has commenced its task in respect of TRACOR, MAGWA TEA and ulimocor in accordance with Proclamation No. 8: Ulimocor, 9: Magwa and 10: Tracor dated 10 July 1997.

2. Because the said liquidation could have a direct bearing on the secondment of personnel from the Corporations to the Irrigation Schemes, the Executive Council decided to appoint an interim Management Authority (MA) whose terms of reference are enumerated here below:

3. The Irrigation Schemes cannot be liquidated, and because no more funding is available for them, the employees of the Schemes other than those employed in terms of the Public Service Act, will have to be retrenched in accordance with Labour Law and the laid down procedures.

4. Simultaneous with the retrenchment of employees will be the process of revitalization of these Schemes on a private enterprise basis.

5. A Management Authority will be appointed shortly.

6. Government will cease funding these schemes on 31 July 1997, accordingly salaries and wages for employees will be paid for the last time as normal in respect of the month of July.

7. The terms of reference of the Management Authority include the following:

7.1 To take over the administration of the three Irrigation Schemes namely Qamata, Ncora and Keiskammahoek.

7.2 To serve as liaison between the Department of Agriculture and Land Affairs and these Irrigation Schemes.

7.3 To determine the magnitude of the severance packages of employees and fulfill all the necessary requirements as laid down in terms of the labour Relations Act and the National Framework Agreement in respect of the transfer of state assets.

7.4 To expeditiously facilitate the transfer of state assets in consultation with both Government and the Liquidators within the framework of the Law and the laid down procedures.

7.5 To cooperate with the liquidators as and when requested to do so.

7.6 To take all the possible measures to secure state assets.”

[74] The portion of the notice referred to in paras [49] and [51] above (which, it was noted, was also sent to three trade unions including SAAPAWU) which counsel sought to stress was the following:

“….. in order to determine their status and the terminal benefits which are due to them in the event that their services are to be terminated.

It is the responsibility of management to ensure that this Circular reaches all the employees of the Irrigation Schemes aforementioned.”

As regards the further circular counsel laid emphasis on the latter part of paragraph 6 and the wording of paragraph 7.

It was argued that the two documents constituted compelling evidence that the MEC had control over the employees of the schemes. It was submitted, first, that there would have been no need for the MEC to concern himself with payment of salaries of employees of the schemes for the last time in July 1997 if the Department was not the employer; second, that the same comment applied to the determination of severance packages and compliance with the provisions of the LRA and the NFA (in regard to which counsel added that the defence witness, Mr Ramoo, testified that the management agents were required to discuss severance packages with the employees of the QIS and that for the purposes of calculating the packages they would need certain information and, as counsel put it, ascertain the requirements of the LRA). It was further submitted that the failure of the MEC to testify in these proceedings, and specifically to explain the issue of the notice and the circular, warranted the drawing of an adverse inference against him or at least enhanced the probabilities in favour of the plaintiffs.

[75] The argument cannot be upheld.

(a) I agree with Mr Smuts that the argument loses sight of the fact, first, that Tracor was to be, and was, dissolved on 10 July 1997 and that, on the evidence, because Tracor had no funds with which to pay same, the July salaries of all employees including those at the QIS were in fact paid directly by the Department, and, second, that the national government had set aside a sum of R74,9 million for the payment by the provincial government of ex gratia severance packages to all employees whose employment was to be, and was, terminated consequent upon the issue of Proclamations 8, 9 and 10 (for the reason, so Mr Hanekom, the then national Minister of Agriculture and Land Affairs, testified, of alleviating hardship in the fairest possible way). There was accordingly every reason why the MEC concerned himself with the payment of salaries and the determination of severance packages notwithstanding that he was not the employer. Furthermore, the reference to seconded personnel in paragraph 2 of the circular (i.e., in casu Tracor personnel seconded to the QIS) could only refer to those employees working at the QIS who were to lose their employment and be paid severance packages, i.e., employees falling outside the PSA;

(b) The reliance placed on the references to the LRA was misplaced. It was not the attitude that the provisions of the LRA were to be applied because the MEC, as employer, was bound thereby, but, as Mr Ramoo explained, in order to arrive at a formula for the calculation of severance packages it was decided to look at that contained in the LRA, which would be used as a basis; hence, the need to secure information as per the requirements of the LRA;

(c) The fact that the MEC did not testify does not warrant an adverse inference being drawn against him and did not otherwise advance the plaintiffs’ case. The position is no more than that he was content that the defence case stand or fall by the evidence that was placed before me. (See the authorities referred to later when, in another context, the effect of the failure of the Premier to testify is considered).

[76] Two further aspects require consideration. It was suggested by the first and second plaintiffs that the amount paid by Tracor to the QIS employees as salaries was reimbursed monthly to it by the provincial government. One queries whether the first plaintiff, who professed ignorance of much of Tracor’s financial affairs, was in a position to make such a statement. There was, however, no documentary evidence of any such reimbursement. On the contrary, the evidence was that Tracor was paid a monthly subsidy which, as already noted in paras [45] and [72] (a) above, included an amount to cover the salaries of QIS employees.

[77] It is true, as will appear elsewhere in this judgment, that in the matter of the payment of severance packages, the process followed in respect of the QIS employees was different from that followed in respect of Tracor employees at its head office in Umtata, i.e., as regards time and place and format of indemnity form. Mr Nobatana, during 1996-1997 an assistant State Attorney at Bisho, testified, however, that it was government’s directive – it would seem, for logistical and administrative reasons – that the payment of severance packages to employees at the schemes be handled separately from the payment of severance packages to the employees at the corporations themselves, and the inference that the QIS employees had a different employer is not justified.

[78] I hold accordingly that the alternative contractual claim made against the MEC contained in paragraph 15.1 to 15.5 of the particulars of claim in the actions instituted by the plaintiffs Mkhwambi, Zantsi and Kiva (cases Nos 841/99, 888/99 and 790/99, respectively), is not a valid one.

[79] The general rule that costs follow the event is applicable. The MEC is accordingly entitled to recover his costs in respect of the alternative contractual claim against him from the three plaintiffs in question.

AQUILIAN ACTION AGAINST THE PREMIER:

[80] As pointed out in para [107] of the earlier judgment, a successful claim under the actio Legis Aquiliae requires the plaintiff to allege and prove that the defendant was guilty of conduct which was both wrongful and culpable, and which caused patrimonial damage to the plaintiff.

THE PLAINTIFFS’ PLEADINGS

[81] Rule 18(4) prescribes that a pleading must contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, with sufficient particularity to enable the opposite party to reply thereto. The cause of action or defence must appear clearly from the factual allegations made. The object of pleadings is to ascertain definitely what is the question at issue between the parties and to enable each side to come to trial prepared to meet the case of the other and not be taken by surprise. This object can only be attained when each party states his case with precision. A pleader cannot be allowed to direct the attention of the other party to one issue and then at the trial attempt to canvass another. Trope v South African Reserve Bank and Another 1992 (3) SA 208 (T) at 210G-211A; Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107C-E and H.

[82] Where a statutory provision is relied upon by a plaintiff the particulars of claim should contain a statement to that effect with the number of the section and statute being set out or the claim must be sufficiently clearly formulated so as to indicate that reliance is being placed on the provision. Yannakou v Apollo Club 1974 (1) SA 614 (A) at 623G; De Villiers en ‘n Ander v Stadsraad van Mamelodi en ‘n Ander 1995 (4) SA 347 (T) at 354B-D.

[83] A party who relies on a contract must state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy of the contract or of the part relied upon must be annexed to the pleading. Rule 18 (6).

[84] As appears from paras [25], [26], [29] and [41] of the earlier judgment, the particulars of claim of the Tracor plaintiffs alleged:

(a) that the dissolution of Tracor effected by the issue by the Premier of Proclamation 10 resulted in the de facto termination of their employment contracts with Tracor;

(b) that the termination of the employment contracts was wrongful, unlawful and invalid in that:

(1) the Premier failed first to consult and give the plaintiffs a hearing before dissolving Tracor;

(2) the dissolution of Tracor was unfair, unreasonable and unjustifiable in that:

(i) in terminating their employment the Premier failed to notify them of the impending closure and dissolution of Tracor;

(ii) the plaintiffs were only informed on 10 July 1997 that the 31 July 1997 was to be their last day of work at Tracor;

(iii) they only received their monthly salaries at the end of July 1997, but no severance packages during 1997;

(iv) the manner of termination of their employment exposed them to financial embarrassment and to an abrupt reduction in their social status;

(v) the Premier, in terminating their employment, resulting in the circumstances set out in (iv) had intentionally degraded, humiliated, insulted and injured them and occasioned them impairment of dignity;

(3) the Premier, in terminating the plaintiffs’ employment and causing them loss, acted intentionally, alternatively negligently, and unreasonably;

(c) despite the invalidation of Proclamation 10 and demand by the plaintiffs for reinstatement and the restoration of the status quo at Tracor, the Premier refused to accede to the demand.

The response in the Premier’s plea to these allegations was recorded in paras [25], [27] and [42] of the earlier judgment.

[85] The essential allegations made by the QIS plaintiffs (see paras [31] and [33] of the earlier judgment) were as follows:

(a) Pursuant to a decision made by the Premier and the MEC, acting with the consent of the Executive Council, to liquidate and dissolve the Eastern Cape agricultural parastatals and their associated irrigation schemes, including Tracor and the QIS, the Premier issued Proclamation 10;

(b) In consequence, the contracts of employment of the plaintiffs were (de facto) terminated;

(c) Such termination was wrongful and unlawful in that:

(1) the defendants failed first to give the plaintiffs a hearing and to consult with them before making the aforesaid decision and the passing of Proclamation 10;

(2) the dissolution of Tracor and the QIS was unfair, unreasonable, unjustifiable and unlawful;

3. in terminating the plaintiffs’ employment and causing them loss the defendants acted intentionally, alternatively negligently, and unreasonably.

The response in the Premier’s plea to these allegations was recorded in paras [32] and [34] of the earlier judgment.

[86] During their testimony certain of the plaintiffs sought to place reliance on the following allegations:

(a) that the Premier had not complied with the provisions of s 189 of the LRA prior to terminating the plaintiffs’ employment, alternatively, had, with the issue of Proclamation 10, prevented Tracor from complying with the said provisions;

(b) that the Premier had not complied with the terms of a recognition agreement which Tracor had concluded with a trade union styled FAWU (and which had allegedly thereafter been adopted by SAAPAWU) prior to terminating the plaintiffs’ employment, alternatively, had, with the issue of Proclamation 10, prevented Tracor from complying with the said terms;

(c) that the Premier, in issuing Proclamation 10, had disregarded the provisions of the National Framework Agreement (“the NFA”). (This agreement was concluded between the national government and organized labour in February 1996).

The plaintiffs’ stance was echoed by Mr Dukada in argument.

[87] Mr Smuts contested the entitlement of the plaintiffs to place reliance on the aspects referred to on the grounds that same had not featured in the plaintiffs’ pleadings. It had accordingly not become necessary for the Premier to raise exceptions to any allegations of that ilk contained in the particulars of claim (which exceptions, counsel said, would have been available on a number of bases). The disentitlement of the plaintiffs from relying on the aspects in question flowed from an application of the principles set out in paras [81] to [83] above. Counsel similarly contended that the plaintiffs were disentitled from advancing a case based on an alleged legitimate expectation of employment in some unidentified future corporation, an alleged failure on the part of the Premier to negotiate with them regarding the formulation of government policy, or an alleged dereliction of duty on the part of the Premier to reconstitute Tracor and pay salaries to the plaintiffs after the judgment in Cekeshe had set aside Proclamation 10 (an allegation which, so it was contended, would also have attracted an exception).

I will deal with each item in turn. It is, however, unnecessary to consider whether, had the matters in question been included in the plaintiffs’ pleadings, exceptions thereto would have been upheld.

[88] Mr Dukada’s initial argument in respect of s 189 of the LRA was in essence that the provisions of the section were on the statute book, that they were reflective of fair labour practices (an employee’s right to which was ensconced in the Constitution, the country’s supreme law) and because they prescribed a consultative process, the Premier’s alleged failure to follow same or allow same to be followed was embraced within the plaintiffs’ allegation of a failure on the part of the Premier to consult and give the plaintiffs a hearing prior to dissolving Tracor and terminating their employment. In his replying argument counsel, while not jettisoning the above submissions, added a second string to his bow. He submitted that it was in fact not necessary for the plaintiffs to prove that the Premier had failed to comply with the provisions of the section or had prevented Tracor from doing so. He contended that it was open to the plaintiffs to advance the stance that had they been given a proper hearing by the Premier they would, inter alia, have broached the provisions of the section with him. Accordingly, the allegation of a failure to consult in the particulars of claim permitted the plaintiffs to register the complaint that they had been denied the opportunity of raising the provisions.

The submissions cannot be upheld. The alternative submission was, on analysis, a restatement of the main submission. The plaintiffs’ particulars of claim did not in any way foreshadow a reliance on the provisions of s 189. The principles set out in para [81] and [82] above accordingly preclude valid reliance by the plaintiffs on the provisions.

[89] A similar ruling falls to be made, in accordance with those principles read with those set out in para [83] above, in respect of Mr Dukada’s submission that reliance on the recognition agreement was permissible in that, firstly, it also provided for a consultative process and therefore failure to apply, or to allow the application of, that particular process was embraced within the allegation of a failure to consult with, and give a hearing to, the plaintiffs (and here, too, counsel raised an alternative argument along the lines of the alternative submission set out in para [88] above). Secondly, the agreement provided for a notice period if retrenchment was envisaged and the absence of such notice was covered by the plaintiffs’ allegation that they were informed on 10 July 1997 that their employment would terminate on 31 July 1997. Again, the particulars of claim did not in any way foreshadow reliance on the recognition agreement. Counsel’s further counter was also not of assistance to the plaintiffs. Reliance was placed on what was contended to have been extensive cross-examination of the first and second plaintiffs on the retrenchment agreement. Presumably, the submission was that the absence of a reference in the pleadings to the recognition agreement was cured by such cross-examination. There are two answers to the submission. First, despite the attitude of Mr Smuts, the pleadings remained unamended and there was no introduction of a reliance on the agreement. Second, the cross-examination referred to (during which, it may incidentally be noted, the first plaintiff in fact stated that the responses of Tracor management and workers to the approach of government included the requirement that attention be given to severance packages to be paid to those who might lose their jobs in a restructuring process, in accordance with the provisions of the agreement or, in the case of non-union members, in accordance with a standard based on the terms of the agreement), is not to be described as extensive, and specifically as sufficient to enable it to be said that the issue was fully aired.

(The rulings in this paragraph and the preceding one render it unnecessary to consider Mr Smuts’s further submissions that in any event it was not open to the plaintiffs to invoke the provisions of s 189 or of the recognition agreement as against the Premier, who was not the employer of the plaintiffs).

[90] The reliance on the NFA stands on a different footing, however. While it is true that the plaintiffs’ pleadings did not advert thereto, in fact, while not recorded in para [27] (b) of the earlier judgment, the portion of the Premier’s plea dealt with therein itself in terms alleged that the consultative process embarked upon was in accordance with the provisions of the NFA. That question was therefore at issue between the parties. The NFA, in clause 5.3, recorded the following:

“Organized labour in general and employees of the relevant public enterprises should participate in policy formulation processes. In addition the labour rights, obligations and standards should be maintained and enhanced.

The ultimate aim of restructuring is to improve the quality of life of all South Africans. Therefore, the underlying approach of the parties is that restructuring should not occur at the expense of workers in State enterprises. Every effort should be made to retain employment.

Where restructuring potentially has negative consequences for workers, a social plan must be negotiated with the relevant union at the enterprise level which takes account of the workers’ interests.

Workers who may be re-deployed within or between State enterprises shall enjoy equivalent benefits and conditions of employment as they enjoyed in the previous employment.”

It is to be pointed out, however, that the issue is not whether the aims were achieved, but whether there was consultation thereanent.

[91] The aspect of the alleged legitimate expectation of employment in another corporation may be shortly disposed of. I did not understand the evidence of the expectation to be tendered as embracing a substantive cause of action, but as reflecting a result flowing from the nature of the consultations the plaintiffs alleged were held with them, i.e., consultations about transformation of Tracor with a new entity to be put in its place as opposed to consultations about the closure of Tracor simpliciter. The evidence was therefore admissible.

[92] The aspect of the plaintiffs’ entitlement to place reliance on an alleged failure to negotiate concerning the formulation of government policy must also be decided in their favour. As I understood the plaintiffs’ case it was that the NFA prescribed such negotiation. As already recorded, compliance with the NFA was introduced as a question at issue by the plea of the Premier himself.

[93] The last aspect adverted to by Mr Smuts appears to have been based on a misreading of the pleadings. In fact, as recorded in para [84] (c) above, the Tracor plaintiffs did allege a refusal on the part of the Premier to accede to a demand that the status quo at Tracor be restored. In fact, the Premier did plead thereto by averring (see para [27] (d) and (e) of the earlier judgment) that he was not the plaintiffs’ employer, that he had no power or authority to reinstate the plaintiffs as employees of Tracor and that because Proclamation 10 did not dissolve Tracor (i.e., de iure) no question of the restoration of the status quo arose. The point offered by counsel can therefore not be upheld.

ABSENCE OF CROSS-EXAMINATION OF DEFENCE WITNESSES ON CERTAIN ISSUES

[94] Mr Smuts submitted, correctly, that in my assessment of the evidence adduced by the parties I should be mindful of the rules relating to, and the purpose of, cross-examination, more particularly in respect of the failure on behalf of the plaintiffs to dispute much of the evidence adduced on behalf of the Premier. As was pointed out in President of the RSA and Others v SARFU and Others 1999 (10) BCLR 1059 (CC), paras [61] to [63] at 1089-90 (2000 (1) SA 1 (CC) at 36J-37E), the institution of cross-examination not only constitutes a right, but also imposes obligations, and, as a general rule, it is essential to draw a witness’s attention to aspects of his testimony which are contested, because if a point in dispute is left unchallenged in cross-examination the party calling the witness is entitled to assume that the unchallenged evidence is accepted as correct; the rule is born of, inter alia, considerations of fairness in that a challenge to a witness’s testimony affords him an opportunity to meet same by offering a response thereto and/or calling corroborative evidence.

[95] It was, however, further pointed out in paras [64] and [65] of the judgment that the rule is not an inflexible one and cannot be applied in a mechanical way; due regard must always be had to all the facts and circumstances of each case.

WRONGFULNESS

[96] The applicable legal principles were set out in paras [108] and [109] of the earlier judgment (as amplified in [155] below). The application of those principles to the present matter will be addressed under a number of sub-headings.

(a) GOVERNMENT POLICY

[97] It was admitted at the 5^th pre-trial conference that the Premier, in purporting to dissolve Tracor by Proclamation 10, acted, inter alia, in the furtherance of national and provincial government policy.

[98] Mr Hanekom, appointed in 1994 as the Minister of Agriculture and Land Affairs in the national government, testified on the development of the policy. His evidence was not challenged in any respect and no reason presents itself why the acceptability thereof should be queried. He stated, inter alia, as follows. Policies and policy frameworks were agreed upon between the national and provincial governments at what were styled MINMEC meetings (i.e., meetings between the national minister and the relevant members of the executive councils of the various provinces); challenges associated with the restructuring of agricultural parastatals were not confined to the Eastern Cape; the ideological framework within which policy was developed was premised upon a strong commitment to a defined role of government in providing support to farmers, to create a competitive and sustainable agricultural sector, but without government itself being in the business of farming, and to the extent that it was engaged in farming operations these were to be discontinued; the early foundation of policy development was in the Freedom Charter which stated that land should belong, not to government, but to those who work it (some of these people, previously land rights holders, had effectively been dispossessed of their rights and become farm labour working under the directions of the managements of the schemes); the land reform programme was moving to giving such people real ownership of land and real decision-making powers, and empowering them; the principle relating to the responsible use of funds, found at national level, was not to keep funding the parastatals, which was not in keeping with policy, but to bring their termination to a successful conclusion in a fair way; government-run farms were not to be supported and the challenge was to find the best way to restructure the farms and schemes so that the people themselves could become farmers, with government giving appropriate support. (It may be mentioned here that Mr Hanekom added that pursuant to the NFA organized labour and other stakeholders were involved in consultations on the restructuring process).

[99] Complementary evidence was given by Dr Dolny, an advisor to Mr Hanekom, and Mr Gebeda. In short, their evidence, read together, confirmed that, for the reasons stated by Mr Hanekom, government policy was that it should withdraw from farming and promote local farmers and the solution had to be found on a no-subsidy basis; the system of a State bureaucracy engaged in advisory services, was unsustainable, the parastatals being a financial burden on the State, and the options were that workers become entrepreneurs themselves or take retrenchment packages and begin other careers. Their evidence, too, was not challenged and it commends itself for acceptance. Further elucidation of the details of government policy and how it was sought to implement same will appear from the comments made below under the sub-heading of the consultative process.

[100] As will also appear more fully from those comments, government policy was made known to Tracor and QIS employees. At this stage I would instance certain evidence from the camp of the plaintiffs on that score. The fourth plaintiff (Tracor’s corporate secretary) stated, inter alia, the following. It was evident from the time when Transkei and Ciskei were politically and administratively reunited with the rest of South Africa that restructuring and rationalization of the agricultural corporations in general and Tracor in particular was inevitable and that the government of the Eastern Cape was investigating same; a commission of inquiry into the activities and future of the agricultural and related projects was appointed under the chairmanship of Mr Msizi; its recommendations (as to which, see below) were properly taken into account by the government in determining whether the continued existence of the agricultural institutions was justifiable. The first plaintiff acknowledged that as early as the 1994/95 financial year there was a change in government policy relating to subsidies for Tracor. Both witnesses said that discussions took place between Tracor management and the provincial government about transforming the agricultural corporations and putting them into the hands of farmers, and leaving a support role for government (although the first plaintiff added the qualification that the work force at the corporations was not going to disappear; there would be a reduction in the size thereof). The first and third plaintiffs (the latter also being the president of SAAPAWU) said that discussions took place in a consultation process during which the government indicated the nature of its policies – that it wished to withdraw from farming. The fourth plaintiff confirmed that the government gave notice of its intention to withdraw from the parastatals and the first plaintiff confirmed that as early as 1995 the government went in the direction of ending the dependence of the parastatals on government funding; and the second plaintiff stated that it was made clear to Tracor representatives that the provincial government was no longer able and prepared to finance the annual subsidies to the parastatals for their operation.

[101] The dictum in Premier of Mpumulanga v Executive Committee of State-Aided Schools 1999 (1) BCLR 151 (CC) para [41] at 167A-B may appositely be repeated here:

“In determining what constitutes procedural fairness in a given case, a court should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively (a principle well recognized in our common law and that of other countries). As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the executive to act efficiently and promptly.”

In this regard I would make the comment that I do not view the provision in clause 5.3 of the NFA, that “[o]rganised labour in general and employees of the relevant public enterprises should participate in policy formulation processes”, as removing the making of policy from the province of government’s sole prerogative, but as providing that government, in its formulation of policy, including the implementation thereof, was required to seek, take into account and consider the views of organized labour and the relevant public enterprises. Contrary to the argument presented by Mr Dukada when the application for absolution was argued (see para [122] of the earlier judgment) counsel’s final argument accepted the correctness of this view. As will appear elsewhere in this judgment, that requirement was sufficiently complied with.

(b) THE POSITION PREVAILING AT TRACOR PRIOR TO PROCLAMATION 10

[102] The uncontested evidence of Mr Msizi (who, in his capacity as Strategic Manager for Agriculture, Eastern Cape, was a member and chairman of a Ministerial commission of inquiry into the activities and future of agricultural parastatals and related projects in the Eastern Cape Province, the report of which was dated February 1995 – see exh D1 63 et seq.), read with that of Mr Hanekom, Dr Dolny, Mr Catling (the latter two having both been members of task teams appointed to investigate and make recommendations anent the future of the Eastern Cape agricultural parastatals) and Mr Gebeda, revealed the following:

(a) During the financial year 1994/95 funding for the agricultural parastatals began to dry up and representations were made to the national government for the funding of these structures;

(b) At Tracor, inter alia, the organograms showed clear signs of “overstaffing”; the administrative component of staff was excessive in relation to the productive components of the corporation; in addition, salaries paid to the management staff were excessive in relation to comparable institutions in that part of the province that had throughout remained part of the Republic; at Tracor there was a lack of professional staff;

(c) Much of the money, which was a drain on the provincial treasury, was going in payment of the salaries of unproductive personnel with an ineffectual style of management not able to transform projects into profit-making ventures;

(d) The high wage and salary bill was one of the main reasons for the diminished viability of the corporations and the agricultural schemes;

(e) Tracor’s management of the QIS reflected a very poor level of management, with resultant below average production levels;

(f) The agricultural corporations and the schemes under them never achieved their intended objectives; although the purpose of the agricultural parastatals was, inter alia, to establish a cadre of entrepreneurial or would-be entrepreneurial farmers, the parastatals were failures and had the effect of disempowering farmers and turning them into labourers on the land to which they had access;

(g) Tracor’s de facto role was to create a need for a service and use that as a basis on which to justify the receipt of State funds; the parastatals, especially at management level, were perceived as being parasites;

(h) The parastatals, including Tracor, had run up a substantial accumulated deficit to the State, and the ongoing expenditure and wage bill coupled with low productivity resulted in a continuously accumulating debt;

(i) In November 1996 it became necessary to place a moratorium (exh D2 398) on the sale of parastatal assets as staff at the parastatals were aware of their imminent closure and they had begun to dispose of assets in an unstructured and irregular manner;

(j) As from the financial year beginning April 1997 there was no provision in the budget of the Eastern Cape government for the operation of the parastatals and emergency demands for funds from Treasury in Pretoria had to be made to meet the wage bill of several million Rand per month.

To the above may be added Dr Dolny’s evidence that the parastatals in the province constituted a drain on the provincial fiscus to the tune of R8 million per month.

[103] Certain of the plaintiffs were taxed with the features referred to above. Their response was that they were unaware thereof, or at least of some of the features. As already recorded, however, the evidence in question was uncontested and there is no reason why the acceptability thereof requires to be questioned.

(c) THE CONSULTATIVE PROCESS

[104] The question to be addressed under this heading is whether the Premier’s decision to issue Proclamation 10 and thereby dissolve Tracor and the QIS was wrongful for want of proper and adequate compliance with the audi rule in the form of consultations with, and affording a hearing to, the plaintiffs.

[105] At the outset reference should be had to the nature of the management governance in operation at Tracor and the fact that a substantial number of the workforce were members of SAAPAWU, as same has a bearing on the sufficiency of the consultations government undertook and the hearing it gave to the employees. In short, the evidence given by the first plaintiff, and confirmed by the second and fourth plaintiffs, was that Tracor had a participatory style of management involving both management and workers (including QIS employees) in an extended executive committee, with the latter reporting to the former and obtaining their feedback on matters affecting them, and where applicable, conveying same to government representatives; these representatives were therefore entitled to accept that they were communicating with the broad based representatives of management and labour at Tracor.

Similarly, on the evidence of the fifth plaintiff, who was a member of SAAPAWU, those who dealt with the union (which, incidentally, the fourth plaintiff said, had members sitting on the executive committee) could accept that when it heard and spoke it did so on behalf of its members.

[106] It would be convenient first to set out salient aspects of the defence evidence, which, save as will be indicated below, was not challenged on behalf of the plaintiffs.

[107] Mr Msizi, at present a Director of Administration in the Department, was appointed as Strategic Manager of the Department on 25 May 1994. His duties entailed the overall management of the administration of the Department’s affairs. He testified that it was pursuant to a meeting held between representatives of the national and Eastern Cape provincial governments on 10 November 1994 (called by the national government following on representations received from parastatal heads) that the commission of inquiry referred to in para [102] above was appointed. The terms of reference of the commission were as follows:

“1. To investigate and report on the existing structure of the parastatals and government schemes, with special reference to the efficacy of:

(i) management;

(ii) funding;

(iii) financial discipline;

(iv) economic viability; and

(v) services rendered.

2. To make recommendations on the future of the parastatals and government schemes, including comments on restructuring, financial orientation and possible dissolution.

The report of the commission will be presented to both the Provincial and the Central Government.”

Tracor and the QIS were amongst the parastatals to be the subject of the investigations. The approach of the commission was not to rely only on existing documentation but also to conduct in-depth interviews with various role players and obtain information direct from them and to secure as much documentation as possible prepared by the managements of the corporations and schemes on their own perceptions of themselves and their activities. For the sake of objectivity and transparency all structures considered to be interested parties were met and given an opportunity to interact with the commission, in meetings of a public nature. In addition, for fear of victimization some persons would submit information outside the meetings. At the corporations, including Tracor, the following categories of persons were interviewed: workers (with participation by and involvement of their union); various categories of unskilled, semi-skilled and skilled staff; middle management; senior management; boards of directors. At the schemes, including the QIS, the categories were: field labourers; other unskilled and semi-skilled workers (with an auxiliary or support function at the schemes); scheme administrative staff and management; staff seconded from the parastatal corporations; scheme management boards; and local community organizations. Amongst the matters with which the commission concerned itself were the features referred to in para [102] above. In making recommendations the commission was mindful of a number of “guiding principles” conveyed to it by the MEC. These reflected the nature of government policy as set out earlier. As a preface to its recommendations the report of the commission, pointing to the problems that beset the parastatals, commented that there was a real need for the government to review the principles under which the parastatals were operating with a view to determining whether the continued existence of the institutions was justifiable and, if justifiable, establishing a policy framework for their constitution, and to considering alternatives to the dismantling, continuation or modification thereof. The various options open to government, as listed in the report, may be summarized as follows: (a) allowing the parastatals to continue with their present or modified structures, or dismantling all parastatals; (b) a selective dismantling of parastatals, the retention of portions thereof, absorbing them wholesale into a new provincial department or absorbing such components and staff as could support the activities of the department; (c) privatization of the parastatals. The commission’s views on the various options were set out. The report was presented to both national and provincial government.

Mr Msizi added that pursuant to the eventual closure of the schemes together with the parastatals an entity, styled the Restructuring Authority, was appointed to facilitate the hand-over of the schemes to the communities adjacent thereto, and that in fact took place.

There was no cross-examination of Mr Msizi.

[108] Mr Gebeda testified, inter alia, as follows. By the time he assumed the post of Permanent Secretary of the Department in May 1996, the national Minister of Agriculture had already instituted a programme styled “Broadening Access to Agricultural Thrust” (“BATAT”), the aim of which was the facilitation throughout the whole country of the implementation of government policy, as set out earlier. To that end negotiations involving the parastatals were actively in progress. He became a member of the provincial steering committee of BATAT. On 29 May 1996 a meeting, under his chairmanship, was held with representatives of the parastatals for the purpose of taking the restructuring process forward, the objective being to ensure that the process of taking government out of farming was done collectively and in consultation with the affected corporations. A workshop at the Bisho showgrounds on the rationalization of the agricultural parastatals was held on 30-31 July 1996. The purpose, as spelt out in the invitation to attend the workshop (exh D1 284-5), was the discussion of the practical implementation of government policy, the objectives being to secure specific and tangible recommendations as to how and when government (and its parastatals) should withdraw from each farming operation and concrete recommendations as to how, when and who should be introduced as farmers, and suggestions as to whether or not the Eastern Cape should have a single parastatal corporation as one of its divisions or an agricultural corporation as a stand alone entity. (At that stage the provincial government had not committed itself to a choice between one or other of these lastmentioned options). Invitees to the workshop included the managements of the three parastatals and, as representatives of the employees, their unions (in the case of Tracor, SAAPAWU). The invitees were requested to come up with alternative proposals, if any, which could be discussed and thereafter considered by government. In fact, no representations were made at the workshop on the matters on the agenda; instead, the meeting was overtaken by the registering of a complaint by SAAPAWU that a labour crisis had arisen consequent upon the non-payment of the wages of many workers, a fall-out of the lack of funds. However, a memorandum, titled “Tracor’s Position Paper On Future”, penned by the second plaintiff, the acting managing director of Tracor, written in response to the invitation to attend the workshop, and which, in recognition of the constraints on government funding, contained proposals on restructuring, was received by the Department on 30 July 1996 (exh D2 382-385). A further workshop was arranged for 20-21 August 1996 by the MEC for further consultations on the process; the parastatals and unions were represented; SAAPAWU again focused on the non-payment of salaries; the position of government on rationalization was, however, reiterated; the response was that the parastatals would go back to form alternative proposals to be conveyed to government on restructuring and rationalization.

[109] The evidence of Mr Gebeda and Dr Dolny, read together, dealt with the following aspects. In compliance with the spirit of the NFA, task teams, with a mixture of skills, were set up to visit each parastatal and scheme in a consultative process. The task teams, with defined terms of reference, visited the parastatals and schemes and explained the terms of reference to interested parties, specifically that closure of the parastatals was part of the process to be followed, and gave the recipients the opportunity to come up with proposals. The proposal to close head offices (parastatals) and schemes was openly discussed. At a meeting between the task team and Tracor management on 6 November 1996 the objective of termination of the employment of Tracor employees came out very clearly. At the invitation of Mr Gebeda Tracor management responded to the information supplied by submitting formulated proposals, which were contained in a letter (exh D2 366-7) compiled immediately after the meeting and submitted to the MEC on 13 November 1996. It was signed by the second plaintiff and Mr Amissah-Opong, Tracor’s senior agronomist. It adverted to government’s stated objective of terminating the employment of Tracor employees, which it described as a “disastrous route” and it motivated the opposition to the adoption of that course. The letter ended as follows:

“We are more grateful that the Permanent Secretary, Agriculture and Land Affairs of our Province has opened his arms for individual proposals and views on the transformation process of agricultural parastatals and irrigation schemes. We therefore submit the attached proposals…….”

Annexed were some eleven pages of proposals concerning, inter alia, the reconstructuring and rationalization of the parastatals and the schemes into a single agricultural authority to be formed and styled “The Eastern Cape Agricultural Development Authority”. The proposals were considered by the Department and government. At further meetings between Tracor and the task team the former was again advised that Tracor was to be closed and a tentative closure date of 30 November 1996 was mooted. Management was asked for, and in due course made available, personnel and financial data for the computation of severances packages. Visits by the NFA core teams to the parastatals and projects in January 1997 (referred to below) were made to meet the trade union request that the recommendations by the November 1996 task teams be shared with stakeholders.

[110] Dr Dolny’s further testimony was as follows. The reports of the individual task teams which had visited the parastatals and schemes were combined into the Final Report dated 20 November 1996 (exh D2 476 et seq.), which was accepted for consideration by the Department. The recommendations in respect of Tracor included the following:

“On the basis that Ulimocor and Tracor Head Offices are the headquarters of the schemes and projects, and that these schemes and projects are dealt with as separate entities, the future existence of the Head Offices will therefore no longer be relevant.

It is therefore recommended that:

1. Tracor and Ulimocor Head Offices be rationalized by winding up their activities, and all their officials be awarded severance packages.

2. Selected officials be contracted for a short period of time to retain the necessary expertise and to provide for a degree of continuity as regards the schemes and projects that were under the control of these parastatals.

……………….

4. A management firm be appointed immediately to handle the retrenchment process and to calculate severance packages of employees concerned.

5. The date of retrenchment be 31 January 1997, providing adequate time to serve notice to employees and to assure continuity.

……….”

In respect of the QIS the recommendations, in addition to dealing with the assets of the scheme, embraced the following:

“Scheme staff and workers should be reduced from 160 to 71 during a six month transition period, and finally to 25 in July 1997.”

The tables annexed to the report set out the financial implications of the proposed closure of the parastatals and schemes and were derived from information sought and obtained from financial managers and managing directors of the entitites involved, including Tracor. Although the entire task team process was started with the trade unions participating, hindsight indicated that it might have been wiser to record the trade union involvement in the process in the Final Report, including trade union signatories, and accordingly it was felt that another round of consultations with formalised trade union participation was required.

[111] Such further consultations were in fact held. Mr Catling, a member of the core team, testified that on 12 December 1996 he met with trade union officials in Umtata (who registered the complaint that they had not been properly consulted by government) and he shared with them information regarding the task team recommendations, including the modus operandi of the task teams and their major findings in respect of the various schemes. He further advised them of the formation of a core team for the next phase of the process which was to start in January 1997. His report of the meeting (exh D2 515 et seq.) was sent to the trade unions, government and the task team.

[112] There followed report back meetings with Tracor and the QIS. The evidence bearing thereon was given by Dr Dolny and Messrs Gebeda, Catling, Pityi (at the time a senior planning officer in the Department, and at present a Chief Director: Agriculture and Road Development), Memka (referred to in para [46] above) and Putu (during 1996 and 1997 a finance manager in the Department). That evidence reflected the following. In January 1997 an NFA core team with trade union participation was set up to continue the consultation process, during which the recommendations of the task team as contained in the Final Report were conveyed to the stakeholders, and there was no suppression of the findings and recommendations of the task teams. This was done during the report back meetings, to give effect to the trade union request that the recommendations of the November task teams be shared with the stakeholders. At the QIS meeting on 16 January 1997 (a contemporaneous note of which was taken by Mr Catling – exh H 348 et seq.) the core team informed the stakeholders, which included management of the scheme, workers, farmers, chiefs and shop stewards, inter alia, of the intention of government to close down the scheme, that notice of termination of the employment of the employees would be given in January with February being the last month of work, that severance packages were to be paid to workers, and that they would be “workshopped” on the options for the stakeholders in respect of the formation of legal entities to which the projects and assets could be transferred. Thirty copies of the task team report were distributed to the stakeholders. At the Tracor meeting on 24 January 1997 (of which Mr Catling also kept a contemporaneous note – exh H 354 et seq.) the task team conveyed the message that government was no longer going to fund the projects and the schemes, and that, inter alia, its intention was that Tracor would be closed, notice would be served on the employees, their employment contracts with Tracor would be terminated, they would receive their salaries for February 1997, and severance packages would be forthcoming. Present at the meeting were some ninety people who included members of senior management (of which the second plaintiff was one), SAAPAWU representatives and a large number of workers. (For the sake of completeness it may be recorded that the content of the report back at both meetings followed the scheme set out in a schedule, exh H 362). At both report back meetings it was made known to those who attended that they could make representations to government in respect of its intention to close the parastatals and/or the manner in which that intention was to be implemented. Opportunity was given to stakeholders to respond to or query the recommendations and there were discussions both within and after the meetings. Those who attended the meetings could not have been in any doubt that it was government’s intention to close the parastatals and the schemes, although there was uncertainty as to the timetable.

[113] In consequence of what the second plaintiff had learnt from the process detailed above, so Mr Gebeda testified, the former addressed a letter dated 23 April 1997 to him (exh D2 669), which read as follows:

“RE: REQUEST FOR DIRECTION ON FACTORS RELATED TO PACKAGES & TERMINATION

Notwithstanding any other developments and negotiations in progress, Tracor Management requests your high office to help supply written information on the following: -

(a) Specifics on packages

(b) Actual date of termination

(c) Government arrangements for the period immediately after the termination (concerning the structures and assets in our custody)

(d) Whether or not the department has any intention to engage the Corporation on the process so as to be able to make reasonable briefings to the staff in general for on going changes.

We hope that we can give more flesh on these issues at the meeting scheduled for 12h30 on 23 April 1997.”

[114] Three further aspects may be mentioned.

(a) Mr Gebeda testified that after the issue of Proclamation 4 on 2 May 1997, in which, as appears from para [5] of the earlier judgment, the provincial government’s resolution to close the parastatals (including Tracor and the QIS) was made known, representations were made to the Premier by political groupings seeking to intervene in the way in which the restructuring process was going; the Premier established a further task team to receive their representations, which was a further step in the consultation process. (It is to be noted, however, that despite the second plaintiff’s letter of 17 May 1997, addressed to Mr Gebeda, which registered the complaint that Tracor management had been excluded from the task team and requested representation thereon, such representation was not afforded);

(b) Dr Dolny stated that notwithstanding that there was considerable pressure to ensure closure of the parastatals before the end of the financial year ending March 1997, that did not happen for the reason that the government was honouring the consultation process;

(c) Mr Hanekom said that after what he stamped as the substantial process of consultation with trade unions and stakeholders the matter was ultimately tabled at the NFA nationally.

[115] Evidence which went in amplification of that detailed above and which emerged from the plaintiffs’ case was the following. (The names of the plaintiffs whose evidence, where applicable read together, covered the aspects recorded below, are reflected in brackets).

(a) It was common knowledge that, from the highest level of government, there was deep concern about the financial requirements of the parastatals, and the drain they constituted upon the Treasury (second plaintiff); it was well known to all at Tracor, including members of SAAPAWU, that restructuring and rationalization were required as certain of the parastatals had been inefficiently run and were a drain on the fiscus, and furthermore that their inclusion in a broader provincial and national structure required their rationalization to fit into line with existing structures within the provinces (third plaintiff); it was plain to all at Tracor, management, organised labour and staff who fell outside organised labour, that final decisions in respect of restructuring would be taken at executive council level, but that there would be an exchange of views between government and stakeholders, with proposals and counter proposals being exchanged during the process (third and fourth plaintiffs); consultations concerning policies took place (first and fourth plaintiffs);

(b) Within Tracor, initially, the executive committee, at which workers were also represented, would discuss matters of restructuring and present matters to the board, but in due course an internal restructuring committee was established for the purpose of formulating proposals to be submitted to government; as early as February 1996 a workshop of the restructuring committee considered a report (exh D1 258 et seq.) submitted to Tracor’s board, which had been drafted by, inter alia, the fourth plaintiff in response to a request by the MEC that Tracor look at restructuring; its content was along the lines of exh D2 626, referred to in (h) below (fourth plaintiff);

(c) Tracor’s executive committee was advised by July 1996 that funding arrangements did not allow the parastatals to continue in their existing form (first plaintiff); for the purposes of the workshop on 30 and 31 July 1996 the provincial government sought input from, inter alia, Tracor and SAAPAWU about how and when government and the parastatals should withdraw from farming operations and introduce farmers (first, third and fourth plaintiffs) (according to the fourth plaintiff he in fact gave a presentation at the workshop); at a further workshop on 23 August 1996 government sought to engage organised labour on the same issues (first and third plaintiffs); it was communicated to Tracor during the latter part of 1996 that government was contemplating the termination of the employment of Tracor’s employees within that year (fourth plaintiff); by the end of 1996 the employees of Tracor could have been in no doubt that it was government’s intention that their employment relationship with Tracor should come to an end; government had intimated to Tracor and its board that its official position was an intention to withdraw from the parastatals by the end of the fiscal year (fourth plaintiff);

(d) There was a process of consultation about how government policy should be translated into action, and the parastatals be restructured so as to fit government policy (first plaintiff); discussions took place in the course of a process in which representatives of government communicated to representatives of Tracor the desire of government to withdraw from the funding of agriculture, and during which Tracor and SAAPAWU representatives were requested to come up with whatever proposals they could muster (first and third plaintiffs); in the course of the process the provincial government sought from Tracor representations as to how the former’s policy regarding funding of agriculture should be implemented and an opportunity was afforded to Tracor to make such representations (first plaintiff); the executive committee of Tracor was presented with reports about the approach of government during the years 1995, 1996 and 1997 (first plaintiff); the Dolny task team discussed and communicated issues that came from government in a process of consultation (second plaintiff); Tracor was invited (see the letter of the MEC of 11 February 1997, referred to in (g) below) to respond to the recommendations in the Final Report of the Dolny task team (first plaintiff) (although the first plaintiff purported to dispute that what Tracor was being afforded an opportunity to respond to was proposals involving the termination of employment; they involved rather what he referred to as “transformation”);

(e) SAAPAWU was involved in the discussions with the government because of an acknowledgment of the necessity to replace the old order from the apartheid homelands with a new order which combined the elements of efficiency, empowerment, development and rationalization; Dr Dolny was introduced to SAAPAWU representatives in December 1996 as a special adviser to the Minister of Agriculture, and the person who would be overseeing the rationalization process nationally, with the formation of task teams to commence the process as envisaged by the NFA; SAAPAWU was briefed by a representative of the Dolny task team on the process of rationalization; various meetings and workshops were held between government representatives and SAAPAWU representatives and the latter committed themselves to the process, which was seen as being in line with the NFA; the financial crisis of the parastatals was conveyed to SAAPAWU (third plaintiff) (see exh D2 583, a letter dated 9 January 1997 in which Dr Dolny set out the details);

(f) The process of restructuring held within it the prospect of retrenchment, the establishment of something new with some employees being rendered redundant by the process while others might be taken on by the new agency or redeployed (first and third plaintiffs); in Tracor’s response to the approach of government there was a requirement that due attention be given to severance packages for those whose jobs might be lost in the restructuring process (first plaintiff); the discussions during 1996 and 1997 envisaged a process during which Tracor would cease to exist (first plaintiff) (although the first plaintiff added the rider that closure in the literal sense and loss of employment was not envisaged and the third and fourth plaintiffs stated that something else, a new dispensation, would take Tracor’s place after its closure); in the course of the discussions, there emerged a transformation model which would involve a pause in the process of the administration of agricultural development, followed by a realignment and a new course (first and second plaintiffs); the process of restructuring and transforming the parastatals was understood to consist of four overlapping phases, the first of which involved the closure of the parastatals; closure of Tracor was envisaged by government, by labour and by Tracor management as the first phase of the transformation process (first, third and fourth plaintiffs); such closure would inevitably terminate the employer/employee relationship between Tracor and its employees (second plaintiff); closure of Tracor was discussed as an option in the process of transformation (first, second and third plaintiffs); by November 1996 it was clear that the process of rationalization necessarily involved the closure of the existing agricultural corporations in their then form (third plaintiff); everybody knew that Tracor would cease to exist in the process of transformation (first and second plaintiffs); closure of Tracor had always been anticipated (fourth and tenth plaintiffs); input was sought from Tracor in respect of the proposed closure as part of the process (second plaintiff); one of the consequences of such closure was contemplated and understood to be the termination of the employer/employee relationship between Tracor and its employees (second plaintiff);

(g) At a meeting of the board of Tracor held on 17 December 1996 a proposal from government that the employment of all personnel on the Tracor payroll be terminated by 30 November 1996, whereafter a skeleton staff would be appointed to safeguard assets, was considered, but viewed as impractical and unrealistic (first plaintiff); the information conveyed at the meeting was also received by SAAPAWU (third plaintiff); in terms of information conveyed by the MEC at the meeting, it was apparent that State funding for the parastatals would cease on 31 March 1997 (first plaintiff); it was also conveyed that government wished to withdraw from the parastatals by 31 March 1997 (fourth plaintiff); that that was the government’s official position was also conveyed to SAAPAWU (third plaintiff); in January 1997 it was apparent that at national government level the situation of the parastatals was regarded as being critical (second plaintiff); on 24 January 1997 the Dolny task team, in reporting back to Tracor, conveyed the probability that notices of termination of employment would be served by the end of January 1997 and severance packages paid by the end of February 1997; at the same meeting it was announced that provision had been made for retrenchment packages for Tracor employees; it was therefore clear that Tracor would cease to exist and no longer be the employer of the workers and management of Tracor; the task team representative explained the need for the closure of Tracor (third plaintiff); on 20 January 1997 the MEC addressed a letter (exh G 248) to the chairpersons of the board of Tracor and one of the other agricultural parastatals in which he stated that, because the government was embarking on a process of rationalization of the parastatals, the addressees were requested to give one month’s notice of “separation” to their employees so that the month of February would serve as a notice month, such notice to be issued in accordance with the LRA (the letter was subsequently withdrawn on 11 February 1997 as having been “inadvertent and premature” - see exh G 250-251 and exh D2 642-643, a letter by the MEC to Tracor’s board, which went on to invite input on the process of rationalization and request written comment on the report of the task team (second and fourth plaintiffs));

(h) The executive committee at Tracor, including elements of management and the work force, responded to the information that government was looking at transformation and restructuring; consensus was reached that the existing state of affairs prevailing at the parastatals could not continue (first, third and fourth plaintiffs); during February 1996 (see the report referred to in (b) above) Tracor proposed a merger of Tracor and Ulimocor (an agricultural parastatal in Ciskei) in a proposal put to the MEC’s task group on corporate rationalization (first plaintiff); during the consultations, the sale of the corporations to the private sector, alternatively, retaining the corporations but reducing the number of employees, was discussed; Tracor management forwarded to the Department a proposal to privatise and/or buy out the corporation, which was considered by the Premier before the issue of Proclamation 10 (first plaintiff); in response to an intimation by government that Tracor needed to embark on restructuring the fourth plaintiff prepared reports for distribution internally as well as documentation for presentation at forums; one such report, addressed to the executive committee, and dated 26 February 1997 (exh D2 626 et seq.) (one of the number of attempts within Tracor to come up with a response to government in respect of the latter’s approach to restructuring), consisted of nine pages and set out a variety of proposals for the reorganization of Tracor involving, e.g., its replacement by a new organization, steps for the advancement of commercial farmers, substantial reductions in staff complements with severance payments to personnel not accommodated in the new order, alternatively to all staff in the event of the new employer not being government, as well as reasons why commercialization of Tracor, on which there were divergent views, would not find favour notwithstanding acceptance of the principle that to farm with taxpayers’ money was taboo; this report was preceded by a memorandum to the board, dated 24 February 1997 (exh D2 618 et seq.), the contents of which were of a similar ilk (second and fourth plaintiffs); the report in question evisaged the introduction of a new organisation, and not the continuation of Tracor; it further envisaged as a possibility the retrenchment of every Tracor employee, and a situation in which a new parastatal might not be created (fourth plaintiff); in the letter dated 23 April 1997 addressed by the second plaintiff to the Department, referred to in para [113] above, the former adverted to the imminent closure of Tracor, of which he was aware as a result of the consultations that had taken place between Tracor and the representatives of government (second plaintiff); as at the said date it was expected that Tracor would close down and that the contracts of employment would cease upon closure (fourth plaintiff);

(i) Although there was mention of the establishment of a new agency, there was no discussion on any commitment by the provincial government to the establishment of such an institution, nor to the employment of existing employees in such an institution; the creation of a new agency which might employ some of the employees at Tracor was, at best, an expectation amongst Tracor employees (fourth plaintiff); government never ruled out the question of funding a new agency (first plaintiff);

(j) It was clear from the terms of the Schedule to Proclamation 4 of 2 May 1997 (see para [5] of the earlier judgment) that it was the intention of the provincial government to close Tracor and everyone realised that the effect thereof would be the termination of the employer/employee relationship between Tracor and its employees (second and fourth plaintiffs); the government sought to include the trade union movement in the rationalisation process, and invited the movement to nominate a representative to serve on the new board (third plaintiff); at a meeting with the new board on 22 May 1997 the government’s decision to close Tracor (and the other parastatals) and the closure thereof, set for 31 May 1997, which would lead to permanent loss of employment by Tracor employees, was discussed (third and fourth plaintiffs); after the new board issued a notice to employees of Tracor on 30 June 1997 (exh D2 758), it became clear to every employee of the agricultural corporations in the province that the corporations would be closed on 31 July 1997 (fourth plaintiff);

(k) At a “bosberaad” held at East London on 21-22 June 1997 representatives of management and workers of Tracor were afforded an opportunity to participate in, and make input on, the restructuring process (third plaintiff);

(l) The government decision on the future of the parastatals was made after it had invited submissions from stakeholders and engaged with Tracor (fourth plaintiff); Proclamation 10 was issued after a lengthy period during which there were negotiations about transformation, in which closure of Tracor was an option as the first phase of the transformation process (first and second plaintiffs); there was an extensive process of consultation and negotiation on the part of government representatives with Tracor over the issue of rationalisation and restructuring of the agricultural parastatals and irrigation schemes (tenth plaintiff).

[116] Mr Smuts also placed reliance on the pertinent statement by Mr Dukada during cross-examination of Dr Dolny that “the plaintiffs in these proceedings admit that they were consulted about the rationalization and restructuring, and loss of employment was envisaged” (which was, however, followed by the proposition “but they were never consulted about the actual date of closure and who would lose employment”).

[117] In addition to the evidence detailed above counsel for the Premier further relied on the admissions made on behalf of the plaintiffs at the fifth pre-trial conference, that the Premier, when he issued Proclamation 10 on 10 July 1997 acted, inter alia,

(a) after considering the proposals of Tracor’s management to privatise and/or “buy out” the corporation;

(b) after considering the transfer of usable assets to workers and other roleplayers.

[118] Mr Dukada, however, placed reliance on other evidence given by the plaintiffs. All the plaintiffs gave evidence to the effect that they were never consulted by the Premier about closure of Tracor and the termination of their contracts of employment. Counsel sought to place emphasis on the evidence of the first to fourth and tenth plaintiffs. In doing so counsel no doubt recognized, correctly, that by virtue of the nature of the management governance in operation at Tracor (see para [105] above) and the senior positions in management there and the QIS held by the first, second, fourth and tenth plaintiffs and the senior position in SAAPAWU held by the third plaintiff, consultations in which these plaintiffs were involved, directly or indirectly, would properly be deemed to be consultations with the entire work force. As counsel put it, a finding based on the evidence of the five plaintiffs referred to would inevitably apply to the other plaintiffs as well, as their causes of action were identical. As will be detailed in the paragraphs that follow, the essence of the evidence invoked by counsel was to the effect that during discussions with representatives of government those plaintiffs were advised about what they referred to as the restructuring or transformation of the agricultural corporations; they were never apprised about permanent closure thereof and the termination of their employment contracts with Tracor.

[119] The first plaintiff testified as follows. Tracor employees were not consulted about the closure of Tracor or the reasons therefor; the proposals sought from employees were about restructuring, not closure. Proclamation 10 was “parachuted” onto the employees; prior thereto there was no inkling of government’s stance that it was no longer prepared to fund the parastatals, and the dissolution of Tracor and the termination of the employees’ contracts of employment had not been on the table. Although it was contemplated, with the change envisaged, that there would be a reduction in the workforce, the change would not “wipe off the faces of the corporations”, i.e., the employee component. According to government representatives the formation of a new entity was envisaged; “closure” was not closure in the literal sense; while there would be a pause prior to the establishment of the new entity, its formation would result in a new employment relationship for those employees employed by the new entity, redundant employees to be redeployed elsewhere; any talk of retrenchment pertained to these latter employees. It was because of the above that Mr Gebeda had requested him, the witness, as personnel manager, to furnish a profile of the employees of the corporation (including details of salaries, qualifications and length of service), a profile which would be of no use if closure in the literal sense was to occur. He was surprised at the contents of Proclamation 4 which, instead of transformation, restructuring and amalgamation, spoke of closure, which was not what government officials had been saying to employees. While the executive committee did resolve at its meeting of 9 January 1997 (exh D2 526) that “in view of the pending termination” salary deductions in respect of study loans would cease and earlier deductions refunded, the word “termination” did not refer to the dismissal of employees, but to the emergence of a new institution. The same applied to the use of the same word in a memorandum by the second plaintiff to Tracor’s board (exh D2 571), tabled at the latter’s meeting No 1/1997, explaining the postponement of an audit committee meeting that had been scheduled for 5 December 1996. Similarly, the recording in the minutes of a joint meeting of the management of Tracor and Magwa Tea Corporation (“Magwa”) held on 15 May 1997 (exh D2 683–684), at which the witness was present, that legal advice was to be sought on, inter alia, the alleged lack of fairness of the termination of employment, which was to take place on 31 May 1997 as recorded in Proclamation 4, was a reference to a termination that was in accordance with the understanding that had prevailed until then; that termination simpliciter was government’s intention was not clear. On 19 May 1997 the witness, together with other employees of Tracor and Magwa, instructed attorneys Ntsebeza Incorporated to address a letter (exh G 98 et seq.) to the Department seeking information about the closure referred to in Proclamation 4 and the reasons therefor. The letter also registered objection to the course envisaged, the payment of severance packages instead of benefits in terms of the employees’ conditions of service. On 4 July 1997 the attorneys addressed a second letter (exh G 112 et seq.) to the Department seeking the same information. Apart from what was in substance an acknowledgment of receipt of the first letter (together with an intimation that a reply could not be formulated as the Executive Council would, at its next meeting, consider a request by the board for an extension of its terms of reference beyond 31 May 1997) there was no response to these communications. On 22 May 1997 when Mr Dondashe, the chairman of the new board, paid a visit to Tracor, he mentioned that closure of Tracor was not on the cards. While there had been consensus that the parastatals should be restructured, the manner of how this was to be achieved was to be negotiated; there was no agreement on the time frame or a proclamation dissolving the corporation.

[120] The evidence of the second plaintiff was of a similar ilk. The parastatals were going to be restructured. Tracor and Ulimocor would cease to exist. There was to be a new entity beyond 31 July 1997, a lean and efficient organ - without loss of jobs; redundant employees would be redeployed by government. There was not going to be a permanent closure but a pause after Tracor and the other parastatals had been dissolved so that a new entity could be established, such pause being part of the process of rationalization. There was a possibility of some of the employees being retrenched; some would be redeployed in other government structures and others would be retrenched. In all the discussions with government officials there was mention of transformation, restructuring and rationalization; closure (i.e., simpliciter) and the reasons therefor were never communicated to the employees and there was no consultation thereon. The workshop at the Bisho showgrounds on 30 - 31 July 1996 (referred to in para [108] above) was about transformation, not closure. Mr Gebeda never conveyed to the employees that Tracor would be closed and their employment terminated; he in fact denied, when asked on several occasions, that he was referring to permanent closure. He, the witness, wrote the letter of 23 April 1997 (referred to in paras [113] and [115] (h) above) to enquire about the temporary pause, the nature of the new structure and which persons would be engaged therein. At the meeting with the new board under the chairmanship of Mr Dondashe, closure was never mentioned; on the contrary, it was stated that closure was not within its mandate, but speeding up the process of rationalization was. It became clear with the issue of Proclamation 10 that government’s negotiations about rationalization had been “unfaithful and dishonest”.

[121] The third plaintiff stated that what was said at the meeting of 12 December 1996 (referred to in para [111] above), was that loss of jobs would be based on the fact that the parastatals would be restructured and rationalized, not that they would be closed down; that some people would be retrenched and not be engaged in the new agricultural parastatal but other Tracor employees would be re-employed by the new agency; only restructuring was mentioned, not closing down. He himself was guaranteed employment in the new agency, such guarantee emanating from Messrs Gebeda and Pityi, because he was in extension services and such services were required in the new agency. Similarly, employees in the data processing and human resources units and those in the irrrigation fields (not those working on the schemes) were also guaranteed employment. Those retrenched would not be “thrown out”, but would receive training to qualify them to join other entities such as co-operatives. It was not clear who was to be retrenched and consultations would be held on which divisions were to be retained and which were not going to be needed. Closure was to be in the form of restructuring, not closing down with nothing happening thereafter. The “closure” referred to in Proclamation 4 was to be interpreted in the same manner; the reference to the payment of severance packages in the proclamation envisaged that it was not known how the restructuring was going to be effected. Mr Hanekom informed the trade union at a meeting in Johannesburg that funds would be made available for the new entity after July 1997. Proclamation 10 was not based on an agreement between the representatives of the Premier and the union. At a meeting prior to its issue the Premier conveyed to the union that he understood the latter’s exposition of the ramifications of restructuring. He made no mention of the termination of jobs or any intention to issue Proclamation 10. No member of the task team told the witness that the proclamation would be issued on 10 July 1997 and the employment at Tracor terminated. At no meeting was the union told by the task team that Tracor would be closed permanently and there would be a loss of jobs; it was told that some of the employees would retain their jobs in the new agency. The union was never told by representatives of the government that the employees would cease earning their salaries on 31 July 1997. The union was called upon to furnish responses on restructuring only, not on closure of the corporation and termination of the employment of all the employees of the corporation.

[122] The fourth plaintiff similarly testified that there were discussions between government representatives and Tracor which centred around a new order coming into being with the closure of Tracor and the other parastatals being followed by the formation of a new organization, a single agricultural agency in the Eastern Cape. It was not said by government representatives that government had taken a decision to close down Tracor with the result of a permanent loss by all its employees of their employment, although the process of restructuring would address such matters as the number of employees being in excess of what would be required in the new entity (The witness affirmed, however, that he was not withdrawing his earlier statement, referred to in para [115] (i) above, that government made no commitment to the establishment of a new parastatal). Similarly, there were no discussions with the task teams on the issue of the closure of Tracor and the permanent loss of jobs. Had there been such intimations representations would have been made in exploration of possibilities of minimizing the number of employees to be laid off. Government, on the grounds of a lack of funding, simply announced, as opposed to consultations about, its policy concerning the parastatals. On 19 November 1996 a meeting was held between Tracor representatives and a labour consultant, Mr Slater, where the issue of transformation was discussed. As recorded in Mr Slater’s report back to Mr Gebeda on the meeting (exh D2 428-429), dated 20 November 1996, amongst the matters aired was the view that the word “transformation” was being utilized by the Department to hide the term “closure” and the need for the exact intentions of the Department to be stated. The witness did not recall any response to the concerns raised.

[123] The tenth plaintiff stated during examination in chief that he, together with the project manager and workshop manager of the QIS, attended a meeting at Bisho, which he thought may have taken place at the beginning of 1997, where government representatives (including, apparently, Mr Gebeda) explained about the transformation of the QIS and Tracor; it was said that the QIS workers were not going to work in the manner in which they had up to then, the government “wanted things to go to the people, the people, the people should govern”. It was also said that if there was overstaffing at the QIS, the excess staff could, e.g., be transferred to another irrigation scheme. The witness attended a further meeting in East London, which he thought took place during May 1997, at which, inter alia, the MEC and Mr Gebeda were present. The meeting was about restructuring of the parastatals, but there was no discussion about loss of jobs.

[124] The other plaintiffs all testified that, without prior notice, they learnt during July 1997 of the termination of their employment.

[125] Mr Dukada also placed reliance on certain further evidence given by Mr Catling under cross-examination, as constituting support for the plaintiffs’ contention that government had conveyed that it would establish a new agency (which, counsel sought to emphasise, would have imposed an obligation on government, in the event of its adopting a different approach, to advise the employees and allow them an opportunity to make representations on the envisaged change of course):

(a) Mr Catling was referred to exh D2 583-585, a report dated 9 January 1997 compiled by Dr Dolny. It was recorded therein, inter alia, that core teams would be visiting each of the parastatals as from 16 January 1997 to continue the consultation process “on the inevitable transformation”, and that they would advocate that the stakeholders of each enterprise deliberate future options. The cross-examination of the witness proceeded thus:

“What do you understand by future options? What had to be done about the parastatals and schemes? … The idea was that after the closure a new scheme may be put into operation, an entirely new scheme put into operation.

And that was conveyed to union members? …. Yes

…………

So then you go further now next to the word “January”: “Visits to each of the parastatal farm enterprises to inform them of the transformation process and give feed back on the Task Team recommendations. The stakeholders will be requested to consider (a) a three month maintenance plan and (b) prepare themselves for participation in future options workshops”. In other words there was, you were exploring the possibility of another agency? …. Another scheme.

Another scheme which would of course, would mean a job, lots of jobs, am I correct?....But the idea was, as I understand it, to close first and then to start building again, because there was lots of discussion when we made our report backs as to whom would be re-employed and how they would be re-employed.

There had been no finality on that aspect? … No.

You were still discussing in January, workshops had to be conducted as to how the new agency would shape up, who would be retained and who would be retrenched …. Not who would be retained, who would be re-employed.

Re-employed, yes I am sorry. There would be a formal termination and thereafter some could be re-employed … Yes.

That was the understanding of workers as well? … Yes.

(Court) What is the new agency you are talking about? …. Well, this would be, each of the parastatals was given the same opportunity to consider options for another kind of future, and that was the purpose of the workshops and as a result of those workshops each of the parastatals was supposed to draw up a business plan which would then put in place a new project, a new scheme, on a firmer footing and better basis.”;

(b) The proceedings at the “bosberaad” on 21-22 June 1997 (referred to in para [115] (k) above) were canvassed with the witness, who attended same. After his confirmation was secured that the “bosberaad” had been convened for workers, government officials and various prominent stakeholders to discuss the option of a new agency, it was put to him that at the “bosberaad” a resolution was taken, or a decision taken, that a new agency was to be formed. (It should be pointed out that counsel was placing reliance on the contents of exhibit D2 739 et seq., a document titled “PRESENTATION TO THE CABINET SUB-COMMITTEE BY THE BOARD ON THE BOSBERAAD WHICH WAS HELD ON THE 21-22 JUNE 1997”, the reference to “BOARD” being a reference to the composite board of the parastatals appointed pursuant to the issue of Proclamation 4. The witness stated that he had not previously had sight thereof). Mr Catling’s response (in regard to which he said he was referring to his own notes of the meeting, later handed in as exh H 348 et seq.) was as follows: an option presented was the formation of a new parastatal; three options relating to the structure of a new parastatal were aired; each of the parastatals was debated as well as the best option for it and there was some general discussion concerning, if there was going to be a new parastatal, what the nature of thereof would be. He confirmed that government would then have to choose from amongst the options. Asked if, after choosing any of the options, it would have to advise the stakeholders of its decision, Mr Catling said that he supposed so. Asked whether, the stakeholders having participated and come forward with three options, their expectation was that the government would have to choose one of the options, Mr Catling responded as follows: “Perhaps, yes”. Asked whether the expectation was further that government, after choosing a particular option, would go back to the people and advise them of its choice, he stated “It might, yes…. Yes, perhaps, but I can’t speak, as I say, I can’t speak for what people thought at the schemes because I wasn’t dealing with them.”;

(c) Mr Catling further testified that when the task team visited the various parastatals to undertake its investigations, the employees were told what was likely to happen (counsel’s emphasis). (Incidentally, what was mentioned was the overall intention of government to close down parastatals, and then go into a period where the whole parastatal set up would be reviewed and perhaps be reinstated on a different basis).

(d) In amplification of the above Mr Catling confirmed that there could have been absolutely no doubt that the employees were aware of the possibility (counsel’s emphasis) of the termination of their services, but there was considerable doubt as to when that would take place (a conclusion reached by Mr Catling on the basis that workers seemed to think that it probably would not happen, as restructuring had been in the offing for many years and despite statements by government as to what would happen at certain times, the matters referred to had not happened).

[126] A further defence witness whose evidence was cited by Mr Dukada was Mr Matomane, at present at the Eastern Cape Provincial Legislature in the capacity of Assistant Director: Labour Relations, but during 1997 an employee of a trade union, the National Education Health and Allied Worker’s Union (“NEHAWU”), a union affiliated to COSATU (Congress of South African Trade Unions). NEHAWU had members at one of the parastatals, ULIMOCOR. The evidence was invoked for the same purpose as that of Mr Catling was invoked.

(a) During the course of his evidence in chief he referred to a meeting called on 27 June 1997 by what was referred to as the alliance between the ANC (the African National Congress), COSATU and the SACP (the South African Communist Party), at which it was made known that the cabinet (i.e., of the Eastern Cape government) had decided to dissolve the parastatals. Consequent thereupon a meeting between the affected unions, COSATU and the cabinet was held on 30 June 1997. At that meeting, inter alia, the MEC furnished an explanation of the decision, the trade unions came up with many proposals and were requested “to bring more proposals around the question of dissolution or liquidation”. After the issue of Proclamation 10 the unions consulted an attorney, Mr Tabata (who was later called as a defence witness). The upshot of the consultation was the production of exh D2 783 et seq., a document dated 29 July 1997 and titled “MEMORANDUM OF POLICY DIRECTIVES ON THE TRANSFORMATION AND RATIONALIZATION OF THE AGRICULTURAL PARASTATALS IN THE EASTERN CAPE PROVINCE”. While the document purports to reflect that it emanated from the office of the Premier, it was in fact drafted by Mr Tabata and submitted by him to the office of the Premier. It recorded what was referred to as a series of objectives, apparently the objectives of the Department as they were understood by the unions, viz., inter alia, the dissolution of the parastatals, the termination of the employment of the employees thereof, the future payment of termination benefits and the creation of a new corporation, as a new agency, with the essential function of restructuring and rationalization by taking control of the assets of the parastatals and the schemes and transferring them to former workers and employees of the corporations and to the communities. It also recorded the counter-proposals of SAAPAWU that notwithstanding the dissolution of the corporations (i) the employees thereof continue their employment with the new agency on the same terms as those on which they were employed by the dissolved corporations, (ii) severance benefits be paid only to those employees declared to be redundant by the new agency after embarking on the process of restructuring and rationalization, and (iii) the government continue to be involved in farming under the auspices of the new agency;

(b) As to the effect of what was recorded in the document, a passage in the witness’s evidence proceeded thus:

“COURT: Mr Dukada, may I attempt to restate what I think you are putting to the witness. I

think counsel is putting to you that an integral part of the Department’s policy in respect of the

parastatals, which involved the dissolution of the parastatals, was that there would be a new

agency created to administer the agricultural parastatals in the province as a whole. Is that correct,

Mr Dukada?

MR DUKADA: That is correct, m’Lord.

WITNESS: Yes, that was the understanding.

COURT: And now, counsel wants to know, is that what was conveyed to you?

WITNESS: That was, that was what was discussed with us.

COURT: That there would be dissolution, but followed by a new agency?

WITNESS: That was discussed with us, it is where SAAPAWU had a problem about.”

[127] I will later consider a number of additional features which counsel invoked as constituting support for the plaintiffs’ case on the issue presently under discussion. At this stage I will confine myself to weighing up the evidence of the plaintiffs relied upon by Mr Dukada against the evidence on which Mr Smuts placed reliance, plus other evidence contained in the record.

[128] On the narrow issue of demeanour in the witness box Mr Dukada, while not offering any criticism of the defence witnesses (save for Mr Gebeda), submitted that the demeanour of the plaintiffs had been impressive and that they had acquitted themselves well despite a lengthy and at times hostile cross-examination. I will consider the validity of this latter submission below. At this stage I record, however, that the common approach of the courts is that, subject to what follows below, demeanour, ever a tricky horse to ride, is at best a problematical indicator of reliability or the lack thereof. What is of importance is the content of a witness’s testimony viewed in the context of all the other relevant evidence and in the light of the probabilities. What still remains of application is that which was stated in, e.g., the following passage in S v Kelly 1980 (3) SA 301 (A) at 308E-G:

“Nevertheless, while demeanour can never serve as a substitute for evidence, it can, and often does, ‘reflect on and enhance the credibility of oral testimony’. The experienced trial officer is well aware of this fact: it is a matter of common sense. He observes the witness closely – evasions, hesitations and reactions to awkward questions. He will note, if he is alert, ‘all the incidental elements so difficult to describe which make up the atmosphere of an actual trial’.”

[129] Counsel acted responsibly in generally not seeking to subject the demeanour of the defence witnesses to criticism. I record that each witness (including Mr Gebeda, despite the criticisms which counsel sought level at his calibre as a witness) created a favourable impression on me and no cognizable stone was validly to be cast at his or her demeanour. I am, however, unable to endorse counsel’s laudatory comments concerning the plaintiffs, in particular the first to fourth plaintiffs. It is true that the cross-examination of them was of protracted duration, and at times aggressive (although not improperly so). Notwithstanding that circumstance, I am constrained to record that each of the plaintiffs referred to, some more than others, was at times, voluble on the one hand, or evasive on the other hand, and their evidence was at times characterized by a marked lack of clarity.

[130] Mr Smuts passed a number of strictures on the credibility of the various plaintiffs. Some of these related to the evidence given on the issue presently under discussion and others to other issues that arose during the trial. As will appear below, as well as later in this judgment, the strictures were not misplaced. All of the aspects in question must be placed into the melting pot, but it would be convenient at this stage to restrict myself to a consideration of those aspects that bear directly on the issue presently under discussion. I instance the features set out in the paragraphs that follow.

[131] The first plaintiff’s initial evidence that he was never consulted by any government official on the closure of Tracor, and his later evidence that the first inkling he had that government, either at national or provincial level, was no longer prepared to fund the parastatals was when Proclamation 10 was issued, which “parachuted” the closure of Tracor onto the employees, was untenable and false. That evidence, in the first place, flies in the face of the wealth of the unchallenged evidence given by the defence witnesses, seen against the background of the nature of the management governance in place of Tracor, referred to in para [108] above, and the relevant evidence given by the plaintiffs themselves, as detailed in para [115] above. Attaching credence to the first plaintiff’s claims would be to clothe him with an unpalatable ivory tower existence over a substantial period vis-à-vis what was happening at Tracor. In the second place, the claims were directly contradicted by the first plaintiff’s own other testimony, as set out in para [115] (c), (d), (f), (g), (h) and (l) above, as also the following further evidence given by him: closure was an option during the discussions, but not a dominant one; it was, as it were, mentioned in passing, (which evidence is to be contrasted with the witness’s other evidence to the effect that when closure was mentioned, opposition thereto was registered and there was a debate about it, with the result, so the witness claimed, that the dominant notion became that of restructuring - the interpretation of the above is that closure as an option was indeed on the table). The witness’s statement that the profile of the corporation’s employees requested by Mr Gebeda would be of no use if closure in the literal sense was to occur, is not understood. Government had conveyed that pursuant to closure severance packages would be paid: for the purposes of the calculation of those packages, the profile would be needed; indeed, at the special board meeting of Tracor on 17 December 1996 it was recorded that requests had been received from the provincial government for, inter alia, personnel data in relation to the termination of the employment of the personnel which, in accordance with a communication from the government, it envisaged. The various attempts by the witness to shy away from the import of the word “termination” and to accord to it another, strained, interpretation, as recorded in para [119] above, constituted exercises in linguistic gymnastics. The terms of Proclamation 4 and the contents of the letters by attorneys Ntsebeza Incorporated, referred to by the witness, also demonstrate the unacceptability of the witness’s claim that until Proclamation 10 was issued, he knew nought of government’s intention to close Tracor. Insofar as his various statements concerning the establishment of a new agency are to be interpreted as conveying that he understood that government’s intention was that closure of Tracor would be followed by the establishment of such an agency, that would not accord with the other evidence before me that while that option was considered, government did not commit itself thereto, nor with the witness’s own statement, referred to in para [115] (k) above, that government did not rule out funding for the establishment of a new agency. The fact that Mr Dondashe, the chairman of the new board, may have stated on 22 May 1997 that closure of Tracor was not on the cards, is not of assistance to the plaintiffs – see the remarks made later in respect of Mr Dukada’s endeavour to place reliance on the attitude of the board. The first plaintiff’s complaint that there had been no agreement on a time frame or on a proclamation dissolving Tracor, is an aspect to which I will revert later.

[132] Similar comments as those set out in the preceding paragraph apply to the second plaintiff’s claim that he was not consulted on closure of Tracor nor was he told prior to the issue of Proclamation 10 of the reasons for the closure of the parastatals, which claim must also be stamped as untenable and false – see in particular, the contradictory evidence of the witness in para [115] (a), (e), (f), (g) and (h) above. His evidence on the aspects of loss of jobs and retrenchment was not consistent. His evidence that Mr Gebeda never conveyed to him that Tracor was to be closed and the employment of its employees terminated, was denied by Mr Gebeda who testified that whenever he attended meetings at Tracor, what he conveyed was closure. The denial is in accordance with the consistency on government’s part disclosed in the evidence. The second plaintiff’s claim is further given the lie by the contents of exh D2 366-367 (referred to in para [109] above), submitted to the MEC on 13 November 1996, to which he was one of the signatories. His own proffered reason for writing the letter of 23 April 1997, viz., allegedly to enquire about the temporary pause, the nature of the new structure and which persons were to be engaged therein, holds no water: the contents of the letter (quoted in para [113] above) do not advert to these aspects at all; on the contrary, the letter in terms sought information on, inter alia, the date of “termination” and specifics on the severance packages to be paid. His reliance on comments attributed to Mr Dondashe is, as with the first plaintiff’s reliance thereon, of no assistance to him. His contention that the workshop at the Bisho showgrounds on 30-31 July 1996 was to be about transformation, in contradistinction to closure, does not square with the agenda set out in the invitation to attend the workshop, which included the withdrawal of government from the farming operations (see para [108] above). He, too, engaged in linguistic gymnastics as to the meaning of the word “closure”. During examination in chief the witness was referred to exh H 33 et seq., a memorandum dated 3 July 1997 addressed by the Director-General to the MEC and titled “RESTRUCTURING OF THE PARASTATALS AND IRRIGATION SCHEMES”. He was asked, inter alia, to comment on a particular paragraph reading as follows:

“Continuity be ensured beyond 31 July 1997 through the establishment of a ‘lean, clean and efficient organ of delivery,’ hereinafter referred to as the “Agency’.”

He stated that this particular sentence substantiated what he had said about the objectives of government “where they wanted exactly this type of an organization; adding to it the fact that those who would not be accommodated here, would in fact be accommodated elsewhere”. However, this paragraph was the first one under the heading “Contrary to the Board’s viewpoint which is as follows:”, to which the witness’s attention was specifically drawn before his comment was sought. What that viewpoint was contrary to, was the content of the preceding portions of the document which referred to the resolution of the Executive Council on 26 June 1997 that the agricultural parastatals and irrigation schemes be liquidated. There is also nothing in the paragraph about accommodating employees elsewhere. In fact, the following paragraph setting out the board’s viewpoint, to which the witness was also referred, read as follows:

“Some of the current employees would be retained and appointed by the proposed Agency whilst the majority of the people are retrenched”.

The above is a further indication of the witness’s proclivity to misinterpret documents to serve his purposes.

[133] The third plaintiff was similarly not consistent on the question whether, and to what extent, there would be loss of jobs. His views as to the meaning of “closure” and “dissolution” and, specifically, his interpretation of Proclamation 4, were unacceptably strained. Similar comments as those made in respect of the first and second plaintiffs’ claim of an absence of consultation on closure, apply to the same claim made by the third plaintiff. The reference by the witness to Proclamation 10 not having been based on any agreement will be dealt with later. The fact that, as claimed by the witness, the Premier conveyed to the union at a meeting prior to the issue of Proclamation 10 that he understood the former’s exposition of the ramifications of restructuring and, at that meeting, made no mention of termination of jobs or of any intention to issue the proclamation, is neither here nor there. The witness’s evidence that Mr Hanekom had said to the union at a meeting in Johannesburg that funds would be made available for the new entity, was anything but a model of clarity, and the statement, allegedly made at a meeting during December 1996 or January 1997, could not have referred to the funding of a new agency subsequent to July 1997, a date which had not arisen at that stage. The witness further confirmed that the union had also received a communication from Bisho to the effect, as reflected in the special board meeting of Tracor on 17 December 1996 (at which a union representative, Mr Kalala, was present), that the termination of the employment of all personnel could be effected by 30 November 1996, and that at the meeting the MEC had said that funding would cease at the end of the 1996/1997 financial year (see exh D2 522 et seq.). The third plaintiff’s claim of a guarantee of employment in the new agency that was envisaged, was a fabrication. He was the only witness to speak of such a guarantee. It was not put to either Mr Gebeda or Mr Pityi who, he alleged, had given him the guarantee. The claim did not feature in his evidence in chief and only emerged on the second day of his cross-examination. The evidence proceeded variously as follows: a new employer/employee relationship with the new agency to be established was guaranteed to some Tracor employees, while others would be retrenched; the guarantee was furnished to all Tracor and QIS employees, without exception and they were all going to be employed in the new agency; some employees would not be engaged by the new agency, but would not be retrenched in the normal sense of the word, they would be trained to qualify for other employment and be given other jobs; (in response to a question whether he could identify any individual who was guaranteed employment in the new agency) he, personally, was given a guarantee of employment in the new agency on the basis that he was in the extension service, that the government needed that service and “the service was guaranteed”; accordingly, so Mr Gebeda intimated, each and every extension worker at Tracor (some sixty in number) and at the QIS was guaranteed employment in the new agency; it was not clear whether anyone would be retrenched, but no-one would be “thrown out’; (in response to a question whether anyone else received a guarantee) reference was also made to those in the computer section, the water services at the QIS (i.e., those employed in the irrigation of fields, not those working on the scheme itself), the data processing division and the human resources division; if the employees in these divisions “did not get anything from the government’s side, they would be contracted; in terms of work they were not going to lose their jobs”. Evidence which is as confusing and contradictory as the above resumé reflects, does not commend itself for acceptance.

[134] I do not propose to deal in detail with the evidence of the fourth and tenth plaintiffs and will content myself with the comment that much of the criticism levelled at the evidence of the first and second plaintiffs, and on the same bases, in respect of the nature and extent of the consultations undertaken, applies to those two plaintiffs as well. I would, however, add, with reference to the fourth plaintiff’s comment that as far as he could recall there was no response to the concerns raised in the letter of Mr Slater, that Mr Gebeda, while acknowledging that he did not favour Mr Slater with a reply, testified as follows. First, like all other task teams appointed, Mr Slater, too, was given written terms of reference, but that, because of the constraints of time referred to by Mr Slater at the time he was appointed, there may have been a lack of clarity or incompleteness in his instructions. Second, and more importantly, meetings with the employees were held to address the concerns raised in the letter, and specifically it was pointed out to them that what government envisaged was closure. It is also unnecessary to deal in any detail with the evidence of the other plaintiffs, in the light of the nature of the management governance operative at Tracor and the other considerations referred to in para [105] above.

[135] On the other hand, criticisms such as those tabulated above are not properly to be levelled against the defence witnesses. On the contrary, their evidence reads well, is mutually corroborative, enjoys substantial support in the documentary evidence and accords with the probabilities. On this last aspect it may be pointed out that the terms of government policy, as set out earlier, were clear and a concomitant thereof was consideration of the option of closure of the parastatals, and, secondly, that on the evidence it is beyond question that government did embark on a sustained programme of consultations with, inter alia, the employees of Tracor and the QIS. Absent gross mala fides on the part of government, an unpalatable suggestion, the probabilities are overwhelming that closure of the parastatals would have featured prominently in the consultations.

[136] Mr Dukada argued, however, that there were a number of other features that underscored the reliability of the version of the plaintiffs. I will deal with these seriatim.

[137] The reliance which Mr Dukada sought to place on the evidence of Mr Catling, set out in para [125] above, was in fact misplaced.

(a) The effect of the evidence was not, as counsel sought to have it, that government had conveyed to the employees that after closure of the parastatals they would in fact be replaced by a new agency in which a number of employees (as yet unspecified) would be re-employed, merely that a new scheme was one of the options that was under consideration; the latter interpretation would also be in accordance with the other relevant evidence tendered as part of the defence case;

(b) The same comments apply to Mr Catling’s observations as to what occurred at the “bosberaad” on 21-22 June 1997. As to Mr Dukada’s reliance on the fact that the “PRESENTATION” of the board to government on the “bosberaad” (which should be compared with Mr Catling’s own notes of the meeting, exh H 348 et seq.) recorded that a resolution had been taken that an agency or corporation was to be established (with the structure and functions proposed in the “PRESENTATION”), it should be pointed out that any such alleged resolution would not have been binding on government and would merely have constituted an option submitted to government for consideration; as Mr Gebeda testified, the “bosberaad” was not representative of government policy in that it was convened by the task team under Rev. Majeke, (which had been established after intervention from political groupings not content with government policy) so that, in conjunction with board (which had under political pressure rejected its mandate to deal with closure of the parastatals and schemes, as provided for in Proclamation 4), it could engage in consultations where alternative views could be heard in a formal way, and representations for consideration by the Premier would then be made. (In fact, the contents of the presentation were considered by the Executive Council. As appears from the contents of two documents, more fully dealt with below (viz., exh D2 752, a memorandum dated 25 July 1997 addressed by Mr Gebeda to the Executive Council, and exh H 87, a notice addressed by the chairman of the board to Magwa), a meeting was held on 24 June 1997 between the board and the Cabinet Sub-Committee on Agriculture, for discussion of the recommendations set out in the presentation before the matter was placed before the Executive Council. Mr Gebeda’s memorandum enclosed the presentation, together with subsequent, revised and detailed, recommendations by the board. The recommendations were spelt out in full in the memorandum, viz., those set out in exh H 33 et seq., referred to in para [143] below, as also the sub-committee’s counters thereto, viz., the following

“(i) Government has no financial resources wages and salaries beyond 31 July 1997;

(ii) The terms of reference of the proposed new Agency were not defined and the Government does not have funds for it either;

(iii) The legislative process takes a long time before any Bill can be passed for the establishment of the Agency. This is exacerbated by the fact that the Legislature is in recess at the moment until August;

(iv) Government remains sensitive to and realistic about socio-economic exigencies of these institutions. In line herewith liquidation is not contemplated. Instead public/private sector partnerships, human resource development and the establishment of a vibrant cooperative movement should remain top of the Government agenda;

(v) The appointment of consultants shall be accepted only as far as the need is justified, time permitting and fiscal resources available.

(vi) Final decisions on the Board’s recommendations are an Executive Council Competency”).

Any expectations that any stakeholders may have had consequent upon the “bosberaad”, aspects also broached with Mr Catling, are of no assistance to the plaintiffs;

(c) Counsel’s fastening on Mr Catling’s statement that the task team advised employees what was likely to happen, as opposed, if I understood the argument correctly, to what was to happen, is similarly of no assistance to the plaintiffs. The position was simply that the task teams were conveying what government’s intentions were and what it envisaged was to happen, and inviting representations thereanent;

(d) Similar comments apply to counsel’s emphasis on the statement by Mr Catling to the effect that what the employees were undoubtedly aware of was the possibility of the termination of their services.

[138] The evidence of Mr Matomane, set out in para [126] above, similarly does not further the plaintiffs’ case. As the witness pointed out, the “objective’ of establishing a new agency as part of government’s policy, mentioned in the memorandum broached with the witness, was something that was discussed with the unions by government. It bears emphasis, too, that, as set out in para [126] above, the memorandum recorded that in essence the function of the mooted new agency was to be the taking of control of the assets of the parastatals and transferring them and the schemes to the former workers and employees of the corporations and to the communities (i.e., pursuant to closure of the corporations and the termination of employment). It would seem that this is what SAAPAWU had a problem with; hence, their counter-proposals. (For the sake of completeness, it may be recorded that by letter, in fact penned on 31 July 1997 but wrongly dated 31 August 1997 (exh D2 792), Mr Matomane advised Mr Tabata that the unions had resolved to “drop” the SAAPAWU counter-proposals. On the same date Mr Tabata addressed a letter to the Premier (exh D2 794) advising him that the counter-proposals were no longer a matter of contention between the labour role players, that same were to be ignored and that accordingly it was now common cause that the payment of severance benefits as envisaged in that section of the memorandum which set out government’s objectives, would result in the termination of the employer-employee relationship). (I would interpose here to record that in his replying argument Mr Dukada submitted that it was not necessary for the plaintiffs to prove that government conveyed to employees that a new agency would be established; it was open to me to find that if the plaintiffs were not denied a hearing, one of the issues that they would have raised is the establishment of a new agency. Suffice it to state that the submission loses sight of the wealth of evidence that the option of establishing a new agency did feature during the consultations and was pertinently placed before the Premier for his consideration).

[139] It was contended that the failure of the Premier and the MEC to testify during the trial “enhanced the credibility of the plaintiffs”, and the prima facie case, recognized in the earlier judgment, had become conclusive, particularly in the light of the failure of the Premier to enter the witness box to explain the facts considered by him prior to his choice of the option of closure of the parastatals.

The argument cannot be upheld. It would seem that the argument would more properly pertain to Mr Dukada’s further attack on the reasonableness of the decision, an aspect adverted to later. The failure of the Premier to testify cannot affect the finding to be made, on the basis of the evidence, as to the extent and content of the consultations held by government representatives with the affected employees.

[140] Reliance was next sought to be placed on the fact of the institution by SAAPAWU of the proceedings against the Premier et al referred to in para [13] of the earlier judgment and on the allegations made in support of the relief sought in those proceedings (see exh F3 2998 et seq.). These allegations, so it was contended, lent support to the allegations made by the plaintiffs in the present proceedings. The short answer to the submission is that the allegations constituted inadmissible hearsay evidence in the present proceedings and there was no endeavour to have same incorporated, in the form of admissible evidence, into the plaintiffs’ case which the defence was called upon to meet.

[141] Capital was sought to be made of portion of the wording of the letter, exh G 248, addressed by the MEC to, inter alia, the board of Tracor on 20 January 1997 (referred to in para [115] (g) above). The submission was that the letter conveyed that closure of Tracor was not envisaged. In my judgment, the submission rests on a misinterpretation of the letter. The opening paragraph of the letter in terms records a request that the board give one month’s notice of separation to “your employees” so that the month of February 1997 serve as a notice month. The letter went on to point out that the actual amount, date and mode of payment of severance packages would, however, be subject to National Treasury approval. What counsel fastened on was the second sentence in the following paragraph:

“This notice should be seen in the context of the government policy to hand over farming to the farmers. Closure therefore is not envisaged.”

However, having regard to the clear and unmistakeable signal in the opening paragraph of the termination of the employment of “your employees”, the words “closure is not envisaged” cannot be interpreted as “termination of employment is not envisaged”, but rather in the sense that after termination of the employees’ employment something else, relating to the handing over of farming to farmers, would be put in place. It is true that the letter was withdrawn by the subsequent letter of 11 February 1997 as having been “premature”, but the withdrawal cannot be viewed, and could not have been viewed, as an abandonment of closure and termination of employment as an option in the rationalization process. Not only is the evidence overwhelmingly to the contrary effect, but the terms of the letter could also not have founded such an interpretation. “Premature” means before the proper time; the latter was still to come. The first letter further intimated that the task team would shortly be visiting Tracor to present its final recommendations as placed before the Cabinet Sub-Committee appointed to deal with the process. One of the recommendations was closure of the parastatals. That report back visit did take place. The second letter requested that Tracor’s board study the recommendations in the task team’s report and that the MEC be favoured with the board’s written input at its earliest convenience.

[142] In addition to the letter of 23 April 1997 (see paras [113] and [120] above) the second plaintiff on 14 May 1997, and pursuant to the issue of Proclamation 4, addressed a further letter to the Department (exh A 99) in which he registered the complaint that “despite all the positive iniatives taken by management to shape the future of Agriculture, we have not made ourselves significant”, and representation of Tracor management on a task team which was “discussing our future” was sought. This was followed by the two letters of Tracor’s attorneys of 19 May 1997 and 4 July 1997 (see para [119] above) seeking information about the closure of Tracor as announced in Proclamation 4 and the reasons therefor. These letters, counsel submitted, were significant on the basis that they corroborated the plaintiffs’ stance that there had been a lack of consultation on closure. The submission cannot be upheld. I have already, in para [132] above, passed strictures on the unacceptability of the second plaintiff’s purported explanation of his purpose in writing the letter of 23 April 1997 and it bears repetition that the letter in terms refers to termination of the employment of the employees. The letter of 14 May 1997, instead of supporting the contention of a lack of consultation rather suggests the complaint that the representations made by Tracor did not meet with favour. The second plaintiff’s request for representation on a task team during May 1997 does not show that proper consultations and a proper hearing did not take place. A similar comment applies to the two letters of the attorneys. The contents thereof fly in the face of the relevant history as disclosed in the evidence. They should rather be seen as a mark of dissatisfaction with the direction that events were taking, a request for reasons why representations made to government had not found favour and a further attempt to dissuade the government from taking the course of closure of the corporations. It is, of course, unfortunate that no response to the letters, directed to the attorneys, was forthcoming, an aspect that was not explained, and the Department is certainly to be criticized on that score. But the lack of response cannot be elevated beyond what is warranted; in particular, it cannot be accorded the effect of undoing or neutralizing what the evidence discloses did in fact occur. But, in fact, according to the evidence of Mr Gebeda government did react to the first letter. He testified that a meeting was held with a delegation headed by the second plaintiff, and the issues raised in the letter were discussed.

[143] The next document dealt with by counsel was exh H 33 et seq., the memorandum of 3 July 1997 addressed by the Director-General to the MEC, already referred to in para [132] above. The full text of the memorandum read as follows.

“RESTRUCTURING OF THE AGRICULTURAL PARASTATALS AND IRRIGATION SCHEMES

This serves to inform you that at a special Cabinet meeting held in Bisho on the 26^th of June 1997, regarding the restructuring of the Agricultural Parastatals and irrigation schemes, the Executive Council resolved that these institutions be liquidated according to the following procedure:

i) “The Premier to consult with National to discuss the option and process of liquidation opted for by the Executive Council;

ii) The Premier appoints the liquidator;

iii) By 31 July 1997, the options available must be communicated to the workers and agreement should be reached on a formula for ex-gratia payments;

iv) The MEC for Agriculture and Land Affairs and the MEC for Economic Affairs, Environmental Affairs and Tourism were mandated to inform the workers through their Unions of the Executive Council’s decision to liquidate the parastatals, but giving the workers the option to purchase the assets of these parastatals with possible support and/or partnership with Government. Secondly, to inform the Unions of the R74 million to be paid out to the workers as ex-gratia payment based on a formula still to be determined by the Department of Agriculture in consultation with other stakeholders. On the other hand the Board was mandated to inform the employees of these parastatals of the Executive Council decision to liquidate the parastatals and the consequences of liquidation;

iv) The Provincial Government should quantify the amount for each employee, and offer an ex-gratia payment to the employees of the parastatals, and identify funds for rehabilitation after the process of liquidation has been completed;

vi) The National Framework Agreement should be consulted to determine procedures and processes to be followed when negotiating with workers;

vii) The Department of Agriculture and Land Affairs, together with the acting Premier, should consult immediately with Premier Stofile about the decisions taken by the Executive Council; and

viii) The Department should then organize a meeting with the Board on Friday, the 27^th of June 1997, to inform them of the decision taken by the Executive Council.

Contrary to the Board’s viewpoint which is as follows:

1. Continuity be ensured beyond 31 July 1997 through the establishment of a “lean, clean and efficient organ of delivery”, hereinafter referred to as the “Agency”;

2. Some of the current employees would be retained and appointed by the proposed Agency whilst the majority of the people are retrenched;

3. Government to commit itself to the concept of a new Agency even if Government does not process the necessary funds for the proposed entity, in the hope that funds could be sourced elsewhere for this purpose;

4. Government should [provide] an amount of R1.2 million for the appointment of Human Resource Consultants, security and forensic auditing, and

5. The necessary legislation be promulgated to effect the regulation of the proposed changes.”

It would seem that, with reference to the words “the options available” in the first paragraph numbered (iii), it was counsel’s submission that options other than closure were still available for consideration. Suffice it to say that the submission rested on a misinterpretation of the memorandum: the options referred to were those pursuant to closure. The reference in paragraph (iv) to the mandate to certain Executive Council members to inform the workers through their unions of the decision to liquidate the parastatals indicated, if I understood counsel’s argument correctly, that closure of the parastatals had not previously been mooted. Suffice it to say that the submission held no water. Counsel also referred to the fact of the board’s contrary viewpoint as set out in the memorandum. I will deal later with the reliance placed on the board’s stance.

[144] On 10 July 1997 (the day on which Proclamation 10 was issued) the Acting Director-General addressed a memorandum (exh H 1-2) to all members of the Executive Council which read as follows:

“RE: AGRICULTURAL PARASTATALS

This serves to inform you that at the Cabinet meeting held on the 9^th of July 1997, and according to Minute No. 132, item G. 1, regarding a memorandum [for] approval from the Executive Council to the appointment of liquidators and a general update on the agricultural Parastatals, the Executive Council resolved:

i) “That the memorandum be adopted as proposed;

2. The Executive Council further reaffirmed its previous decision to liquidate the corporations being the only viable method of transforming the schemes with the ultimate aim of being owned by the communities in a programme of empowerment.

3. The following processes were agreed to:

a) That there be a clear distinction between the Corporations and the Schemes;

2. That the MECs for Agriculture and Land Affairs and Economic Affairs, Environmental Affairs and Tourism must compile a clear policy document on the reasons for closing the corporations and ultimately revitalizing the schemes and transferring them to the communities;

3. That there should be direct consultation with the workers at the work place, informing them of the reasons for liquidating with the intent that everyone is taken on board in understanding the process.”

Counsel’s submission was that the directive that there be “direct consultation” with the workers to inform them of the reasons for closing and liquidating the corporations, constituted support for the plaintiffs’ contention that there had been no consultations on closure prior to the issue of Proclamation 10. The submission sought, however, to read something into the memorandum that was not justified. The word “consultation” should in the context be read as “communication”. The essence of the memorandum was that the considerations that weighed with government in reaching a particular decision should be conveyed to the workers, and did not bear on what happened prior to the taking of that decision. The other evidence dealt with that aspect.

[145] Counsel next invoked the contents of exh D2 775A-B, the circular sent by the MEC to “MANAGEMENT AND EMPLOYEES” of the three irrigation schemes, including the QIS on 17 July 1997. The full terms of the circular are quoted in para [73] above. Emphasising the terms of paragraph 7.3 of the circular counsel submitted as follows:

“This circular amply shows that the employees were never consulted prior to the termination of their employment contracts. An extremely important component of consultation in the labour law jurisprudence is an agreement on retrenchment packages of employees prior to the actual retrenchment.”

Again, the submission cannot be upheld. It is unnecessary to consider the correctness of the statement that labour law jurisprudence requires there to be an agreement on retrenchment packages. While I have already held (see para [88] above) that the plaintiffs are not entitled to invoke an alleged non-compliance with provisions of the LRA, it requires to be recorded that in fact no employer/employee relationship existed between the Premier and the employees of Tracor and the QIS, and labour law jurisprudence does not come into play. The Premier’s case is that the required consultations on closure and termination of employment did take place and that a decision to close would be followed by the payment of severance packages, the extent of which was to be determined. It was not necessary that such determination be in place prior to the closure and termination of employment for it to be said that sufficient consultations took place.

[146] On 30 June 1997 the board circulated a notice addressed to all employers of Tracor and the two other agricultural corporations (exh A 109-110). It read as follows:

“POSSIBLE DISSOLUTION OF AGRICULTURAL CORPORATIONS

The Government has decided that due to financial constraints it can no longer fund the following corporations:

• Transkei Agricultural Corporation (Tracor)

• Magwa Tea Corporation

• Ciskei Agricultural Corporation (Ulimocor),

and that Government will cease payment of grants on 31 July 1997.

In consequence thereof the Eastern Cape Agricultural Corporations Board (The Board), is of the view that employees should be advised that there is every possibility that the Government will dissolve the Corporations by 31 July 1997.

It is understood that the National Government has made funds available to make ex-gratia payments to workers should the corporations be dissolved.

The Board, realizing that the announcement will cause great concern to the employees, proposes to consult with trade union representatives and non unionized employees on the following dates:

1. 7/7/97 at 09:00 at Magwa

2. 8/7/97 at 09:00 at Tracor

3. 9/7/97 at 09:00 at Ulimocor

It is the responsibility of Management to ensure that this Circular reaches all the employees of the Corporations aforementioned.”

Counsel seized on two aspects. Firstly, that the notice referred to the possible dissolution of the corporations and, secondly, the fact that, as other evidence disclosed, the meeting between the board and union representatives and non-unionised employees at Tracor, scheduled for 8 July 1997, was never held because the board resigned. I understood the first feature to have been raised in regard to the submission, also invoked by counsel, that the date on which the parastatals were to be dissolved was not made known by government nor was there consultation thereanent. This is an aspect that I revert to later in this judgment. The fact that a meeting which the board proposed to hold with employees and/or their representatives was not held is, in my view, neither here nor there.

[147] The final document referred to by counsel was exh E2 1829 and 1842, the notice dated 30 June 1997 addressed by the MEC to all the employees of the irrigation schemes, including the QIS, and circulated to the unions, including SAAPAWU. Its contents are set out in para [49] above.

This notice will also be considered below when counsel’s submissions concerning the date on which the corporations were dissolved are discussed.

[148] Mr Dukada contended that the board appointed in terms of Proclamation 4 had been given to understand that its mandate had been to transform, not to close, the parastatals. He placed reliance on the following documentation:

(a) a letter dated 26 June 1997 (exh H 85-86) addressed by the chairman of the board, Mr Dondashe, to the MEC, which read as follows:

“SUSPENSION OF THE ACTIVITIES OF THE EASTERN CAPE AGRICULTURAL PARASTATALS AGENCY BOARD

1. With reference to discussions between the Permanent Secretary for the Department of Agriculture and Land Affairs and Messrs. Dondashe and Mdleleni today we wish to confirm the following deliberations:

1. That the Board should suspend all activities stipulated in the terms of reference until a final decision is taken on 30 June 1997 by the Executive Council and/or the MEC for the Department of Agriculture and Land Affairs in consultation with the Premier.

2. That the MEC for Agriculture and Land Affairs confirms what was conveyed to the members of the Board, as reflected in paragraph 1.1 supra.

2. The Board, therefore, wishes to place on record that –

1. It is absolved from any delictual or contractual liabilities which may arise out of and as a result of the suspension of the said activities including, but not limited to, retrenchment procedures and the appointment of consultants.

2. The Board’s continued involvement in the said activities in future will depend on an extensive interpretation of “closure” as opposed to its ordinary grammatical meaning that is – closure must be interpreted to mean “transformation”.

3. That the extensive interpretation contained in paragraph 2.2 supra was adopted by the Board, the then MEC for Agriculture, Mr Ezra Sigwela, the Department’s Permanent Secretary Mr Gebeda and the state law adviser, Mr Mlisana, at the Board’s induction on 06 May 1997.

In the light of the above mentioned issues we request an urgent meeting with the MEC to be held Friday the 27/06/97. Such a meeting will help the Board to make decisions regarding its role in this process. However, failure of the meeting won’t stop the Board from making any decisions regarding its future participation on the process.

Your immediate response will be highly appreciated.”

(b) a letter dated 27 June 1997 (exh H 87) addressed by Mr Dondashe to Magwa Tea Corporation, which read as follows:

“RESTRUCTURING AND TRANSFORMATION OF AGRICULTURAL PARASTATALS AND SCHEMES

Flowing from the bosberaad held in East London on the 21-22 June 1997, it was agreed that the Board and the Task Team will engage government so as to get its financial commitment regarding the resolutions taken.

On the 24 June 1997 the Board then had a meeting with the Cabinet Subcommittee on Agriculture (including the Minister and Permanent Secretary of Agriculture). In this meeting, the Board presented its options and asked for financial commitment from government. It was clear from the deliberations of this meeting that the Subcommittee was looking at “closure” instead of “transformation”. It was then decided that the matter would be taken to Cabinet on the 25 June 1997.

On the 26 June 1997 the Board then wrote to the MEC for Agriculture, requesting a meeting between the board and the Ministry (attached is our correspondence to the MEC).

We therefore have to inform you that the Department of Agriculture has not responded to our letter, and the Board has decided to meet on 30 June 1997 to make a final decision regarding its role in this process.”

(c) a telefax transmission dated 30 June 1997, and amplified on 1 July 1997 (exh G 103-104), recording the board’s resignation, which read as follows:

“Resignation of the Interim Board-Parastatals

Introduction & Background

The Interim Board was inaugurated by the former MEC of Agriculture and his permanent secretary on the 06/05/97. In accepting our appointment members expressed concern over schedule 2 of the proclamation which was suggesting closure of the schemes and Parastatals.

The main concerns raised by the board members was the:

Lack of policy guidelines to guide the implementation of the clause: i.e. whether it meant taking people out of their employment and throw them into the streets or it meant government cannot maintain the status quo i.e. farming on behalf of farmers.

The other concerns raised by the board was lack of a provincial agricultural development strategy within which the role of schemes and parastatals could be located.

The MEC’s response to these concerns was to interpret the clause as meaning the intention of cabinet was to ensure that farmers farm and government stops farming through the scheme and parastatals. So the responsibility of the board would be to find the most appropriate method of achieving such an objective.

In several meetings attended by the Permanent Secretary with an intention to introduce the board to the various institutions clause 2 of the schedule has always been raised as a concern by the various stakeholders. The interpretation of the Permanent Secretary Mr Z. Gebeda has always been that the intention of Government was to ensure that farmers farm and government stops farming that did not necessarily implied closure in its literal meaning.

In its activities the board had identified the allocated time to be very limiting for it to finish its task and design an implementation strategy which will have less negative social impact to the communities yet remain cost effective to the state hence the extension of time was requested by the Board and the Task team up to the 31/07/97 for the Task to be finished.

Having presented the board’s interim report to the newly appointed MEC Max Mamase on the 9/06/97 the Boards recommendations were accepted in principle by the MEC and steps were taken towards implementation of such recommendations. Follow up meetings between the board and the Cabinet Subcommittee revealed that the province had serious financial constraints therefore some of the recommendations could not be implemented. The last meeting with the MEC revealed that cabinet had taken a resolution to close and liquidate the Agricultural Corporations and Schemes.

In view of this background the board members have taken a resolution to resign with effect from the 30/06/97.

Key reasons behind our resignation being:

- The board’s brief was to transform and not to close, as was explained by the then MEC, Mr Sigwela, and the Permanent Secretary, Mr Gebeda, on the 06/5/97.

- Members’ professional, social and political standing would be compromised if we could be seen to be associated and implementing such a decision.

- The board members also feel that the process has been handled with lack of consistency, honesty and commitment by the top management of the Department and therefore does have a potential to taint our individual images.”

The short submission of counsel was that if government had conveyed to the board that closure (i.e., simpliciter) of the parastatals was not to take place, but rather that its mandate was to facilitate transformation, as opposed to closure, then government could hardly have at the same time conveyed to the employees that closure was an option being considered.

[149] The submission cannot be upheld.

(a) No member of the board was called to testify as to the correctness of the contents of the communications, specifically what the board was given to understand and who conveyed same to them;

(b) Mr Gebeda, on the contrary, denied that the board was given any mandate other than closure of the parastatals and matters ancillary thereto (and he added that the stance subsequently adopted by the board was the result of pressure applied on the board by certain groupings). His evidence is supported by the very terms of Proclamation 4 which included in the board’s terms of reference the following:

“…….

2. to investigate and determine the most appropriate method of achieving the objectives contained in a Cabinet Resolution which provides for:

the closure of the Agricultural Parastatals and the Ncora, Qamata and Keiskammahoek Irrigation Schemes situated in the Province of the Eastern Cape by 31 May 1997; the appointment of an Interim Board of Directors for the said corporations to oversee the winding down process of both the corporations and the said irrigation schemes, and steps to be taken to deal with all the outstanding liabilities and debts of these institutions.

3. to ascertain assets and liabilities of the said corporations and irrigation schemes and in the course thereof to negotiate with their employees within the National Framework Agreement to determine appropriate severance packages.”

Similarly, in exh D2 752, the memorandum of 25 June 1997 placed by Mr Gebeda before the Executive Council, referred to in para [137] (b) above, the following was recorded in paragraph 2.1:

“The Executive Council at its special meeting held at Mpekweni Sun on 29 May 1997 rescinded its earlier decision to close these institutions by 31 May and approved, inter alia, the request by the ECACA Board to have its term of office extended to 31 July 1997 in order for the Board to accomplish its task, viz., “to investigate and determine the most appropriate method of achieving the objectives …” [assigned to it in terms of Proclamation 4].”;

(c) Furthermore, exh G 103-104, the contents of which are quoted in para [148] (c) above, records that the MEC conveyed to the board that the proclamation was to be interpreted as reflecting that the intention of government was to ensure that farmers farm and government stop farming through the schemes and parastatals. The further qualification added, viz., that Mr Gebeda allegedly intimated that this did not necessarily imply closure in the literal sense, is not of assistance to the plaintiff. The question arises how the government would stop farming through the parastatals and schemes without closure of the latter.

[150] (a) In his initial heads of argument, Mr Dukada made the submission that it was clear from what he contended was a proper analysis of the evidence, that when the Premier issued Proclamation 10 the employees of the parastatals had not been apprised of government’s decision to abandon the option of the establishment of a new agency and opt for a complete closure of the parastatals; once government contemplated deviating from the option of the establishment of a new agency, which it had unequivocally conveyed to the employees, it attracted a duty to revert to the employees and afford them an opportunity to make representations thereanent as well as on its contemplated course of closing the parastatals; this was so because closure of the parastatals, firstly, amounted to the formulation of a policy as contemplated in the NFA, and, secondly, a decision to close the parastatals would amount to administrative action that impacted adversely on the rights of the employees;

The submission would, however, be valid only if government had committed itself to the establishment of a new agency and had conveyed to the employees the exclusion of the option of closure. In the light of the discussion of the evidence set out above, that question cannot be answered affirmatively. I find that while the establishment of a new agency was an option on which consultations were held, so too was closure. Provided that the consultations that were held were sufficient in law, it was not incumbent on government to revert to the employees to advise them what its decision was to be and provide a further opportunity to make representations; it was entitled simply to make its decision known;

(b) As already recorded, in counsel’s replying argument the alternative stance was adopted that it was not necessary for the plaintiffs to prove that government officials conveyed to them that a new agency would be established; instead, the plaintiffs were contending that they were denied a hearing prior to the issue of Proclamation 10 whereas, had they been afforded a hearing, the establishment of a new agency would have been one of the issues that would have been conveyed to the Premier.

Suffice it to say that the submission ignores the evidence.

[151] As indicated earlier, the further point raised by counsel related to the dates of the dissolution of Tracor and the termination of the employment of the employees. Counsel correctly did not pursue the complaint registered by certain of the plaintiffs that there had been no agreement on the dates – it was not a requirement in law that there be such agreement. What counsel did submit was that the employers had not been told prior to 10 July 1997 that Proclamation 10 would be issued on that date and that their last day of work would be 31 July 1997, nor had there been any consultation thereanent.

The first part of the submission is not factually correct. Exh A 9-10, referred to in para [146] above, which was dated 30 June 1997, constituted, on a proper interpretation thereof, a clear notice by the board to Tracor employees (which included QIS employees) of government’s intention to effect closure on 31 July 1997. It is true that the heading to the notice referred to the possible dissolution of the agricultural corporations (a statement which, according to Mr Gebeda, was not in accordance with the Executive Council’s clear direction that the board was to give notice of termination on 1 July 1997), but the statements that due to financial constraints government had decided that it can no longer fund the corporations and that it would cease payment of grants by 31 July 1997 and the board’s consequent advice to its employees that there was every possibility that government would dissolve the corporations by 31 july 1997, constituted an unmistakeable intimation to the employees as to what was to happen. The same comment applies to exh E2 1829 and 1842, the notice of the same date sent by MEC to the QIS workers, referred to in para [147] above. Thirdly, as recorded above, already on 29 May 1997 the Executive Council had granted the board’s request to extend its term of office beyond 31 May 1997 to 31 July 1997 to enable it to achieve the objectives as set out in Proclamation 4: a clear intimation of what was intended for 31 July 1997. It is also relevant to note that on the evidence everyone must have been aware that government’s decision would be made as a matter of urgency and that, e.g., Dr Dolny testified that everyone knew that closure was imminent.

These latter two comments are also relevant to counsel’s point that there was no consultation on the dates of 10 and 31 July 1997. While there may not have been consultation specifically on the dates, government’s intention to act sooner rather than later was manifest and constituted an integral part of what was presented for counter-representations and proposals. In my judgment, that was sufficient.

[152] The final aspect on the issue of consultations on closure arises from the dictum in Cekeshe (see para [10] of the earlier judgment) that as part of the fair administrative action required of the Premier, he was obliged to disclose to the employees how he intended to regulate, if at all, the termination of their employment and afford them an opportunity to respond thereto. That requirement, too, in my judgment, was complied with. It was conveyed to the employees on divers occasions that pursuant to termination of employment severance packages would be payable. That was an integral part of what the employees were to respond to.

[153] The conclusion which I reach, in the light of what has been set out above, is that the question posed in para [104] above falls to be answered in the negative: there was proper and adequate compliance with the audi rule in the form of consultations with, and affording a hearing to, the plaintiffs. The Premier’s decision was accordingly not wrongful on that score.

(d) ALLEGED UNFAIRNESS, UNREASONABLENESS AND UNJUSTIFIABILITY

[154] The bases on which the Tracor plaintiffs alleged that the Premier’s action in dissolving Tracor and terminating their employment was wrongful on the grounds contained in the above subheading, have been set out in para [84] (b) (2) above. As set out in para [85] (c) (2) above, the QIS plaintiffs, in their particulars of claim, contented themselves with the bald allegation that the Premier’s conduct was unfair, unreasonable and unjustifiable, without specifying the grounds on which the allegation was based. The case presented on their behalf, however, generally followed the same lines as that presented on behalf of the Tracor plaintiffs. (These plaintiffs had elsewhere in their particulars of claim – paragraph 15.6 thereof – included allegations in respect of a claim for iniuria, which corresponded with similar allegations by the Tracor plaintiffs which, as will be discussed later, were incorporated by the latter into the grounds invoked by them under the present sub-heading).

These further grounds invoked by the plaintiffs overlap to an extent with the considerations that arise in respect of the second requirement for Aquilian liability discussed below, that of culpability.

[155] (a) Complementing his submissions, set out in para [109] (a) of the earlier judgment, as to how the discretion to dissolve a corporation accorded to the Premier by the use of the word “may” in s 13(1) of the CA, should be exercised, Mr Dukada further referred to the following passage in the Full Bench decision in Cekeshe at 71C-72C:

“The ordinary, literal and grammatical meaning of the operative words, read in the light of the section as a whole, is to clothe the Premier with discretionary powers which he may invoke. The meaning, object and purpose of the words are clear and unambiguous.

The general principle applicable to the use of the word ‘may’ was laid down by Jervis CJ in MacDougall v Patterson [1851] EngR 970; (1851) 11 CB 755 at 766 as follows:

‘The word “may” is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise.’ (See Stroud Riley & Co Ltd v Secretary for Inland Revenue 1974 (4) SA 534 (E) at 540A per Cloete J).

The word ‘may’ in the proclamation does not merely confer a jurisdiction but a power coupled with a duty to apply the provisions of the section in suitable cases (see South African Mutual Life Assurance Society v Uys 1970 (4) SA 489 (O) at 490D).

The many cases in our Courts in which the meaning of the word ‘may’ have been considered are, unfortunately, of little assistance. They relate to different statutes, differently worded and serving different purposes. In S v Mpetha 1985 (3) SA 702 (A) at 718E-G, Galgut AJA stated the following:

‘The ordinary significance of the word “may” is permissive. Words which are susceptible of a permissive meaning should not in the first instance be construed as imperative. No universal rule can be laid down. In each case the intention of the Legislature must be ascertained by looking at the whole scope of this statute: see in this regard Halsbury Laws of England 4^th ed vol 44 at para 933.’

That ‘may’ is permissive was also stressed in Gunn and Another NNO v Barclays Bank DCO 1962 (3) SA 678 A) at 685A per Steyn CJ. Trollip JA in Amalgamated Packaging Industries Ltd v Hutt and Another 1975 94) SA 943 (A) at 950H stated:

‘Indeed the use of “may” … is indicative of a consistent intention that the Registrar should have a discretion…’

According to Lord Halsbury in Sharp v Wakefield and Others [1891] AC 173 (HL) at 179,

‘… “discretion” means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion; … according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.’

See also Wade Administrative Law 6^th ed at 394, 395, 401-2 and 408; and Baxter Administrative Law at 87-9.

Parliament can never be taken to have intended to give an official or an administrative body the power to act in bad faith or the power to abuse his or its powers. Such powers are conferred on an official or administrative body to promote the policy and/or objects of the Act. When the Court says it will intervene if a particular body acted in bad faith it is but another way of saying that such power was not being exercised within the scope of the statutory authority given by Parliament. (See R v Commission for Racial Equality, ex parte Hillingdon London Borough Council [1982] QB 276 ([1981] 3 WLR 520)).”

(b) Mr Smuts cited the decision in Minister of Environmental Affairs and Tourism and others v Phambili Fisheries (Pty) Ltd and another [2003] 2 All SA 616 (SCA). On the issue whether the decisions with which the judgment was concerned were capricious or based upon arbitrary or irrelevant considerations, the following, inter alia, was stated in paras [47] to [49] at 632-633:

“[47] From what has already been said as to the interpretation of sections 2 and 18 of the MLRA, it is apparent that the Chief Director, as the delegate of the Minister, has a wide discretion to strike a balance, in furtherance of the objectives and principles of the Act. To a large extent he gives effect to government economic policies. In such a case a judicial review of the exercise of powers calls for deference, in the sense stated in Logbro Properties CC ………”

(The passage in para [21] of the latter case referred to in para [108] of the earlier judgment was then quoted)

……………

[48] See also Sachs J in Du Plessis and others v De Klerk and another [1996] ZACC 10; 1996 (3) SA 850 (CC) at 931J-932B paragraph 180:

“The matter is not simply one of abstract constitutional theory. The judicial function simply does not lend itself to the kinds of factual enquiries, cost-benefit analyses, political compromises, investigations of administrative/enforcement capacities, implementation strategies and budgetary priority decisions which appropriate decision-making on social, economic, and political questions requires. Nor does it permit the kinds of pluralistic public interventions, press scrutiny, periods for reflection and the possibility of later amendments, which are part and parcel of Parliamentary procedure. How best to achieve the realization of the values articulated by the Constitution is something far better left in the hands of those elected by and accountable to the general public than placed in the lap of the Courts.”

[49] Similarly Chaskalson P in S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) at 1195G-1196E paragraph [42]:

“To apply that test to economic regulation would require Courts to sit in judgment on legislative policies on economic issues. Courts are ill equipped to do this and in a democratic society it is not their role to do so. In discussing legislative purpose Professor Hogg says:

‘While a court must reach a definite conclusion on the adjudicative facts which are relevant to the disposition of litigation, the court need not be so definite in respect of legislative facts in constitutional cases. The most that the court can ask in respect of legislative facts is whether there is a rational basis for the legislative judgment that the facts exist.

…………”

[156] As with his argument on the issue of consultations, Mr Dukada sought to place reliance on, e.g., the provisions of s 189 of the LRA, under the present head as well. Thus, he submitted that a consideration which the Premier ought to have taken into account in his deliberations on the decision whether or not to dissolve Tracor, was the circumstance that, as was contended to be the position, Tracor had obligations to its employees in terms of the provisions of the section. Again, however, the argument is met by the fact that there is no reference thereto in the plaintiffs’ pleadings. The same comment applies to other aspects invoked by counsel which did not feature in the pleadings.

[157] The first two aspects raised in the plaintiffs’ pleadings (see para [84] (2) (i) and (ii) above), viz., the allegations that in terminating their employment the Premier failed to notify them of the impending closure and dissolution of Tracor, and that the plaintiffs were only informed on 10 July 1997 that the 31 July 1997 was to be their last day of work at Tracor, may be shortly disposed of. The comments in para [151] above dispose of the validity of the reliance placed on the aspects in question.

[158] It is so that while the plaintiffs received the last payment of their salaries at the end of July 1997, the payment of severance packages to them as a fact (with certain exceptions – see below) only occurred during 1998 (as to which, see below). It seems to me that this feature may conveniently be dealt with together with the next issue raised by the plaintiffs, viz., that the manner of termination of their employment caused them financial embarrassment (see the first part of para [84] (b) (2) (iv) above).

[159] On this latter issue two questions arise: first, were the plaintiffs as a fact exposed to financial embarrassment and, second, did the manner of termination of their employment give rise to such embarrassment.

[160] The latter question may conveniently be considered first. As I understood the contention raised by the plaintiffs, or at least part of it, it was to the effect that because there had been no, or inadequate, advance notice of the termination of their employment on 31 July 1997 and the cessation of their receipt of their employment benefits on that date, they had not been afforded an opportunity to put the required financial arrangements in place or otherwise order their affairs to meet the exigencies that would arise on termination of their employment. Again, however, it is relevant to refer to the comments set out in para [151] above. In the light of those comments, I am not persuaded that the label of wrongfulness is validly to be attached to the Premier’s issue of Proclamation 10 on the grounds put forward. (That conclusion renders it unnecessary to consider the questions – if inadequate notice is the premise – what longer notice would have been proper and whether the absence thereof rendered the issue of Proclamation 10 wrongful only in respect of a limited period). Despite the reference in the plaintiffs’ pleadings to the manner of termination of their employment, however, I will approach the matter on the basis that embraced in their contention is a reliance on the fact, if fact it be, that consequent upon the termination of their employment, however it was effected, they were occasioned financial loss, and the further contention that this was a prospect to which the Premier had no, or insufficient, regard in his deliberations on the decision whether or not to dissolve the corporations. (As will appear below, those contentions were embraced in the allegations made by the Tracor plaintiffs in support of their claims for damages for iniuria, the alleged inuria being a further ground allegedly contributing to the invalidity of the Premier’s decision).

[161] It is accordingly necessary to consider if in fact financial embarrassment was occasioned to the plaintiffs. The position of each of the plaintiffs will be considered seriatim.

[162] However, certain aspects relating to the delay in the payment of severance packages to the Tracor employees require to be mentioned. As early as 6 August 1997 Mr Gebeda addressed a letter to the second plaintiff (exh D2 815) advising him that government had set up a legal and audit team to expedite the verification of “terminal” benefits and the payment of severance packages according to individual entitlements, and proposing a meeting with him and employees’ legal representatives to that end. A copy of the letter was telefaxed to Mr Tshiki. On 20 August 1997, having learned of the intended institution of the Cekeshe proceedings Mr Nobatana wrote exh D2 813 to Mr Tshiki and made the proposal (similar to that which had previously been made to, and accepted by, Ulimocor employees and Magwa employees, both groups having also instituted legal proceedings) that the proceedings be abandoned and that severance packages be accepted. It was pointed out that even were the proceedings to meet with success Tracor would not be in a position to pay salaries. The proposal was repeated in writing (exh D3 869) after a meeting on 7 November 1997 and a further meeting took place after judgment in Cekeshe had been handed down. The plaintiffs’ attitude was, however, that they were not interested in severance packages, but required payment of arrear salaries. Nevertheless, there were subsequently negotiations on the calculation of severance packages, in respect of which further delay was occasioned by the plaintiffs adopting the attitude that severance packages should be calculated on the basis of the retrenchment agreement operative at Tracor and not that on which the severance packages paid to Ulimocor employees were calculated. The latter, which was in fact more favourable, was later accepted. Further delay was occasioned by the dispute concerning the wording of the indemnity form to be signed on receipt of severance packages (as to which, see below). In my judgment, the above delays cannot be translated retrospectively to July 1997 so as to contribute to a finding of wrongfulness on the part of the Premier.

[163] Further prefatory remarks relating to all the plaintiffs are the following. On a variety of bases Mr Smuts submitted that on the evidence tendered by the plaintiffs, the latter had failed to prove the figures contended for in respect of their alleged losses, or to establish a proper basis for quantification of the damages claimed or any damages at all. One aspect raised by counsel concerned the acceptability of the gross or net figures (particularly, net of income tax) put forward by the plaintiffs during the course of their evidence, including evidence of the contents of their paysheets. Counsel also placed in issue whether the requirement of causation was established and the validity of the period over which the claims were calculated. For present purposes it is not necessary to go into these matters and, in the plaintiffs’ favour, the net figures put forward in evidence in respect of their emoluments in their employment, may for the nonce be accepted, subject to what follows. The net figures, in the case of the first to tenth plaintiffs, are those set out in the schedules, exh H 255 et seq., prepared by the eighth plaintiff, the Personnel Officer; Remuneration Services at Tracor – the eleventh plaintiff’s action was joined after the eighth plaintiff had testified and he himself gave evidence of his emoluments. However, the net figures reflected in the schedules referred to were arrived at after inclusion, as part of the plaintiffs’ remuneration, of the contributions made by Tracor to the pension fund of which the plaintiffs were members. As such contributions were in fact not paid to the plaintiffs as part of their take-home pay, the amounts thereof require to be deducted from the net figures reflected in the schedules. (Similarly, for the same reason, other amounts, e.g., the contributions made by the plaintiffs to the pension fund should be deducted, but I have left same out of consideration). On the other hand, the schedules reflect that the plaintiffs each received an annual bonus, and, for the purposes of the exercise that follows, I have added to the net monthly remuneration figures one-twelfth of the annual bonus in each case.

[164] First Plaintiff:

(a) In examination in chief he stated that the non-receipt of a salary or a severance package after July 1997 (leaving his family with only the income of his wife) caused him to struggle financially with the following results: he could not meet the bond repayments on a house in Mdantsane which had consequently to be sold by public auction; he was not able to meet accounts at various stores on due date and had to negotiate different terms and his creditworthiness was affected as a result of his non-payment of accounts having been referred to a credit bureau; he was obliged to remove his children from a prestigious school and place them in another school; in addition to his immediate family his mother and three unemployed sisters were dependent on him but because of his loss of income the family’s standard of living dropped. (He added that he ascribed his problems mainly to the fact that government had not consulted him timeously in regard to the intended closure of Tracor – an aspect I have dealt with above – in that he would otherwise have sought alternative employment);

(b) Mr Smuts referred to the plaintiff’s admission under cross-examination that during October 1997 he received payment of “pension benefits” which comprised the contributions made by both himself and Tracor to the pension scheme and that while he used part of this money to settle some of his debts, he invested a portion thereof. (Although the plaintiff undertook to make attempts to secure details of the amount of the pension benefits, such details were in fact not forthcoming. However, having regard to the quantum of the pay outs to the other plaintiffs, it may fairly be inferred that the first plaintiff’s pay out was in a substantial sum). His response to the proposition that such investment showed that the pressures on him were not such that he had to utilize all of the benefits to pay debts, but could invest a portion, was, in effect, that he required funds on which he could fall back if same was needed for the maintenance of his family. The submission in argument was that the witness’s evidence of financial hardship was inconsistent with his receipt of the pension benefits and the investment of portion thereof. In my judgment, the stance of counsel was an unrealistic one. The plaintiff’s response to counsel’s proposition, referred to above, in my view, reflected an acceptable approach having regard to the fact that he was not receiving a salary. The fact remains, however, that the pension benefits were received;

(c) The matter does not end there, however. In addition to the pension benefits the plaintiff’s severance benefits were received by him in two tranches, viz., R30 000,00 in March 1998 and R26 000,00 odd in June 1998. He also undertook employment at the University of Transkei at a salary of R5 019,00 per month, plus a payment for overtime of R2 500,00 in one month. Over the period February 1998 to June 1999 his net emoluments (i.e., less variable tax deducation) were some R70 570,00, an average of some R4 151,00 per month (exh H 12-28);

(d) His net monthly salary at Tracor was R8 170,00 (exh H 255);

(e) A comparison between what he would have received had his employment at Tracor continued and what he did in fact receive after termination of that employment, reveals that the financial embarrassment he suffered, was temporary and is not to be overstated.

[165] Second Plaintiff:

(a) This plaintiff also testified that the allegedly sudden and unexpected termination of his employment resulted, inter alia, in an inability to meet payments due on his vehicles, houses, other accounts and insurance policies, and the need, inter alia, to sell cattle because his reserves became depleted;

(b) His net salary was reflected as having been R10 629,00 per month (exh H 257);

(c) He, too, received a pension benefit pay out in October 1997. The gross amount of the benefit was R196 697,00 from which, however, income tax and the amount of a housing loan were deducted. These latter two amounts were not quantified, but again it is a fair inference that the pay out was in a substantial sum. His severance package was received in two tranches during March and June 1998 in the respective sums of R30 000,00 and R100 700,00;

(d) His claim of financial embarrassment must be viewed in the light of the above and the remarks made in respect of the first plaintiff apply to him as well.

[166] Third Plaintiff:

(a) He claimed that because of non-payment of premiums he lost insurance policies, he had problems with a furniture debt, a vehicle debt, payment of the rates on his house and the bond over it, and his standard of living dropped;

(b) His net salary was R4 687,00 per month (exh H 259);

(c) He received payment of a pension benefit pay out during October 1997 in the sum of R59 000,00 odd, a further such payment in December 1997 in the sum of R30 500,00 odd, and a severance package of R30 000,00 and R56 800,00 in March and June 1998, respectively. His bank statements (exh H 136-197) reflect that during August and September 1997 and in June 1998 he received payments of R1 500,00 which were designated as “Salary”. His denial that he undertook employment, seen in the light of his inability to proffer any other explanation for these receipts, falls to be rejected. The statements further reflect that over the period August 1997 to August 1999 various substantial sums of money were deposited into his bank account. Certain of these found their origin in the pay outs that he received, others he simply could not explain. His bank statements reveal certain further interesting features. Prior to receipt of his last payment from Tracor his current account was in overdraft to a relatively minor extent. Thereafter, until receipt of his pension pay out in November, the account vacillated between a credit balance and a debit balance, each in a relatively minor amount depending on his various receipts and outgoings. Thereafter, the account was at times in credit or debit in various amounts, sometimes relatively substantial. The explanation therefor was that the balance largely depended on how he effected transfers between the current account and an investment account he operated at the same time. Taking the accounts together he had a substantial credit balance at all times, e.g., on 25 February 1998 he had an overdraft of some R18 000,00, but an investment of some R33 000,00. Of particular importance is that from 1 August 1997 to immediately prior to the receipt of his first severance package the withdrawals and payments from his current account, together with banking debits, amounted to some R80 000,00. The position after receipt of the severance package followed a similar pattern. Such outgoings do not square with a net salary of R4 687,00 and a claim that same would have been sufficient to meet expenses, but without same hardship was experienced;

(d) The picture painted above is hardly that of a person who faced serious financial hardship.

[167] Fourth Plaintiff:

(a) He testified that he could not meet the payments on his vehicle which was financed by Wesbank and had to surrender it, his child had initially to leave university and was unable to complete the 1997 studies because of his inability to pay fees, non-payment of premiums on insurance policies resulted in the lapsing of same and a bank loan granted prior to his termination of employment for the purchase of a house was cancelled by the bank, and he cancelled a time sharing scheme;

(b) His net monthly earnings were R10 138,00 (exh H 261);

(c) He received a pension benefit pay out of R153 800,00 in November 1997, a severance package payment of R30 000,00 in March 1998 and a further one of R99 000,00 odd in June 1998. He also earned various sums over the two year period following on the termination of his employment. Moreover, he did not of his own accord disclose that after the dissolution of Tracor he continued to run, for his own account (albeit illegally), a butchery business previously operated by Tracor, from which he earned an undisclosed amount. His bank statements, exh H 218-249, reflect that his current account went into overdraft on 5 September 1997 and the debit balance grew to R20 000,00 by 5 November 1997 when he received his pension benefit pay out, part of which was deposited into the current account. At times thereafter the current account was in credit or debit depending on transfers between another savings account, an investment account and the current account. At all times he had a substantial sum available to him, if regard is had to both accounts. Thus, e.g., while a credit balance of R91 000,00 consequent upon a transfer into the current account of the amount of R105 000,00 on 11 February 1998 had diminished to R1 800,00 by the end of July 1998 (the date of the last statement available), the credit balance of R30 000,00 in his savings account was increased to R130 000,00 consequent upon a deposit of R99 000,00. The outgoings from his bank accounts were considerably greater than those of the third plaintiff. Incidentally, the statements reflect that at least until November 1997 the Wesbank instalment was paid. One questions why, in the light of the substantial pension benefits payment received in November, there would have been any difficulty in meeting the instalment or the university costs referred to by the witness. The witness’s testimony on these aspects was quite unsatisfactory;

(d) Again, apart from a possible temporary period the picture painted is not that of a person who faced financial hardship; it was in fact false.

[168] Fifth Plaintiff:

(a) This plaintiff claimed that because he could not service the bond on his house it was sold in execution and he was left with an outstanding balance that he was still paying off, inability to pay premiums resulted in insurance policies lapsing, money had to be borrowed for payment of the school fees of his children (the nurse’s salary of his wife was “minimal”), loans with financial institutions had to be arranged to enable payment of accounts at furniture shops and of school fees, items of furniture were in fact repossessed, he could not maintain his vehicle or even purchase a tyre;

(b) His net monthly earnings were R5 555,00 (exh H 267);

(c) On 14 November 1997 he received a payment of some R63 000,00 in respect of pension benefits. Asked whether he utilized this money to pay the debts referred to, he answered in the negative and proffered the unsatisfactory explanation that “that money was not meant for payment of debts, because that had not been planned by me”. Thereafter, when it was again put to him that it had been his choice not to pay the debts, he claimed that the money was insufficient to pay off his debts. It requires to be pointed out also that in addition to the cash amount of some R63 000,00, the plaintiff received “a home plan settlement” in the amount of some R36 000,00 that went towards the bond on the house that the plaintiff alleged was sold in execution. The plaintiff was simply unable to explain his contention that with those receipts he was not able to meet the commitments referred to by him whereas he at the same time claimed that he could live on his Tracor salary and pay his debts. In March 1998 he received a severance package of R30 000,00 and a second payment of some R67 000,00 in June 1998. He sought to resist the proposition that in fact in terms of cash available he was far better off than he would have been had his employment with Tracor continued, and said that while he was working he had had no debts, his debt position was under control; while he validly made the points that some debts, including interest thereon, were incurred prior to his receipt of the first amount, he endeavoured to explain that whereas when he had a salary he could plan ahead, the receipts referred to above came in instalments and were “of no use to me”. The evidence carried its own refutation. His various other endeavours to explain that notwithstanding the receipt of the monies referred to above, his alleged financial hardship remained, to the extent that he at one stage spoke of his bankruptcy, merely added support to the conclusion that he was seeking to mislead me;

(d) Save for the initial period of some three months, the plaintiff’s claim of financial embarrassment must be rejected as false.

[169] Sixth Plaintiff:

(a) He testified that after his employment had been terminated he was unable to pay various accounts that he had with various shops, his wife was unemployed and he had to ask for food from other family members, his six children had to stop their attendance at school during 1998 because he was unable to pay their school fees or to pay for clothing for them and they are now “just idling” at home, had he received his severance package (referred to below) on termination of his employment he would not have experienced the problems set out above but by the time he received the package he had incurred substantial debts with shops and the severance package was insufficient to meet all the debts;

(b) His net monthly earnings were R1 180,00 (exh H 265);

(c) In September 1997 he received payment of pension benefits in an amount of some R9 800,00 and in March 1998 he received the sum of R10 000,00 as a severance package. A comparison of his earlier net earnings with the receipt of these two amounts demonstrates the unacceptability of his claim that he incurred debts which these amounts were insufficient to cover but which he would have been able to pay had he continued to receive his emoluments. In fact, he conceded under cross-examination that he had no shortage of money during 1997 and had more cash available than he would have had had he remained in employment, that having regard to the receipt of the two amounts referred to he survived reasonably comfortably with no financial inconvenience for a period of a year, that it was only from August 1998 that his problems first arose and that it was quite wrong to say that in consequence of the termination of his employment he immediately became unable to live according to his habitual financial needs in that in fact he could meet same or that he was harassed by creditors in connection with outstanding debts in that he was able to pay those debts for over a year after the termination of his employment (and he declined to offer any comment on why wrong allegations to that effect were included in his pleadings on his instructions to his attorney). His bank statement, consisting of a single page (exh H 253), reflects that over the period 12 September to 21 October 1997 his account was in credit, in excess of R4 000,00 on the latter date;

(d) The inference is inescapable that with his initial evidence the plaintiff sought to mislead me.

[170] Seventh Plaintiff:

(a) He testified that consequent upon the loss of his employment he experienced financial hardship in that his children went hungry, he could not pay debts incurred in respect of ploughing requisites, the construction of buildings at home and the purchase of fertilizers, he was unable to pay in full the school fees of his children despite having recourse to the sale of some of his beasts and three of the children had to “abandon” school;

(b) His net monthly earnings were R1 114,00 (exh H 271);

(c) In September 1997 the plaintiff received a pension benefit in the amount of some R16 200,00 and during March 1998 a severance package of some R16 000,00. Under cross-examination it transpired that he had five children, three of whom had already left school while the plaintiff was still employed by Tracor; the other two were in fact still attending school. As counsel pointed out, within a period of eight months after the termination of his employment a total amount approaching three times the plaintiff’s net annual remuneration became available to him;

(d) Again, the plaintiff’s claims of financial hardship were an attempt to mislead me.

[171] Eighth Plaintiff:

(a) This plaintiff, too, endeavoured to paint a picture of financial hardship. She testified that at home she was the breadwinner as her husband’s business as a commission agent on the sale of insurance policies was not good, she had incurred debts in respect of clothes for her children and their school fees as also on her credit card, she could not meet the payments on a vehicle which was acquired on hire-purchase and same was repossessed, she could not service the bond repayments on her house and had to renegotiate the terms thereof, her one child who was in her third year at university could not return to university in 1998 as the plaintiff could not pay the fees and the child only resumed her university studies in 1999 by reason of the plaintiff’s receipt of her ex gratia severance package from government, she could not consult a doctor towards the end of 1998 because she had no money;

(b) Her net monthly earnings were R6 308,00 (exh H 269);

(c) On 13 October 1997 she appropriated to herself an amount of some R46 750,00 being a pay out in respect of an insurance policy covering a motor vehicle that belonged to Tracor; she utilized part of the money, R30 000,00, to buy another motor vehicle in her own name. Asked if she was therefore not so cash strapped that she did not consider it imprudent to buy a motor vehicle for R30 000,00 cash, her response was that she realized that she would need money towards the end of the year in December and she added that she spent the R30 000,00 in October because she thought that she might use the vehicle to generate some income. Asked how she was going to do so, she replied that she had not thought about how she would use the vehicle. On 27 October 1997 she received a pension benefit payment in the amount of R16 500,00 odd, being the balance after payment of a loan of some R44 200,00. She was also cross-examined as to the origin of a number of deposits in her bank account after 31 July 1997 until the first half of October 1997 totalling in excess of R8 000,00. Other than to say that she was not sure whether certain of the amounts constituted commissions on the sale of linen or what the extent was of assistance she received from her family, she could not explain the receipts. Similarly, while she denied that she undertook any work, she was unable to explain the origin of three receipts in January 1998 totalling some R3 000,00. On 15 December 1997 she received a further payment of some R7 500,00 in respect of her pension benefit. On 12 March 1998 she received the first payment of R30 000,00 on her severance package and on 22 June 1998 the payment of the balance in an amount just short of R60 000,00. It may be pointed out that her bank statements for the period of one year after the termination of her employment (exh H 280 et seq.) reflect that while she was on occasion for short periods in overdraft, the account was generally in credit, sometimes in substantial amounts over substantial periods. She was constrained to concede that she could not dispute that over the twelve month period referred to she had available to her a great deal more money than she would have had had she continued in her employment at Tracor;

(d) Her claim of financial hardship was substantially not genuine.

[172] Ninth Plaintiff:

(a) He testified that prior to the termination of his employment he was paying off debts at a shop, maintaining his children and paying their school fees, that it was very difficult for him to meet his domestic commitments after the loss of his employment, that he had to borrow money from acquaintances and non-payment of premiums resulted in his insurance policies lapsing;

(b) His net monthly earnings were R1 462,00 (exh H 273);

(c) On his behalf it was formally admitted that he received the following amounts after the termination of his employment: on 7 August 1997 the sum of R3 441,00 as leave pay, on 25 August 1997 the sum of R1 478,00 as one month’s notice pay, a further amount of R4 485,00 as three months’ notice pay, a further amount of R4 623,00 as leave pay, a pro rata bonus in the sum of R996,00, severance pay in the sum of R9 437,00, and a pension benefit pay out in the net sum of R27 096,00 on 28 August 1997. He admitted that far from suffering an injury to his dignity by virtue of a loss of income, as was pleaded on his behalf and as he earlier testified, the cessation of his work at Tracor had led to a significant increase in his financial capacity. His response to the proposition that the allegation in his pleadings that he received no severance pay during 1997 was plainly untrue, was that he had no comment;

(d) The plaintiff’s claim of financial hardship was false.

[173] Tenth Plaintiff:

(a) His testimony was that after the termination of his employment his financial position was not sound because he was educating children and paying off a vehicle, he had an obligation in respect of a house, the children of his deceased younger brother were dependent on him, he had accounts for clothing, he had a number of insurance policies the premiums on which he could not pay for a period of two months (whereafter he resumed paying the premiums until he stopped some time in 1999 and the policies lapsed);

(b) His net monthly earnings were R5 372,00 (exh H 263);

(c) On 27 August 1997 he received a cheque in the sum of R13 162,00 as leave pay, which he cashed and used part of the proceeds to pay school fees. On 25 August 1997 he received a cheque payment of R4 706,00 as one month’s leave pay. This cheque he also cashed. On 17 November 1997 he was paid a pension benefit of R54 870,00 (the balance after a loan of R13 800,00 was paid off). On 14 April 1998 he received part of his severance package, viz., the sum of R39 000,00. On 30 December 1998 he received a second severance payment of R35 000,00. His statement that he was unable initially to meet the insurance policy premiums and could only do so later after receiving his pension benefit payment, is unacceptable having regard to his receipt, during August 1997, of amounts that were considerably in excess of his monthly emoluments. In March 1999 he purchased a motor vehicle and commenced paying monthly instalments of R1 000,00 odd thereon. Despite the two encashments of cheques referred to above, his bank statements for the two year period after the termination of his employment (exh H 297 et seq.) reflect that his account was at no stage in overdraft and, on the contrary, was generally in a healthy condition with at times substantial credit balances over substantial periods. His attempt to counter the proposition that in fact his financial position had improved markedly, viz., that the monies he had received came to him unexpectedly, was a spurious one;

(d) The plaintiff’s claims of financial hardship were false.

[174] Eleventh Plaintiff:

(a) His complaint was that as a result of the termination of his employment his children were unable to continue with their schooling and that he had to incur various accounts;

(b) According to his evidence his net monthly salary was R952,00;

(c) On 7 August 1997 he received an amount of R2 287,00 as leave pay. He cashed the cheque and used the proceeds to run affairs at his home. On 25 August he received a cheque for R1 120,00, his gross salary, (presumably as notice pay). That cheque was dealt with in the same manner as the earlier cheque. On 11 August 1997 he received an amount of R900,00 from the persons who were responsible for making payments to him; this amount was deposited in his bank account. On 13 September 1997 he received a pension benefit payment of R20 000,00 odd. (It would seem that portion of this money went towards the building of a house). On 16 March 1998 he received a severance payment in the sum of R6 300,00. The discharge form which he signed on that day (annexure “A1” to the plea in his action) reflected that the total severance package he had received up to that date was R11 507,00 comprising 3 months’ notice pay of R3 360,00, leave pay of R2 843,00, a pro rata bonus of R746,00 and severance pay of R4 558,00. He confirmed having received these amounts. He was constrained to admit that his alleged financial problems were attributable to his own spending, not because of a lack of income;

(d) The plaintiff’s claims of financial hardship were false.

[175] The conclusions dictated by the above analysis of the evidence on the alleged result of financial embarrassment is that the plaintiffs’ allegations are largely to be rejected as false: in most cases the alleged financial embarrassment was absent and in the others it was at worst of a temporary nature and was overstated. However, to the extent that a measure of financial embarrassment was occasioned, I consider that that is a factor to which regard must be had in assessing whether the Premier’s conduct in dissolving Tracor was wrongful. I take that view because it speaks for itself that it must have been, and therefore it was, clear to the Premier that dissolution of Tracor would hold within it the prospect of at least some financial hardship to at least some of the employees, and that prospect was something that the Premier was required to weigh in the balance together with all the other relevant considerations.

[176] The plaintiffs’ further allegation (see para [84] (a) (2) (iv) above) related to their contention that the manner in which their employment was terminated exposed them to abrupt reduction in their social status. I will later, when considering the Tracor plaintiffs’ claims for damages for alleged iniuria, deal with the issue whether the plaintiffs validly sought to place reliance on the alleged reduction in social status for the purposes of those claims. At this stage the issues are whether the alleged reduced social status was established and whether, if so, it bears on the question whether the Premier’s decision to dissolve Tracor was wrongful.

[177] Again, it requires to be pointed out that the plaintiffs’ allegation was that it was the manner in which their employment was terminated that exposed them to the abrupt reduction in social status. The remarks made in para [160] above in regard to the alleged financial embarrassment apply mutatis mutandis to the alleged reduced social status.

[178] Certain aspects invoked by Mr Dukada (echoing evidence given by some of the plaintiffs) may be given short shrift. Thus, e.g., the fact that some employees of Tracor were subsequently investigated by the Special Investigating Unit and proceedings were instituted by the latter against them (which were later withdrawn) cannot be laid at the door of the Premier or invoked by the plaintiffs in support of an allegation of reduced social status contributing to the wrongfulness of the decision to dissolve Tracor. The same applies to the allegations of certain plaintiffs that they experienced difficulty in securing other employment because of an alleged stigma of corruption that came to be attached to elements of Tracor’s work force subsequent to the closure of Tracor. The circumstance that the tenth plaintiff and other employees of the QIS were “forced” by the management agents to hand over the keys of the scheme and to leave the premises is neither here nor there.

[179] The essence of the contention by, and on behalf of, the plaintiffs was in effect that, firstly, the mere loss of employment, and, secondly, a consequent deterioration in one’s financial affairs, naturally and probably result in a reduction of one’s social status. Reliance on the second aspect must, however, be seen in the light of the comments in para [175] above. Subject thereto, I do not consider that the question requires detailed discussion. It seems to me that there is a sufficient foundation, having regard to everyday experience in society, for the contention that the status in society of a man or woman who loses his or her employment (even if the reason for same is retrenchment or something similar such as the dissolution of the employer), would, in general, be less than what it was prior to the loss of the employment, the more so where the loss of employment brings in its train financial difficulties which become known to other members of the community. I accordingly accept, for the purposes of this judgment, that, as each plaintiff testified, he or she experienced a reduction in social status. That prospect, too, was something which the Premier was required to weigh in the balance together with all the other relevant considerations.

[180] As recorded in para [84] (a) (2) (v) above, the plaintiffs incorporated under the present subheading the further allegations on which the Tracor plaintiffs sought to rely to found their second claims against the Premier (the claims for damages for iniuria), viz., that the Premier, in terminating their employment and causing them financial loss and a reduction in social status, impaired their dignity by intentionally degrading, humiliating, insulting and injuring them. The requisites for a claim under the actio injuriarum were set out in para [138] (a) of the earlier judgment, viz., a wrongful and intentional infringement of an interest of personality. Three questions accordingly arise: (a) Did the termination of the employment of the plaintiffs, with the alleged results, constitute an impairment of dignity? (b) Was the infringement of the interest of personality wrongful? (c) Did the Premier act animo injuriandi? I will consider these questions in turn.

[181] I have already recorded my acceptance, in the case of certain of the plaintiffs, of the allegation of financial embarrassment, albeit of a temporary and limited nature. I have also recorded my acceptance of the allegation by the plaintiffs that the loss of employment brought in its train a reduction in their social status. Mr Smuts argued, however, that the approach of the plaintiffs, the second to eleventh plaintiffs taking their lead from the evidence of the first plaintiff, was coloured by the latter’s view that the impairment of dignity contended for was to be premised on the impression of outsiders regarding the social status of the particular plaintiff and that the primary focus was on the reputation of the plaintiff in the community rather than, as counsel submitted was the correct position, on their dignity and self-worth. Counsel emphasized, too, that certain of the plaintiffs testified in terms that they knew that the termination of their employment did not arise out of any fault on their part. It is certainly so that the first plaintiff conflated the two concepts of dignity, which relates to self-esteem, and reputation in the community. That does not mean, however, that the plaintiffs did not in fact establish an impairment of dignity capable of founding a claim based on iniuria. It seems to me that a reduced social standing, especially when coupled with a reduced financial standing, which the person concerned himself or herself experiences, may in certain circumstances constitute an impairment of dignity as required for a claim based on iniuria. c.f. the passage in Mbilini quoted in para [138] (b) of the earlier judgment.

[182] As was pointed out in Ndamse, quoted in para [138] (d) of the earlier judgment, there are very few dismissals, particularly unlawful dismissals, which, subjectively viewed, do not cause the dismissed servant some degree of humiliation or impairment of dignity, but that does not in itself make the dismissal an iniuria; accordingly, while the manner of the wrongful dismissal may constitute an iniuria, if the employee wishes to sue for iniuria he must allege other facts in addition to the mere fact of dismissal.

Commenting on this decision, Burchell (writing in (1998) 4 SAJHR at 16) states as follows:

“This conclusion requires qualification. If the dismissal or suspension embodied a breach of natural justice, for instance the denial of a right to be heard, the dismissal or suspension would in itself constitute an impairment of dignity sufficient to ground an action under the actio injuriarum.”

In Jackson v SA National Institute for Crime Prevention and Rehabilitation of Offenders 1976 (3) SA 1 (A) the plaintiff’s services as secretary of the Durban branch of the defendant were terminated. While on leave she received a letter from the management committee of the defendant stating that her services had been terminated and that she need not return to the office at the expiry of her leave, although she would be paid for the balance of the current month as well as the required two months necessary for notice. The letter also invited her for the sake of her personal record to tender her resignation as secretary, on the same terms, failing which the notice of termination would stand. She replied by tendering her resignation and also filed suit against her erstwhile employer for injury to her dignity. In her particulars of claim the plaintiff made a variety of allegations to the effect that the delivery of the defendant’s letter to her had insulted and humiliated her “with the intention of so doing”. The defendant successfully excepted to the particulars of claim on the ground that they disclosed no cause of action. On appeal, the majority of the Court held that the use of the word “intention” in the phrase quoted above, constituted no more than an inference of animus injuriandi to be drawn from all the facts pleaded, but that those facts, in the absence of an allegation of additional circumstances, were insufficient for the inference of animus injuriandi to be drawn. The appeal was accordingly dismissed.

Commenting on the decision, Burchell, op. cit., queries whether it would not have been to the advantage of the plaintiff to have shifted the emphasis from the contents of the letter to the aspects of procedural fairness which were apparently denied her in her dismissal; she was apparently denied the opportunity to be head before her dismissal.

The following observations may be made. Although in a paragraph in her particulars of claim the plaintiff alleged that prior to her receipt of the letter she was unaware that the management committee intended to terminate, or was considering the termination, of her employment or that any conduct on her part was considered by the management committee to have been, broadly stated, unsatisfactory, these allegations were made as part of the background narrative, and the plaintiff did not seek to found her case on any alleged procedural unfairness. Without, as Burchell suggests should have been done, the plaintiff’s pleading focusing on an alleged procedural fairness, same could not have been invoked by her.

[183] Accepting that the termination of employment at issue in the present proceedings was analogous to a dismissal, Mr Dukada argued that the plaintiffs’ cause of action for iniuria, as pleaded, was based on the alleged manner in which they lost their employment: the Premier failed to notify the plaintiffs of the intended closure and dissolution of Tracor and the QIS; the sudden and unexpected termination of employment exposed the plaintiffs to financial hardship and reduction of social status; the conduct of the Premier was degrading, humiliating and injurious to the plaintiffs.

I have, however, already rejected the plaintiffs’ allegations that they were not notified of the intended closure and dissolution of Tracor and the QIS or that the termination of their employment was sudden and unexpected.

[184] However, I perceive the plaintiffs’ pleadings to be wide enough to embrace the contention that the termination of employment, however it was effected, coupled with the results of financial hardship (where applicable) and reduction in social status constituted an impairment of dignity, and, notwithstanding the judgments in Ndamse and Jackson, I will assume that sufficient was alleged and proved to found a finding of impairment of dignity and, secondly, that sufficient was alleged in the matter of an averment of animus injuriandi.

[185] As was affirmed in Delange, quoted in para [138] (c) of the earlier judgment, the test in determining whether or not the conduct complained of was wrongful, is an objective one, in which the criterion of reasonableness is applied. I will return later to record my finding on the issue of wrongfulness when my finding on that issue in respect of the Aquilian action against the Premier is set out.

[186] On the issue whether the Premier, in dissolving Tracor, acted animo injuriandi vis-a-vis the Tracor plaintiffs, Mr Dukada again sought to place reliance on the failure of the Premier to testify in these proceedings, as justifying an inference favourable to the plaintiffs, viz., of the existence of animus injuriandi. The submission was enhanced, so counsel argued, in the light of the fact that, in terms of authority quoted by him, where wrongfulness has been established (as counsel contended was the position), a presumption of animus injuriandi arises, requiring rebuttal. The issue of wrongfulness will be dealt with later. Apart therefrom the answer to counsel’s submission is that the present is not an instance where an adverse inference is properly to be drawn; rather one where the Premier stood or fell by the case presented on his behalf.

In this regard it is apposite to refer to the following authorities. In Putter v Provincial Insurance Co Ltd & Another 1963 (3) SA 145 (W) at 150 B-C the following was said:

“But the judgment of SCHREINER, J.A., in Galante’s case at p. 465 indicates that the adverse inference falls to be drawn when the Court is faced with

‘two alternative explanations of the cause of the accident which are more or less equally open on the evidence’

It does not follow that an adverse inference should or may be drawn against a party who fails to testify or call evidence in refutation of a weak or improbable case against him.”

Similarly, in Titus v Shield Insurance Co Ltd 1980 (3) SA 119 (A) at 133D-F the following dictum appears:

“In Magagula v Senator Insurance Co Ltd 1980 (1) SA 717 (N) DIDCOTT J had occasion to consider the circumstances in which an adverse inference should be drawn against a party who deliberately refrained from calling a witness who might be expected to be able to elucidate the facts and in the course of his judgment he referred in pertinent detail to most of the cases in this Court on that subject. It is therefore not necessary for me to name them all in this judgment or to refer in detail to the principles. It is clearly not an invariable rule that an adverse inference be drawn; in the final result the decision must depend in large measure upon ‘the particular circumstances of the litigation’ in which the question arises. And one of the circumstances that must be taken into account and given due weight, is the strength or weakness of the case which faces the party who refrains from calling the witness.”

I would add that the impact which the other evidence adduced on behalf of a defendant has on the case presented by the plaintiff may be such as to render it unnecessary for the defendant himself, even if he is in a position to elucidate the facts, to testify. As to the admitted fact that in issuing Proclamation 10 the Premier, inter alia, acted in the exercise of a discretion, inferences as to the factors that weighed with him may drawn from the other evidence before me.

[187] A further aspect relating to the relevance of wrongfulness to the question whether or not animus injuriandi was present, is that adverted to in Hofmeyr, cited in para [138] (a) of the earlier judgment. At 154 it was pointed out that dolus (animus injuriandi) encompasses not only the intention to achieve a particular result, but also the consciousness that such a result would be unlawful. There are, however, certain exceptions to this principle, e.g., where the conduct sued on constituted a restraint on personal liberty. The conduct ascribed to the Premier in casu does not fall within the ambit of any of the exceptions to the rule. The corollary of a finding that vis-a-vis the plaintiffs the result of the conduct of the Premier was not wrongful (as to which, see below) would naturally be an absence of any consciousness of the wrongfulness thereof; hence, an absence of animus injuriandi.

[188] Mr Dukada adverted to a number of aspects which, he submitted established the requisite animus injuriandi on the part of the Premier. I will consider these seriatim.

(a) There was evidence by the first plaintiff that the Premier knew that there was a retrenchment agreement between Tracor and its employees, also applicable to the QIS employees. Mr Puthu also agreed with the proposition put to him by Mr Dukada that when during January 1997 the task team reported back to the employees, the latter raised the aspect of the retrenchment agreement and stated that they wanted its implementation prior to closure of the parastatals. He added, however, that the concern of the employees was in respect of the payment of severance packages. The first plaintiff contended that the Premier had had no difficulty in ensuring that the retrenchment agreement was complied with by Tracor.

However, as I have already held, absent a reference to the retrenchment agreement in the plaintiff’s pleadings, reliance thereon was precluded; and it is unnecessary to consider Mr Smuts’s further point that because the Premier was not the employer, he was not a party to the agreement and it did not come into play when the Premier exercised his discretion in terms of s 13 of the CA to dissolve Tracor. In the second place, the link between the point made and an inference of animus injuriandi is obscure;

(b) Reliance was again sought to be placed on evidence by some of the plaintiffs that they understood that government would establish a new agency and not close down the parastatals.

I have already found against the plaintiffs on this score;

(c) Emphasis was placed on the two letters addressed by attorneys Ntzebeza Incorporated to the MEC on 19 May 1997 and 4 July 1997 (referred to earlier) in which attention was drawn to the alleged financial implications which closure of the parastatals would hold for employees.

Leaving aside the circumstance that closure would bring in its train the payment of benefits to employees, including ex gratia severance packages by the government, I am unpersuaded that it may be put any higher than that the loss of employment and the prospect of some financial prejudice were two of the aspects to which the Premier had to have regard in the exercise of his discretion;

(d) An alleged failure on the part of the Premier to ensure compliance with the NFA and the provisions of s 189 of the LRA, so it was submitted, manifested animus injuriandi on the part of the Premier.

My findings in relation to these two aspects, set out earlier, dispose of this submission;

(e) The further submission was that even if it be held that the plaintiffs failed to prove any financial hardships, the plaintiffs were nevertheless entitled, in the matter of an inference of animus injuriandi, to invoke what was contended was the unilateral termination of their employment resulting in the sudden and abrupt reduction in their social status.

I have already found against the plaintiffs on this factual issue. The prospect that termination of employment would bring in its train some reduction in social status can again be put no higher than that it was one of the aspects to which the Premier had to have regard in the exercise of his discretion.

[189] The answer to the contentions on behalf of the plaintiffs as to the existence of animus injuriandi is, in my judgment, that contained in the succinct argument presented by Mr Smuts, as set out in the following extract from his heads of argument:

“On the contrary, the extensive evidence adduced of national and provincial policy, the position prevailing at TRACOR, the financial crisis occasioned by the parastatals, the consultation process in which the views and proposals of workers, management and the trade union were repeatedly sought, the extension of the consultation period so that the termination of employment required before the end of the financial year in March 1997 was not promulgated before July 1997, coupled with the admissions contained in the 5^th Rule 37 minute, namely that the First Defendant, in issuing Proclamation 10 of 10 July 1997, acted after considering the proposals of TRACOR’s management to privatise and/or “buy out” the corporation, after considering the transfer of useable assets to workers and other role players, in the public interest and in the furtherance of national and provincial government policy, militate against any finding that the First defendant acted animo injuriandi, and under the circumstances, the Plaintiffs must fail in the claim under the actio injuriarum.”

[190] I conclude accordingly that the plaintiffs failed to establish the requisite of animus injuriandi.

[191] I revert to consider the finding to be made on the issue of wrongfulness.

[192] On an application of the relevant principles I conclude that the Premier’s conduct in deciding to dissolve Tracor was not wrongful. On a conspectus of all the relevant circumstances, and particularly those summarised in the extract from counsel’s argument quoted in para [189] above, I find as follows:

(a) The value judgment to be made based on considerations of morality and policy and my perception of the legal convictions of the community, is that the Premier’s conduct meets the general criterion of reasonableness (the criterion applicable in respect of the claim for iniuria as well) and the criterion of fairness and norms and values embodied in the Constitution;

(b) While the forseeability of harm to the plaintiffs was a relevant consideration, this factor was outweighed by the other considerations that came into play, in regard to which a matter of importance was the severance packages and other benefits that were to accrue to the plaintiffs;

(c) The circumstances were not such as to impose a legal duty on the Premier not to infringe a legal interest of the plaintiffs;

(d) As a matter of legal policy, the Premier should not be visited with liability for damages; it is not unjust or unreasonable not to accord a civil claim for damages to the plaintiffs; denying the plaintiffs a remedy is congruent with my appreciation of the sense of justice of the community, arrived at, inter alia, on the application of broad considerations of public policy determined, inter alia, in the light of the Constitution and the impact thereon of the grant or refusal of the remedy the plaintiffs seek;

(e) The conclusion meets the criterion of rationality and the prescription that a Court should be slow to impose obligations upon government that will inhibit its ability to make and implement policy effectively and accords recognition to the importance, in our young democracy facing immense challenges of transformation, of the need to ensure the ability of the executive to act efficiently and promptly;

(f) The Premier’s decision was an instance of “polycentric decision-making”; it was not a unilinear question involving the assertion of a subject’s rights against the administration; a consideration of the interests of the plaintiffs did not exclude considerations involving the administration’s broader responsibilities; these included the public benefit to be derived from the closure of the parastatals;

(g) The conclusion meets the criterion of appropriate judicial deference to the complexity of the task that confronted the Premier and avoids a usurping of the functions of administrative agencies;

(h) Finally, the conclusion meets the criteria of affordability and proportionality.

[193] The further allegation made by the Tracor plaintiffs (see para [184] (c) above), that despite invalidation of Proclamation 10 and demand by those plaintiffs for reinstatement and the restoration of the status quo at Tracor, the Premier refused to accede to the demand, is of no assistance to them. Leaving aside the Premier’s pleaded response thereto (see para [93] above), the following may be noted. In the plaintiffs’ particulars of claim (see, e.g., paragraph 12 of the first plaintiff’s particulars of claim) the allegation was contained in a second subparagraph linked to a first subparagraph in which it was averred that as a result of the termination of their employment with Tracor they lost the benefits they were entitled to. The allegation therefore went in amplification of the contents of the first subparagraph and did not purport to suggest a separate substantive cause of action. Insofar as reliance was placed thereon in support of the contention that the Premier’s action in dissolving Tracor was wrongful, the short answer thereto is that the alleged conduct on the part of the Premier cannot be translated retrospectively to clothe his dissolution of Tracor with wrongfulness.

CULPABILITY

[194] As set out in para [84] (b) (3) above, the averment of the plaintiffs was that the Premier, in terminating their employment and causing them loss, acted intentionally, alternatively negligently, and unreasonably.

[195] As already pointed out, there is an overlapping between the considerations that are relevant to the issue of wrongfulness and those that are relevant to the issue of culpability.

[196] In my judgment, the short answer to the plaintiffs’ contention is that, by a parity of reasoning as that set out above in respect of the issue of wrongfulness, the same considerations that apply to that issue inevitably lead to the conclusion that the Premier cannot be visisted with a finding that he acted culpably.

PATRIMONIAL LOSS

[197] The argument presented on behalf of the Premier, at the stage when an order for absolution from the instance was sought, on various aspects that arise under this heading, was set out in paras [129] to [136] of the earlier judgment. The submissions made in the final argument constituted a restatement and substantial elaboration of the earlier argument, and included reliance on defence evidence on certain of the aspects involved.

However, in view of the conclusions to which I have come on the issues of wrongfulness and culpability – which require all the plaintiffs to be non-suited in their respective Aquilian actions against the Premier – it is unnecessary to consider Mr Smuts’s contentions that the plaintiffs failed to establish either a causal nexus between the Premier’s conduct and any loss they may have suffered (which alleged loss, he said, was in any event calculated over an incorrect period) or, in fact, any loss at all (in that, inter alia, after 31 July 1997 Tracor would in any event not have been in a position to pay any salaries or other emoluments), alternatively any loss capable of being quantified in a judgment, or Mr Dukada’s counters thereto.

INIURIA:

[198] It follows from what has already been recorded in this judgment, that the claims of the Tracor plaintiffs brought against the Premier under the actio injuriarum fall to be dismissed as well.

SPECIAL PLEAS:

[199] The dismissal of the plaintiffs’ claims on the bases set out above, further renders it unnecessary to consider the validity of the special pleas invoked by the defence. I propose, however, to set out the conclusions to which I have come on certain of the issues that arose thereanent, although not as fully as I would otherwise have done.

[200] In what follows I bear in mind that in terms of authority quoted by Mr Dukada:

(a) the onus is on the party alleging a waiver, to establish same;

(b) the Court will not lightly infer a waiver in that, as a rule, persons are not likely to abandon their rights;

(c) the test applicable is that an alleged intention to waive rights is judged by its outward manifestations, and uncommunicated mental reservations have no relevance;

(d) the conduct from which waiver is inferred must be unequivocal, i.e., consistent with no other hypothesis than that intention to waive existed.

THE FIRST AND SECOND TRACOR DISCHARGE FORMS

[201] The wording of these two forms, respectively, was set out in paras [57] and [56] of the earlier judgment. The discharge form invoked by the Premier for his special plea of waiver in the actions of the first to fifth and eigth plaintiffs was the second discharge form, which was signed by those plaintiffs during June 1998 on receipt of their final tranche of a severance package (but in the body of the plea over in each case there was a reference to the undertaking contained in the first discharge form, signed by the plaintiffs during March 1998 on receipt of an earlier tranche of a severance package). As recorded in para [55] of the earlier judgment, the Premier’s special plea of waiver in the case of the sixth and seventh plaintiffs was based on a different discharge form, signed by these plaintiffs during March 1998 when they received their single severance package. (This form differed from the first discharge form in the immaterial respect that it also provided for the release from liability of the government of the Republic of South Africa. It, too, embodied the handwritten amendment inserted into the first discharge form, referred to below. For convenience, and for the purposes of the discussion that follows later, I will regard the first discharge form as the one applicable to the sixth and seventh plaintiffs – the same considerations would arise in respect of the actual form utilized in their cases). The essential contention of the defence was that the undertaking embodied in the various forms, and signed by the particular plaintiff on receipt of a severance package, constituted a waiver which disentitled the plaintiff from pursuing the claims made in these proceedings (excluding, presumably, the claims based on the alleged iniuria). The issues raised on the pleadings by the respective replications filed by the plaintiffs appear from what was recorded in paras [58] (read with para [4] (c) above), [59], [61] and [62] of the earlier judgment.

[202] The issue arises whether it was established that, like the other plaintiffs, the first three plaintiffs also signed the first discharge form. The second plaintiff testified that he did not sign the form, but only a schedule. His explanation was that those employees whose severance packages were to exceed R30 000,00 were initially only paid that sum and would return on a later occasion to receive the balance after income tax had been deducted: on the first occasion they would sign the schedule and on the second, an indemnity form, which he in fact did sign (i.e., the second discharge form). Similarly, the first plaintiff said he signed only a schedule and the third plaintiff said he signed something that looked like a pay sheet, presumably a reference to the schedule. (Incidentally, the first plaintiff’s signature does not appear on the schedule). I am unable to accept the above evidence. It is to be noted that, the defence were not able to produce the discharge form allegedly signed by the three plaintiffs. However, the defence witness, Mr Manthe, of Coopers & Lybrand, who were attending to the pay outs, testified that no pay out was made unless and until the recipient signed the indemnity form. That is the explanation why the fourth, fifth and eighth plaintiffs, whose severance packages also exceeded R30 000,00, did so. One can understand that there were administrative reasons why a schedule, too, would have been required to be signed in the case of those employees who were later to receive a further tranche of their severance packages. But there was no reason why, on the occasion of the first payment, the signing of an indemnity form as well would not have been required; on the contrary, it speaks for itself that government had every reason to protect itself in respect of the initial payment by way of the indemnity form. There is also no reason why there would have been any differentiation between the employees who were to receive a second tranche. Mr Manthe’s evidence is therefore in accordance with the overwhelming probabilities, and I accept same. It would seem that the first three plaintiffs resorted to the evidence they gave because the defence was unable to produce the forms signed by them.

[203] (a) As to the effect of the two forms I will deal first with the second form, signed in June 1998. It was not in dispute that the wording of the form provided for a waiver, on acceptance of the additional severance package, of the right to seek any redress against any of the bodies referred to in paragraph 1 of the form in respect of any alleged entitlement arising out of the signatory’s employment with Tracor, save for a claim, as against Tracor (in liquidation), for the difference, if any, between the sum received as an ex gratia retrenchment package and such retrenchment package as the signatory might otherwise have been entitled to receive from Tracor;

(b) However, whether the form is in fact to be accorded this effect, is dependent on what effect is to be accorded to the first form – for the reason that Messrs Tshiki and Nobatana agreed that the same form (or at least one with similar effect) as was used in March 1998 when the first tranche of the severance package was paid, would be used in June 1998 when the second tranche was paid. (Mr Nobatana was unable to explain why the wording in the second form differed from that in the first form – his involvement in the matter had ceased some time prior to June 1998. There was, however, evidence that the second form had been prepared by Adv Quinn and forwarded to Coopers & Lybrand with the rider that if an agreement was in place requiring a different wording, the form would have to be amended. It was, however, used as it was. For reasons set out below, this aspect is not of assistance to the plaintiffs).

[204] (a) The final draft of the first discharge form presented on behalf of government was amended by Mr Tshiki, on an evening when pay outs were effected, manually inserting in the paragraph numbered 1 the words “salary, wage and any other entitlement”. Mr Nobatana, after telephonically consulting one of the counsel who were advising government, agreed to the amendment, and the amended form was the one signed by the recipients of severance payments;

(b) It was, correctly, the plaintiffs’ case that the discharge form, as amended by hand, constituted an agreement between the parties thereto; it was accordingly binding on the plaintiffs in question. Under the circumstances, so Mr Smuts correctly argued (subject to what follows later), any subjective interpretation which the plaintiffs or their attorney sought to place on the terms of the discharge form, insofar as that differed from the interpretation which the ordinary meaning of the words in the form required to be placed on those terms, was irrelevant – see the authorities quoted in para [151] (b) of the earlier judgment;

(c) The opposing submissions as to the meaning of the discharge form were as follows. Mr Dukada submitted that the form, properly read, preserved the right of a recipient of a retrenchment package to sue the Eastern Cape government and the liquidators of Tracor on whatever claims such recipient might have had against Tracor. Mr Smuts, on the other hand submitted that the form was not open to any interpretation other than that it constituted a waiver of any rights the plaintiffs might have had to pursue the claims in the instant actions against the Premier;

(d) Mr Dukada made three points in support of his submission: First, paragraph 1 of the form preserved the right of the recipient to sue government and the liquidators of Tracor on two claims: (i) for the difference between the amount of the retrenchment package received and the amount of the retrenchment package such recipient might otherwise have been entitled to as against Tracor; (ii) for such salary, wage or other entitlement the recipient might otherwise have been entitled to as against Tracor. Second, the right to sue on the two claims was not preserved as against Tracor (a distinction was sought to be drawn between the liquidators of Tracor and Tracor itself). Third, paragraph 2 of the form appears to have been tautologous in that the words “any other claim” therein were covered by the words “any other entitlement” in paragraph 1;

(e) The argument cannot be upheld in certain respects. The first and immediate answer thereto arises from the principle that a contract should be so construed as to accord it business efficacy. On counsel’s argument, the form should be interpreted as if it read, inter alia, as follows:

“I... do hereby release the Government of the Province of the Eastern Cape .... from all and any liability to pay me any amount as a salary, wage ... or any other entitlement arising from my employment with the Transkei Agricultural Corporation save and except for ... any claims that I may have arising out of my employment as aforesaid, for ... salary, wage and any other entitlment as I may otherwise have been entitled to against the Transkei agricultural Corporation.”

It need hardly be commented that such an interpretation would make nonsense of the relevant portion of the document: the earlier part would in terms be negated by the latter part. Indeed, during argument counsel answered in the affirmative my query whether the effect of what he was contending was that in fact the document, vis-a-vis government, meant nothing and offered government no protection of whatsoever nature; it was in fact no more than an exercise in futility (notwithstanding that counsel accepted, as he was constrained to do) that government’s manifest intention remained that it be protected from future claims). An interpretation that would have that effect, would hardly commend itself for acceptance;

(f) Despite the view that might at first blush have been taken, there is merit in the distinction that counsel sought to draw between the liquidators referred to in the form and Tracor itself. While, as a fact, the liquidators were in place, on the other hand the judgment in Cekeshe had undone the dissolution of Tracor and in terms of that judgment Tracor existed de iure. The distinction, and the resultant saving of rights as against Tracor in accordance with the wording of the savings clause, would clothe the document with business efficacy (the evidence was that Tracor was possessed of substantial assets);

(g) Further, clause 3 of the saving provision, which provided for the referral of issues relating to the severance package to arbitration, adds business efficacy to the agreement as between the plaintiffs and government. As the clause relates to severance packages it could only have referred to government, the payer of the severance packages, and there was sense in this savings provision vis-à-vis government; the circumstance that in the result no issues were referred to arbitration is neither here nor there;

(h) Whether or not the insertion of the handwritten amendment rendered the existing paragraph 2 tautologous, is neither here nor there;

(i) Does the preceding history affect the interpretation to be placed on the document? In my judgment, not. What the plaintiffs sought to rely on was: (i) evidence by Mr Tshiki and the first plaintiff that at the meeting of 20 February 1998 (adverted to in the replications of the first to fourth and eighth plaintiffs – see para [58] (b) of the earlier judgment (read with para [4] (c) above) and also in the replications of the other three plaintiffs – see paras [59], [61] and [62] of the earlier judgment) agreement was reached between Mr Tshiki and government representatives, including Mr Nobatana, on the aspects detailed in the said paragraphs, and specifically the stipulation that one of the conditions attached to the acceptance of ex gratia severance packages by Tracor employees was that they did not waive their rights to sue government for alleged wrongful termination of their employment, and that the discharge forms, to be settled by the legal representatives of both sides, would reflect that agreement; (ii) the further evidence of Mr Tshiki that in fact such agreement had already been reached between him and Mr Nobatana during January 1998; that evidence was to the effect that at a meeting between the two of them he again proposed to Mr Nobatana that the indemnity form to be signed should preserve the rights of the employees to sue government for alleged wrongful termination of employment, that Mr Nobatana replied that he did not think that there would be a problem therewith, but that he would speak to government and revert to Mr Tshiki; that Mr Nobatana did so telephonically and advised him that the proposal was accepted; (iii) the further evidence of Mr Tshiki that the draft discharge form presented to him by Mr Nobatana was amended by the insertion of the handwritten words referred to above, for the very purpose, in which Mr Nobatana concurred, of implementing the agreement and preserving the rights in question;

(j) It should be pointed out, however, that evidence of earlier negotiations between the parties and of oral compacts reached by them which are at variance with the terms of the written agreements, would offend against the parol evidence rule and would be irrelevant and inadmissible;

(k) Secondly, to the extent that it may be contended on the plaintiffs’ behalf that an inference to be drawn from Mr Tshiki’s evidence is that Mr Nobatana represented to him that the interpretation he was placing on the document, as amended, was that it reflected the agreement referred to and preserved the rights in question (as to which, see the comments in para [152] (b) of the earlier judgment), I record my rejection of the evidence of Mr Tshiki and the first plaintiff that the agreement referred to was reached, and my acceptance of the contrary evidence of Mr Nobatana. My reasons therefor follow. Mr Nobatana’s evidence proceeded as follows. It was throughout government’s firm stance that its financial exposure was to be limited to the payment of ex gratia severance packages and that there was to be no further recourse against it; hence, the production of discharge forms indemnifying it against further liability. Such forms were signed by the employees of Ulimocor, Magwa and the Ncora irrigation scheme. While it was so that Mr Tshiki’s manifest intention was that any indemnity form to be signed by Tracor employees would preserve their rights to sue government for damages for the alleged wrongful termination of their employment, Mr Nobatana on the other hand never budged from his stance that severance packages would only be forthcoming if the waiver was in place. (Initially, a further requirement was that the Cekeshe litigation also be abandoned, but that stipulation fell away). Specifically, he did not agree with Mr Tshiki during January 1998 that the waiver would no longer be sought. His evidence is supported by the minutes of the meeting of 20 February 1998 (exh A234-238) and I interpose a discussion thereof.

The minutes reflect that Mr Tshiki was not present when the meeting opened and only joined the meeting at a later stage. The minutes were taken by the defence witness, Mr Ramoo. His evidence that the minutes were an accurate reflection of what transpired at the meeting and that where agreement was reached on any aspect it was recorded as a resolution, was not disputed. The only relevant portions of the minutes are the following:

Prior to Mr Tshiki joining the meeting:

“The next step in the process [had been] to meet in Umtata to verify the calculations (i.e., of the severance packages) but this was held up by the fact that there was no agreement on the indemnity letter.

MN (i.e., Mr Nobatana) further explained that Tracor differed from the other parastatals in that:

• the court action (i.e., Cekeshe) was still underway

• the right to sue for arrear salaries existed

• failure to waive rights for future litigation

The format for the indemnity form was now complete and all that was now needed was to discuss it with Mr Tshiki.”

After Mr Tshiki had joined the meeting, and at the end thereof:

“Indemnity Forms

The draft indemnity forms were distributed and rejected by Tracor representatives. It was resolved to hand over this issue to the legal representatives to discuss.”

Contrary to Mr Tshiki’s assertion, the first passage quoted above does not reflect that the agreement contended for was reached. The first plaintiff’s evidence was that “when he (i.e., Mr Tshiki) arrived, I personally briefed him about the proceedings whilst he had not yet arrived, and he took forward the issues that I briefed him about and [he] managed to have that agreement with Mr Nobatana”. Mr Tshiki confirmed in evidence that he reached the agreement with Mr Nobatana at the meeting. Yet, conspicuous by its absence is any reflection thereof in the minutes; on the contrary, the indicators in the minutes point the other way; in particular, the circumstance that there was dispute over the wording of the indemnity form. In this regard, one questions why, if agreement had in fact already been reached during January 1998 between Messrs Tshiki and Nobatana that acceptance of severance packages would not prejudice the rights of the employees to sue government, the meeting took the course it did: instead of a recording of the agreement reached, or at least Mr Tshiki’s claim thereof, the minutes reflect a dispute; hence, the need for the attorneys of both sides to get together to sort out the formal of the indemnity form. Mr Gebeda, who also attended the meeting, confirmed that the stance of government was that ex gratia payments would be made and that government would be indemnified against future demands, and that no undertaking was given at the meeting that after payment of the severance packages, the employees could still make their claims against government. Mr Nobatana’s further evidence that on 17 March 1998, while he was engaged in East London in the negotiations in respect of the SAAPAWU settlement and word was received of a sit-in by Tracor employees at the Umtata offices of Coopers & Lybrand (referred to below under the heading of THE SAAPAWU SETTLEMENT), he was dispatched to Umtata by Mr Gebeda to attend to the situation. As information had been received that the demand behind the sit-in was for the payment of severance packages – an about turn which Mr Nobatana found surprising in the light of the fact that there was as yet no agreement that the required waiver would be forthcoming – he was accompanied by two members of Coopers & Lybrand armed with the cheques made out to Tracor employees in respect of their severance packages (previously prepared as it was anticipated that the packages would be paid), as well as the prepared indemnity forms, which were in the same form as those utilized with the other institutions. On arrival in Umtata he told Mr Tshiki that the indemnity forms had not yet been finalised. Mr Tshiki merely said that the employees were demanding to be paid and he proposed the insertion of certain words in clause 1 of the indemnity form, viz., the words “salary, wage and any other entitlement”. Mr Nobatana personally had no difficulty therewith (in his view its import remained the same: a waiver of rights vis-à-vis government and a preservation of rights against Tracor) but, as already recorded, he telephoned counsel who advised him that the amendment was acceptable, and he agreed thereto. Asked what he thought Mr Tshiki had wanted to achieve thereby, he said he did not know as there was no further discussion between Mr Tshiki and him. Mr Nobatana’s evidence, supported as it is by the minutes of the meeting, commands itself for acceptance: the probabilities are overwhelmingly against government having agreed to accept Mr Tshiki’s proposal or Mr Nobatana’s having conveyed that that was the case. The reverse side of the coin relating to the probabilities is that having regard thereto that it was the employees who were insisting that payment be effected to them notwithstanding non-finalisation of the indemnity form, it is not so unattractive a proposition to suggest that they and their attorney were prepared to back down from their previous stance. In any event, if an amendment presented by Mr Tshiki did not achieve the result of implementing any subjective intention he harboured, the consequences must be borne by his clients;

(l) Mr Dukada sought to persuade me that Mr Nobatana’s evidence that there was no discussion with Mr Tshiki as to the purpose of the words to be inserted, was improbable. Counsel pointed to the previous history relating to Mr Tshiki’s stance in the matter and to the fact that on the plaintiffs’ evidence, which was not contradicted, they had protested to the clerks who were handling the pay outs that the unamended form provided for a waiver of rights and caused Mr Tshiki to be summoned to the pay point to deal with the matter. I have difficulty with the lastmentioned aspect: as I understand Mr Nobatana’s evidence he brought the forms as well as the cheques to the pay point; the sit-in was the doing of the employees and the inference is that no pay out had been scheduled; one questions therefore when the protests referred to would have been made. As to the probabilities, weight should again be attached to the fact that it was the employees who were now insisting on immediate payment;

(m) The primary response of the seventh plaintiff in his replication to the special plea of waiver (see para [62] of the earlier judgment), that he signed the form not knowing what its contents were and without the representatives of the Premier bringing the “consequences” of the document to his attention, cannot avail him. The inference from all the evidence is that, albeit he may have been illiterate and unsophisticated, he must have known, and therefore did know, that he would have to sign a discharge form. He was, moreover, represented by an attorney. Having signed the form, he must bear the consequences. Similarly, counsel’s invoking of the fact that the sixth plaintiff was unsophisticated and illiterate, does not avail that plaintiff;

(n) Reliance was sought to be placed, albeit but faintly, on a further provision in the settlement agreement relating to the proceedings instituted by the Premier in the Bisho High Court, referred to in para [14] of the earlier judgment. It read as follows (see exh A 357):

“This settlement is without prejudice to the rights of any or all of the employees of Tracor to pursue any claim arising from the contracts of employment they had with Tracor as at 10 July 1997 relating to …... such claims as they have instituted or may institute for damages arising out of the purported dissolution of Tracor by the [Premier] in terms of Proclamation No. 10 of 10 July 1997.”

It was contended that this clause constituted a recognition by the Premier that there had been no waiver by the plaintiffs of their rights to sue for damages for the alleged wrongful termination of their employment. The contention misconstrues the effect of the clause. That effect was no more than that the pending litigation was not to be affected by the settlement: the plaintiffs could proceed with the litigation and the Premier could proceed with such defences as he saw fit to raise. (Whether not there had been a waiver of rights was in fact in dispute in the papers in that application);

(o) I hold accordingly that the first discharge form is to be interpreted in accordance with the submission of Mr Smuts set out in subparagraph (c) above.

[205] It follows that the further conclusion, in the case of the sixth and seventh plaintiffs, is that the plea of waiver, based on the acceptance of a severance package and signature of a discharge form in the format of the first discharge form, must be upheld.

[206] What is the position of the other plaintiffs vis-a-vis the first discharge form signed by them on receipt of a severance payment tranche? As recorded earlier, the special pleas raised in their cases related to the second discharge form; a reference to the first one was merely included in the body of the plea over, but no additional allegations of waiver were made on the basis thereof. However, the common approach of both sides, in the adducing of evidence, the cross-examination of witnesses and in argument was that an issue properly before me for decision, also in terms of the pleadings, was a special plea of waiver founded on the terms of the second discharge form.

As with the sixth and seventh plaintiffs, the conclusion is that the defence of waiver, based on the acceptance of a severance package and signature of the first discharge form, must be upheld in respect of the other plaintiffs mentioned earlier.

[207] It nevertheless remains necessary to deal with the defence of waiver relating to the second discharge form.

(a) To point to the fact that the wording of this form differed from that of the first form, as amended, and to contend that therefore, by reason of the agreement between Messrs Tshiki and Nobatana that the same form was to be used when the second severance package tranche was received, the second form is of no assistance to the Premier and must be left out of consideration, would be to adopt too simplistic an approach. It is true, as counsel sought to emphasise, that the difference in wording related to the omission in the second form of the handwritten amendment inserted in the first form. Counsel’s emphasis was born of his earlier contention that the insertion of that amendment had the effect of converting the first form into one the import of which was in accordance with his submissions set out in para [204] (c) and (d) above. That contention I have already rejected. The important question is what was the effect of the form, compared to that of the first form, vis-a-vis the plaintiffs’ rights against the Premier, which was the issue the plaintiffs addressed, both in their replications, and in their evidence: in short, the stance was that whereas the first form, read in the light of the alleged agreement referred to above, saved their rights to sue the Premier for wrongful termination of their employment, the second form purported to do away with those rights, but that they accepted their severance packages and signed the forms because of financial need and on the basis that the Premier was bound by the agreement. I have, however, already held that no such agreement was concluded and that the first form did not save their rights to sue the Premier for alleged wrongful termination of their employment. Therefore, both forms had the same effect, in regard to the matter which was the subject of the plaintiffs’ objection, i.e., the right to sue government, and in that respect the forms were accordingly not different. It is true that on the face of it the second form circumscribed the rights which were saved for the plaintiffs as against Tracor, when compared with the rights saved by the first form, as amended. That was not, however, a complaint raised by the plaintiffs at any stage and, in the absence of argument on the point, I would merely moot that any such complaint would be met by the contention that, in view of the history of the matter, fuller rights to proceed against Tracor were to be implied in the second form;

(b) Even if it had been so that the plaintiffs were suffering financial hardship at the stage when they signed the second form (a claim that must be seen against the discussion of their financial affairs set out earlier in this judgment), and that they did so unwillingly, that would not entitle them in law to say that they had no intention of waiving their rights to sue for damages. Desire and intent are two different concepts. The plaintiffs were aware of the contents of the form. The consequences provided for in the form flowed from their having agreed to sign the forms, and they were not entitled merely to receive the advantages of the transaction. The ordinary common law rule applies and, in terms of the authorities referred to in para [151] (b) of the earlier judgment, in the absence of fraud or misrepresentation, the plaintiffs, aware of the contents of the form, are bound by the ordinary meaning of the words to which they appended their signatures;

(c) The fifth plaintiff’s attempt to avoid the consequences of signing the form on the grounds that on the assumption that it was in the same terms as the first form he did not read it, nor did he ask anything about its content or that it should be interpreted to him, was disingenuous, since he was proficient in the English language, having studied in the language and obtained a degree. In any event, even had the wording of the form coincided with that in the first form, that would not, in the light of what was recorded in para [207] (a) above, have been of assistance to the plaintiff;

(d) The first plaintiff’s belated claim under cross-examination that he signed the second form under duress from Mr Nobatana, apart from being materially contradictory, was blatantly false – Mr Nobatana was not even present on the occasion;

(e) I hold accordingly that acceptance by the plaintiffs of the further severance package and their signature of the second discharge form, constituted the waiver contended for.

THE QIS DISCHARGE FORM

[208] The wording of this form was set out in para [47] of the earlier judgment. Again, the essential defence contention was that the releases, as embodied in the forms, given by the QIS plaintiffs on receipt of their final severance payments, constituted waivers which disentitled the plaintiffs from pursuing the claims made by them against the Premier and the MEC in these proceedings. The issues raised on the pleadings by the replications filed by the ninth and tenth plaintiffs (the eleventh plaintiff did not file a replication) and the defendants’ rejoinder to the tenth plaintiff’s replication, appear from paras [49] to [52] of the earlier judgment. The absence of a replication by the eleventh plaintiff constituted a denial by him that the defence was entitled to rely on the defence of waiver.

[208] It was not in dispute that the wording of the form provided for a waiver, on acceptance of the final ex gratia retrenchment package, of the right to seek any redress against the institutions or persons referred to in the form in respect of any alleged entitlement arising out of the employees’ employment with the QIS.

[209] In his heads of argument Mr Dukada submitted that once the special pleas based on the first Tracor discharge form failed, the special pleas based on the QIS discharge forms would similarly fall away. The essential foundation for the submission was the contention that the evidence established that the agreement between Mr Tshiki and Mr Nobatana, that the amended discharge form utilised for the March 1998 payments of severance packages to Tracor employees, would be used for all subsequent pay outs of severance packages, applied also to severance packages that would subsequently be made to QIS employees. The evidence referred to, again concerned the meeting of 28 February 1998, at which, so the evidence on behalf of the plaintiffs went, Mr Tshiki made it clear that he was representing the QIS employees as well. Mr Nobatana denied this evidence and, subject to what follows below, stated that he was at no stage aware that Mr Tshiki was representing any employees at the QIS. I prefer this latter evidence. There was no reference in the minutes of the meeting to any QIS plaintiffs. It is so that Mr Ramoo testified that at one meeting held with QIS employers, during the extensive consultations held with them on the content of the severance packages to be paid and the indemnity form to be signed, they expressed unhappiness with the wording of the proposed indemnity form and intimated that they wished to consult their attorneys on the matter. He further testified that at one stage he did receive a letter from Mr Tshiki, but he added that he could not recall what the letter concerned. At no stage did he receive any communication from Mr Tshiki to the effect that he was representing QIS employees and that accordingly all further dealings should be through him (although he did receive such a communication from a Cape Town attorney in respect of certain employees). And in the result, the indemnity form was in fact accepted by the QIS employees (as to which, see below). Mr Nobatana testified that he was one of the legal representatives referred to by Mr Ramoo (see the following paragraph), the others being Adv Quinn and Adv Notshe; at the meeting in question all the employees of QIS were present and the discussions, which took place in a big hall, were conducted in the Xhosa language; the tenth plaintiff, Mr Dintsi and possibly a further employee mentioned that they were represented by Mr Tshiki, but they pertintntly stated that they wished to deal directly with government representatives themselves; the severance packages and the indemnity form (including the addendum thereto, an aspect to which I will revert below under the heading of THE SAAPAWU AGREEMENT) and that its effect would be a waiver of any further claims against government, was discussed fully with them, and agreement was reached thereon. The first Tracor discharge form accordingly had no bearing on the QIS discharge form. To the above may be added the evidence of the tenth plaintiff that it was only after he had received payment of his severance package in December 1998 (much later than other QIS employees) that the QIS employees came together and deputed Mr Dintsi, the project manager, to go to Umtata to find out how the Tracor employees were going about taking steps in regard to the alleged unlawful termination of employment – another clear indication that Mr Tshiki did not represent the QIS employees in the matter of their severance packages. In any event, the second answer to counsel’s submission is that reflected in para [207] (a) above: in short, vis-a-vis the plaintiffs’ rights to seek to hold government liable for damages for the loss of their employment, the effect of the QIS discharge form was the same as that of the first Tracor discharge form, as amended, viz., a waiver of such rights.

[210] The further evidence of Mr Ramoo, which was not disputed, proceeded as follows. The management agents of the QIS received a clear instruction from government that a complete indemnity of government must be secured to avoid future claims against the government; during the extensive consultations held with the employees the indemnity form was discussed and its content explained; the legal representatives of the Department also attended at the scheme for discussions on the indemnity form; no payment took place until there was agreement; when the management agents arrived to effect payments the tenth plaintiff and other staff members were milling around; no protest against the form was registered.

[211] The ninth plaintiff, on his own showing, signed the form without protest. Committee members were present, including the tenth plaintiff and Mr Dintsi, and they raised no objection when he was asked to sign the discharge form. As to his alleged illiteracy, the remarks in the following paragraph made in respect of the eleventh plaintiff apply to him as well.

[212] The eleventh plaintiff admitted that when he signed the form, a prerequisite for receipt of his money, he realised that there was writing on it, but, so he claimed, he sought no advice as to what he was signing and did not know what he was signing – he is illiterate. The tenth plaintiff and Mr Dintsi were present when he collected his money and signed the form. It is hardly credible that in the circumstances leading up to the collection of his package, he could have been unaware that he was signing a discharge form relieving government of any further liability. Having so signed, he was bound.

[213] In respect of the tenth plaintiff it will be recalled that his replication was amended to reflect a denial that he signed the discharge form, the averment that his severance pay was collected by Mr Dintsi and that he was not bound by Mr Dintsi’s signature on the form (see paras [13] to [24] above). It must be accepted that Mr Dintsi did collect his severance pay on his behalf and signed the discharge form. That does not, however, mean that he can escape the consequences of the content of the form. Again, it is hardly credible, in view of the history of the matter, that he was unaware that an indemnity form relieving government of any further liability would have to be signed as a condition precedent to his receiving payment. In fact, the evidence established positively that he was so aware. From the evidence of the ninth and eleventh plaintiffs he was aware that signature of a discharge form was a requisite for the payment of a severance package; in terms of the evidence of Mr Ramoo, he participated in the committee with which the terms of the indemnity form were negotiated and in fact he received payment some 7 months later than the majority of QIS employees because he objected to the terms of the discharge form. On his own showing he knew that Mr Dintsi would have to sign to obtain the cheque, which Mr Dintsi did without objection; Mr Dintsi was his duly authorised to collect the cheque, and sign the form; after Mr Dintsi advised him that he had signed a discharge form on his behalf, he took no steps thereanent.

[214] I conclude therefore that the QIS plaintiffs are bound by the terms of the discharge form and that the defence of waiver raised on the strength of it must be upheld.

THE SAAPAWU SETTLEMENT

[215] As was recorded in para [13] of the earlier judgment, SAAPAWU launched an application in the Labour Court during August 1997 in which the Premier, the MEC and the liquidators of Tracor were cited as respondents. Details of the relief sought, the course the matter took, and the eventual settlement of the matter appear from the said para [13]. The clauses of the settlement agreement quoted in the paragraph were invoked by the defendants as founding a plea of waiver by those plaintiffs who were members of SAAPAWU (viz., the third, fifth, seventh, eighth and ninth plaintiffs) disentitling them from pursuing their claims in this matter. (Although the special plea was also raised against the eleventh plaintiff, he was in fact not a member of the union).

[216] That the terms of the settlement agreement constituted a waiver, with the reuslts referred to, by members bound by the settlement, was not in dispute. What was in dispute was whether the five plaintiffs mentioned were so bound. The essence of their stance was that at the stage the settlement agreement was concluded, March 1998, they were being represented by Mr Tshiki, and not by the union.

[217] The negotiations between the union and government representatives for the settlement of the proceedings in question took place in East London. It requires to be recorded that while the negotiations were in progress, what was described as “mass action” took place in Umtata when a large number of Tracor employees staged a sit-in at the offices of Coopers & Lybrand – the employees were demanding payment of severance packages. Communications thereanent passed between union representatives engaged in the settlement negotiations and the third plaintiff. I will revert thereto below.

[218] Mr Smuts understandably emphasised that on the evidence of the third plaintiff himself, the president of the union, the latter, when it launched the proceedings in the Labour Court, properly represented those employees at Tracor who were union members. That was also the evidence of Mr Nkosi, at the time the general secretary of the union. Counsel also persuasively argued that the attempts by the plaintiffs in question to suggest that they had lost their membership of the union in terms of a provision in its constitution that membership would lapse if union dues were not paid for a period of three months, was effectively refuted by the evidence of Mr Nkosi that the union’s executive, as it was entitled to do in terms of a further provision in the constitution, had extended the membership of the members in question, such extension to endure until the proceedings in question had been resolved one way or another. Certainly, the third plaintiff remained president of the union until February 1998, and he accepted that in his case it was by reason of the prerogative exercised by the executive that his membership of the union continued. Counsel further placed reliance other evidence of Mr Nkosi, who was involved in the litigation, that at no stage was the union advised that it no longer had a mandate from members who were Tracor employees and was no longer to represent them, specifically in the negotiations that were in progress; on the contrary, the third plaintiff accompanied him to see Mr Hanekom to explore the possibility of a political settlement of the dispute, and that gave rise to the negotiations, and when meetings were held by the union to discuss the envisaged negotiations shop stewards from all the affected corporations attended and, so it is to be inferred, agreement was reached on the way forward. At the negotiations themselves workers from, inter alia, Tracor were present. Mr Nkosi’s further evidence was that, while he was engaged in the negotiations, word was received of the sit-in at the offices of Cooper & Lybrand. He telephoned the third plaintiff and, in short, expressed concern that the mass action might prejudice the negotiations. While there was conflict between the two of them as to whether the sit-in should continue, the third plaintiff did instruct him to carry on with the negotiations. He did not instruct him not to represent Tracor workers at the negotiations. Counsel finally stressed that the settlement agreement (copies of which were annexed to the relevant pleadings) in terms provided that the settlement of all matters arising from and associated with the closure of the corporations and irrigation schemes and the consequent loss of employment, applied to Tracor and the QIS as well.

[219] The third plaintiff, on the other hand, testified, that, for a number of reasons, the Tracor employees, including union members, decided to go with Mr Tshiki, and the union was accordingly advised that it was no longer to represent Tracor union members. He conceded that the union was instructed to persist in the litigation, but he explained same by pointing to the fact that the interests of members at other corporations were involved. His version of the communications that passed when the sit-in was taking place was that he received a telefax from East London, penned by Mr Nkosi (who then had the name Motha), enquiring whether Tracor members were involved in what was being discussed at East London. His response was that they were not involved. The fax, so it was claimed, was probably at the offices of Coopers & Lybrand. The third plaintiff even went so far as to suggest that Mr Nkosi was subsequently disciplined and reprimanded by the union for having, contrary to the third plaintiff’s instructions, continued to represent Tracor workers at the negotiations. This was denied by Mr Nkosi. Neither this denial nor the third plaintiff’s allegations concerning the faxes referred to above, was taken up with Mr Nkosi by counsel for the plaintiffs.

[220] Had no further considerations come into play I would have had no difficulty in holding that Tracor members remained represented by the union when the settlement was negotiated and became bound in terms thereof. Mr Dukada frankly conceded that on the aspects that arose the third plaintiff was an unsatisfactory and “shaky” witness. The fact that Mr Tshiki had been engaged in the Cekeshe application by Tracor employees, including union members, would not have been a bar to such a finding: he was engaged in separate litigation and the issue of severance packages did not feature therein.

[221] The matter did not stop there, however. On 12 February 1998 (i.e., shortly before the negotiations were to take place) Mr Nobatana addressed a letter, under the heading of “EX GRATIA PAYMENTS: EX TRACOR EMPLOYEES”, to Mr Tshiki (exh A 342-3) in which he referred to an earlier meeting between them and he confirmed that his clients (i.e., government) were to negotiate a basis for the calculations of severance / retrenchment benefits, as particularised in the letter. For the purpose of advancing the process he enquired whether it would be acceptable, inter alia:

“That your firm, Tshiki and Sons of Umtata furnish this office with its written assurance that it represents all persons who were employed by Tracor as at 9 July 1997, and that you are properly mandated to negotiate as is hereinafter set forth. You will understand that our clients are inundated with representations by individuals who claim to represent former employees at Tracor....Please may we receive your assurance that SAAPAWU is indeed the affected union and that your firm represents SAPAWU (sic) also. We would be greatly assisted if we were to receive a letter from SAAPAWU to this effect.”

There followed a number of proposals in respect of the bases of the calculation of severance benefits to be utilised (for which purpose, inter alia, a copy of Tracor’s retrenchment policy, if it had one, was requested).

[222] The response, exh A 344, was as follows:

“RE: SEVERANCE PAYMENT OF TRACOR EMPLOYEES.

We are in receipt of your faxed letter dated 12 February 1998 the contents of which we have noted.

Enclosed herewith please find a copy of the letter from the acting Managing Director of Tracor which authorises our firm to represent the employees ofTracor for the purposes of negotiating severance and / or ex gratia payment of Tracor employees. We trust that this will satisfy you with regard to the scope of our mandate.

We have not been instructed by SAPAWU (sic) to represent it.

It would seem that some of the contents of your fax have been overtaken by events. Our clients have informed us that the calculations of their expected benefits have already been done by Coopers and Lybrand and forwarded to the Department.

Could we now set up a date urgently for a discussion of the said calculation and immediate payment of those that are not contentions.

We now await to hear from you.”

[223] There followed, inter alia, the meeting of 20 February 1998, referred to earlier, negotiations between Mr Tshiki and the management agents on the severance packages, agreement thereon and the payment of the severance packages that was effected during March 1998, including those paid to union members.

[224] It is clear therefore that Mr Tshiki held a mandate in the matter of the severance packages to be paid to Tracor employees, including union members, that government accepted that he had that mandate and that it acted on that basis and that Mr Tshiki carried out that mandate, resulting in the payment of the packages. The negotiations at East London had, as an integral and material component, agreement on severance payments. The agreement reached on that matter at East London could not exist side by side with a different agreement, to which agreement also government was party, reached on the same matter at Umtata, if the same employees were involved. The answer is that the East London agreement could have no application to anyone to whom the Umtata agreement applied, specifically Tracor employees who were union members. As an integral and material component of the SAAPAWU settlement was not of application to those members, it follows that no other portion of the settlement applied to them.

[225] I hold accordingly that the Tracor plaintiffs in question, viz., the third, fifth, seventh and eighth plaintiffs, are not bound by the SAAPAWU settlement, and the waiver contended for was not established as against them.

[226] Is the position of the ninth plaintiff, a QIS employee, any different. Notwithstanding my finding that Tracor was the employer of the QIS employees, it requires to be repeated that Mr Tshiki was not involved in the matter of their severance packages. There is, however, a further consideration. The SAAPAWU settlement made provision for severance packages to be calculated according to an agreed formula. Mr Ramoo’s evidence was to the effect that he used other formulae to determine the severance packages of the respective employees, and did not seek to utilize the settlement formula. Payment was effected only once agreement on the severance packages was reached with the employees. The addendum to the QIS discharge form (see para [47] of the earlier judgment) is not of assistance to the defendants. It may be noted that it applied to all QIS members, not only union members. According to the evidence of Mr Ramoo and Mr Nobatana, the events leading up to the coming into being of the addendum were as follows. There was an expectation that after payment of the severance packages to the employees of the parastatal referred to in the addendum, a balance would remain from the total amount that had been allocated to that parastatal and, in that event, so it was agreed, such balance would be utilized to top up the severance packages paid to the QIS employees. The QIS employees proposed the following wording for an addendum to the discharge form (exh D3 938):

“Provided that the sum of R shall be increased so as to give full effect to the formula of ex gratia payments adopted in the written agreement concluded by SAAPAWU and the Premier and that the shortfall is payable not later than … to Qamata employees.”

Mr Nobatana was, however, concerned that this proposal would impose an absolute liability on government, which might in the result have to find further funds, and accordingly, at the meeting referred to in para [209] above, discussed a counter-proposal which embraced an addendum as it came to be in its final form, agreement was reached thereon and he thereafter drafted the addendum annexed to the pleadings. It may further be noted that both the addendum proposed by the employees and the final one reflect that the settlement formula was not applied in the calculations of the severance packages of QIS employees. There was no evidence of any further payments to QIS employers; in fact, the evidence was to the contrary effect. In that an integral part of the settlement, the payment of severance packages according to the agreed formula, was not implemented in respect of the QIS employees, the settlement was not binding on them.

[227] I hold accordingly that the waiver contended for as against the ninth plaintiff was not established.

COSTS:

[228] In paras [12], [26], [34] and [79] above I recorded certain rulings I have made in the matter of costs. These will be reflected in the order made at the end of this judgment.

COSTS OF THE APPLICATION FOR ABSOLUTION FROM THE INSTANCE

[229] Mr Dukada submitted that notwithstanding the MEC’s success in the application, viz., in securing an order for absolution in respect of two claims made against him in these proceedings, i.e., the Aquilian and iniuria claims of the three QIS plaintiffs, I should nevertheless limit the costs order in his favour to those arising out of the pleadings in respect of those claims. The costs attendant on the argument on the application in respect of the claims in question should, however, be ordered to be costs in the cause. The foundation for the submission was the argument that a composite application for absolution was made on behalf of both defendants; that in that application the Premier had been unsuccessful in respect of all the claims against him (which would entail an order for costs in favour of the plaintiffs against him); that, similarly, the MEC had been unsuccessful in respect of one claim, the contractual claim (which would entail an order for costs against him in favour of the QIS plaintiffs); and that no extra costs were incurred in the composite argument by the inclusion therein of the argument on behalf of the MEC, alternatively, that it was not possible to separate the costs incurred in respect of the argument for the MEC from the other costs of the application.

[230] The submission cannot be upheld. It cannot be doubted that the argument on behalf of the MEC did occasion substantial costs which would not otherwise have been incurred. I consider that the taxing master will be in a position to apportion the costs in an appropriate manner. There is no reason why the general rule that costs follow the event should not apply. The costs of the MEC which the QIS plaintiffs are to pay by reason of their being non-suited in their claims against him, will accordingly include the MEC’s costs incurred in respect of his successful application from the instance of the Aquilian and iniuria claims against him. The MEC must, however, bear the costs incurred by the QIS plaintiffs in respect of the dismissal of his application for absolution from the instance of the contractual claim against him.

[231] Mr Smuts submitted that notwithstanding the Premier’s failure in the application, he should not be mulct in costs; the costs of his application should rather be costs in the cause. The foundation for the submission was the argument that the test applicable at the absolution stage had been different; that the result of the application followed on my finding that the evidence, reasonably approached, might possibly lead to conclusions favourable to the plaintiffs; that I was, however, in a position at the end of the trial to decide whether, on the test now applicable, the conclusions contended for by the plaintiffs have been established; I am therefore now better placed to make an appropriate order of costs, taking into account the evidence presented as a whole; and that, in the circumstances the appropriate order would be that the costs in question be costs in the cause.

[232] The submission cannot be upheld. The application required to be decided in terms of the applicable principles and on the evidence then before me. The Premier was unsuccessful. There is no reason why the general rule that costs follow the event should not apply. The Premier will accordingly pay the costs of the plaintiffs incurred in his unsuccessful application for absolution from the instance.

COSTS OF VARIOUS ADJOURNMENTS

[233] At various stages during the trial the Court was unable to sit on days appointed for the hearing, or for part of such days. The reasons therefor varied. At times the reasons had their origin in the camp of the plaintiffs, at other times in the camp of the defendants. Mr Smuts submitted that, in the event of my making any findings in favour of the plaintiffs which carried with them costs orders, I should temper such cost orders with orders that the defendants be awarded costs in respect of certain of the days that were wasted due to reasons attributable to the plaintiffs’ camp. Mr Dukada submitted that the time lost due to fault in the defendants’ camp cancelled out, as it were, the delays occasioned by the plaintiffs’ camp, and that the appropriate course would therefore be to hold that the wasted costs incurred in respect of time lost be costs in the cause (or, put differently, that no costs orders in respect thereof were required).

[234] In the light of my non-suiting the plaintiffs, it is not necessary (subject to what follows below) that I make any orders in respect of wasted costs occasioned by the plaintiffs: save as set out in para [237] below, such costs will be part of the costs in the cause in all the actions, which are to be paid by the plaintiffs.

[235] The reasons for the loss of Court time during the presentation of the defence case were that witnesses were not in attendance at Court after the conclusion of the testimony of the previous witness and/or logistical problems experienced by the defence camp. That camp was not without blame in the matter, but same was tempered to an extent by the fact that there was some merit in counsel’s submission that the circumscribed extent, or even absence, of cross-examination of defence witnesses was unexpected. That merit should not, however, be overstated, more particularly in the light thereof that I directed that steps should be taken to ensure as far as possible that the situation did not arise where due to the unavailability of a witness, the hearing could not continue. In the result, I am persuaded that it would be appropriate for the defence camp’s culpability in the matter to be reflected by an order for costs in respect of the Court time lost. A fair assessment thereof would be the equivalent of two days.

[236] The comments in the paragraph that follows must be prefaced by my recording that prior to the hearing the defendants filed a Rule 35 (3) notice calling upon all the plaintiffs to produce their bank statements in respect of specified periods. Failure to comply with this notice, or sufficiently to comply therewith, caused cognizable delays in the hearing from time to time in order for the required documentation to be produced.

[237] Pursuant to my ruling (see para [27] above) that the action of a further plaintiff be consolidated with the then consolidated action, the matter was postponed on 21 November 2003 to 20 January 2004, in order for the necessary steps to be taken. I directed that the decision which further action was to be consolidated be communicated to the defendants’ attorney on or before 1 December 2003. I further directed that there be complete compliance, on or before 31 December 2003, with the defendants’ Rule 35 (3) notice in respect of the bank statements of the plaintiff whose action was to be consolidated. This latter direction was not complied with. It was only partially complied with by 20 January 2004. On that date the proceedings commenced nearly three hours late because of unpreparedness in the plaintiffs’ camp. The sitting could not continue after the luncheon adjournment because there was no clarity on the question whether there were still bank statements of the plaintiff outstanding and the acceptable reluctance on the part of Mr Smuts to commence his cross-examination until he had had sight of the full documentation, and the matter stood down for the necessary steps to be taken, inter alia, by securing the attendance of the relevant bank managers at Court. For the same reason the Court could not sit the following day (save for a period of approximately half an hour when a plaintiff who had testified earlier was recalled for further cross-examination). It requires to be recorded that the plaintiffs’ attorney, Mr Tshiki, had not, for the purpose of securing compliance with the Rule 35 (3) notice by 20 January 2004, adopted the simple and appointed course of causing subpoenas duces tecum to be served on the bank managers to ensure their attendance at Court on 20 January 2004. On 22 January 2004 the hearing lasted but a few minutes during which I was advised that the bank managers, who had in the interim been served with subpoenas requiring their attendance at Court on that day, had intimated that the notice given to them to attend Court was too short and that they would not be present on that day (a matter that was taken up with them the following day, when they did attend Court). On 23 January 2004 the hearing lasted only approximately one hour during which only the evidence of the two bank managers was heard, whereafter the matter had once more to be postponed to afford Mr Smuts an opportunity to prepare himself on the documentation. Effectively, therefore, nearly four complete days of hearing were lost.

At the time I gave notice that I would be obliged to consider an order that the wasted costs be paid by Mr Tshiki de bonis propriis, and that I would require argument on that question.

It need hardly be stated that attorneys who engage in litigation should display an acceptable standard of dedication to their obligations. Mr Tshiki’s failure to secure, by 31 December 2003, such documentation as the banks did subsequently furnish was culpable. His omission to cause the subpoenas referred to earlier to be issued was culpable. The explanation, set out in an affidavit by him which I required to be placed before me, viz., that he considered that the difficulties he encountered with the bank managers would be resolved by way of my issuing an order on 20 January 2004 that they attend Court, is not understood. It is relevant to record further that, as the record will show, there were a number of other instances where proper devotion by Mr Tshiki to his obligations was lacking. While a Court will be slow to hold an attorney personally responsible for costs incurred in litigation, I am persuaded that the present is a proper case for such an order to issue. However, as the failure by the bank managers to attend Court on one day in compliance with the subpoenas served on them, was a contributory cause of the loss of that day as Court time, I consider that it would be fair to hold Mr Tshiki liable only for the wasted costs of three days.

COSTS OF THE ACTIONS

[238] It was not in dispute that costs should follow the event.

COSTS OF THE TWO COUNSEL

[239] It was further not in dispute that all costs orders in favour of the defendants should include the costs attendant on the employment of two counsel.

ORDERS:

[240] In the result the following orders will issue:

(a) The actions of all the plaintiffs against the first defendant, the Premier of the Province of the Eastern Cape, are dismissed, and judgment is entered in the first defendant’s favour;

(b) The contractual claims of the plaintiffs, Mkhwambi, Zantsi and Kiva against the second defendant, the Member of the Executive Council for Agriculture and Land Affairs of the Province of the Eastern Cape, as set out in paragraph 15.1 to 15.5 of the particulars of claim in cases Nos 841/99, 888/99 and 790/99, respectively, are dismissed, and judgment is entered in the second defendant’s favour;

(c) Subject to (g), (h), (i), (j) and (k) below, the costs of the first defendant incurred in all the actions will be paid by the plaintiffs jointly and severally, the one paying the others to be absolved;

(d) Subject to (f), (h), (i), (j) and (k) below, the costs of the second defendant incurred in cases Nos 841/99, 888/99 and 790/99, respectively, including the costs of the successful application by the second defendant for absolution from the instance of the aquilian and iniuria claims against him, as set out in paragraph 15.6 of the said particulars of claim, will be paid by the plaintiffs, Mkhwambi, Zantsi and Kiva, jointly and severally, the one paying the others to be absolved;

(e) The costs referred to in (c) and (d) above will include the costs occasioned by the filing of the Rule 36 (a) and (b) notices in respect of the evidence of the plaintiff, Twani;

(f) The costs of the plaintiffs, Mkhambi, Zantsi and Kiva, incurred in the unsuccessful application of the second defendant for absolution from the instance of the contractual claim referred to in (b) above, will be paid by the second defendant;

(g) The costs of all the plaintiffs incurred in the unsuccessful application of the first defendant for absolution from the instance of all the actions against him, will be paid by the first defendant;

(h) (i) The costs of the first and second defendants incurred in respect of the application by the plaintiff, Zantsi, in case No 888/99, for leave to amend his replication up to and including the perusal of the replying affidavit, will be paid by the said plaintiff;

(ii) The costs of the said plaintiff incurred in the application occasioned by the opposition thereto subsequent to the perusal of his replying affidavit, will be paid by the first and second defendants jointly and severally, the one paying the other to be absolved;

(i) The costs of the first and second defendants incurred in the application for the consolidation of a further action with the then consolidated action, will be paid by the plaintiffs, Twani, Chagi, Mapekula, Cekeshe, Gatyeni, Dzedze, Pulusente, Zangqa, Mkhwambi and Zantsi, jointly and severally, the one paying the others to be absolved;

(j) The costs incurred by the first and second defendants in respect of the hearing on 20, 21 and 23 January 2004 will be paid by the plaintiffs’ attorney, Mr Tshiki, de bonis propriis; it is further directed that Mr Tshiki will not recover from the plaintiffs any fees in respect of the days in question;

(k) The costs of all the plaintiffs incurred in respect of two days’ hearing during the presentation of the defence case, will be paid by the first and second defendants jointly and severally, the one paying the other to be absolved;

(l) All costs orders referred to above made in favour of the first and/or the second defendant will include the costs attendant on the employment of two counsel.

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F. KROON

JUDGE OF THE HIGH COURT

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