IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG

                                                                           CASE NO: CA 4/2007

In the matter between:

SA METAL & MACHINERY		 APPELLANT/cross respondent 
CO (PTY) LTD

and

SAMUEL GAMAROFF                    RESPONDENT/cross appellant
_____________________________________________________________

JUDGMENT
_____________________________________________________________

LEEUW JA:

Introduction

[1]	This appeal, with the leave of the Labour Court, is against the judgment granted by Nel AJ in terms of which he held that the respondent’s dismissal was both procedurally and substantively unfair and consequently ordered the reinstatement of the respondent with retrospective effect to the 1st March 2006 on conditions no less favourable to the respondent than those which had governed the respondent’s employment at the time of his dismissal.  He also ordered the appellant to pay costs.  The respondent also filed a cross-appeal against the judgment without having applied for leave from the Court a quo.

[2]	The respondent’s services were terminated on the 12th December 2005 on the basis that he had reached his retirement age.  The respondent challenged his dismissal and consequently referred the subsequent dismissal dispute to the Commission for Conciliation, Media and Arbitration (CCMA) alleging that his dismissal constituted unfair discrimination based on age and was thus automatically unfair in terms of section 187 (1) (f) of the  Labour Relations Act No 66 of 1995 (“the Act”).	

[3]	A conciliation meeting was held on the 13th February 2006 and, when the dispute could not be resolved, a certificate to that effect was issued by the CCMA on the same date.  The dispute was referred to the Labour Court for adjudication where the respondent sought an order declaring his dismissal automatically unfair as contemplated in section 187 (1)(f) of the Act and orders for reinstatement, compensation as well as costs.

[4]	After evidence had been heard from both parties, the Labour Court found that:

(a)	the real reason for the respondent’s dismissal was the appellant’s operational requirements;

(b)	appellant had not complied with the provisions of section 189 of the Act prior to terminating the respondent’s services; and

(c)	respondent’s dismissal was grossly procedurally and substantively unfair.

	The Court held that it had power to grant an order which was not based on the respondent’s cause of action.  An order for the reinstatement of the respondent with retrospective effect was made and the appellant was ordered to pay the respondent’s costs.
	
[5]	In their grounds of appeal to this Court, both the appellant and the respondent appeal against the Court a quo’s finding that the respondent’s dismissal was due to the appellant’s operational requirements which they submit, was wrong.  They both urge this Court to replace it with an order that his dismissal was automatically unfair and that the Court should not interfere with the order of reinstatement as well as the costs order.  The appellant seeks an order setting aside the of the Court a quo in toto as well as dismissing the respondent’s cross-appeal for an order that his dismissal was automatically unfair as contemplated by section 187 (2) of the Act.  The appellant’s further grounds of appeal is that the Court a quo misdirected itself in making a finding on issues which were not based on the cause of action relied upon by the respondent.

	Factual background
[6]	The facts which are common cause appear in the parties’ pre - trial minute as well as evidence presented in the Court a quo.    I set out below the facts which were presented by both parties in this Court:

6.1	The respondent took employment with the appellant in 1999, when he was fifty three (53) years old.  He occupied the position of manager in the non-ferrous metals section and was responsible for the copper shed.  He was sixty seven (67) years and eight (8) months old when his services were terminated on the 26th February 2006 on the grounds that he had reached retirement age.

6.2	Prior to the respondent’s dismissal, meetings took place on the 6th and 12th December 2005 between the respondent and Mr Bidderman-Pam, the human resources manager in the appellant company, where the issue of the respondent’s retirement was discussed.

6.3	Mr Bidderman-Pam, testified that:

6.3.1	the respondent was a member of the Investment Solutions Fund and that membership to this Fund was compulsory in respect of all employees of the appellant.  The Fund defines normal retirement age as the “date specified in the special rules.”  The special rules were contained and stipulated in a document titled “Superflex Provident Fund Special Rules”.  An extract from a meeting of the Board of Trustees of the Superflex Provident Fund (Superflex Fund) dated 4 July 1996, states that the “normal retirement age shall be 65 years in respect of all members.”  I will deal with the Provident Fund in due course in this judgment.
		
6.3.2	Mr Bidderman-Pam further testified that those employees or managers who were still in the appellant’s employment even after having reached the retirement age of 65 years were employed at the discretion of the appellant and could still have been retired at their normal retirement age of 65.  

6.3.3	The respondent was retired at the age of 67 years and was paid his full benefits from the fund (a total of R614 024-00), which amount was paid on the basis that he had reached his normal retirement age.  He was not retired at the age of 65, the reason being that the company still needed his services.  The respondent underwent a serious back surgery in 2005 and was out of work for almost four (4) months.  During that period, a company called Reclamation Group offered to purchase the appellant’s company on condition, amongst others, that appellant took the responsibility of retiring its employees who were over the age of 65.  This deal did not materialize.  It was at that stage that the appellant retired the respondent because it had anticipated that the sale transaction would be concluded.

6.3.4	Mr Bidderman-Pam further testified that he was authorized by the appellant’s board of directors to discuss the retirement process with the respondent.  Four consultation meetings were held between him and the respondent.  During these meetings respondent indicated to him that he was not prepared to take retirement because it did not suit his financial needs; he tendered his services at a reduced salary which offer was not accepted by the appellant.  He was not shown the appellant’s policy document stipulating the retirement age during these consultations because all the employees including the respondent were aware that the retirement age was 65 years.  He intimated that there was an agreed normal retirement age at appellant’s.

6.4	Following the above-mentioned meetings, the respondent wrote two letters, on the 13th and 14th December 2005 respectively.  In the letter of the 13th December 2005, addressed to Mr Bidderman-Pam, he strongly expressed his disapproval of issues which were apparently raised during their meeting of the 12th December 2005.  He complained about the “crude” manner in which management showed lack of appreciation for the services rendered by him throughout his employment with them and even blamed hard work and dedication to his work, as well as the emotional stress brought to bear upon him by management, as the main causes of the deterioration of his health.  He alleged in his letter that his dismissal based on age was a sham and unlawful.  

6.5	On the 13th December 2005, the respondent and all staff members of the appellant received standard form letters from the appellant wishing all of them well for the festive season and further urging them to report for duty when the appellant’s business opened in January 2006. They were also informed about the review of their 2006 remuneration package and discretionary bonus which were to be reflected in their December 2005 salary advices. 

6.6	In his letter of the 14th December 2005 to Mr Bidderman-Pam, the respondent accused the appellant of constructively dismissing him from its employment.  In the lengthy e-mail, he alleged amongst others, that:

(a)	Management was disappointed to learn that he had recovered from his illness because they had intended to get rid of him;

(b)	he was being continuously victimized at work by Mr Bidderman-Pam who had offered him a lower position with a much decreased salary which he said was humiliating;

(c)	the appellant used retirement age as a means to get rid of him; he accused Mr Bidderman-Pam of using “unconventional methods to terrorise [him].”  He referred to the alleged tactics as “psycho-terror tactics” which he said were aimed at “making it intolerable for (him) to continue doing (his) work in a safe and healthy environment”,

(d)	he was “illegally demoted by the petty tyrant from the position of Non Ferrous Manager appointed in my contract letter of appointment of 16 September 1991 signed by the Chief Executive Officer, Mr Graham Barnett, to supervisor a serious material breach of contract.”  He added in his letter that “The petty tyrant has appointed his own person to my position and subsequently has no direct contact with (me) about (my) projects”;

(e)	he had been subjected to a continuous attack and harassment by the production manager from the day he started working at the appellant’s company because he (the production manager) perceived him as a threat to his position and further that he was envious of the accolades he had received from senior management for his perfect work performance;

(f)	he was a hardworking man who earned his living and that he deserved an increase in salary; he expressed his disquiet at the offer to demote him in order to pay him a reduced salary; he called upon the appellant to produce proof that it could not afford to pay his salary and further stated that it was illegal to dismiss someone because of the availability of cheap labour; he also wrote:   “That the loophole called “retirement age” is just a sham, an excuse to do what the petty tyrant has been trying to achieve for the last seven years”;

(g)	he had received several letters of commendation from management throughout the years and intimated that he “would still be with the company until compulsory retirement age of seventy …….  No mention of retirement in 2003, 2004 or 2005”.  He further stated that: “in 2004 I calculated that as we needed certain refurbishment on our home I could afford to take out a home loan to cover the cost and have it repaid by middle of 2008 when I would be retiring and my provident fund would have a reasonable amount accumulated to live on.  My plan for the future is to retire at 70”; and

(h)	he finally remarked in his letter that “by the way, why the indecent haste, I thought the Reclamation Group was going to take over very soon.  I believe they do not like Christo (de Klerk).  Maybe there is some thruth when you said they may want me to run the whole yard, wouldn’t that be something”.     

6.7	The respondent tendered his services on the 11th January 2006 which was the first day of work after the Christmas break, but was advised that his services were terminated.  He was given a letter dated 15 December 2005 by the appellant.  This letter was not given to the respondent on the 15th December 2005 because they could not find him at work and he was also not available in view of the fact that the appellant company was closing down for the Christmas break.  The other reason advanced was that the letter could not be sent by e-mail transmission because the contents thereof were confidential.  This letter was to the effect that:

(a)	the retirement age laid down in the appellant’s rules was 65 years;

(b)	he had to complete his work obligation to the appellant on the 15th December 2005 and that this date, the 15th December 2005 was to be considered as the date of his retirement and termination of his services; 

(c)	the appellant was not prepared to allow him to work beyond the date of dismissal; and that 

(d)	 he would be paid his salary for December 2005, January 2006 and February 2006 as well as a 13th cheque.

6.8	In response to this letter, the respondent wrote a letter on the 16th January 2006 to the appellant, in which he challenged his dismissal on the basis that his contract of employment did not make specific reference to a retirement age. He requested to be allowed to continue working up to the age of 70 years.  That request was rejected by the appellant.  

6.9	The Respondent’s version is that:

(a)	he was employed as a manager and was responsible, in his department, for sorting and grading non-ferrous metals for quality control and assurance;

(b)	 he also prepared the merchandise for sale and dispatch.  

(c)	he supervised between 25 and 30 employees in this section and, according to him, was competent in his job and, therefore, did not require any form of supervision;

(d)	he underwent a spinal operation and was off-duty for about two months and on coming back he was informed by Mr de Klerk that some of the departments had been restructured and that his department was being managed by Mr Cotterel; according to him he was sidelined by management and was not allocated any work to do by appellant;

(e)	he had been invited to a meeting with Mr Bidderman-Pam on the 6th December 2005 where he was informed that he had reached the retirement age and that his services would be terminated with effect from 15 December 2005.

(f)	when he enquired, at that meeting as to whether or not the appellant was satisfied with his performance, he was told that his salary was three times higher than that of one manager at the appellant’s company; he said that he was offered a 60% reduction in salary in a lower position, that is, if he were to continue working for the company, which offer he declined; during cross-examination by counsel for the appellant, respondent stated that the appellant’s alleged dismissal based on age was a sham;

(g)	he testified that a second meeting was held on the 12th December 2005 between himself, Messrs De Klerk and Bidderman-Pam where he was advised that he had to retire on the 15th December 2005, which suggestion was not acceptable to him; and

(h)	he further testified that there was no provision made for normal or agreed retirement age in his contract of employment and asserted that the Provident Fund Rules prescribed the retirement age as 70 years, that the Provident Fund Rules prescribed that he could remain a member of the fund until the age of 70 years but that contributed to the fund would not be accepted after the age of 70 years.  During cross-examination he conceded that he was mistaken about the Provident Fund Rules regarding the retirement age and accepted that the retirement age was 65 years.  This concession was made by him after it came to light during cross-examination that he had not acquainted himself with the rules of the Provident Fund, especially the Superflex Provident Fund rules which were implemented on the 1st March 1992, which was almost 13 years prior to his alleged retirement.  Respondent however, intimated that he was not notified about the change of the Provident Fund Rules, which he alleged, came to his knowledge a week before the hearing of this matter in the Labour Court.

[7]	In the pre-trial minute, the parties had agreed amongst others, that the issues which the Labour Court was required to determine, were:

[a]	whether in dismissing the respondent, the appellant unfairly discriminated against him on the grounds of his age, which resulted in his dismissal being automatically unfair as contemplated by section 187 (1) (f) of the Act;

[b]	whether there existed at the date of the respondent’s dismissal, a normal or agreed retirement age at the appellant as contemplated by section 187 (2) (b) of the Act;

[c]	whether appellant was obliged to afford the respondent a fair hearing prior to his dismissal alternatively whether the respondent was afforded a procedurally fair hearing;

[d]	whether the respondent had waived his right to have his dispute determined by the Court taking into account that he allegedly accepted a payment in full and final settlement of his dispute.  The common cause facts as stipulated in the pre-trial minute are, amongst others, that the respondent was “dismissed on the ground of having reached the (appellant’s) alleged retirement age”.
	
[8]	It was further agreed in a “Supplement to the Pre-Trial Minute” with regard to the Provident Fund, that:

(a)	the appellant is a participating employer in the Investment Solutions Provident Fund; 

(b)	the Investment Solutions Provident Fund was previously known as the Superflex Provident Fund from 1 April 1993 to 1 December 2000; and that

(c)	the rules of the Investment Solutions Provident Fund comprise the General Rules applicable to all participating employers and their employees, and that the Special Rules were only applicable to the employees.

[9]	A document titled “Investment Provident Fund” signed by the trustees of that Fund on the 10 June 2004, provides under “General” as follows:

“1.1	A fund known as SUPERFUND PROVIDENT FUND was established with effect from 1 March 1992.

With effect from 1 April 1993 the Fund became known as SUPERFLEX PROVIDENT FUND..

With effect from 1 December 2000 the Fund shall be known as the INVESTMENT SOLUTIONS PROVIDENT FUND.”

[10]	Clause 1.5 of the Rules of the Investment Solutions Provident Fund provides:

	“The Rules of the Fund comprise these General Rules, which are applicable to all participating Employers and their employees and the Special Rules which apply to individual participating Employers and their employees.  In the event of conflict between a General Rule and a Special Rule, the provisions of the Special Rule shall prevail.”

[11]	Clause 2 of the Special Rules adopted by the trustees of the Fund on the 4th July 1996, and which are stipulated in the Superflex Provident Fund dated 4 July 1996 (which was later changed to Investment Solutions Provident Fund) provides as follows in regard to eligibility for membership of the Fund.

“All Employees on the permanent staff of the Employer, including a working director but excluding any employee whose employment is temporary or casual or subject to a limited period of employment.”  

	Clause 4.1 deals with normal retirement age.  It reads as follows:

	“4.1	Normal Retirement Age shall be 65 years in respect of all Members.”

[12]	Clause 2 of the Investment Solutions Provident Fund, which was adopted on the 10th June 2004, provides, under membership, as follows:

“2.1	Each eligible Employee in Service on the Commencement Date, may, in terms of his contract, choose to become a Member of the Fund.  Such choice must be exercised within twelve months after the Commencement Date or if later on the date set out in the Special Rules.

2.2	Each Eligible Employee who was a member of a Previous Fund shall transfer to the Fund on the Commencement Date or if later, on the date set out in the Special Rules.

2.3	Eligible Employees who enter Service after the Commencement Date shall join the Fund as a condition of employment.  Eligible Employees shall join the Fund on the first day of the month coincident with or next following the date of joining Service, or such earlier date as advised by the Employer from time to time.   

2.4	A Member shall not be permitted to withdraw from membership while he remains in Service.”

	Clause 3.1.1 of the Fund prescribes that “each Member shall make contributions throughout his service at the rate set out in the Special Rules.”  Clause 3.1.2 further prescribes that each “Member’s contribution shall be deducted by his employer from his salary wages.”

[13]	Clause 4, of the Investment Solutions Provident Fund, dealing with Retirement, provides:

“4.2.1	A Member may retire at any time after having attained the early retirement age specified in the Special Rules, provided that he may not retire prior to age 55 years.  A Member who is dismissed from Service after having attained the specified age may also proceed on retirement if the participating Employer regards such dismissal as early retirement.  	

4.2.2	A Member who has not retired in terms of Rule 4.2.1 must retire on reaching his Normal Retirement Age unless his Employer agrees to his remaining in Service after that date.

4.2.3	The Trustee, upon receipt of notification from the Employer that a Member has become totally and permanently incapable of efficiently carrying out his duties, shall agree to such Member’s retirement at any time before he reaches Normal Retirement Date.

4.2.4	A Member who is allowed to remain in Service after his Normal Retirement Age shall retire at a date not later than the last day of the month in which he attains the age of 70 years, subject to the agreement of his Employer.”  	

[14]	Mr Bidderman-Pam explained that the respondent was not retired at age 65 because at that time appellant still needed his services.  He also explained that the respondent as well as the other employees who had reached and passed the age of 65 years and had passed this age of 70, were allowed to continue working on the basis of Clause 4.2.2 and 4.2.4 of the Investment Solutions Provident Fund referred to in paragraph [12] above.

[15]	Mr de Klerk, who was the respondent’s line manager, testified that the relationship between him and the respondent was strained in that, amongst others, the respondent undermined his authority and was moody and very uncooperative at work.  He was not willing to implement the policies and achieve the goals which were set for the production team of which he (Mr de Klerk) was the supervisor.  He disputed conspiracy accusations levelled against him and the entire management by the respondent. 

	Judgment of the Labour Court.
[16]	In considering evidence, the Labour Court took the view that the real reason for the respondent’s dismissal was not age but rather that the respondent “was regarded as no longer fitting in and in fact having become obstructionist …….”  The Court went further to state:  “Clearly, the alleged conduct (of the respondent) may very well be cause to terminate his employment for operational reasons or by reason of (respondent’s) misconduct”:  Furthermore, the Court stated that there were at least four other employees who had reached the “normal retirement age and who had not been approached to retire as a result of the anticipated sale of business to Reclamation Group”.

[17]	This finding was not based on the cause of action relied upon by the respondent but the Court nevertheless justified its decision by stating, amongst others, the following:

        	“….. I am however of the view that I am able to grant ….. relief under the prayer for further or alternative relief if that relief is based on the evidence of the respondent (appellant) itself ……. A Court comes to the conclusion that the real reason for the dismissal was different to that which the employer had all along alleged it had been, and based on which allegation an employer had pleaded his case, then the Court may still find against the employer based on what it finds the true reason for termination was, but based on the respondent’s (appellant’s) own version ….. the applicant (respondent) had obviously not pleaded this, as it was not even in Court the employer’s case that its operational requirements was the real reason.  Is the Court then precluded from making such finding, based on the employer’s own evidence, purely because the applicant did not plead such a cause of action?  As I have said, I am satisfied that under the circumstances I may, under the applicant’s prayer of alternative relief, grant him such relief as may become justified by the employer’s own evidence.”

[18]	The Court consequently made a finding that the respondent’s dismissal was based on the appellant’s operational requirements and that “it failed to comply with the procedural requirements of section 189 of the LRA before doing so”.  The Labour Court found that the respondent’s dismissal was both procedurally and substantively unfair.  The Court also said:

“I am in conclusion of the view that, only where an employee’s dismissal was solely based on age, will the exception contained in section 187(2)(b) of the LRA come into operation.  It does not apply where the dismissal is motivated, as in the present case, either by reason of the fact that a purchasing party insisted the employer retired all employees past the normal retirement age or by reason of the employee no longer meeting the employer’s operational requirements.”  

[19]	The Court went further to deal with the provisions of section 187 (2) (b) of the LRA, and concluded that it was not necessary for the purpose of its judgment to deal with the question whether or not 65 years was the appellant’s normal or agreed retirement age; but it went further to state, obiter, that  “--- by reason of the fact that the provident fund to which the applicant (respondent) belonged stated very clearly that normal retirement age would be 65, the fact that applicant (respondent) himself did not acquaint himself with the rules of the provident fund does not justify him contending that the normal retirement age applicable to the respondent’s (appellant’s) employees was not indeed 65 years of age.  No evidence was adduced that the applicant agreed to 65 years of age being the normal retirement age.  However, by reason of the fact that the provident fund rules were incorporated in the applicant’s terms and conditions of employment, I am satisfied that 65 years of age was the normal age of retirement prevailing at the respondent (appellant) company.”
	The appellant was subsequently granted leave to appeal to this Court against part of the judgment of the Labour Court that was adverse to it.
	
	The appeal:
[20]	Counsel for the parties confined their argument to the question of whether or not there was an agreed or normal retirement age and this issue was argued on the basis that, if the Court were to find that there was an agreed retirement age, that would determine the fate of the appeal.  

(a)	whether or not there was provision made at the appellant, for either normal or agreed retirement age for its employees as prescribed in section 187 (2) (b) of the LRA;

(b)	if the answer to (a) is in the negative, whether the appellant was obliged to provide the respondent with a fair hearing prior to his dismissal; and

(c)	to the extent that this Court finds that the dismissal of the respondent was unfair, the appropriate relief to be awarded.
This attitude by the parties must have been influenced by what transpired during the respondent’s cross - examination in the Court below. During the respondent’s cross - examination it transpired that for some time before he was dismissed on the basis of his age he was under the impression either that the retirement age in the company was 70 years or he believed that there was no compulsory retirement age and he could work for the company beyond the age of 70 as long as he was still able to perform his work. It transpired that he misread some provisions of the provident fund rules relating to the withdrawal of deferred benefits which did make mention of age 70 but did not say that the retirement age was 70. Under cross - examination the respondent conceded that he had been mistaken in this regard. His attention was drawn to the relevant part of the applicable rules which states quite clearly that the “normal retirement age shall be 65 years in respect of all Members.” After he had concede that he had been mistaken about the retirement age being 70, he was asked whether he would still have initiated the legal proceedings if he had known that the applicable rules stated that the retirement age was 65. His answer was that he would not have done so. All of this notwithstanding the issue between the parties remained whether or not there was normal retirement age/agreed retirement age as required by sec 187(1)(b) of the Act. As I understood the parties, there was no disagreement that, if there was a normal retirement age/agreed retirement age, which would had been 65, then the respondent’s dismissal was fair and, if there was not, unfair discrimination was accepted. I now turn to the question whether or not there was normal/agreed retirement age. 
	
Was there normal/agreed retirement age as contemplated by sec 187(1)(b) of the Act?
[21]	Section 187 (1) (f) of the LRA provides that:

“(1)	A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is 
	(a)……(e)
(f)	that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to …….age, ………….”
	
Section 187(1) (b) provides for an exception to the general rule created by section 187 (1). It reads: 

	“(2)	Despite subsection (1) (f) 
(a)	………….
(b)	a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.”  

[22]	In Rubin Sportswear v SA Clothing and Textiles Workers Union and Others (2004) 25 ILJ 1671 (LAC), this Court per Zondo JP defined “normal” retirement age in paragraph [19] as follows:

“It seems to me that the word “normal” as used in sec 187 (2) (b) really means what it says.  It means that which accords with the norm.  However, it is important to bear in mind that that word is used in relation to persons employed in the same capacity as the person whose dismissal on the basis of having reached normal retirement age is in issue.  Sec 187 (2) (b) must, therefore, not be read as if it says “(d)espite subsection 1 (f), a dismissal based on age is fair if the employee has reached the normal or agreed retirement age.”  It includes the words at the end “for persons employed in that capacity.”  What the section does not make clear is whether the words “persons employed in that capacity” refer to such persons who are in the same employer’s employ or whether it also refers to persons who are employed in the same capacity by other employers in the same industry or in general.”  
	
[23]	In Cash Paymaster Services (Pty) Ltd v Browne (2006) 27 ILJ 281 (LAC) this Court held that the question of normal retirement age only applies where there is no agreed retirement age between the employer and the employee.  The Court went further to hold that: 

“[26] It would make no sense for the Act to make provision for an agreed retirement age if such an agreement would not be binding on the employer if there is a normal retirement age for employees employed in the relevant capacity.  What makes sense is precisely what the law is, namely, where there is an agreed retirement age, that agreement governs the position irrespective of the existence or otherwise of a normal retirement age for employees employed in the relevant capacity.  Where there is no agreed retirement age but there is a normal retirement age for employees employed in the relevant capacity, the position is governed by the normal retirement age for employees employed in that capacity.”

[24]	I have already alluded to the fact that it was agreed by the parties at the pre-trial conference that the respondent was dismissed on the grounds of having reached the appellant’s alleged retirement age.  The Court a quo misdirected itself by finding that the respondent was dismissed for the appellant’s operational requirements.  It was not entitled to decide the matter on that basis.

[25]	It is common cause that the retirement age, (be it the normal or agreed retirement age), was not stipulated in the respondent’s employment contract.  Counsel for the appellant argued that “the normal retirement age of 65 was expressly alternatively impliedly incorporated into the respondent’s contract of employment,” which retirement age has been provided for in the Superflex Provident Fund.  He further argued, in the alternative, that, if the Court made a finding that the retirement age of 65 was not part of the employment contract, the Court should find that there was an agreed retirement age in terms of the Provident Fund Rules.  He further argued, in the alternative, that 65 was the normal age of retirement for purposes of section 187 (2) (b) of the Act.

[26]	The respondent’s Counsel submitted that the onus was on the appellant to prove, on a balance of probabilities, that there existed an agreement as to retirement age or that a normal retirement age had been established.  He submitted that the test is objective, and entails considering the facts which tend to prove that the appellant had an ulterior motive in dismissing the respondent from its employment.	

[27]	When the respondent gave evidence in the Court a quo, he stated that he had obtained a copy of the rules of the Provident Fund and that he had noted in particular that the retirement age was 70 years, and had as such anticipated that he would retire at that age.  He could not produce those rules but intimated that the Provident Fund Rules which prescribed 65 as the compulsory retirement age were only given to him a week prior to the hearing in the Court a quo.  He conceded under cross-examination, and when questioned by the Court a quo, that had he been aware of the fact that the Provident Fund Rules provided 65 as the normal retirement age, he would have accepted that the employer was entitled to terminate his employment when he reached that age.

[28]	It is correct that the onus is on the appellant to prove on a balance of probabilities that there existed an agreed or normal retirement age for its employees.  Mr Bidderman-Pam stated that in the respondent’s letter of appointment dated 9 September 1991, it was stated that “the company will contribute the full amount of the Provident Fund membership from 1 October 1991.” 	He further testified that the appellant’s policy and procedure information booklet, which contains the terms of employment and details of the company rules, regulations and procedures, which “govern the employment contract and are contractually binding,” refers its employees to the Provident Fund summary booklet with regard to, amongst others, their retirement benefits.  The suggestion here was that the fact that this booklet referred the employees to the Provident Fund summary booklet with regard to retirement benefits is a good indication that the employees would know of the retirement age of 65.
	
[29]	In the light of clause 4.1 of the Special Rules referred to in par 11 above which it was common cause between the parties was binding to each one of them in relation to Provident Fund read in the light of the fact that the policy and procedure information booklet which regulates and governed the employment contracts between the appellant and the respondent, refers to the Provident Fund summary booklet, I am satisfied that clause 4.1 reflects what the appellant and the respondent agreed or must be taken to be agreed normal retirement age. Under cross - examination the respondent could not say anything to dispute that 65 was the agreed retirement age once he had concede that he had been mistaken about age 70.

[30]	In the light of the above and the attitude of the parties that this was the issue to be decided by this Court, it follows that the appeal must succeed. There was a cross - appeal that has been noted by the respondent without having been granted leave to cross - appeal. The parties presented argument about whether or not such cross - appeal was properly before Court when no leave to cross - appeal had been granted to the respondent. In the light of the fate of the appeal, it follows that, even if the cross - appeal was properly before us, it would have fallen to be dismissed. In these circumstances I shall assume, without deciding that it was properly before this Court but falls to be dismissed. With regard to costs I am of the opinion that the requirements of the law and fairness dictate that no order of costs should be made in this matter.

[31]	In the premises I make the following order:
1.	The appeal is upheld.
2.	There is to be no order as to costs in the appeal.
3.	The cross - appeal is dismissed.
4.	There is to be no order as to costs in the cross - appeal.
5.	The order of the Labour Court is set aside and for it the following order is made:
		“1.	The claim is dismissed.
2.	There is no order as to costs.”

	Leeuw JA.	

	I agree.

	Zondo JP

	I agree.

	Ndlovu AJA