Commercial Law Index

The court considered whether the respondent’s witness' statement on oath needed to be amended notwithstanding the amendment of the statement of defence. Further, whether the appellant was properly retired from the service of the second respondent.

The court held that the giving of a written statement on oath is a distinct process from the statement of defence which serves to support the statement of defence but is not part of it. Further, according to the public service rules the compulsory retirement age for all grades in the service shall be sixty years or thirty-five years of pensionable service whichever is earlier. A statement of policy cannot overrule public service rules, especially where such terms are not written in terms of the contract of employment.

The court found that when the respondents were given leave to amend their statement of defence, the amended statement of defence took effect from the date of the original statement of defence. Therefore, it was too late for the appellant to object to the effect that there was no written deposition to support the amended statement of defence. The court also found that the premature retirement was unlawful, null and void thus entitled to reinstatement.

The court accordingly upheld the appeal and awarded costs.
 

The appellants, employees of the first respondent, appealed a decision against the lower court that dismissed the appellants’ suit claiming wrongful termination.

The court began its consideration of the appeal by assessing the implication of collecting entitlements by the appellants whilst their case was pending, and whether this estopped them from bringing a challenge against their termination. The Supreme Court held that collection of terminal benefits in respect of wrongfully terminated employment would not be a bar to challenging the wrongful termination. If a termination is wrongful then it cannot be remedied by the subsequent act of the injured party. The appellants were therefore held not to be estopped from challenging their termination.

The court held that the main issue for determination was whether employment of the appellants was wrongfully terminated. The sole witness for the appellants stated that there were conditions of service governing their employments, but failed to tender any documentary evidence in support thereof. The onus of proof rests on the appellants to tender the terms and conditions of service; failure to do so had dire consequences for the appellants’ case as it is a vital issue. The court held that at the trial the appellants failed to discharge the onus of proving wrongful termination and how the respondents breached the terms of employment. The appeal was dismissed for lacking merit

This case developed common law to hold an employer liable where one of its employees is sexually harassed by a senior employee.

The court considered the employer’s liability in tort for sexual harassment of its junior employee by a senior employee. The court held that the first and second respondent were jointly and severally liable for the damages suffered by the plaintiff as a result of sexual assault perpetrated against her.

The court applied the rule that an employer is vicariously liable for the actions of its employee when an unlawful act is connected to the conduct authorised by the employer. The court held that the first respondent placed the second respondent in a senior position of trust and thus had the responsibility of ensuring that the second respondent was capable of that trust. This trust created the causal link between the second respondent and the wrongful act and that the employment relationship facilitated the sexual harassment.

The court also found the first respondent liable for imposing a two-week suspension as opposed to dismissing the second respondent for sexual harassment of a younger subordinate.

Accordingly, the court granted the application for damages in the sum of R4 million jointly and severally from the first and second defendant.

This was an action claiming monies allegedly siphoned from the plaintiff’s bank account with the participation and/or collusion of the defendant; and damages for the defendant’s breach of the fiduciary duty as branch manager. The defendant filed a counterclaim that his continued suspension and dismissal was unlawful. 

The issues for consideration were whether the defendant caused financial loss to the plaintiff; whether the suspension and/or dismissal was lawful; and the available remedies.

Regarding the first issue, the court held that the suit rested on the allegation that the defendant kept 26 cheques. The court held that it was not proved that the defendant kept the cheques beyond the three days alleged by the plaintiff; however the court found that the defendant knew the cheques were kept beyond the three days. As a result, the defendant was jointly liable with a Mr Patrick Kigongo.

On the second issue, the court held that the plaintiff was entitled to suspend the defendant as he was charged with a criminal offence. Management may dismiss an employee who was facing criminal prosecution if their continued employment would prejudice the interests of the bank. However, the defendant was suspended without pay contrary to regulation 30 of the terms and conditions of service; and the termination was without notice of disciplinary action, without a right of defence, and was thus unlawful.

The plaintiff was awarded general damages. The defendant was awarded his full salary from the date of suspension until the date of termination.