Thirty two years ago the Appellate Division of the Supreme Court (now known as the Supreme Court of Appeal – SCA) in Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) at 954A-B decided that, unless otherwise agreed, an employee’s notice of termination of employment (“resignation”) must be unequivocally communicated to the employer, but need not be accepted by the employer to be effective. In other words provided the required period of notice is given it will be regarded as a unilateral legal act and may be withdrawn by the employee before it is communicated to the employer.
An employee’s “resignation” (lawful termination of employment) needs to be distinguished from a cancellation of the employment contract by an employee where the employer has materially breached the contract or repudiated the contract. In that event the employee need not give any notice as the cancellation will take effect immediately it is communicated to the employer. Strictly speaking that is not a “resignation”, as the word is generally understood, but the lawful cancellation of a contract in response to a material breach.
Strictly speaking employees who “resign”, without giving the required period of notice, act unlawfully. Employers have the option to treat the purported “resignation” as a breach of contract and lawfully terminate the contract, subject to the employee’s right not to be unfairly “dismissed”. It seems that the constitutionally developed common law now also imposes a duty of “fair dealing” on the parties.
Recently the SCA decided that a provincial councillor’s purported resignation as such could be withdrawn because the municipal manager failed to open the sealed resignation letter and read it.
In African National Congress v Municipal Manager, George Local Municipality, (2009) ZASCA 139 dated 17.11.2009, Maya JA, on behalf of a unanimous bench, disallowed the ANC’s appeal against the refusal of the appellant’s application by Irish AJ in the Cape High Court.
A ward councillor, being disenchanted with his membership of a political party, intended to join the ANC and the ANC delivered a sealed resignation letter to the municipal manager. Although the municipal manager was told that it was a letter of resignation he did not actually read the letter.
The following day the ward councillor changed his mind and retrieved the sealed and still unopened letter. Section 27 of the Local Government: Municipal Structures Act 117 of 1998 provides that a councillor vacates office if that councillor resigns in writing. In deciding that there had not been a valid and effective resignation, and that it could be withdrawn, the SCA relied inter alia on the 1977 case referred to above dealing with an employment relationship, albeit the summary cancellation of his employment by the employee (Thorpe) due to the employer’s material breach of contract.