Johannesburg - The unprecedented R490 million lawsuit by top businessman Dr Andile Ngcaba against information technology services company Dimension Data for paying its white executives significantly more than him looks set to finally go ahead this year.
Ngcaba launched his claim against Dimension Data, of which he was chairman, in 2016.
He stated that he had been given an oral undertaking by the company’s former chief executive officer, Brett Dawson, that he would always be compensated in the manner that was either equal or better than other senior executives including, white employees.
Ngcaba is currently the controlling shareholder, founding partner and non-executive chairman of investment management firm Convergence Partners, which has an asset base of over US$400m (about R6.8 billion).
He has accused the company of discriminating against him by underpaying him compared to Dimension Data’s white employees.
The former director-general of the Department of Communications accuses Dimension Data Middle East and Africa of breaching their agreement by paying white employees on a salary scale that was higher than his for 12 years.
As a result, he claims damages of R490 230 605, which is the shortfall he suffered in his remuneration.
South Gauteng High Court Judge Edwin Molahlehi last month granted Dimension Data Middle East and Africa, Nippon Telegraph and Telephone (NTT), which bought it in 2010, and its founder and former executive chairman Jeremy Ord, leave to amend their plea within 10 days.
In their application, they attacked what they described as Ngcaba’s legally incompetent reliance on an oral agreement allegedly concluded after the conclusion of his employment contract in support of a claim which falls within the purview of the employment contract.
"The plaintiff's (Ngcaba’s) legally incompetent claim in delict, advanced in circumstances where the dispute is contractual, and the plaintiff has contractual remedies available to him.
“The plaintiff's unjustified avoidance of the arbitration and other dispute resolution clauses in the employment contract regulating the resolution of disputes arising thereunder,” reads Dimension Data, NTT and Ord’s special plea.
In addition, they argued that Ngcaba attempted to bypass procedures set out in the Employment Equity Act and the Promotion of Equality and Prevention of Unfair Discrimination Act in respect of his claims, which require that he institute his claims in the manner and forums set out in those statutes.
Another issue both firms and Ord raised is jurisdictional and that NTT is a Japanese telecommunications company and therefore, a peregrinus (a foreign litigant not domiciled within the jurisdiction of local courts) of South Africa.
Ngcaba opposed the application to amend the special plea because it was mala fide (in bad faith) as its institution was delayed and prejudicial to him.
He argued that the jurisdictional issue of NTT being a peregrinus was settled when it accepted the service of his summons in South Africa.
"… The proposed amendments amount to a mala fide attempt incurably and prejudicially to impede the proper and due ventilation of the real issues between the parties and to delay the finalisation of the dispute,” Ngcaba explained.
However, Judge Molahlehi was not convinced.
"I find that the defendants (Dimension Data, NTT and Ord) deserve leave to amend their plea, which is necessary for the proper ventilation of the real issues in dispute between the parties. The proposed amendments are made in good faith, and I do not believe that they will cause any undue prejudice or injustice to the plaintiff (Ngcaba),” he found.
The matter has been ready for hearing since November 2020 after the pre-trial conference was held in September of the same year and Ngcaba questioned why Dimension Data, NTT and Ord delayed bringing their proposed amendments.
Judge Molahlehi said the overall delay in the proceedings couldn’t be blamed on Dimension Data, NTT and Ord only. The postponement of the matter was also due to Ngcaba’s failure to timeously file expert reports, as well as his earlier application to amend his particulars of claim.