As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Mr Mark Lamberti, the Chief Executive Officer (CEO) of Imperial Holdings (who was recently appointed to the Board of Eskom), sounds like the boss from hell. He abused his position to get rid of a subsidiary company’s group financial manager because she dared to complain about his racist and sexist behaviour. After the South Gauteng High Court handed down a scathing judgment against him in this matter, Mr Lamberti’s position on the Eskom Board has surely become untenable, and he should forthwith be removed from this position.
The institutional racism and sexism faced by many black women who work in big South African corporations dominated by white men is seldom confirmed as authoritatively as in a recent judgment of the South Gauteng High Court. If it was not for principled and brave people like Adila Chowan, who decided to challenge this toxic culture after she was fired from her job, the public at large might never have known that Imperial Holdings (and AMH, the subsidiary where Chowan worked) was a cesspit of racism and sexism.
As you read the judgment of Meyer J in Chowan v Associated Motor Holdings (Pty) Ltd and Others, an all too familiar picture emerges of a white old boys’ network protecting their own. This is a story of the deeply entrenched culture of mediocrity (and the hubris) of the all-white management team of a large company listed on the Johannesburg Stock Exchange, and the abuse of power of its CEO to cover up that mediocrity and to victimise a black woman who dared to stand up against the white old boys’ network.
Ms Chowan was employed by AMH (a subsidiary of Imperial Holdings) in the capacity of group financial manager from 16 March 2012 until she was dismissed with immediate effect at the end of September 2015. Ms Chowan accepted the job on the strength of an assurance that there would be ample career opportunities of growth for her within the company. When the previous Chief Financial Officer (CFO) Mr Hibbit was appointed, Ms Chowan was told that she was being groomed to take over from him within 2 years.
When Mr Hibbit resigned, he informed Ms Chowan that he would be recommending her for the position of CFO, and he accordingly requested her to undergo a psychometric test to establish whether there were any “gaps where [she] would need some development”. Ms Chowan underwent the psychometric test and neither Mr Hibbit nor anyone else ever informed her of any such “gaps”. Mr Hibbit further discussed with her the successor to her position as group financial manager, should she be appointed as CFO.
However, she was not appointed as new CFO. Instead, Mr Ockert Janse van Rensburg was appointed as new CFO. As the court noted: “a white male, who had no experience in the motor industry at the time of his appointment and little understanding of the Imperial Group accounting and complexity of the transactions, was appointed as the AMH CFO, and not [Ms Chowan]”
Not surprisingly, Ms Chowan did not always see eye to eye with her new boss. It must have been particularly galling to her that she had to mentor him into the job that she was not appointed to. Even more problematic was the fact that her new boss appeared to be a racist. As the court explained:
According to Ms Chowan, on one occasion when Mr van Rensburg had gone to her office they were discussing the new company vehicles that were being given to employees and the new taxes to be levied in respect of such benefit. During the conversation she complained to him about the colour of the car that had been given to her; it was in a shade of brown. Mr Janse van Rensburg then made a comment, saying ‘well the colour of the car suits your skin’.
As their relationship deteriorated, it became clear that the old boys’ network was getting gatvol with Ms Chowan for daring to complain about the state of affairs. She was going to be punished for not knowing her place. So, after Mr Janse van Rensburg had returned from a meeting with Mr Lamberti during March 2015, he told her that Mr Lamberti had told him to tell her that she would never be a CFO in the Imperial Group, that he did not believe that she had what it takes to be one and that she should be moved to another part of the AMH group.
Ms Chowan was obviously upset about this turn of events. All their promises had come to nought and she was being punished for not quietly going along with the racism and the sexism. At a subsequent meeting between her and some senior managers Mr Lamberti then told her that:
she is a female, employment equity, technically competent, they would like to keep her but if she wants to go she must go, others have left this management and done better outside the company, and that she required three to four years to develop her leadership skills.
Ms Chowan then lodged a complaint with Mr Thulani Gcabashe who at the time was a non-executive director and group chairman of Imperial’s board. But soon after she lodged the complaint, she was summarily suspended from her job.
Mr Gcabashe…. could [not] give any plausible explanation for why Ms Chowan (who was in the position of a complainant) was summarily suspended, or why Messrs Lamberti and Janse van Rensburg were not also so suspended. Furthermore, no plausible explanation could be proffered for suspending her prior to giving her the opportunity to make representations as to why she should not be suspended.
It later transpired that Mr Lamberti (against whom the complaint was made) was intimately involved in the decision to suspend her. As the High Court explained:
What is disturbing here, and not explained by any witness, is Mr Lamberti’s involvement in the ‘process they wanted Otto to follow with Adila’ and in the suspension of Ms Chowan. Furthermore, the question raised by Ms Chowan when she testified about the independence of the investigation in the light of the fact that the same firm which advised Mr Lamberti on her suspension had been appointed to conduct her grievance investigation, remains unanswered.
Although the investigation made no recommendations, the Board nevertheless decided that the allegations against Mr Lamberti and against Mr Janse van Rensburg were “completely without foundation” and “devoid of substance”. Mr Gcabashe then informed her that disciplinary action would be instituted against Ms Chowan for lodging the complaint and she was subsequently dismissed from the company.
(What is not explored in the judgment is why Mr Gcabashe went along with the plans of the white old boys’ club. Did sexism trump any concern he might have had about racism within the company? Or did Mr Gcabashe go along with the others because he had no real power in the company despite being the non-executive director and group chairman of Imperial’s board?)
Ms Chowan then turned to the courts and sued her employer AMH, Imperial Holdings Limited (Imperial) and Mr Mark Lamberti in delict under the actio legis Aquilia for pure economic loss that she suffered through the wrongful and intentional acts of the defendants.
The High Court held that the complaint that Ms Chowan lodged against Mr Lamberti and against Mr Janse van Rensburg was a protected disclosure in terms of the Protected Disclosure Act. Despite this, she was fired from her job for making the disclosure.
This did not happen in a vacuum. As the court noted, when Ms Chowan directed her grievance of gender and racial discrimination to Mr Gcabashe, the senior management of AMH was all white and male dominated (it was an all-white team with one white woman in the team) and, with one exception, the last fourteen appointments were all white males.
In these circumstances the legal question was whether the delictual claim under the actio legis Aquilia should be extended to a situation like this where systemic racism and sexism within a company gave rise to the dismissal of an employee complaining of such racism and sexism. The Court concluded as follows:
The present matter, in my view, is a classroom example of an appropriate case where delictual liability should be imposed. There are ample public-policy reasons in favour of imposing liability. The constitutional rights to equality and against unfair discrimination are compelling normative considerations. There is a great public interest in ensuring that the existence of systemic discrimination and inequalities in respect of race and gender be eradicated. As blatant and patent as discrimination was in the days of apartheid, so subtle and latent does it also manifests itself today.
This is particularly the case where an employee makes a protected disclosure that was likely to show unfair racial and gender discrimination.
If employers are too easily insulated from claims for harms, such as the occupational detriments to which Ms Chowan was subjected to on account of having made a protected disclosure to her employer, they would have little incentive to conduct themselves in a way that complies with the provisions of [the Protected Disclosures Act].
The court will now have to hear argument about the amount of damages that AMH, Imperial Holdings and Mr Lamberti will have to pay to Ms Chowan after which appropriate damages will be awarded.
Regardless of the amount of money it will eventually have to pay to Ms Chowan, Imperial Holdings faces a larger problem. A court of law has now exposed the company as a place where systemic racism and sexism have been allowed to fester.
Mr Lamberti has, in turn, been exposed as a sexist and racist bigot. It is time for his head to roll.BACK TO TOP