LONDON — A close read through the 32-page judgement of South Africa’s court case of the year hangs out some really dirty laundry at one of the country’s biggest industrial companies. But for context, when Imperial CEO Mark Lamberti arrived at the group almost five years ago, he inherited a laddish, untransformed business. By then his adversary in the legal duel, chartered accountant Adila Chowan, had spent two years on the wrong side of a corporate culture which badly needed change. Newly arrived Lamberti worked hard to set about trying to do just that, setting himself a challenging transformation agenda and using his first 100 days to meet his top 100 or so new colleagues in their offices. Among them, four levels below the CEO, was the chafing financial manager of Imperial’s AMH subsidiary Chowan. Justice PA Meyer’s judgement proposes lessons aplenty for executives in corporate South Africa. In this follow up to Lamberti’s letter to Imperial staff, my colleague Felicity Duncan unpacks the key issues. – Alec Hogg
Here’s what the Lamberti/Imperial judgement actually says
By Felicity Duncan
Some people are taking positions on the Lamberti/Imperial High Court judgement without actually wading through the 30-odd pages of legalese. To help clarify things, I’ve pulled out specific extracts that are important and explain key points that are at stake.
To briefly summarise, Adila Chowan, an accountant who worked at a subsidiary of Imperial, alleged that she suffered economic loss through the wrongful actions of the defendants and second, that her reputation and dignity were impaired by racist and sexist remarks. The judge found for her in both instances (with a few caveats we’ll get into below).
Having read the judgement, I’m pretty comfortable, having lived and worked in America for 10 years, saying that if this was an American company, heads would roll at the management level and there would be a massive financial settlement in favour of the plaintiff, Adila Chowan.
First, let’s look at the facts of the case. Adila Chowan sued three entities – Associated Motor Holdings (AMH, an Imperial subsidiary), Imperial, and Mark Lamberti in his personal capacity. She sued all three for economic losses she suffered due to their wrongful actions. Specifically, she said that she was wrongly suspended from her job and suffered economic loss after she complained about racial discrimination (or, in legal terms, made a protected disclosure). The law protects people who lodge certain categories of complaints against their employers from being fired as a punishment. She also sued Imperial and Lamberti himself for injuries to her reputation and dignity.
The judge found that AMH did indeed harm Chowan through wrongful actions – AMH unlawfully suspended Chowan after she made a protected disclosure. She complained about discrimination and got suspended by her employer without due process or investigation. This is illegal and the judge ruled that her employed, AMH, must pay her damages in an amount yet to be determined. Since Chowan was employed by AMH, and not Imperial or Lamberti in his personal capacity, AMH is responsible for paying the damages and Imperial and Lamberti have no liability here.
The judge, Pieter Meyer, also found that, while Mark Lamberti and Imperial did not defame Chowan (that is, there was no damage to her reputation), they did impair her dignity and are jointly and severally liable for damages of an amount yet to be determined.
As part of his findings, the judge considered whether or not Chowan’s sense that racism was at work was justified. In finding that it was, he summarised the facts as follows:
“[Chowan] is academically appropriately qualified, has extensive experience as a chartered accountant and in corporate life, had held the position of CFO in the past and also acted as CEO on one occasion, she is experienced in the motor industry, she is on everyone’s version technically good, she has held the fort for three months at AMH in the absence of a CFO, she enjoyed the support of two previous CFO’s to be appointed in their position of CFO when they vacated that position and Mr Lamberti himself, it is undisputed, promised her that she would be appointed into the position of CFO within the Imperial Group within one year from the time when he made that promise.
“Furthermore, at the time when she directed her grievance of gender and racial discrimination to Mr Gcabashe, the senior management of AMH was white male dominated and, with one exception, the last fourteen appointments were all white males. Again 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 her. Ms Chowan’s inference of racial and gender discrimination against her based inter alia on those facts, as well as what had been said to her by Mr Lamberti when he made the utterance,* was justified….”
In other words, the facts supported Chowan’s belief that racism and sexism were at work in the decisions made about her career and the remarks made by Lamberti.
* The utterance refers to specific comments made by Lamberti, full details of which are given below.
There are a number of other important details in the judgement, and anyone who is interested should at least read pages 3 to 17, in which all the evidence is carefully laid out:
- Ms Chowan is 42 years old at present. She obtained a bachelors degree as well as an honours degree in accountancy whereafter she served the three year period articles at Deloitte & Touche, from 1997 until 2000, in order to qualify as a chartered accountant. By the time she was headhunted for the position of group financial manager at AMH, Ms Chowan already had extensive experience as a chartered accountant and in the corporate world. Once she qualified as a chartered accountant at the end of 2000, she stayed on at Deloitte & Touche in the capacity of audit manager for about a year.
- She thereafter spent about a year in the United Kingdom where she was employed at Ernst & Young. Upon her return to South Africa, she joined Rand Merchant Bank where she worked in the capacity of treasury accountant for about three years. During 2004, she joined the Central Energy Fund (CEF); first in the capacity as financial manager and she was later promoted to the position of CFO, which position she held for about three of the seven years during her employment at the CU. There she also acted as CEO for about three months and she occupied a number of other board positions. She was exposed to and gained experience at a strategic level.
- At the beginning of 2012, Ms Chowan was recruited for the position of group financial manager at AMH. She was interviewed by Mr Adler and underwent psychometric tests. Before she accepted the position in what was then a new industry for her, the motor industry, she wanted an assurance from Mr Adler that opportunities would be available to her within the imperial group ‘for career progression’. She testified that he assured her that there would be ample career opportunities of growth within Associated Motor Holdings and at large within the Imperial Group, because Associated Motor Holdings was a major subsidiary of Imperial Holdings.
- On the strength of that assurance, so Ms Chowan testified, she accepted the permanent position offered to her by AMH and her intention was to stay there for the long term, a minimum of ten years. She also added: `l really enjoyed working at Associated Motor Holdings and I had seen myself actually growing within the Imperial Group.’
- When the then CEO of Imperial, Mr Brody, appointed Mr Hibbit as the CFO of AMH when Mr Adler had been moved into the position of COO, Mr Adler explained to Ms Chowan that Mr Hibbit was only going to be the CEO `on a two year contract and that he was also there to groom [her] into the CFO position’. Mr Hibbit, according to Ms Chowan, came from an insurance industry background and she was responsible for most functions of his position as CFO. And, as she put it when she testified, he was quite happy with her work.
- Mr Hibbit decided to terminate his two year contract earlier and he left AMH at the end of September 2014. 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.
- Around May or June 2014, upon being so advised by Mr de Canha’s secretary, Ms Robyn Gilfern, Ms Chowan became aware that the position of CFO at AMH had been advertised and that Mr Sass Sassenberg of the recruitment firm ATI, had been appointed by Mr Lamberti to recruit candidates to enable AMH to appoint ‘a top flight CFO’. On 2 June 2014, Ms Chowan was also interviewed for the position by Mr Sassenberg, Mr de Canha also arranged a meeting for her with Mr Lambert’, which took place on 20 June 2014, Before the meeting Mr de Canha informed her that Mr Larnberti will be interviewing her for the position of CFO. At the meeting Mr Lamberti requested her to go through her curriculum vitae and they talked about her career progression at the various entities where she had been employed, her personal background, education and family life, At the end of the meeting Mr Lamberti informed her that she would not be appointed as the CFO. She was Mr Lamberti promised her that if she gave her full support to the CFO whom he appoints, ‘he promises [her] a career path within one year’ and that she would be properly compensated.
- The next day, 21 June 2014, Ms Chowan received an email from Mr Lamberti, in which he states:`Thank you for our meeting yesterday — I know how difficult it must have been for you. As you reflect on your career with AMH and Imperial I would like to place the following on record: Manny, Osman [Mr Arbee (CFO at Imperial)] and I will only appoint an AMH CFO who you can look up to and learn from (the attached briefing document and my note on Imperial’s CFO guideline gives you some sense of the type of individual we are targeting). We will support you in appointing better calibre subordinates to enable you to take on more challenging work and grow your capabilities. I give you a personal commitment that by virtue of the executive development interventions I intend introducing to the Group, you will be a more assured and competent leader one year from now. In this regard I attach a questionnaire for a “Covenant” discussion, which I intend to implement with the 80 or so most senior executives in the Group. Working through this may provide you with some clarity on how you might like your career to evolve. Adila you are at a defining point in your career where, building on your technical accounting skills you have the potential to make the transition from a functional specialist to someone who will provide thought leadership not only to your subordinates, but to your colleagues and to the greater Imperial group.Manny, Osman and I are committed to assisting you on this journey and hope that your deliberations over the coming days lead you to conclude as we have, that your interests and those of Imperial will be best served by you remaining with the Group’.
- The selection process was led by Mr de Canha who was to recruit someone ‘supported by [Imperial’s] CFO Osman Arbee and [Mr Lamberti]’. Mr Sassenberg sourced 154 candidates and shortlisted ten of them. Messrs Sassenberg and de Canha interviewed those ten and three potential candidates were identified, all white males. The three were also interviewed by Messrs Lamberti and Arbee. Mr de Canha recommended that Mr Janse van Rensburg be appointed, which recommendation was accepted by Messrs Lamberti and Arbee.
- Ms Chowan testified that she had been disappointed and had felt let down by the company. She was overlooked when Mr Hibbit was appointed as CFO and she was again overlooked when Mr Janse Van Rensburg was appointed despite the assurance that Mr Hibbit had given her that she would be appointed. She accordingly handed in her resignation on 25 June 2014. About a week later, on 3 July 2014, a meeting was held with her to discuss her resignation. The meeting included Messrs Lamberti, Arbee and de Mr de Canha was opposed to her leaving AMF-I and wanted to retain her services, He arranged the meeting so that a reassurance could be given to her ‘that [she] had career progression with the Imperial Group’. At the meeting Mr Lamberti reassured her that she would be appointed into a CFO position within one year, not necessarily within AMH, but within the Imperial Group. On the strength of that ‘comfort and assurance’ she withdrew her resignation.
- Mr Janse van Rensburg commenced his employment as CFO at AMH on 5 January 2015. It is not disputed that Ms Chowan gave support to the new CFO. Ms Chowan, however, did not consider him to be the ‘top flight CFO’ who she had been told would be appointed in accordance with Mr Larnberti’s new ‘vision’ and requirements for that position. His performance, according to her, was not even on par with that of Messrs Adler and Hibbit when they held that position and she had to assume more responsibilities with Mr Janse van Rensburg in that position. He too, I accept, had the right academic qualifications with extensive experience as a chartered accountant and in corporate life. But he, it is common cause, had no experience in the motor industry and initially he had little understanding of the Imperial Group accounting and Ms Chowan had to explain such accounting practice to him as they went along. Under cross-examination, Mr Janse van Rensburg initially downplayed Ms Chowan’s assistance to him by saying that ‘she was not that helpful’, but later he conceded that at least those parts of the ‘AMH group strategy report’ which she had compiled was helpful and that her explaining the group’s accounting policies, assumptions and the complexity of the transactions to him, was helpful. It is common cause that the relationship between Ms Chowan and Mr Janse van Rensburg was strained and that Mr de Canha often intervened in order to resolve the issues between them. It is not necessary for a determination of this action to go into any detail regarding Ms Chowan’s complaints and views relating to Mr Janse van Rensburg’s performance as CFO, which are mostly disputed issues between them. It is, however, only necessary to refer to one incident between them, which upset Ms Chowan greatly.
- 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’. When she objected, saying to him that that was an inappropriate comment to make, he replied that he had a light or white colour car that suited his skin colour. Mr Janse van Rensburg admits that such a comment would have been inappropriate, if made, but he denies that he made such an inappropriate comment to Ms Chowan. He agreed that a conversation in which Ms Chowan’s unhappiness with the colour of her company car had been raised by her happened in her office roughly during March 2015. According to him, however, he did not respond and they ‘just carried on with normal business’. When he was cross examined on the improbability of his version that he would not have responded to her complaint, he replied thus: ‘she did not lodge a complaint about the car, because then I would have said can we do something about it. But she did not lodge a complaint’ She may not have lodged a complaint, but she told him about her unhappiness, and one would have expected him to say something, even simply that she should not let that upset her.
- What makes Ms Chowan’s version about that incident even more plausible than that of Mr van Rensburg, is the fact that she at the time mentioned the incident to Ms Uvasha Singh, a group accountant at AMH, and she volunteered to take a polygraph test, which she was entitled to undertake in terms of AMH’s policy, but her request was not acceded to. That comment, Ms Chowan testified, made her feel insulted; she ‘never had anyone objectify [her] and say that [her] skin colour is similar to … the colour of a car’
- Ms Chowan testified that 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. She was very upset, because she felt Mr Lamberti had reneged on the promise that he had made to her on 20 June 2014 that she would be appointed to that position within the Imperial Group in one year’s time. She also felt that it was inappropriate for Mr Lamberti to have told Mr Janse van Rensburg to convey that message to her. He, according to her, should have spoken to her personally. She thereafter raised the matter with Mr de Canha.
- When he was cross-examined, Mr de Canha said that he was not aware that Mr Lamberti had told Mr Janse van Rensburg to tell Ms Chowan that she would never be appointed to the position of CFO in the Imperial. When Mr Janse van Rensburg was cross-examined, he confirmed that he and Mr Lamberti had a meeting during March 2015 at which meeting they discussed Ms Chowan’s suitability or readiness to become a CFO. Mr Lamberti, according to him, presented him ‘with the facts … as well as her appraisal form on certain development areas that she still needed.’ Mr Janse van Rensburg also agreed that he and Ms Chowan had a discussion about what he and Mr Lamberti had discussed on his return to the office, but he denied that Mr Lamberti asked him to tell her that she would never become a CFO within the Imperial Group.
- Again, I find the version of Ms Chowan on this disputed issue to be more probable. It is undisputed that she was very upset after the conversation between her and Mr Janse van Rensburg upon his return from the meeting in question, and that was why Mr de Canha arranged another meeting for Ms Chowan with Mr Lamberti. In this regard he said: ‘I arranged the meeting because I got to a boiling point and I said, look, let us all get in the same room and let us try to resolve these issues.’ Mr de Canha also conceded that Ms Chowan had ‘a gripe’ with Mr Lamberti because he had not made good on his promise regarding the advancement of her career path within one year. Mr de Canha also confirmed that Ms Chowan did not wish to attend yet another meeting with Mr Lamberti, because she had lost confidence and trust in him and she was exploring opportunities outside Imperial since she could not deal with the way that she was being treated.
- The meeting was held on 15 April 2015. Present were Ms Chowan and Messrs Lamberti, Arbee, de Canha and Janse van Rensburg. It is undisputed that Mr Lamberti told Ms Chowan 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’. (Counsel referred to these statements by Mr Lamberti as ‘the utterance’ and I adhere to such nomenclature.) Ms Chowan testified that Mr Lamberti had also told her in no uncertain terms that he would not be having any more meetings with her after that one.
- It is common cause that Ms Chowan was extremely upset. She went to see Mr de Canha after the meeting. It is common cause between them that she considered the utterance ‘totally unprofessional and unacceptable’; there was no need for Mr Lamberti to have mentioned her race and her gender; she was made to feel that the only reason why she had been employed within the Imperial Group was because she was an ‘equity employment employee’; she felt that she was being discriminated against; and she was deeply hurt and insulted. Ms Chowan testified that she categorised the utterance as part of racial and gender discrimination against herself, because she had never been addressed in that manner before, it humiliated her, degraded her, objectified her, and worse, it was being said in front of other senior executives. She took exception to the utterance ‘in that particular setting’. She testified- ‘Because I pride myself on the fact that I am a qualified professional chartered accountant. I had built my career. I had been a CFO. And in Mark Lamberti’s eyes I was being narrowed down because of my colour and being female.’ And also: ‘I had built my career. I had been a CFO. I had acted as a CEO. All those achievements was (sic) not being recognised, apart from the fact that I am now being objectified in terms of being a female empowerment equity candidate.’
- Ms Chowan also felt discriminated against in the light of AMH’s poor performance on diversity in the workplace at that time as far as its senior leadership was concerned. It is common cause that they were all white males, except for a white female who was the CFO of Liquid Capital. Furthermore, in the two and a half years preceding mid-2015, there had been fourteen executives appointed by AMH of whom eight were appointed since Mr Larnberti’s appointment as CEO. Except for one Indian male, they were all white males. It is, therefore, undisputable that AMH, as far as its senior management was concerned, fared very badly in redressing the imbalances and wrongs of the past. When this was put to Mr Gcabashe when he testified, he confirmed that if those statistics were true ‘it could be shocking.’
- When Mr Hibbit was interviewed during the investigation that followed, to which I return, he, according to the investigator, described the culture and white male domination at particularly AMH’s head office as follows `Hibbit said that the Imperial Group as a whole is a very hard culture. He said he did not know that it is necessarily racist, but it is not a warm embracing culture. Typically, at AMH head office, a lot of new junior staff were not white people and he said that they would probably find it a difficult culture to accept. With regards to the hiring of senior people, he said that his view is that it is a very white male dominated All senior positions in AMH are held by white males except for Kerry Cassel [Chief Executive of Liquid Capital] but she is white female.’
- Ms Chowan and Mr de Canha agreed with those sentiments expressed by Mr Hibbit. Also Mr Janse van Rensburg agreed that that was indeed the situation when he arrived at AMH, but, he added, it ‘certainly changed now’
- Ms Chowan testified that Mr de Canha had apologised to her for the comments that Mr Lamberti had made to her. He further told her that he did not see her having a career within the Imperial Group, because Mr Lamberti would be obstructive to it and that he, Mr de Canha, would give her a very good reference. Ms Chowan believed that she had exhausted all internal avenues available to her. She indicated to both Mr de Canha and Mr Koornhof, the human resources manager at AMH, her intention to lodge a grievance against Mr Lamberti with the chairman of the Imperial Group, Mr Gcabashe. Mr Koornhof warned her ‘that it would be a career limiting move if [she] raised a grievance against a powerful man like Mr Mark Lamberti’. But he never objected to the procedure she intended to follow on the basis that it would be in breach of AMH’s grievance procedure. Mr Koornhof was not called as a witness to refute Ms Chowan’s evidence in this regard. Mr de Canha conceded under cross-examination that he ‘understood where [Ms Chowan] was coming from’. When Ms Chowan told him of her intention to lodge a grievance against Mr Lamberti with Mr Gcabashe, he, Mr de Canha, had done what he could do and he thus tried to accommodate her by saying that she ‘must do what she has to do’
- In a letter addressed to Mr Gcabashe, dated 8 June 2015, Ms Chowan raised her grievance of racial discrimination and unfair treatment against Mr Lamberti. In this regard she said the following when she testified: `All I wanted was an apology from Mark Lamberti for insulting me and offending my human dignity, and l wanted him to honour the promise he had made,’
- Mr Gcabashe responded to her by letter dated 18 June 2015, wherein the following is stated; `You have submitted a letter, which set (sic) out a number of allegations against the Imperial Group CEO, under the heading “Grievance against Mark Lamberti”. This letter was submitted to me in my capacity as the Imperial Group Chairperson. Despite the fact that your letter does not follow the provisions of the Grievance Procedure itself, and therefore cannot be considered as part of it, the allegations are of a very serious and most troubling nature, It is therefore necessary that a proper and detailed investigation must take place, to determine the veracity and accuracy of your claims, and that it is only once this has been determined, that the Company will be able to decide an appropriate way forward. You will shortly be contacted by a relevant Executive of AMH to advise you of the basis of such an investigation.’
- Mr Gcabashe testified that he believed an investigation was warranted because of the nature of the complaint. Mr Lamberti reported to the board of directors of Imperial and Mr Gcabashe conceded that Ms Chowan could not report the matter to anyone else, apart from him, within the hierarchy — all others would have been junior to Mr Lamberti. Once he had received Ms Chowan’s grievance, he took the matter to the ‘Nominations Committee’ and it was resolved to get an independent investigator to investigate and take statements from various witnesses to examine the veracity of the complaints.
- In a letter dated 22 May 2015 addressed to Mr de Canha but handed to Mr Koornhof on 18 June 2015, Ms Chowan also reported a formal grievance against Mr Janse van Rensburg to Mr Koornhof. Therein she essentially raised his comment to her that the colour of her car matches that of her skin and the issues which she had with his performance as CFO. She concluded by stating that she sought the following through the grievance:
- The responsibilities between [herself] and the CFO be defined and his responsibilities are not passed onto [her].
- The CFO gets more involved in the detail of the business and refrains from blaming [her] for things he does not understand, which is subsequently proved to be correct.
- He goes on a management relationship course.
- Apologise and refrain from making any discriminatory comment, based on race, gender and ethnicity.
- Immediately desist from undermining [her] in front of staff.’
- By letter dated 18 June 2015, Mr Koornhof advised Ms Chowan inter alia that- It is proper that the person appointed to conduct this investigation has a clear field in which to operate. It has therefore been decided that it would be most appropriate to suspend you from your normal duties, during the conduct of this investigation. I have noted that your allegations also involve your immediate line officer, Ockert Janse van Rensburg. Under these circumstances, and the undoubted difficulties and tensions that they will cause, it is my considered opinion that this is the best step to take. The purpose of this letter is therefore to inform you that you are suspended from your duties with immediate effect. .. Should you wish to bring any reasons to the attention of the Company, as to why you should not be suspended, you may make written representations to me, Otto Koornof in this regard. Such representations should be made before close of business on Monday the 22nd June 2015.’
- Neither Mr Gcabashe nor Messrs de Canha nor Janse van Rensburg could 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. And Mr Koornhof was not called as a witness. Ms Chowan testified that on 18 June 2015, she was marched out of the premises by Mr Koornhof, her laptop and office keys were taken from her and other employees could hear the conversation. Ms Chowan responded to the invitation to furnish reasons why she should not be suspended pending the investigation in a letter addressed to Mr Koornhof, which she submitted to him on 22 June 2015, but there was no positive outcome for her and she remained suspended.
- The firm of attorneys, Dewey Hertzberg Levy Inc., was appointed to conduct the grievance investigation. A senior associate of that firm, Ms Merlisha Haripal, was mandated to conduct the investigation. She held interviews with Ms Chowan, Mr Hibbit, Ms Singh, Mr Janse van Rensburg, Mr de Canha, Mr Andrew Mackey, Mr Arbee, Mr Lamberti and Mr Koornhof. Her report on the interviews was placed before me as part of the exhibits. On 24 June 2015, she interviewed Mr Koornhof. She inter alia reported: Otto [Mr Koornhofj said that he and Ockert [Mr Janse van Rensburg] then travelled to Imperial’s Head Office for the 131100 meeting with Mark [Mr Lamberti]. In that meeting, Mark explained the process that they wanted Otto to follow with Adila [Ms Chowan]. Otto said that he mentioned to Mark that he already had good insight into the issues. Mark then gave Otto the letters and asked if he had any comment or concerns. Otto said that he mentioned that there could be a problem around the suspension because in terms of the law, they would need to give her an opportunity to defend herself before she was suspended. Otto said that Mark phoned Andrew Levy in that meeting and Andrew felt that it was not going to be a problem. Andrew advised that if Adila had a problem with the suspension, she could raise it in writing. The other concern that Otto had was whether she might object against handing in her laptop as he was worried that there would be a confrontation in the office as she may have personal information on the laptop. Otto said that Mark said that if that happened, he was to get security to escort Adila off the premises.’ 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 Lambert’ on her suspension had been appointed to conduct her grievance investigation, remains unanswered.
- The investigation was concluded by the 20th July 2015. The report of the investigation does not contain any findings nor recommendations. Mr Gcabashe testified that the record was tabled at a meeting of Imperial’s non-executive directors. The report was also given to Imperial’s legal advisor. The investigator also addressed that board meeting. It was then resolved that Ms Chowan’s allegations against Mr Lamberti and against Mr Janse van Rensburg were ‘completely without foundation’ and ‘devoid of substance’.
- By letter dated 20 July 2015, Mr Gcabashe advised Ms Chowan thus: `I refer to the letter you submitted to me on the above date [8 June 2015], headed “Grievance against Mark Lamberti”. I also refer to your letter which although dated 22nd May 2015, was handed to Otto Koornhof on 18th June 2015 immediately after he informed you of your suspension. This letter was addressed to Manny de Canha, and was headed “Grievance against Ockert Janse van Rensburg (CF0)”. Since the matters clearly had common links, as you are aware, after consultation with the Nominations Committee of Imperial Holdings Limited, I gave instructions that the allegations in your letters be investigated by an independent outside party. This examination has now concluded, and the statements are delivered herewith for your reference. I am satisfied that your allegations are completely without foundation in fact, and are devoid of substance. Accordingly your ‘grievance’ application is dismissed, and is now closed. However, this does not mean that this is the end of the matter. As your actions constitute misconduct and an abuse of the grievance procedure, it has been decided to institute the disciplinary procedure. Disciplinary charges will be drawn up and issued to you by an AMH executive within a matter of days.
- It is not clear, on the evidence before me, why the decision was taken to institute the disciplinary action against Ms Chowan, particularly in the light of Mr Gcabashe’s decision, after he had consulted the Nominations Committee, ‘that a proper and detailed investigation must take place’ notwithstanding ‘the fact that [Ms Chowan’s] letter [addressed to him] does not follow the provisions of the grievance procedure itself, and therefore cannot be considered as part of it’, as conveyed to Ms Chowan in his letter dated 18 June 2015. Furthermore, the CEO of AMH, Mr de Canha, at the very least, acquiesced (tacitly consented) to Ms Chowan following the procedure to direct her grievance to the chairperson of the Imperial Group, that board being the only entity to which Mr Lamberti reports. Also, it was not Ms Chowan who directed her grievance against Mr Janse van Rensburg to Mr Gcabashe nor did she request that it be investigated in the same way as her grievance against Mr Lamberti. There is, in my view, much force in the argument of Adv Mpofu SC, who appears for Ms Chowan with Adv G Badela, that once Imperial’s board of non-executives had resolved that Ms Chowan’s allegations were without foundation and substance, the matter should have rested right there, an issue to which I return.
- By letter dated 24 July 2015, Mr Koornhof informed Ms Chowan that her suspension would continue ‘until such time as her disciplinary hearing has delivered its findings’. On 30 July 2015, the disciplinary charges were served on Ms Chowan. The disciplinary hearing was held on 26 and 27 August 2015. An attorney, Ms Vanessa de Souza from the law firm Garache de Souza Inc., presided. On 4 September 2015, Ms de Souza recommended that Ms Chowan be dismissed with immediate effect. AMH confirmed Ms Chowan’s dismissal at the end of September 2015.
- Neither Mr de Canha nor Mr Janse van Rensburg instilled much confidence when they were in the witness stand. I have already referred to certain unsatisfactory features in the evidence of Mr Janse van Rensburg. A few examples, which adversely impact on the credibility of Mr de Canha, suffice: Under cross-examination he testified that he was unaware that Mr Hibbit recommended Ms Chowan to become CFO at the time when Mr Hibbit left AMH and he refused to make any concession in that regard despite the fact that it was pointed out to him that his evidence at Ms Chowan’s disciplinary hearing was to the effect that he himself at the time asked Mr Hibbit whether he would recommend Ms Chowan to become CFO, which Mr Hibbit confirmed. And in answer to a question from Ms Chowan during the disciplinary hearing, Mr da Canha answered her: ‘Peter Hibbit had recommended you for the position.’ Once counsel had pointed out the different passages of the exchange between him and Ms Chowan at the disciplinary hearing, the following exchange took place between counsel and Mr de Canha in this court: `So you are aware of the recommendation by Peter Hibbit for Adila to hold the position which we know the position … [intervenes] — Correct. So are you prepared to change your answer … [intervenes] — No, I am not going to change my answer. Okay, so you stick by your answer that you are not aware that Peter Hibbit made a recommendation for Adila to hold the position? — No.’
- Mr de Canha was also evasive as to whether Ms Chowan acted as the AMH CFO for three months and on Mr Lamberti’s involvement in appointing and directing the investigation against him. Furthermore, the failure to call material witnesses, such as Messrs Lamberti and Koornhof, who were available, warrants an adverse inference in all the circumstances. By contrast, Ms Chowan was a singularly impressive witness. She, in my view, is a credible witness and her evidence is reliable.