11 Dec 2023


Practice Area(s): Employment |

A long time ago the saying ‘no one can serve two masters’ came about to indicate that no person can be equally loyal to two people; where difficulties arise, one of them is likely to get some preferential treatment over the other. Unfortunately, the current South African economy has called for many South Africans to find ways to earn an extra income. Some people opt to take a second job to earn this extra income – or a “side hustle” as it is colloquially known. To what degree is this permissible?

On 03 November 2023, the Johannesburg Labour Court in the case of Vilakazi v CCMA & Others delivered its judgment dismissing the review application launched by the Applicant, Dr Sibongile Vilakazi (“Vilakazi’) with costs. This judgment reaffirmed the position regarding moonlighting by employees. Moonlighting can be defined as having a second job in addition to your main job, without the consent of your main employer.

In the case at hand, Vilakazi was initially employed by the University of Witwatersrand (“Wits”) in its Wits Business School section as a part-time lecturer. Vilakazi was also employed at Alexander Forbes during her tenure as part time lecturer. In May 2018, Vilakazi resigned from Alexander Forbes and took up full time employment with Wits as a lecturer effective from 01 July 2018.

As a full time employee of Wits, one of the policies that Vilakazi had to familiarize herself with was the Declaration of Interests policy. The preamble of this policy recorded that the adoption of the policy was essential given the regular occurrences of academic staff taking up outside interests which could conflict with the interests of Wits and/or detrimentally affect the performance and/or professional duties of such academic staff at Wits.

The policy requires staff members to declare their interests by completing and submitting a prescribed form to the relevant HR manager on the 28th of February of every year. Where there are new appointments, the form must immediately be submitted to the HR department, who in turn would submit it to the Vice Chancellor’s office (“VC”) for consideration. The VC has the discretion whether to allow any conflict of interest so disclosed. The policy further provides that any involvement in any external institutional affairs, including moonlighting, must be approved by the VC’s office.

Contrary to the policy, on 04 July 2018, with the ink barely dry on her permanent employment contract with Wits, Vilakazi took up employment with Kantar South Africa (Pty) Ltd (“Kantar”) wherein she was employed as Accounts Director on a full-time basis earning a monthly salary package of R91 667.00, which was some R36 000.00 per month more than what she was earning at Wits.

Vilakazi’s employment with Kantar came to the attention of Wits through her head of department when someone anonymously placed a copy of her employment contract in the head of department’s pigeonhole. This was then reported to the HR department for further action.

Vilakazi was thereafter charged on 30 January 2019 and later dismissed on 06 March 2019 for “Gross misconduct in that you took up full time employment with Kantar South Africa (Pty) Ltd whilst still in the full time employment of the University without the knowledge or authority of the University. Your conduct was to the prejudice or potential prejudice of the University”.

On 19 March 2019, Vilakazi referred an unfair dismissal dispute to the CCMA. After conciliation failed, the matter proceeded to arbitration where the Commissioner found that the dismissal of Vilakazi was both substantively and procedurally fair. The Commissioner held that the two contractual relationships were mutually incompatible and could not practically exist together.

On review in the Labour Court, Snyman AJ saw no fault in the Commissioner’s award and held that it is undeniable that Vilakazi placed the interests of Wits at risk when she took up employment with Kantar – “considering the simple fact that the applicant earns much more at Kantar, I have little doubt which employer will get preference if both require work to be done at the same time”. As a result, the court found that there is conflict of interest or at least a very real risk of conflict of interest, to the prejudice or potential prejudice of Wits.

What was done by Vilakazi is moonlighting and is contrary to what the policy requires. Therefore, Vilakazi had to disclose her employment with Kantar to the VC beforehand and obtain permission. The failure to do so is a clear breach of the policy and duty of good faith towards Wits.

The court was unimpressed with the defences raised by Vilakazi, amongst others, being that she could manage the two positions and that she had no obligation to report her employment with Kantar to Wits until the end of February 2019. This was obviously rejected by the court which agreed with Wits’ argument when it referred to a clause in the policy which was clearly ignored by Vilakazi. This clause provides that in a case of a material change in association of a staff member, a revised declaration must be submitted within 30 days. The employment with Kantar was a material change in association which required an immediate amended declaration.

In conclusion, the court had the following to say – “In sum, it is clear that the applicant’s review application never had any prospects of succeeding. Considering the attention given to the case in the well reasoned and cogent award of the second respondent, the applicant should have taken her medicine, as bitter as it may have tasted, learnt the life lesson that came from it, and moved on”.

This case is a lesson to all employees to uphold their duty of good faith towards their employers [masters] and to disclose any conflicts of interest. This duty requires employees not to work against their master’s interests and not place themselves in a position where their interests conflict with those of their master. The duty of good faith to an employer is an implied term of an employee’s contract and that they will serve the employer honestly and faithfully. This means that the duty arises even when it is not expressly written in the contract of employment or in any policy in the workplace.

Of course, there will be instances where circumstances require employees to look for ways to earn an extra income. However, should employees intend to do so, they must first disclose this and obtain consent from their master. A failure to disclose and obtain consent, as in the case of Vilakazi, will be a breach of the duty of good faith to your employer and dismissal might be justified.

Hope Mboweni, Candidate Attorney at Shepstone & Wylie Attorneys