Court dismisses Dimension Data’s separation plea in Andile Ngcaba case

The Johannesburg high court has dismissed an application by Dimension Data to separate three special pleas by the company in its eight-year legal battle with its former executive chair of Dimension Data Middle East and Africa Andile Ngcaba. As executive chair until mid-2017, Ngcaba had a service agreement entitling him to a salary, bonus and participation in the company’s long-term incentive plan, including a share appreciation rights scheme. He alleges Dimension Data unlawfully excluded him from these schemes — while allowing eligible white executives to participate — because he is black.

He says had he been included, he would have received more than R117m, which he is now claiming in damages. Judge Stuart Wilson said on Tuesday that since Ngcaba’s action was instituted in 2018, there had been four interlocutory skirmishes resulting in full opposed argument and written judgments by four other judges of the Johannesburg high court. “Almost eight years later, I have been asked to decide the fifth such skirmish,” he said.

Though I am prepared to accept that each of the special pleas has genuine prospects of success, I do not accept that they are so meritorious as to justify attempting to short-circuit the rest of the trial In his judgment, Wilson was dealing with an opposed application to separate three special pleas Dimension Data was raising from the remaining issues in the action: Wilson said the primary question was not where the prospects of success lay on the issues sought to be treated separately but whether it was convenient, in the relevant legal sense, that those issues be determined separately. The disposal of each of the special pleas was likely to involve a judgment, which is appealable in principle, said Wilson. “I can think of no reason to discount in advance the reasonable possibility that such an appeal would be both pursued and arguable.” Wilson said if any such appeal took place before the remainder of the issues in the action were tried, then the time he might save by separating it out would be wasted if the appeal was upheld and the matter returned to this court for the remainder of the trial to proceed.