Robin Tendai Vela v Efora Energy Limited

The appellant was employed as Chief Executive Officer of the respondent following a change from independent contractor status to employee status to satisfy listing requirements on the AIM of the London Stock Exchange. PAYE was not deducted from his remuneration during employment. After he resigned with immediate effect on 31 May 2013, the respondent paid outstanding PAYE to SARS and claimed reimbursement from him. The appellant counterclaimed for unpaid leave pay, an outstanding portion of an annual bonus, and damages arising from alleged loss of share options under a share incentive scheme. The High Court upheld the PAYE claim and dismissed the leave pay and share option claims, but upheld the bonus claim. Both parties appealed.

The appeal was dismissed except in respect of the leave pay claim. The cross-appeal succeeded. The appellant was ordered to repay PAYE of R3 324 524.36 with interest; the respondent was ordered to pay the appellant R103 661.28 in leave pay; the bonus claim and damages/share option claims were dismissed; it was declared that the appellant’s share options lapsed on 31 May 2013; and the appellant was ordered to pay the respondent’s costs.

The case clarifies the high evidentiary threshold for establishing waiver of statutory and contractual rights, particularly in relation to PAYE recovery by employers. It also provides authoritative guidance on the interpretation of share option schemes upon resignation, the onus of proof in leave pay claims under the BCEA, and reinforces employers’ rights to recover PAYE paid on behalf of employees.