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[2010] ZAGPPHC 71
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Buffet NO and Others v Degenaar and Others (32767/07) [2010] ZAGPPHC 71 (29 July 2010)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
APPEAL
CASE NUMBER: A809/07
HIGH
COURT
CASE NUMBER: 32767/07
DATE:
29/07/2010
In
the matter between:
HOWARD
G BUFFET N.O
First
Appellant
N
DE BRUYN N.O Second Appellant
S
DURANT N.O
Third Appellant
R
JAMES N.O
Fourth
Appellant
G
MILLS N.O
Fifth
Appellant
and
C
M DEGENAAR
First
Respondent
J
ANSELL
Second
Respondent
C
M DEGENAAR (SNR)
Third
Respondent
M
R DEGENAAR
Fourth
Respondent
JUDGMENT
LOUW
J
Introduction
[1]
The appellants are trustees of a nature conservation trust (the
Trust) that owned a nature reserve on which the four respondents
lived, in houses erected on the reserve. The respondents' occupation
of the houses was by virtue of their employment by the Trust.
[2]
The Trust intended to investigate bringing disciplinary charges
against the respondents and sought to have them vacate their
homes on
the reserve, pending this investigation. On 13 June 2007 the Trust
sent its Johannesburg attorney to the reserve, accompanied
by two
security guards. The first respondent and his common law wife, the
second respondent, together with their children lived
in the one
house whilst the third respondent and his wife, the fourth
respondent, resided in another house.
[3]
They vacated the houses on 13 June 2007 and were put up in a guest
house in nearby Bela Bela.
[4]
More than a month later, on
19
July
2007 the respondents launched an urgent spoliation application. This
order was granted by Preller J on 6 August 2007. The appellants
were
ordered to restore the possession of the respondents to their
previous residences on the reserve within twenty four hours
of that
order. The appellants were also ordered to pay the costs.
[5]
The following facts are common cause:
(i).
The respondents had no inkling that the attorney, Ms van der Linde,
was instructed as set out above and would arrive on 13
June 2007 to
investigate the bringing of disciplinary charges.
(ii).
She arrived with two armed security guards, Schagen and Swart.
(iii).
Van der Linde met with the respondents in the dining room of the main
guest house. She read out the allegations which were
levelled against
the respondents in their capacity as employees of the Trust. This
meeting lasted for approximately two hours.
(iv).
Towards the end of the meeting she presented documents to the
respondents for signature. They refused to sign. According to
Van der
Linde these were letters of suspension, all four of which are annexed
to the answering affidavit, in which each respondent
was informed of
his/her suspension on full pay pending a disciplinary hearing and
were also required to immediately leave the reserve.
According to the
respondents the documents annexed to the answering affidavit are
fabrications. They state that the only documents
they were presented
with were notices in which they acknowledged their purported
misconduct and undertook to leave the reserve
immediately. What is
common cause however, is that they were presented with documents
which they refused to sign.
(v).
Later that afternoon, after packing a few personal belongings, the
four respondents left the reserve for Bela bela accompanied
by Van
der Linde and Schagen. There they were booked into a guest house at
the expense of the Trust.
(vi).
The next day Van der Linde spent the majority of the day
communicating with the respondents telephonically.
(vii).
On the day thereafter, i.e. 15 June 2007 all four respondents signed
identical settlement agreements. The relevant terms
of the settlement
agreements were the following:
(a)
The
employment of the respondents were terminated.
(b)
The
respondents would leave the employ of the Trust immediately and would
not be required to work any notice period. They would
receive their
full salaries for June 2007 including any accrued leave.
(c)
On
16 June a removal truck, arranged by the Trust, would accompany the
respondents to the reserve in order for them to pack their
belongings. They would be relocated to an address elected by them.
(d)
In
settlement of the matter the respondents received compensation equal
to three times their nett monthly salaries. These amounts
were paid
on 20 June 2007.
Although
clause 3.6 of the settlement agreements reads:
"in
lieu
of
settlement of this matter...", it is quite clear that the
payments were not made
"in
lieu"
but
indeed in settlement of the matter. This was clearly just an error in
wording the clauses.
Matters
in dispute
[6]
What is in dispute is whether the respondents willingly left the
reserve on 13 June 2007 and whether the settlement agreements
they
signed on 15 June are enforceable.
Spoliation
[7]
The case for the respondents is that they feared that a confrontation
would ensue, were they to refuse to adhere to the demands
made by the
Trust's attorney. They vacated the reserve because they felt
frightened and intimidated by the presence of the armed
guards.
[8]
More specifically, they state that after they had refused to sign the
documents the attorney became agitated and told them that
if they
refused to sign and leave the premises immediately they would suffer
the consequences. At that time one of the guards armed
with an
assault rifle walked into the room where the meeting was taking place
and stood in the door
"in
a very frightening manner
1
'.
They
then told Van der Linde that they had no place to go on such short
notice. She replied that would be taken care of. It was
then that the
first respondent advised the other respondents that they should leave
before the situation turned violent. He says
that he also feared for
the safety of his two children who were then at home with their
nanny. They were escorted to their homes
by Van der Linde and the
guards to pack their clothing. After they had done so Van der Linde
took possession of the keys to the
homes. They were then taken to the
guest house in Bela Bela.
[9]
Van der Linde's version, supported by affidavits of Schagen and
Swart, differs materially from that of the respondents. She
states
that after the respondents had refused to sign the documents
suspending them on full pay pending the disciplinary hearing,
she
suggested to them that they be booked into a guest house in Bela Bela
at the Trust's expense pending the conclusion of the
investigation
and the disciplinary hearing. At that stage she stepped outside to
give them the opportunity to consider the offer.
[10]
She returned to the main house later and was informed by the
respondents that they would take up the offer. The respondents
appeared angry and sad, but were certainly not acting under duress.
The guards at no stage displayed firearms. During the negotiations
they were not in the house where the meeting took place but stood
about twenty metres away. No one had an assault rifle. She states
that she took the guards along as a precautionary measure because the
first respondent was known to have a violent disposition.
Thereafter
she and Schagen accompanied the first and second respondents to their
home where they started packing their personal
belongings. At that
stage the first respondent had a holstered firearm which he swopped
from hand to hand a few times. She believed
he did this to intimidate
her. In the replying affidavit the first respondent states that the
allegations regarding a firearm is
a blatant lie. He called for that
evidence to be tested by oral evidence. In this regard it may be
mentioned that the notice of
motion contains the following prayer 3:
"In
the event of the respondents [the appellants] denying that the
applicants [respondents] were forcibly evicted, ordering
the 7
th
respondent [Van der Linde] to attend at court within one week of this
application being heard in order to present oral evidence
on how the
appellants were evicted...".
At
no stage did the respondents avail themselves of their rule 6(5)(g)
right to have the appellants' version tested in cross-examination
(see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 632
(A) at 635A).
[11]
On the papers there is a real, genuine and
bona
fide
dispute
of fact. The court a
quo
stated
that it simply did not believe the appellants' version. It then
concluded that the respondents had been intimidated into
agreeing to
vacate their residences and that the appellants' action therefore
amounted to a spoliation. By implication therefore,
Preller J found
that the appellants' version is so far-fetched or clearly untenable
that it could be rejected merely on the papers
(see
Plascon-Evans
at
635C). This finding on the facts was, with respect, wrong.
[12]
A further aspect which casts doubt on the allegations of spoliation
is that this application was made more than a month after
the events.
I find that spoliation was not proved.
The
settlement agreements
[13]
On 14 June 2007 the respondents laid charges of intimidation and
assault with the SAPS in Bela Bela. The rest of the day extensive
telephonic negotiations took place. In the founding affidavit the
first respondent allege that Van der Linde told him that if he
did
not withdraw the case he would not receive any money and that it
would take anything from one/two years in court before he
might
receive any money and that the respondents could not afford those
legal expenses. She also told him to meet her the next
morning at the
Wimpy in Bela Bela to sign an agreement accepting the three months'
salary offer. On the morning of the 15
th
she arrived at the Wimpy with security. He further states:
"We
were not engaged in normal settlement negotiations. At this stage we
had the proverbial gun against the head since we had
no money and had
we not signed the agreement we would have no money to buy food for
our children. We also had to find alternative
accommodation very
urgently... This agreement [the settlement agreement] was signed
under duress and through the 7
th
respondent applying undue influence on us. She had all the Aces and
we were desperate."
[14]
Once again, Van der Linde's version is different. She states that on
the 14
th
there
were numerous telephone conversations with the respondents - she put
the Trust's settlement proposal to them. At one stage,
when the
criminal charges which had just been laid were discussed, the first
respondent shouted angrily at her. She then advised
them to seek
legal advice. The third respondent during that afternoon told her
that he had consulted a lawyer. Later that day the
first respondent
phoned her back and advised her that the second respondent had
brought him to his senses and told him to accept
the Trust's
settlement proposal. He advised her that he and the second respondent
accepted the offer and apologised for his behaviour
earlier, when he
had shouted at her. He also said that he had acted in anger in laying
the criminal charges.
[15]
Later that day the third respondent also phoned and advised her that
he and the fourth respondent accepted the settlement offer.
[16]
The settlement offer was meant to provide a clean break between the
parties. She at no stage threatened the respondents. She
chose a
public venue for the signature of the settlement agreements as she
did not feel safe and also asked Swart to accompany
her. Swart waited
outside in a car and at no stage displayed a firearm.
[17]
In
Preller
v Jordaan
1956
(1) SA 483
(A) the requirements for avoiding a contract on the basis
of undue influence were stated as follows:
"Myns
insiens biyk uit die aangehaalde regsbronne dat die gronde vir
restitutio
in integrum
in
die Romeins-Hoilandse Reg wyd genoeg is om die geval te dek waar een
persoon 'n invloed oor 'n ander verkry wat laasgemelde se
teenstandsvermoe verswak en sy wil plooibaar maak, en waar so 'n
persoon sy invloed dan op gewetelose wyse laat geld om die ander
te
oorreed om toe te stem tot 'n skadelike transaksie wat hy met normale
wilsvryheid nie sou aangegaan het nie."
(at
492H)
[18]
To set aside a contract on the basis of duress the following has to
be proved:
"Where
a person seeks to set aside a contract, or resist the enforcement of
a contract, on the ground of duress based upon
fear, the following
elements must be established:
(i)
The
fear must be a reasonable one.
(ii)
It
must be caused by the threat of some considerable evil to the person
concerned or his family.
(Hi)
It must be the threat of an imminent or inevitable evil.
(iv)
The
threat or intimidation must be unlawful or contra bonos mores.
(v)
The
moral pressure used must have caused damage."
(See
Arend
and Another v Astra Furnishers (Pty) Ltd
1974
(1) SA 298
(C) at 306A-B)
[19]
An inequality in bargaining power does not constitute duress. (See
Medscheme
Holdings (Pty) Ltd v Bhamjee
2005
(5) SA 339
(SCA) at [18])
[20]
It is for the respondents to prove undue influence or duress.
Where the facts are in dispute I rely on the version of Van
der
Linde.
[21]
The respondents were put up in a guest house at the costs of the
Trust. This situation would have prevailed until the finalisation
of
the disciplinary inquiries. In the meanwhile they would have received
their monthly pay as and when that became payable. The
whole basis
for attempting to avoid the contracts is that they had nowhere to go,
no means of survival and, in the case of the
first and second
respondents,
"no
money to buy food for our children."
There
is no merit in these allegations. Van der Linde explicitly states
that the respondents were booked into the guest house
"pending
the conclusion of the investigation and the disciplinary hearing."
In
the replying affidavit it is stated that the offer was that they
would be accommodated in the guest house "for
the
time being"
and
that Van der Linde did not state for how long. Once again, in the
light of the proper approach to applications the allegations
in the
replying affidavit can not be accepted.
[22]
The four respondents are adults. They can be expected to make up
their own minds when entering into contracts. It is common
cause that
there were extensive telephonic negotiations on
14
June
2007. They had sufficient time to make up their own minds. The four
respondents are not one entity. Each one of them had to
consider the
settlement proposals on his or her own and in addition they had the
benefit of consulting each other on the matter.
They accepted the
settlements telephonically. The signing of the agreement on 15 June
was a mere execution thereof.
[23]
In considering the matter on the basis of undue influence, it can be
accepted that the Trust was in a more powerful bargaining
position. I
can however not find that this made the will of the respondents
pliable, that the influence was exercised in an unscrupulous
manner
and that the settlement agreements were not agreements which they
would not have concluded with normal free will. None of
the elements
of duress were proved.
[24]
One last aspect of the judgment a
quo
has
to be mentioned. The court found that compromise was not one of the
two recognised defences to a spoliation claim and, furthermore
that
if it were to be allowed as a defence, every claim for a spoliation
order could be thwarted by a spurious defence of a settlement.
The
court then found that the disputed settlement is not a bar to the
spoliation claim.
[25]
There is venerable authority to the contrary. In 1891 Kotze CJ had to
resolve a dispute about the possession of a church in
Zeerust. Both
the "Ned. Gereformeerde of Hervormde" Church (generally
known as the United Church) and the "Hervormde"
Church
claimed ownership of the church building and church property. For
purposes of that application it was accepted that the
United Church
was in peaceable possession of the church building at Zeerust and
that it was ejected therefrom on 19 July 1890 by
members of the
"Hervormde" Church. A committee was then appointed by the
Government to endeavour, if possible, to arrive
at an amicable
settlement of the matter. Subsequent thereto both churches, by
separate resolutions, agreed to submit the matter
to the High Court
for decision by the court as to which of the two churches is entitled
to the
ownership
of
the church and church property, on the understanding that the losing
party would receive compensation in the form of four erven
from the
Government. The report then goes on to state:
"Why
the applicants have not abided by this agreement does not appear, and
they certainly erred when they decided to depart
from their own
agreement and to make an application of a provisional nature, viz.,
to obtain possession again of the church as
a preliminary step, as
they are now doing, entirely at variance with their agreement to
leave the matter as it was until the Court
had given a decision in
the principal case — that is, with regard to the right of
ownership. It therefore speaks for itself
that under the
circumstances brought to light in this case the Court cannot grant
the request to be provisionally placed in possession,
as the
applicants bound themselves to go into the principal case, and to
submit that for judicial decision. The view which I take
of the facts
is not only in accordance with common sense, but is also in
accordance with law, and if any authority is desired on
the point, I
refer to Wassenaar, Jud. Practyck, vol. /., ch. 14, § 7, which
is precisely applicable to this case.
(See
Otto
v Viljoen and Others
(1891-1892)
4 SAR TS 45)
[26]
The court in
Jivan
v National Housing Commission
referred
to this case as authority for the
"self-evident
proposition that a settlement between the party allegedly spoliated
and the spoliator, precludes the party whose
possession has been
interrupted from seeking a spoliation order after the settlement was
arrived at."
(See
Jivan
v National Housing Commission
1977
(3) SA 890
(W) at 893)
Other
issues raised by Respondents
[27]
In regard to the onus of proof in spoliation proceedings, Mr Vorster
for the respondents presented the following interesting
argument:
"In
light of the provisions of section 25 and 26 of the Constitution and
the legislation promulgated to give effect to these
sections, it is
submitted that, the common law, in respect of the
mandament
van spolie
should
be developed to provide as follows:
Where
a person deprives an occupier of his home forcibly or wrongfully
against his will, and the spoliator relies on a settlement
or
compromise as a defence in subsequent spoliation proceedings, a court
shall have regard to, but not be bound by the settlement
or
compromise in so far as that settlement or compromise seeks to limit
the rights of the occupier to claim for restoration of
possession of
his home, and the onus shall be on the spoliator to prove on a
balance of probabilities that the settlement or compromise
was
entered into freely and willingly, while the occupier was aware of
his or her rights.'"
[28]
The argument is that in terms of s 39(2) of the Constitution of the
Republic of South Africa, 1996, the common law should be
so developed
in accordance with the spirit, purport and objects of the Bill of
Rights.
[29]
In the light of my finding that no spoliation took place, it is not
necessary to decide this point. However it seems to me
that our law
of evidence can adequately deal with such cases, especially where the
compromise is in writing.
[30]
Counsel further attempted to argue that the
Extension of Security of
Tenure Act, 1997
, is applicable to the second to fourth respondents
and that the procedures prescribed by ESTA were not followed.
[31]
The insurmountable problem is that ESTA was never raised on the
papers and thus the jurisdictional elements to render this
Act
applicable were not pleaded. For instance, it has not been
established that these respondents were "occupiers" as
defined. It seems probable that their income, taking fringe benefits
into account, exceeded the statutory limit.
Conclusion
[32]
I therefore find that no spoliation had taken place and, that even if
so, any right to rely on spoliation was compromised by
the settlement
agreements.
[33]
The appeal therefore has to succeed. The complexity and importance of
the case warranted the employment of two counsel.
[34]
I make the following order:
1
.
The
appeal is upheld with costs.
2.
The
order of the court a quo is set aside and substituted with: "The
application is dismissed with costs, including the costs
of two
counsel".
3.
The
costs of the appeal shall include the costs of two counsel.
AA
LOUW
JUDGE
OF THERE HIGH COURT
I
agree
E
BERTELSMANN
JUDGE
OF THE HIGH COURT
I
agree
MF
LEGODI
JUDGE
OF THE HIGH COURT
ADV
FOR APPELLANTS: CE WATT-PRNGLE SC MF WELZ
ATTORNEYS
FOR APPELLANTS: VAN DER LINDE ATTORNEYS ADV FOR RESPONDENTS: A
VORSTER
I OSCHMAN
ATTORNEYS
FOF RESPONDENTS: VAN DEN BOGERT GOLDNER INC.