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[2013] ZAECPEHC 47
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Lawrie v Nursing Response CC and Others [2013] ZAECPEHC 47; (2014) 35 ILJ 1498 (ECP) (17 October 2013)
5
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, PORT ELIZABETH)
CASE
NO: 1541/2012
Date
delivered: 17 October 2013
In
the matter between:
DIANE
ELEANOR LAWRIE
....................................................................
Applicant
and
NURSING
RESPONSE CC
............................................................
1
st
Respondent
LIFE
HEALTHCARE GROUP (PTY) LTD
....................................
2
nd
Respondent
JULIA
CAMERON COMMISSION FOR CONCILLIATION
..........
3
rd
Respondent
MEDIATION
AND ARBITRATION
................................................
4
th
Respondent
JUDGEMENT
DUKADA
J:
[1]
This is an application to set aside or have an agreement declared
void
ab origine
, which was concluded between the applicant,
the first respondent and the second respondent, with the assistance
of the third respondent
under the auspices of the fourth respondent.
[2]
The facts in this matter are largely common cause. The applicant was
employed by the first respondent as a nursing sister. However,
at the
time of the happening of the incident in this matter she was working
at the hospital of the second respondent, namely Hunters
Craig in
terms of a labour brokerage arrangement between first respondent and
second respondent for sourcing qualified labour for
specific projects
and fixed periods from the first respondent. The services of the
applicant were terminated on the 26
th
November 2010 by the
first respondent after convening a disciplinary enquiry into an
alleged misconduct of sleeping on duty. Applicant
was found guilty
and dismissed. The applicant felt that she had been unfairly
dismissed and she accordingly referred the dispute
to fourth
respondent on the 29
November 2010, seeking reinstatement.
During the course of the CCMA proceedings the second respondent was
joined. The matter was
then set down for arbitration before the third
respondent on the 27
th
September 2011. The applicant was
legally represented by an attorney. On that date of the hearing a
mediation process took place
between the applicant and first
respondent under the chairmanship of the third respondent, an
arbitrator in the employ or under
appointment by the fourth
respondent to arbitrate disputes that are referred to the fourth
respondent. The mediation culminated
in the conclusion of the
agreement which is under attack in this matter. The document
containing this agreement was annexed to
the papers.
[3]
The document has a heading reading “
SETTLEMENT AGREEMENT”
with an emblem and letters in bold “
CCMA
”
written on the top left corner.
It
then has a sub-heading reading. “
IN THE COMMISSION FOR
CONCILIATION, MEDIATION AND ARBITRATION
In
the dispute between:
Diane
Lawrie Applicant
And
Nursing
Response CC
Life
Health Care Groups (Pty) Ltd Respondents”
It
then goes on with the pre-amble reading:-
“
The
undersigned parties record the settlement of their dispute in the
following terms. By signing this agreement, the parties acknowledge
that the agreement was read to them and interpreted (where necessary)
and that they understand the content hereof. This agreement
is in
full and final settlement of all disputes arising out of the
employment relationship as well as in full settlement of all
statutory payments due to the applicant unless specifically excluded
in paragraph 4 of this agreement.”
The
terms of that agreement which are relevant for the purposes of this
matter are:-
“
(4)
The contract of the employment between the applicant and the 1
st
respondent
terminated as a result of the expiration of the fixed period agreed
to between the applicant and 1
st
respondent.
The
parties record that the applicant was never placed on suspension in
terms of 1
st
respondent’s internal
procedures and policies nor had 1
st
respondent
had cause to report any matter concerning the applicant to the
Nursing Council.”
[4]
The applicant maintains that the Settlement Agreement contains the
following falsehoods.:-
(a)
It records that the applicant was not suspended in circumstances
where she had been suspended;
(b)
It records that the applicant’s employment was terminated as a
result of the expiry of a fixed term contract, when in
fact her
employment was terminated as a result of a Disciplinary Enquiry in
terms of which she was found guilty for allegedly sleeping
on duty
and dismissed.
[5]
This application is being vigorously opposed by the first and second
respondents and they have raised the following points in
limine
:-
(i)
Lack of jurisdiction
(ii)
The fact that the contract was made an arbitration award in terms of
section 142 A of the Labour Relations Act, 66 of 19956
(“the
LRA”
).
I
will now deal with these points in
limine.
LACK
OF JURISDICTION
[6]
Adv. LAH Shene, Counsel for the first respondent, has submitted that
this Court lacks jurisdiction in that this settlement agreement
is
governed by section 158 (1)(a)(iii) of the LRA. He further submitted
that when section 157(1) is read with section 158(1)(a)(iii)
of the
LRA, it is clear that the Labour Court has exclusive jurisdiction to
hear this application. Elaborating on his argument
he stated that the
applicant makes no allegations in her founding affidavit which would
suggest that this Court has the requisite
jurisdiction to entertain
this application and she only relies on an allegation that the
settlement agreement refers to a contractual
matter in the replying
affidavit.
He
further argued that even though the applicant in her Heads of
Argument stipulates that the possibility exists that the contract
in
its current format infringes the applicant’s Constitutional
rights in regard to employment and as such the contract is
unenforceable, that was not specifically pleaded in the applicant’s
founding affidavit.
He
contended that applicant’s submissions in the founding
affidavit and the true nature of the dispute show quite evidently
that the application is one envisaged by section 158(1)(a)(iii) of
the LRA.
He
argued that the issue at hand is the validity of a settlement
agreement concluded under the auspices of the fourth respondent
in
performing its dispute resolution function.
He
submitted that it is the unfair dismissal dispute which was the
subject of the deed of settlement. Even though the deed of settlement
is in essence a contract, it is a contract which emanates from the
dispute-resolution-mechanism as envisaged in the LRA. So his
argument
goes.
Mr
Shene referred me to a number of cases in support of his argument.
Adv.
Mullins, Counsel for the second respondent, has argued that the fact
that the parties concluded a Settlement Agreement does
not change the
nature of the underlying dispute. It remains a labour dispute which
was dealt with in terms of the LRA.
He
submitted that the only Court that has the necessary jurisdiction to
set aside the Settlement Agreement is the Court that made
it.
He
cited the following words from the preamble to the Settlement
Agreement. “
the
parties record the settlement of their dispute …….and
in full and final settlement of all disputes arising out
of the
employment relationship”.
He
contended that can only be a reference to the CCMA case. He also
contended that the fact that a dispute has arisen in relation
to the
terms of the Settlement Agreement does not alter the underlying
nature of the dispute which is a labour related matter over
which the
Labour Courts hold exclusive jurisdiction.
He
submitted that the applicant was obliged to approach the Labour Court
with her dispute and her failure to do so is fatal to the
application.
[7]
Adv. B.C.Dyke, Counsel for the applicant, has argued that this Court
does have jurisdiction on the grounds that the contract
was entered
into at Port Elizabeth between the applicant, the first respondent
and the second respondent, and this is apparent
from the contract
itself.
He
contended that the Settlement Agreement is no more than a contract,
albeit an illegal and unenforceable one, which falls to be
set aside
by this Court.
[8]
The term “
jurisdiction
”
has
been defined as the “
power
or competence of a Court to hear and determine an issue between the
parties
.
1
”
Van
der Westhuizen J remarked on this aspect as follows in
Gcaba
v Minister of Safety and Security:
-
2
“
In
the event of the Court’s jurisdiction being challenged at the
outset (in limine), the applicant’s pleadings are the
determining factor. They contain the legal basis of the claim under
which the applicant has chosen to involve the Court’s
competence. While the pleading-including, in motion proceedings, not
only the formal terminology of the notice of motion, but also
the
contents of the supporting affidavits–must be interpreted to
establish what the legal basis of the applicant’s
claim is, it
is not for the Court to say that the facts asserted by the applicant
would also sustain another claim, cognisable
only in another Court.
If however, the pleadings properly interpreted, establish that the
applicant is asserting a claim under
the LRA, one that is to be
determined exclusively by the Labour Court, the High Court would lack
jurisdiction.”
3
[9]
Turning to the case at hand, the applicant in her founding affidavit
complains about the settlement agreement which she states
that it
contains false information and perpetuates a fraudulent situation.
She states that it is contra
bonos
mores
and
she prays that it be declared void
ab
initio
or
set aside on the ground of fraud.
She
states that at the time when she entered into the Settlement
Agreement she was overcome with emotion brought on by the immediacy
of the situation at the Commission for Conciliation, Mediation and
Arbitration (the fourth respondent) and the influence by the
third
respondent, and the pressure pertaining to the pending arbitration
itself.
[10]
Mr Dyke has submitted that an analysis of the pleadings in this
matter elicits an interpretation that what is challenged is
simply
the lawfulness of a contract, a claim cognisable in this Court. He
contended that the substantive nature of the dispute
does not fall
under the LRA. It is merely the fraudulent nature of the contract. He
therefore submitted that this Court does have
jurisdiction to
entertain this application.
Mr
Dyke has referred this Court to
Tsika
V Buffalo City Municipality
4
in
support of his argument that the High Court has concurrent
jurisdiction with the Labour Court in respect of contractual
employment
issues. In fact this was confirmed by Van der Westhuizen J
in Gcaba’s case, supra when he remarked as follows at para 73:-
“
[73]
Furthermore, the LRA does not intend to destroy causes of action or
remedies and s 157 should not be interpreted to do so.
Where a remedy
lies in the High Court, s 157 (2) cannot be read to mean that it no
longer lies there and should not be read to
mean that it no longer
lies there and should not be read as much. Where the judgment of
Ngcobo J in Chirwa speaks of a Court for
Labour and employment
disputes, it refers to labour and employment related disputes for
which the LRA creates specific remedies.
It does not mean that all
other remedies which might lie in other Courts, like the High Court
and Equality Court, can no longer
be adjudicated by those Courts.”
[11]
Reverting to
Ntsika v Buffalo City Municipality
matter,
in that matter, it seems to me, that the Court was seized with a
claim in respect of a stand-alone contract of employment,
which is
one of the species of contracts. However, in my view, the Settlement
Agreement in question in this matter cannot be equated
with such a
contract. The contract of employment is a product of negotiation
between the employer and employee, whereas the Settlement
Agreement
in question here was a product of mediation process in the fourth
respondent which was reached in order to settle a dispute
which had
been referred to the latter for resolution. I, therefore, fully agree
with Mr Shene’s contention that
Tsika’s case
is distinguishable from the one at hand.
[12]
It is clear from the applicant’s papers that the Settlement
Agreement which she seeks to have declared void
abo initio
or
set aside on the ground of fraud was concluded in order to settle a
dispute which had been referred to the fourth respondent
for
resolution. The agreement clearly stated that it is in full and final
settlement of all disputes arising out of the employment
relationship, etc. Furthermore the Settlement Agreement document
reflects the agreement to have been concluded in the fourth
respondent.
It seems to me that the underlying dispute, which this
Settlement Agreement is recorded to have settled, is inextricably
bound
to this agreement. Also the allegation pointing to the
influence by the third respondent in the conclusion of the agreement,
in
my view, further bundles the latter into this web,
I
find it, therefore, difficult to characterise the dispute relating to
the Settlement Agreement without considering the nature
of the
underlying dispute whose resolution culminated in its conclusion. I
am more inclined to agree with the submissions by Mr
Shene and Mr
Mullins in this regard.
[13]
The other dimension in this matter is that when the applicant felt
that she had been unfairly dismissed, she accordingly referred
the
dispute to the fourth respondent, seeking re-instatement. On date of
the hearing a mediation process took place which culminated
in the
conclusion of this Settlement Agreement which she now wants to have
impugned.
It
is apposite at this juncture to quote the following remarks by Van
der Westhuizen J in
Gcaba
v Minister for Safety and Security, supra at para 57:-
“………
forum–shopping
by litigants is not desirable. Once a litigant has chosen a
particular cause of action and system of remedies
(for example, the
structure provided for by the LRA) she or he should not be allowed to
abandon that cause as soon as negative
decision or event is
encountered. One may especially not want litigants to ‘relegate’
the LRA dispensation because
they do not ‘trust’ its
structures to do justice as much as the High Court could be trusted.
After all, the LRA structures
were created for the very purpose of
dealing with labour matters, as stated in the relevant parts of the
two majority judgments,
in Chirwa, referred to above”.
5
[14]
When the applicant at first referred her complaint about her unfair
dismissal to the fourth respondent for resolution, she
was pursuing
her claim through purpose-built–process established by the LRA.
The Settlement Agreement in question here was
concluded through a
mediation process of the fourth respondent.
Furthermore
the applicant’s attorneys wrote a letter to the fourth
respondent dated 15
th
November 2011 conveying the same
complaint about the Settlement Agreement as borne in this
application.
Her
attorneys were requesting that the document containing the Settlement
Agreement be taken as
pro non scripto
and the arbitration
matter be re-enrolled for hearing before a different arbitrator,
failing which their instructions are to approach
the Labour Court for
appropriate relief.
In
response to that letter the fourth respondent replied as follows:-
“
This
matter was settled and the CCMA is therefore functus officio. Your
client must either enforce the settlement agreement or have
it set
aside at the Labour Court.”
[15]
The LRA provides procedures for the resolution of labour disputes
through statutory conciliation, mediation and arbitration
for which
the fourth respondent is established, and also establishes the Labour
Court and the Labour Appeal Court as superior Courts
with exclusive
jurisdiction in terms of section 157(1) to decide matters arising
from it. Unfair dismissals are dealt with in Chapter
8. Section
157(1) provides:-
“
(1)
Subject to the Constitution and s 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction
in
respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined by the Labour Court.”
In
Gcaba’s
case, supra
,
at para 113 Ngcobo J (as he then was) remarked as follows on section
157 (1):-
“
The
purpose of s 157 (1) was to give effect to the declared object of the
LRA to establish specialist tribunals with exclusive jurisdiction
to
decide matters arising from [it].
To
this extent, it has given exclusive jurisdiction to the Labour Court
and Labour Appeal Court to deal with matters arising from
the LRA.”
[16]
Reverting to the case at hand, the applicant has chosen to abandon
the process she had followed in the CCMA and approached
this Court.
It seems to me that she was not well-advised in abandoning the
process that she started in the CCMA. In my view, this
is the route
she should have followed to its very end rather than getting involved
in what seems to me to be forum-shopping. More-so
that the Labour
Court has an-exclusive jurisdiction to rectify or cancel a settlement
agreement.
6
[17]
For the above reasons I have come to the conclusion that this Court
has no jurisdiction to entertain this application and it,
therefore,
falls to be dismissed on that point alone.
[18]
In the event I am wrong in my afore-said conclusion, I proceed to
deal with the merits.
[19]
The applicant states that she concluded the Settlement Agreement on
the urging or influence of the third respondent; was overcome
with
emotion brought on by the immediacy of the situation and the pressure
pertaining to the pending arbitration itself.
The
applicant was represented by an attorney in the fourth respondent
when a decision was made to proceed with mediation. She states
that
the attorney recommended to her to take the deal as it stood despite
the inaccuracy thereof in order to settle the matter.
She raises no
complaints against that attorney in the manner she legally assisted
her. The applicant also does not give full information
as to how she
was urged or influenced by the third respondent to conclude the
Settlement Agreement and also as to how that happened
on the face of
her legal representative. Section 138(3) of the LRA allows the
Commissioner, if all the parties consent, to suspend
the arbitration
proceedings and attempt to solve the dispute through conciliation. It
seems to me that this is what the Commissioner
did in this matter.
The
Settlement Agreement provided for some moneys to be paid to the
applicant; they were paid and she accepted them. Furthermore
the
applicant has not shown the nature and extent of the influence by the
third respondent or how it was undue. She had to show
that third
respondent exerted improper pressure on her in such a manner that she
was incapable of exercising independent will.
7
It
is a question of fact in each case whether undue influence exist. In
my view, the applicant has not furnished sufficient information
to
successfully assail the Settlement Agreement on the ground of undue
influence.
[20]
The applicant further attacks the Settlement Agreement on the ground
that it perpetuates a fraud on prospective employers and
that it is
contra
bonus mores
and
should be declared void
ab
initio
or
set aside. The aspects in the Settlement Agreement which the
applicant cites to perpetuate fraud and to be
contra
bonos mores
are:-
(i)
To record that she was not suspended in the circumstances where she
had been suspended;
(ii)
To record that the reason for the termination of her employment was
the expiry of a fixed term contract, when in fact it was
for her
sleeping on alleged duty.
[21]
Regarding aspect (i) above, the first respondent’s response is
that it is not false as the Settlement Agreement correctly
states
that the applicant was never placed on suspension in terms of the
first respondent’s internal procedures and policies.
Furthermore the applicant stated in her affidavit in support of her
application for the joinder of the second respondent, that
she was
suspended by the second respondent.
I
fully agree with these contentions.
Consequently,
in my view, the applicant’s reliance on this aspect to attack
the Settlement Agreement has no merit.
[22]
Regarding the afore-mentioned second aspect, the first respondent
responded as follows in her answering affidavit:-
“
I
am advised that there is nothing prohibiting parties to a pending
arbitration in considering various factors inter alia
the
merits of their
respective
case; the risks; the costs; and the inconvenience involved in running
the arbitration, agreeing to settle the matter
and in recording in
such Settlement Agreement a different reason for the termination of
the employment relationship. This is precisely
that which an
arbitration award, which did not order reinstatement, would achieve.
I am advised that disputes at the fourth respondent
are frequently
settled on this basis
.”
This
response dealt with the gravamen of the applicant’s complaint
which she alleges perpetuates fraud and is
contra
bonos mores
and
in my view one would expect that she would respond to it adequately
in her replying affidavit but she failed to do so. In fact
she did
not respond at all to these averments. The primary purpose of the
replying affidavit is to put up evidence which serves
to refute the
case made out by the respondent in his answering affidavit.
8
In
the absence of such refutal from the applicant, the factual averments
of the respondent stand and I find no reason not to proceed
on the
basis of the correctness thereof.
[23]
The Constitutional Court made the following remarks in
National
Education Health and Allied Workers Union v University of Cape Town
and Others (NEHAWU).
9
“
The
LAC is a specialized Court, which functions in a specialised area of
law. The LAC and the Labour Court were established by Parliament
specifically to administer the LRA. They are charged with the
responsibility for overseeing the ongoing interpretation and
application
of the LRA and development of labour relations policy and
precedent. Through their skills and experience, Judges of the LAC and
the Labour Court accumulate the expertise which enables them to
resolve the labour disputes”.
10
In
my view, these remarks apply equally well,
mutatis
mutandis,
to
the other structures created by the LRA, for example the fourth
respondent. The fourth respondent would be in a better position
to
know the practice mentioned afore by the first respondent.
In
the circumstances the applicant’s complaint that the Settlement
Agreement perpetuates fraud and is
contra
bonos mores
cannot
be sustained.
[24]
In case I am also wrong in this conclusion I proceed to deal with the
applicant’s attack on the Settlement Agreement
on the ground
that it is
contra
bonos mores
and
contrary to public policy.
I
will first sketch out briefly a legal background on this point and
thereafter deal with the submission by Counsel.
[25]
Smallberger
JA in Sasfin (Pty) Ltd v Beukes
11
accepted
that it serves no useful purpose to classify contracts into those
contrary to the common law, those against public policy
and those
contra
bonos mores
,
since the three expressions are interchangeable. He went further to
confirm the authoritative statement of the Court’s power
to
condemn a contract in the following words of Innes CJ in
Eastwood
v Shepstone
.
12
“
Now
this Court has power to treat as void and to refuse in any way to
recognise contracts and transactions which are against public
policy
or contrary to good morals. It is a power not to be hastily or rashly
exercised, but once it is clear that any arrangement
is against
public policy, the Court would be wanting in its duty if it hesitated
to declare such an arrangement void. What we have
to look at is the
tendency of the proposed transaction, not its actually proved
result.
”
The
Appellate Division had again to grapple with “
this
often difficult problem (as called by Smalberger JA at 9 E) in Botha
(now
Griessel) v Financredit (Pty) Ltd.
.
13
In
that matter
Hoexter
JA restated the principles from SASFIN as follows:-
“
I
proceed to consider whether the provisions of clause 7 are, in the
language of the majority judgment in the Sasfin case (at 8
C-D).
‘……
clearly
inimical to the interests of the community, whether they are contrary
to law or morality, or run counter to social or economic
expedience……….and accordingly, unenforceable on
the grounds of public policy. In such an investigation ………there
must be borne in mind (a) that, while public policy generally favours
the utmost freedom of contract, it nevertheless properly
takes into
account the necessity for doing simple justice between man and man,
and (b) that a Court’s power to declare contracts
contrary to
public policy should be exercised sparingly and only in cases in
which the impropriety of the transaction and the element
of public
harm are manifest.
So
approaching in the enquiry in the instant matter, I am not persuaded
that the provisions of clause 7 of the suretyships are plainly
improper and unconscionable. While at first blush the provisions of
clause 7 may seem somewhat rigorous they cannot, I think, have
regard
to the particular circumstances of the present case, fittingly be
described as unduly harsh or oppressive. The enquiry is
directed to.
‘………the tendency of the proposed
transaction, not its actually proved result’ ”.
14
[26]
Mr Dyke has submitted that a contract which records a benign reason
for the termination of an employment contract (such as
the expiry of
a fixed–term contract) when in fact the true reason for
termination of the employment contract was a dismissal
for an alleged
breach of disciplinary code (which renders the conduct of a serious
nature) is contrary to public policy.
He
contended that it is contrary to public policy in as much as persons
wishing to employ the applicant are not appraised of the
true reason
for the termination of her employment and she is placed in an
invidious position of having to explain to prospective
employers if
she wishes the truth to be told as to what actually happened. This,
of course, places her at a disadvantage in the
employment market, but
ignoring that fact for the moment, if she were to remain silent, she
perpetuates a clear fraud on prospective
employers at large. So he
argued.
He
further submitted that that conduct offends the general sense of
justice of the community as manifested in public opinion.
[27]
Borrowing from the words of
Nicholas
AJA in Longman Distillers Ltd v Drop Inn Group.
15
“
public
policy is an imprecise and elusive concept”.
It
is said to reflect the mores and fundamental assumptions of the
community. It is the general sense of justice of the community,
the
boni
mores
,
manifested in the public opinion.”
16
Nicholas
AJA went further to say at 813 H-J:-
“
When
a Court is asked to hold that something is against public policy, it
does well to remind itself of the much-quoted passage
in the judgment
of
Burrough
J in Richardson v Mellish
(1824) 2 Bing 294
(130 ER 2294
at 303):
-
‘
I,
for one, protest......against arguing too strongly upon public
policy; it is a very unruly horse, and when once you get astride
it
you never know where it will carry you. It may lead you from the
sound law. It is never argued at all but when other points
fail’.”
[28]
Turning to this case, where there is an uncontroverted statement by
the first respondent, quoted in paragraph 18 above, that
the disputes
at fourth respondent are frequently settled by stating in a
settlement agreement a different reason for the termination
of the
employment relationship, I find it difficult to accept that such
agreement runs counter the business ethics of that section
of the
community. To put it in other words, I find it difficult to accept
that such Settlement Agreement is “
clearly
inimical to the interests of the community
”
or
runs “
counter
to social or economic expedience
”
.
Bearing in mind that the power to declare contracts contrary to
public policy should be exercised sparingly and only in the clearest
of cases, in my view, the case at hand cannot be described as such.
[29]
The other dimension to this issue arises from the argument by Mr
Shene that even if the Settlement Agreement was illegal, the
maxim
in
pari delicto potior est
conditio
defendentis
triggers
in
.
Mr
Mullins in support of this argument contended that the applicant was
knowingly a party to an agreement that she claims contains
incorrect
information. He states that there has been performance in that the
applicant has been paid three months salary which
she accepted. He
submitted that in the circumstances the applicant is prevented from
having a Settlement Agreement set aside by
virtue of the
par
delictum
rule.
Having been a party to what she believes to have been a fraudulent
transaction, the applicant cannot now complain that she
is unhappy
with the outcome. So he argued. He cited in support of his argument
Jajbhay
v Cassim.
17
Mr
Mullins further stated that the applicant denies in her replying
affidavit that the terms she now complains of were included
at her
instance. He submitted that those terms are solely for the
applicant’s benefit and on a preponderance of probabilities
it
is she, and not the first and second respondents, who would have
insisted on them forming part of the Settlement Agreement.
He further
pointed out that the applicant has waited for more than a year to
take any action. He contended that the applicant must
have realised
at the time, or very shortly thereafter that the terms of the
Settlement Agreement may cause her difficulties in
the future, yet
she has waited an unreasonably long time before taking any action.
Stratford
CJ in Jajbhay v Cassim supra
, remarked at 544 as follows on
the
par delictum
rule:-
“
the
rule expressed in the maxim in pari delicto potior conditio
defendentis is not one that can or ought to be applied in all cases,
but
it
is subject to exceptions which in each case must be found to exist
only by regard to the principle of public policy.”
He went
further to say “
public policy should properly take into
account the doing of simple justice between man and man
.”
In
the light of the contentions by Mr Mullins on the conduct of the
applicant in relation to the Settlement Agreement, as mentioned
above, with which I fully agree, I am not persuaded that the instant
case is one to which an exception to the
par delictum
rule
can be found to exist having regard to the principle of public
policy. Simply put, I am of the view that simple justice between
man
and man does not demand such exception to be found to exist in this
matter. Consequently this leg in the argument for the applicant
has
to fall.
[30]
As far as the point in
limine
to the effect that the contract
was made an arbitration award in terms of section 142 A the LRA the
applicant abandoned it when
it transpired that that was never done. I
will consequently not deal with that point in this judgment.
[31]
As far as the costs are concerned, I find no reason justifying a
departure from the general rule that costs follow the event.
[32]
In the circumstances this application is dismissed with costs.
____________
D.Z.DUKADA
JUDGE
OF THE HIGH COURT
Appearences:-
For
the Applicant : Adv Dyke Instructed by Brown Braude & Vlok Inc
PORT ELIZABETH
For
the 1
st
respondent : Adv Adv Ah Shene Instructed by Chris
Unwin Attorneys
PORT
ELIZABETH
For
the 2
nd
respondent : Adv Mullins Instructed by Burman Katz
Attorneys
PORT ELIZABETH
1
Graaf
–Reinet Municipality v Van Ryneveld’s Pass Irrigation
Board
1950 (2) SA 420
(A) at 424.
2
2010
(1) SA 238
(CC) at 263 D-G
3
See
also Chiriva v Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) at para
169; and Makhanya v University of Zululand 2010(1) SA 62 (SCA) at
para 71 where Nugent JA remarked as follows:-
“
When a
claimant says that the claim arises from the infringement of the
common law right to enforce a contract then that is the
claim as a
fact and the Court must deal (with it) accordingly. When a claimant
says that the claim is to enforce a right that
is created by the
LRA, then that is the claim that the Court has before it. When he or
she says that the claim is to enforce
a right derived from the
Constitution, then, as a fact, that is the claim. That the claim
might be a bad claim is beside the
point.
”
4
[2009]
3 BLLR 272
(E)
5
In
Chirwa, supra, at para 41 Skweyiya J emphasized this point as
follows:-
“
the existence of a purpose-built employment
framework in the form of the LRA and associated legislation infers
that labour processes
and forums should take precedence over
non-purpose built processes and forums in situations involving
employment-related matters.
At the least, litigation in terms of the
LRA should be seen as the more appropriate route to pursue. Where an
alternative cause
of action can be sustained in matters arising out
of an employment relationship, in which the employee alleges unfair
dismissal
or unfair labour practice by the employer, it is in the
first instance through the mechanisms established by the LRA that
the
employee should pursue her or his claims.”
6
See
Eckhard v
F
ilpro Industrial
F
ilters
(Pty) Ltd (1994) 20
ILJ
2043 (LC)
7
Preller
v Jordan
1956 (1) SA 483
(A); Patel v Grobbelaar 1974 (1)SA 532 (A)
at 533-534
8
Standard
Bank of South Africa Ltd v Sewpersadh
2005 (4) SA 148
(C) at 159 G-H
9
2003
(3)
SA 1
(CC) ((2003) ILJ
95
;
2003 (2) BCLR 154)
10
This
dictum was quoted with approval by Skweyiya J in Chirwa’s
case, supra, at para 52.
11
1989
(1) SDA (A) at 7I-9A
12
1902
TS 294
at 302
13
1989
(3) SA 773
(A) at 782 I-783C
14
See
also Juglal v Shoprite Checkers (Pty) Ltd
2004 (5) SA 2008
(SCA) at
258.
15
[1990] ZASCA 39
;
1990
(2) SA 906
(AD) at 913 G
16
Per
van Dilehorst J in Lorimar Productions and others v Dallas
Restaurant 1981 (3) SA (t) AT 1152 H
17
1939
AD 537