2
DE VOS AJ
Introduction
[1] The applicant s request the Court to confirm a rule nisi in terms of a settlement
agreement. The respondent contends that the settlement agreement was entered into
under duress, and the Court should extend the rule nisi to permit a challenge to the
settlement agreement.
[2] The issues to be decided is if the respondent has shown good cause to extend the
rule nisi and if the Court should make the settlement agreement an order of Court.
Context
[3] The context is that of an employment relationship between the applicant (“Trident”)
and the first respondent (“Mr Taylor”) that has gone sour. Mr Taylor worked for Trident
as its general manager. Trident alleges that Mr Taylor removed confidential
information and trade secrets from Trident’s servers and also sent the information to
his private Gmail address.
[4] Trident’s allegation is supported by the findings of a forensic investigation. The
investigation revealed that on 30 November 2022, between the hours of 9:19 and
13:49, M r Taylor downloaded 189 folders comprising 41.8 megabytes of dat a; at
12:40, Mr Taylor emailed to his Gmail account 39 emails with a total of 38 attachments
comprising 3.4 megabytes. Then on 14 February 2023, Mr Taylor downloaded from
Trident’s servers 123 848 files comprising 152 gigabytes of dat a; and at 13:15, Mr
Taylor emailed 35 emails with a total of 27 attachments comprising 3.6 megabytes.
[5] To present this more digestibly, consider that 1 gigabyte contains a ballpark figure of
10,000 documents. In other words, on Valentine's Day in 2023, Mr Taylor downloaded
an equivalent of 1.5 million documents.
[6] Based on these findings, Trident launched search and seizure proceedings against
Mr Taylor. Trident was successful in this application.
The ex parte order
[7] On 5 May 2023, Molopa -Sethosa J granted an ex parte order for the search and
seizure of specific items. The type of order granted is a species of the Anton Piller
3
order as recognised in Gordon Lloyd Page & Associates v Rivera1 and Cerebos Food
Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another.2
[8] The order contains multiple steps. The first is the search and seizure of the data, done
by the Sheriff and overseen by an independent firm of attorneys. The search would
be assisted by a group of independent forensic experts who would search for specific
words identified in the order. The independent supervising attorneys would monitor
and oversee all aspects of the execution of the order and, with the Sheriff, make a list
of all items removed by the Sheriff. The independent attorneys were to file affidavits
with the Court setting out the manner in which the order was executed and attaching
the inventory. The order is to operate as an interim interdict pending the return date.
On the return date , cause has to be shown why the items seized should not be
returned to Trident.
[9] The order also provides for an inspection meeting. At the inspection meeting, a group
of identified forensic experts would comb through the information and prevent the
disclosure of any information gained during the formatting of the forensic copies that
did not relate to the search and seizure . The experts must file an affidavit with the
Court explaining the process, and so must the independent attorneys. Thereafter, the
experts and the independent attorneys ensure that only information that falls within
the ambit of the order is stored. The inde pendent attorneys are to keep this stored
information safe.
[10] The order provides for a process in terms of which Mr Taylor can dispute whether
information should be part of the information stored. The process permits Mr Taylor
to object to the specific information seized. The process then also allows for
complaints with the process to be investigated by the independent attorneys and for
the forensic experts to write a report which the parties could comment on to the
independent attorneys. Only after this lengthy process will the items stored that have
been verified by the experts to form part of the search and seizure , in the form of
copies of the data, be handed over to Trident.
1 2001 (1) SA 88 (SCA) at para 10
2 1984 (4) SA 149 (T) at 164 E
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[11] After the ex parte order of May 2023 was made, Mr Taylor opposed the relief sought
and delivered an answering affidavit and a supplementary answering affidavit. Trident
filed a replying affidavit. During this period, the order was amended twice, on 26 May
and on 7 June 2023. The order was largely executed during June 2023.
[12] The order provided for a return date of 8 August 2023 , which would deal with the
handover to Trident. The return date was extended to 8 November 2023 ; however,
before this extended return date, the parties entered into a settlement agreement.
Settlement agreement
[13] The notion of settlement came from Mr Taylor. Mr Taylor was represented by a senior
attorney at the time , from a large and reputable law firm . The settlement agreement
was preceded by back -and-forth emails between Trident and Mr Taylor's erstwhile
attorneys. Mr Taylor signed the agreement and actively took steps to implement the
agreement. Mr Taylor voluntarily attended two inspection meetings, both of which
were arranged, attended and conducted in terms of clauses 3.1 and 3.2 of the
settlement agreement. M r Taylor raised no objection regarding duress at the
inspection meetings or at the taxation of Trident’s bill of costs. For two months, Mr
Taylor complied with the settlement agreement.
[14] The core terms of the agreement are -
a) the first respondent agreed to withdraw his opposition to the application and
consented to the confirmation of the rule nisi on the extended return day or on any
earlier day that the applicants may arrange with the registrar (clause 2.1.1);
b) the respondents warranted that they are not in possession directly or indirectly of
any further copy or copies, including electronic copies in any format whatsoever, of
any of the applicants' confidential and proprietary information and that the
respondents have not shared or given it to any person for safekeeping, concealment
or use (clause 2.1.5);
c) the settlement agreement is in full and final settlement only of the application under
the above case number (and nothing else), and the applicants' rights are fully
reserved to institute any further proceedings against one or more of the respondents
as they deem fit (clause 2.1.7);
5
[15] The terms of the settlement agreement, relevant to this leg of the litigation is that Mr
Taylor agreed to “withdraw his opposition to the application and consents to
confirmation of the rule nisi on the extended return day or on any earlier day that
[Trident] may arrange with the registrar”.
[16] And so the parties decided to resolve the dispute amicably. The peace was, however,
not permanent.
The urgent application
[17] About a week before the return day, Mr Taylor launched an urgent application. The
urgent application sought two sets of relief aimed at both the settlement agreement
and the ex parte order.
[18] In prayer 2, Mr Taylor attacked the ex parte order and sought to “rescind or discharge
the rule nisi granted by the Honourable Judge Molopa-Sethosa”.
[19] In prayer 3, Mr Taylor attacked the settlement agreement and sought an order -
“setting aside the settlement agreement entered into between the parties on or about
8 August 2023 on the basis that it is void, alternative, setting same aside”.
[20] The basis on which Mr Taylor sought to set aside the settlement agreement was that
of duress. The urgent application was dismissed by Van der Westhuizen J, with costs
de bonis propriis on 1 November 2023. The order specifically stated, "The application
is dismissed".
[21] I emphasise, Mr Taylor’s application to set aside the settlement agreement was
dismissed on 1 November 2023, a week before the return day.
Return day
[22] On 8 November 2023, Trident approached the Court to confirm the rule nisi. As it was
to be done in terms of a settlement agreement, it was set down on the unopposed roll.
[23] Mr Taylor sought the extension of the rule nisi granted on 5 May 2023. A substantive
application was launched with an affidavit explaining the basis for the extension. The
basis for seeking the extension of the rule nisi is that Mr Taylor wishes to launch
proceedings to declare the settlement agreement void on the basis of duress.
[24] The cause of the duress, states Mr Taylor, is the emotional trauma of the search and
seizure process and the economic ruin he would have been exposed to were he to
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continue litigating. Mr Taylor contends that through this process, Trident placed undue
pressure on Mr Taylor.
[25] In other words, the unopposed confirmation of a rule nisi – by an agreement between
the parties – changed into an opposed application to extend the rule.
[26] The test of whether a rule should be extended is one of good cause. I turn to consider
if this requirement has been met.
Good cause
[27] Mr Taylor’s application, although not brought in terms of the rule, is essentially one in
terms of Rule 27 of the Uniform Rules of Court. Rule 27 provides that the Court may,
upon application on notice and on good cause shown, make an order extending or
abridging any time prescribed by an order of Court. The subrule requires that good
cause be shown.3 This gives the Court a wide discretion4 which must, in principle, be
exercised with regard also to the merits of the matter seen as a whole. 5 The whole
consists of parts, which I consider under separate headings.
Mr Taylor has had an opportunity to challenge the settlement agreement
[28] Mr Taylor seeks to avoid the terms of the settlement agreement and extend the rule
nisi in order to set aside the settlement agreement. Mr Taylor contends that if this
Court does not grant him the extension, he will be denied an opportunity to challenge
the settlement agreement on the basis of duress.
[29] Mr Block, for Trident, points out that Mr Taylor has already had such an opportunity.
In the urgent application , Mr Taylor expressly sought, in prayer 2 , to set aside a
settlement agreement. The basis was that of duress.
[30] The Court, per Van der Westhuizen J, identified the true dispute and held –
“When oral argument was addressed on behalf of the applicants, it became clear
that the true purpose of the urgent application was not an application for
reconsideration in the true and narrow sense, but was an attempt to have an
3 Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O) at 216H–217D
4 Smith NO v Brummer NO 1954 (3) SA 352 (O) at 358A; Du Plooy v Anwes Motors (Edms) Bpk 1983 (4)
SA 212 (O) at 216H–217A
5 See Gumede v Road Accident Fund 2007 (6) SA 304 (C) at 307C–308A
7
agreement entered into between the parties settling their litigation, to have that set
aside on an urgent basis”.6
[31] Van der Westhuizen J held that the true dispute was one to set aside a settlement
agreement. Having identified the true nature of the application, the Court considered
the merits of the claim. The Court held that Mr Taylor failed to set out a factual basis
for seeking to set aside the settlement agreement: "no iota of fact or statement" was
provided.7 The Court noted that the premise of the relief in prayer 2, which was to set
aside the settlement agreement, “was not thoroughly explained in the respondents’
affidavit. It was merely fobbed off.”8
[32] The Court dismissed the urgent application. The Court concluded that Mr Taylor had
– essentially – not made out a case for duress. The Court concludes that the parties
“have agreed to settle their disputes in a particular manner and they are obliged to
honour their undertakings in that regard.”9
[33] Mr Taylor has had an opportunity to challenge the settlement agreement but was
unsuccessful. Mr Taylor filed affidavits, made submissions and was given a hearing
by the urgent out. The outcome was a rejection of his claim of duress. Mr Taylor has
had his d ay in Court and has had the opportunity to raise the issue of duress. It is,
therefore, not proper to characterise Mr Taylor's request for an extension for an
opportunity to be permitted to raise a claim of duress. Properly characterised,
extension is being sought in order to have another attempt at proving duress – having
been unsuccessful on the first attempt.
Merits
[34] Trident points to the Supreme Court of Appeal judgment in Medscheme Holdings (Pty)
Ltd and Another v Bhamjee10 in which our courts have rejected the notion of economic
duress as a basis to escape a settlement agreement. The facts have to be considered.
Dr Bhamjee claimed from Medscheme and would then pay back his patients the
monies received from Medscheme. Dr Bham jee overcharged, and Medscheme paid
6 CL 40-5, p 5, lines 8 – 14 (judgment of Van der Westhuizen J transcribed)
7 Id, p 9, l 14 - 17
8 Id p 7, l 11 - 13
9 Id, p 11, l 1 - 3
10 2005 (5) SA 339 (SCA)
8
him more than what was owed to him. When confronted with the overcharging, Dr
Bhamjee agreed he owed Medscheme money. He signed two acknowledgements of
debts to pay back this money. After Dr Bhamjee signed the acknowledgements,
Medscheme decided it would no longer accept claims from Dr Bhamjee on behalf of
his clients. Rather, the patients would have to pay Dr Bhamjee, who would then claim
from Medscheme. This change chased away Dr Bhamjee’s patients, and soon his
practice collapsed.
[35] After this collapse, Dr Bhamjee disputed the validity of the two acknowledgements of
debt, alleging they were signed under duress. Dr Bhamjee claimed that the duress
was the threat of economic hard ship – as his failure to sign the acknowledgements
would have put his practice at risk. The Supreme Court of Appeal held that economic
pressure is not recognised as duress -
“For it is not unlawful, in general, to cause economic harm, or even to cause
economic ruin, to another, nor can it generally be unconscionable to do so in a
competitive economy. In commercial bargaining the exercise of free will (if that can
ever exist in any pure form of the term) is always fettered to some degree by the
expectation of gain or the fear of loss. I agree with Van den Heever AJ (in Van den
Berg & Kie Rekenkundige Beamptes at 795E-796A) that hard bargaining is not the
equivalent of duress, and that is so even where the bargain is the product of an
imbalance in bargaining power. Something more – which is absent in this case –
would need to exist for economic bargaining to be illegitimate or unconscionable and
thus to constitute duress.”11
[36] The sting of this finding is that it is not duress to cause economic harm or even ruin
to another. As it is not unlawful to drive a hard bargain, it cannot be the basis of duress.
[37] Mr Taylor claims he signed the settlement agreement as he was concerned about the
costs of litigation and the impact that would have on his financial position. The type of
duress which Mr Taylor claims in these proceedings is not recognised in our law. To
the contrary, it has been expressly rejected by the Supreme Court of Appeal. Counsel
appearing for Mr Taylor, could not point the Court to authority to contradict this.
[38] The merits of Mr Taylor’s claim for duress has not only already once been rejected by
the Court in terms of the judgment of Van der Westhuizen J , but is also premised on
a legal foundation which the Supreme Court of Appeal has rejected.
11 Id at para 18
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Bona fide
[39] Rule 27 requires that an application for an extension has to be bona fide and not made
with the intention of delaying the opposite party’s claim.12
[40] Trident contends that any opposition based on alleged duress will be contrived, false
and self-serving. The position is exacerbated by Mr Taylor’s apparent full compliance
with and participation in the implementation of the provisions of the settlement
agreement for several months.
[41] Trident pointed out to the Court that if the relief sought was to be granted, Mr Taylor
would be permitted to litigate in three forums. Mr Taylor is seeking, essentially, to
avoid his settlement agreement in the urgent application, in this application and in a
yet-to-be-launched action. Based on this litigation strategy employed by Mr Taylor,
Trident concludes that Mr Taylor is employing Stalingrad tactics. Trident requests this
Court to conclude that these are mala fide and abusive of the Court's process.
[42] In Nedcor v Gcilitshana, the Court held -
“Ordinarily, the reasons and motives of a party for instituting legal proceedings are
irrelevant. However, “(w)hen . . . the Court finds an attempt made to use for ulterior
purposes machinery devised for the better administration of justice, it is the duty of
the Court to prevent such abuse. But it is a power which has to be exercised with
great caution and only in a clear case."13
[43] The Court weighs its duty to prevent the abuse of the process and, at the same time,
heeds the caution that demands it be careful and ensure it is a clear case before
seeking to protect its process.
[44] This Court is guided by what was said in Zuma v. Downer14 to be such a clear case -
“The private prosecution is part of the ‘Stalingrad strategy’ announced by Mr Zuma’s
counsel to Hugo J over a decade and a half ago, when he said: ‘This is not like a
fight between two champ fighters. This is more like Stalingrad. It’s burning house to
burning house.’ It is further demonstrated by the patent lack of substance to the
charges; by the fact that Mr Zuma has clearly not pursued the prosecution as would
someone intent on obtaining a conviction; and, by Mr Zuma’s identification of
12 Silverthorne v Simon 1907 TS 123 at 124; Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) at 476; Smith
NO v Brummer NO 1954 (3) SA 352 (O) at 358A; Junkeeparsad v Solomon(unreported, GJ case nos
37003/2019 and 37456/2019 dated 7 May 2021) at paragraph [6]; Ingosstrakh v Global Aviation Investments
(Pty) Ltd 2021 (6) SA 352 (SCA) at paragraph [21].
13 Nedcor Bank Ltd v Gcilitshana and Others 2004 (1) SA 232 (SE) (Nedcor Bank) at 241A-B, citing Hudson
v Hudson and Another 1927 AD 259 (Hudson) at 268
14 Zuma v Downer and Another (788/2023) [2023] ZASCA 132 (13 October 2023)
10
witnesses. It was common cause in the main application that when Mr Zuma
produced his prosecution docket, it showed that he had obtained no statements from
any of the witnesses whom he says he will call. The only statements he has are
those which already formed part of the police docket. The witnesses he lists include
Mr Breitenbach SC (who as the high Court found, says that Mr Downer did not
communicate Mr Zuma's medical information to Ms Maughan). Further, it is
vexatious and per se an abuse of process to institute proceedings that are 'obviously
unsustainable' as a certainty not merely on a balance of probability.”15
[45] Counsel for Mr Taylor made the point that the facts of this case are not comparable
to those in Zuma v Downer. The point is sound. The facts before this Court certainly
are not as extreme as those in Zuma v. Downer. The Court accepts, as it must, that
the facts before it are not akin to those in Zuma v Downer. However, it cannot be that
only in cases of such extraordinary nature as that of Zuma v Downer must the Court
act to protect its process. Rather, the elements present in Zuma v Downer, which the
Court held presented proof of it being such a clear case, have been weighed with the
Court. Certain elements identified in Zuma v Downer are present in this application,
such as seeking to litigate in three forums as proof of Stalingrad tactics and the patent
lack of substance to the duress claim. The Court has spent some thought on the test
of instituting proceedings that are “obviously unsustainable” as a certainty. Premised
on the judgment in Medscheme v Bhamjee and the dismissal of the attempt to set
aside the settlement agreeme nt before Van der Westhuizen J, the Court concludes
that it is in the realm of litigation in which it must act to protect its process.
[46] I have spent some time thinking about the caution required in such a moment. It
weighs with the Court that Mr Taylor has already approached the Court to challenge
the settlement agreement but has been unsuccessful. Mr Taylor now tells the Court
not to hold him to a settlement agreement, which he proposed and entered into with
a senior partner at CDH at his side and which he actively took part in implementing
for months, so that he can seek his relief in another avenue – premised on a legal
foundation which our Courts have outright rejected. Combined with Mr Taylor ’s
expressed intention to litigate in three forums and the lack of merits in the ultimate
claim, leads the Court to the unfortunate conclusion that the application is not bona
fide.
15 Id para 29
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[47] There is one more aspect which must be considered under this heading. Mr Taylor
claims that part of the duress is the emotional state he was placed in as a result of the
litigation and the implementation of the order. The highest Mr Taylor places this is that
the order was executed whilst he was at work; people pounded on the doors, and
drawers and cupboards were emptied. This contends Mr Taylor shows the presence
of "evil", which Counsel for Mr Taylor submits he needs to prove to show Mr Taylor
was under duress. It cannot be, at the level of principle and legal policy, that a litigant
can escape a settlement agreement on the basis of duress if the "evil" which exerted
the pressure was litigation itself or the lawful execution of a court order.
[48] Litigation is confrontational; it is, however, also part of the exercise of a right to access
courts. It cannot be that being exposed to litigation is sufficient for a claim of duress.
There may be instances where the power imbalance between the two litigation parties
is so severe that a court may consider the impact of that imbalance on the ability to
freely and voluntarily agree. Those are not the facts of this case. Certainly not when
Mr Taylor is represented, not only represented but represented by some of the best
lawyers, I dare say, that money can give one access to.
[49] Worse, Mr Taylor complains about the execution of a validly obtained court order,
supervised by independent attorneys and executed by the Sheriff. In such
circumstances, the Court must consider whether the normal process through which
people exercise their rights of access to courts and the rule of law is enforced can be
the "evil" that exerted undue pressure on Mr Taylor, particularly where the court order
was crafted with such painstaking provisions permitting oversight into the process.
The Court cannot but be pessimistic about the merits or motive behind such a claim.
Prejudice
[50] An applicant for relief under Rule 27 must show good cause; the question of prejudice
does not arise if it is unable to do so.16 As the Court concludes that Mr Taylor has not
shown good cause, the issue of prejudice does not arise. However, the Court
considers the issue as Mr Taylor has tendered costs.
16 Silverthorne v Simon 1907 TS 123 at 124; Ford v South African Mine Workers’ Union 1925 TPD 405 at
406; Smith NO v Brummer NO 1954 (3) SA 352 (O) at 358A
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[51] Mr Taylor contends that there is no prejudice to Trident if the rule is extended. To the
extent that there is any prejudice, says Mr Taylor, that prejudice can be cured by an
appropriate costs order, and Mr Taylor is tendering such costs.
[52] Trident has in its possession a court order and settlement agreement signed by Mr
Taylor. It also has a dismissal of Mr Taylor's urgent application in which he sought to
set aside the settlement agreement. Yet, Trident remains without an effective remedy.
Trident's prejudice is the absence of an effective remedy. If the rule is extended,
Trident will have to wait for Mr Taylor to launch and finalise the action.
[53] Trident is entitled to an effective remedy, which includes a timely remedy. The
purpose of the search and seizure order – was ultimately for Trident to be provided
with the information that was downloaded by Mr Taylor. That aspect of the relief
becomes final on the return day. The entire intricate, multi-step order was to achieve
that outcome – which Mr Taylor wishes to avoid.
[54] There is, however, more at play in litigation and something else at play in the work of
our courts. It is not only Trident's prejudice that must be considered but also the
prevention of abuse of the court process, finality of proceedings, and duplication o f
litigation. This prejudice also cannot be cured with a cost order.
[55] It is the cumulative weight of these aspects which the Court has weighed in deciding
whether Mr Taylor has shown good cause. When combined, they lead the Court to
conclude that no good cause has been shown.
Making the settlement agreement an order of Court
[56] The Court is guided by the Supreme Court of Appeal’s approach to settlement
agreements in Road Accident Fund v Taylor17-
“To sum up, when the parties to litigation confirm that they have reached a
compromise, a court has no power or jurisdiction to embark upon an enquiry as to
whether the compromise was justified on the merits of the matter or was validly
concluded. When a court is asked to make a settlement agreement an order of
Court, it has the power to do so. The exercise of this power essentially requires a
determination of whether it would be appropriate to incorporate the te rms of the
compromise into an order of Court.”18
17 (1136/2021; 1137/2021; 1138/2021; 1139/2021; 1140/2021) [2023] ZASCA 64; 2023 (5) SA 147 (SCA) (8
May 2023)
18 Id para 51
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[57] I have considered the terms of the compromise. They largely reflect the ex parte order,
with additional safeguards for both parties in relation to the specific information
obtained. There is nothing inappropriate about these terms or seeking to incorporate
them into a court order. They contain what appear to be tweaks presented by both
parties after the implementation of the ex parte order.
Costs
[58] As to costs, I see no reason to depart from the general rule that costs should follow
the result. It is an accepted legal principle that costs are at the discretion of the Court.
The basic rules were stated as follows by the Constitutional Court in Ferreira v Levin
NO and Others 19 where the Court held that the award of costs unless expressly
otherwise enacted, is in the discretion of the presiding judicial officer, and the second
that the successful party should, as a general rule, have his or her costs.
[59] I considered whether the matter ought not to be sent to the opposed roll. However,
the applicant did not request an opportunity to file a reply or further submissions. The
respondent contended that only if I were persuaded by the relief sought ought the
matter be moved to the opposed roll. To burden another court and another Judge with
reading the papers and considering the argument would be a duplication of the work
already done. It would also not be the best use of court time, which has a direct impact
on the public's ability to access justice timely. It is also not unheard of for the Court to
consider a postponement or extension application in the unopposed Court. I also
ensured that both parties had ample time to make the argument in open Court. In
addition, prayer 2 of the extension application before this Court was for the matter to
be referred to the opposed motion. Only if successful would such a referral have been
appropriate. For all these reasons, I was willing to entertain an application –
essentially for an abridgement of time – in the unopposed Court.
Order
[60] As a result, the following order is granted:
a) The rule nisi granted by the Honourable Judge Molopa-Sethosa on 5 May 2023 (and
as varied by the Honourable Judge Kooverjie on 26 May 2023) is confirmed, and
19 Ferreira v Levin NO and others [1996] ZACC 27; 1996 (2) SA 621 (CC) at 624B—C (par [3])
14
b) The settlement agreement attached marked “X" is made an order of Court.
c) The first respondent is ordered to pay the applicants’ costs.
____________________________
I de Vos
Acting Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic file of this matter
on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email.
Counsel for the applicant: D Block
Instructed by: Webber Wentzel
Counsel for the applicant M Coetsee
Instructed by: Elliot Attorneys Incorporated
Date of the hearing: 8 November 2023
Date of judgment: 6 February 2024