About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 311
|
|
Centlec SOC Ltd and Another v Nkomo In re: Nkomo v Centlec SOC Ltd and Another ( (2773/2022) [2022] ZAFSHC 311 (31 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2773 /2022
In
the matter between:
CENTLEC
SOC LTD
1st
APPLICANT
MALEFANE
SEKOBOTO 2nd
APPLICANT
And
HLONELWA
NKOMO RESPONDENT
In
re:
HLONELWA
NKOMO APPLICANT
and
CENTLEC
SOC
LTD 1st
RESPONDENT
MALEFANE
SEKOBOTO 2
nd
RESPONDENT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
28
JULY
2022
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties' legal representatives
by email and released to SAFLII
on 31 October 2022. The date and time
for hand-down is deemed to be 31
October
2022 at 11:00.
[1]
The applicant in the main application
seeks an order:
a)
Setting aside the settlement agreement
concluded on 18 October 2021 between her and the first respondent
(Centlec), or declaring
it null and void for contravening sections
29(p) and 79(1) of the Basic Conditions of Employment Act, 75 of 1977
and the Local
Government: Disciplinary Regulations for Senior
Managers, 2010;
b)
Declaring
that
in
placing
the
applicant
under precautionary suspension, taking
disciplinary action against her and concluding the settlement which
compromised the disciplinary
proceedings, the second
respondent(Sekoboto) acted without authority.
[3]
The respondents oppose the main
application and also brought a counter application seeking to have
the applicant declared a vexatious
litigant. It is apt to mention
that she appeared on her own in these proceedings.
[4]
On 1 July 2021 the applicant was
appointed the Chief Financial Officer (CFO) of Centlec on a fixed
term contract of five years.
A few weeks after the appointment of the
applicant, Centlec instituted disciplinary proceedings against her.
In order to resolve
the issues between them, the applicant and
Centlec concluded a settlement agreement. The settlement agreement
had the effect of
terminating the employment contract of the
applicant. During the conclusion of the settlement agreement,
Sekoboto, the Chief Financial
Officer
of
Centlec
acted
for
the
first
respondent.
This authority to act by Sekoboto is the
main reason for this and other similar applications brought by the
applicant against Centlec.
[5]
Subsequent to the conclusion of the
settlement agreement, the applicant took the view that the settlement
agreement was null and
void. She contended that Centlec was not
entitled to fill the vacant post of the CFO. It is clear from the
papers filed that she
seeks an order that would ultimately ensure her
resuming her position as the CFO of Centlec. Centlec contended that
the settlement
agreement was valid and the position of the applicant
had been terminated.
[6]
Owing to this dispute, Centlec brought
an application in this court under case number 724/2022 (the Centlec
application) in which
it sought a declarator that it had compiled
with its obligations in terms of the agreement and that the agreement
brought the fixed
term of employment of the applicant to an end. At
the time of the hearing of this application, the judgment in the
Centlec application
had not been handed down.
[7]
After the hearing of the Centlec
application the applicant launched an urgent application in this
court under case number 2552/2022
in which she sought an order to set
aside the settlement agreement or to have it declared null and
void. (the Urgent High Court
application). That application was struck of the roll for lack of
urgency. The applicant had also
instituted
an
urgent
application
against
Centlec
in
the Labour Court. That application was
also struck off the roll for lack of urgency.
[8]
The
issues
for determination in this application are:
a)
Whether
the
relief
sought
in
this
application
is
the
subject matter of other pending legal proceedings;
b)
Whether
the
second
respondent
had
the
authority
to enter into a settlement agreement
with the applicant;
c)
Whether the settlement agreement is
valid.
[9]
The
party wishing to raise the defence of lis alibi pendens bears the·
onus of proof. For this dilatory plea to be successfully
raised the
person raising it must prove to the court that there are pending
legal proceedings between the same parties, based on
the same cause
of action
and
in respect of the same subject matter
[1]
.
It
is necessary to mention that the fact that there are pending legal
proceedings in another forum somewhere is no bar to requiring
that
the case should proceed. In this instance though, that person raising
the defence must satisfy the
court
that the balance of convenience and equity require that the matter
must proceed.
[10]
At the hearing of this application there were three other
applications based on the causes of actions seeking the
same relief.
The main relief sought by the applicant is to invalidate the
settlement agreement. She does so by seeking to show
that the second
respondent was not authorised to act for Centlec. In opposition of
the Centlec application the applicant relies
on the same causes of
action and in respect of the same subject matter. The alleged lack of
authority in this application is pleaded
word for word as a ground in
support of prayer 1 to have the settlement agreement declared null
and void. This is the classic case
of why, despite the pending case
in another forum, this court should not entertain the application.
The judgment in the Centlec
application is pending. The risk of this
court granting a conflicting order with the other court is real and
must be avoided at
all costs.
[11]
Both the Labour and Urgent High Court
matters were removed from the roll for lack of urgency. These cases
have thus not been finalised.
The same issues raised in those
applications
are
still alive as the court did not pronounce itself on their merits.
That issue of the validity of the settlement agreement is
the same
thing the applicant is asking this court to pronounce itself on.
During the hearing of this application the applicant
conceded that
the cases referred to above were very much alive as they have never
been withdrawn. The applicant held the view,
albeit incorrectly, that
any matter which has been struck off the roll cannot be revived as it
was 'dead'. He could not make submissions
why this court should
proceed with the application in hand. In my view the defence of lis
pendens must be upheld. It is unnecessary
to deal with the rest of
the issues raised.
[12]
The respondent also brought a counter application to declare the
respondent a vexatious litigant. In my view this counter
application
must fail. During the hearing of this application it became clear
that lack of knowledge motivated the applicant to
bring these
numerous applications. She held a mistaken view that 'seeing that the
applications' were stuck off the roll, that means
they were
finalised. The court should in my view not easily grant this order
and thus limit the ordinary litigant access to justice.
It is clear
that what the applicant sought to do was simply to have her dispute
determined on the merits. This application must
fail.
[13]
Both parties are not successful in these applications. I exercise my
discretion not to award
the costs. I make the following order
ORDER
[14]
The following order is issued:
1.
The main application and counter
applications are dismissed.
2.
There is
no
order as
to
costs in
respect of both applications.
P
E MOLITSOANE, J
On
behalf of the Applicant: In
Person
Instructed
by: BLOEMFONTEIN
On
behalf
of
the 1st
and
2nd Respondent: Adv
HN
Moloto
Instructed
by: Tshangana
Attorneys
BLOEMFONTEIN
[1]
Amler's Precents of Pleading,Lexis Nes, 9th ed page 251.