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[2011] ZALCJHB 133
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Kgobokoe v Commission for Conciliation Mediation and Arbitration and Others (JR1260/08) [2011] ZALCJHB 133; (2012) 33 ILJ 235 (LC) (29 June 2011)
SHAI
AJ
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1260/08
In
the matter between:
POGISO
KGOBOKOE
...................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
.................................................
First
Respondent
COMMISSIONER
PRINCE KEKANE
.........................................
Second
Respondent
COMMISSIONER
THULANI AKIM
...............................................
Third
Respondent
STANDARD
BANK OF SOUTH AFRICA
.....................................
Fourth
Respondent
Date
of hearing : 22 March 2011
Date
of judgment : 29 June 2011
JUDGMENT
SHAI
AJ
[1]
This is an application by the applicant that seeks to review and set
aside the notice of withdrawal signed by applicant at the
instance of
the third respondent, and also to review and set aside the decision
of the second respondent to refuse reinstatement
of arbitration
proceedings in case number GAJB25081-07, withdrawn by applicant at
the insistence of the third respondent. Further
more, the applicant
seeks to have the above decision replaced by an order to reinstate
the matter for arbitration.
[2]
The first respondent is the Commission for Conciliation, Mediation
and Arbitration (“the CCMA”), a juristic person
established in terms of Section 112 of the Labour Relations Act of
1995 (LRA), with its principal place of business at CCMA House,
26
Loveday Street, Johannesburg.
[3]
The second respondent is Prince Kekana (“the Senior
Commissioner”), a Commissioner of the CCMA, duly appointed as
such in terms of Section 117 of the Act and employed by the CCMA at
CCMA House, 26 Loveday Street, Johannesburg.
[4]
The third respondent is Thulani Akim (“the Commissioner”),
a Commissioner of the CCMA, duly appointed as such in
terms of
Section 117 of the Act and employed by the CCMA at CCMA House, 26
Loveday Street, Johannesburg.
[5]
The fourth respondent is Standard Bank of South Africa Limited, a
duly registered company, incorporated in terms of the laws
of the
Republic of South Africa, with its main place of business situated at
Standard Bank Centre, 1
st
Floor,
Simmonds Street, Johannesburg.
The
facts
[6]
On 12 June 2007, at about 19h36, the applicant received notification
of a disciplinary hearing for the following day, 13 June
2007. The
disciplinary hearing was held on the 13 June and applicant was
dismissed thereafter. The charge against the applicant
was framed as
follows:
“
1)
Dishonesty in that you misrepresented facts to a client, namely BJ
Vilakazi, when you provided her with three different financial
products which she was made to believe was the single investment that
she had requested in an attempt to enrich yourself to earn
a higher
commission on the products that you provided to the client in
comparison to what she had requested.”
[7]
The applicant was not satisfied with the said outcome and referred an
unfair dismissal dispute to the first respondent on 25
July 2007. The
dispute was scheduled for conciliation on 24 August 2007 and
applicant also made an application for condonation
of a ruling of
which was issued on 7 September 2007. The dispute was subsequently
scheduled for arbitration on 12 November 2007
under case no
GAJB25081-07. At the arbitration hearing, the fourth respondent was
represented by Mrs Linda Mcineka, its Industrial
Relations
Consultant.
[8]
Mr. Endy Morrison, Director Financial Consultancy Division of the
fourth respondent allegedly made a settlement proposal and
requested
that the commissioner, adjourn the arbitration proceedings for
purpose of entering into negotiations on the proposals.
The
commissioner agreed to the suggestion and adjourned the proceedings.
[9]
The said proposal was as follows:
“
9.1
the employer will offer re-employment, albeit for a different
position that was held by the applicant prior to the suspension.
9.2
Monetary compensation.
9.3
There will be no black listing for dismissal.”
[10]
As there were no details regarding the new offered position nor the
quantum of the compensation the applicant requested the
offer in
writing.
[11]
The commissioner returned to the hearing room and was informed of the
offer and the request for postponement for purpose of
having the
offer reduced to writing. The commissioner was unwilling to postpone
the matter and insisted the matter be either proceed
or be withdrawn
as he was busy with other cases. The commissioner allegedly left with
fourth respondent’s representative,
Mr. Mcineka.
[12]
The applicant contends that when the commissioner returned he was
with the fourth respondent’s representative and had
a
withdrawal notice in his hands. The commissioner then instructed him
to sign the form which was already completed save where
he had to
sign. When he protested, the commissioner informed him that since
there was a settlement offer, there was no need to
further engage the
CCMA.
[13]
The applicant contends further that the fourth respondent’s
representative reiterated their desire to settle on terms
referred to
above, and backed by the commissioner, asserted that the best way to
proceed is for him to withdraw the case. Further
that, Mr. Endy
Morrison confirmed the proposal and committed himself to obtain the
necessary details from the bank.
[14]
The applicant contends further that despite his protestations, the
commissioner insisted that he should sign the withdrawal
and based on
these commitments and insistence by the commissioner he then signed
the withdrawal. The parties then agreed that the
applicant should go
and see Mr. Mcineka the following Thursday.
[15]
Upon his arrival at the Bank, Mr. Mcineka informed him that he did
not have the details and that he should see Mr. Endy Morris.
Mr.
Morris then told him that he did not have anything to offer and does
not see any reason why the bank should make an offer of
settlement
and that if he wants a job fòom the bank he muót apply
like a~ybmdy else.
Û16]‰Applicanô
wejt(back to thm CCMA the same!day to |odoe a complaint. The
Senior Commissiner, Moahloli
Nyama responded and said that he had
made an investigation and the results are that the commissioner
denied that applicant haä
made any application for postponement.
A#cording to the aommissioner, the applicant had wilfully and
knowingly withdrew the dispute
and that the implication of the
withdrawal was explained to him. Mr Nyama then informed the applicant
that the case cannot be re-opened.
[17]
Since applicant was aggrieved by the above response, he was requested
to appeal to the Convening Senior Commissioner, Mr. Prince
Kekana,
(the second respondent). The second respondent ruled that “a
dispute that has been withdrawn through an election
of the applicant
cannot be reinstated”. The second respondent then advised the
applicant to approach this Court for a remedy.
[18]
The applicant then launched an application with this Court seeking to
set aside the said notice of withdrawal. It appears that
the
applicant did so on 9 July 2008. In the said application and in
addition, the applicant sought condonation of the late filing
of its
papers.
[19]
The matter was scheduled for 30 July 2009 at 10h00. On this day, my
brother, Jammy AJ made an order condoning the late filing
of the
review application. Further, that he decided that the matter could
not be decided on papers because of factual disputes.
He referred the
matter for oral evidence and reserved the costs of the day in
question.
[20]
As a matter of course, the parties held a pre-trial meeting and
signed the minutes thereof. In terms of this pre-trial agreement
the
common cause issues were amongst others:
-
The applicant requested the postponement which was refused by the
third respondent who was apparently not satisfied with the merits
of
such a postponement.
-
The third respondent gave the parties an opportunity to explore
possibilities of settlement.
[21]
The issues in dispute are recorded as follows:
[21.1]
Whether the fourth respondent had proposed a settlement in the terms
as they appear in paragraph 14 of the applicant’s
affidavit.
[21.2]
Whether applicant, had indicated his unwillingness to proceed with
the arbitration proceedings on account of not being ready
to run with
the matter and sought a postponement, which request was refused by
the third respondent.
[21.3]
Whether the applicant voluntarily withdrew the matter from the CCMA
roll.
[21.4]
Whether the third respondent coerced the applicant to sign a notice
of withdrawal form.
[21.5]
Whether the third respondent had read out the contents of the notice
of withdrawal and explained the consequences thereof
to the
applicant.
[22]
The issues which the Court is required to decide are recorded as
follows in the said pre-trial minutes:
[22.1]
Whether the applicant signed the notice of withdrawal voluntarily
under case no GAJB25081-07.
[22.2]
Whether the third respondent coerced the applicant into signing
notice of withdrawal.
[22.3]
Appropriate relief.
[23]
The said application of review was re-scheduled for hearing of oral
evidence and hence these proceedings.
Grounds
of review
[24]
The grounds for review raised by the applicant may be summarised as
follows:
[24.1]
The decision by the commissioner in casu, to refuse a postponement to
allow me to consider the settlement proposal made by
the employer
before the start of the arbitration proceedings, his insistence to
withdraw the matter, and subsequently refusal to
reopen the matter
after settlement negotiations fell through, is not rational but
ultravires, and grossly irregular. The commissioner
misconducted
himself by acting in the manner he did during proceedings.
[24.2]
It is my contention that the commissioner committed a gross
irregularity by refusing the request to postpone the matter for
the
employer to provide the relevant details and reduce the settlement
proposal to writing. It is my further contention that the
commissioner committed a misconduct when he held side meetings with
the employer’s representatives in my absence during there
proceedings. Further more, it is my submission that the commissioner
exceeded the scope of his powers when he brought an already
filled
notice of withdrawal and instructed me to sign it, since I had
expressed an intention to engage the employer’s settlement
proposal.
The
test for review
[25]
The law is now settled with regards to the test for review as
enunciated in the well known case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
1
being:
“whether the decision reached by the commissioner one that a
reasonable decision maker could not reach”.
[26]
In
Sidumo
Ncgobo
J,
as
he then was
,
was
of the opinion that although the provisions of section 145 of the LRA
have been suffused by the Constitutional standard, that
of a
reasonable decision maker.
2
The
learned Judge further stated that when a litigant wishes to challenge
the arbitration award under section 145(2), he or she
must found his
or her cause of action on one or more of these grounds of review and
said the following:
“
The
general powers of review of the Labour Court under section 158(1)(g)
are therefore subject to the provisions of section 145(2)
which
prescribe grounds upon which arbitral awards of CCMA Commissioners
may be reviewed. These grounds are misconduct by the Commissioner
in
relation to his or her duties; gross irregularity in the conduct of
the proceedings; where Commissioner exceeds his or her powers;
or
where the award was improperly obtained. These are the only grounds
upon which arbitral awards of CCMA Commissioners may be
reviewed by
the Labour Court under section 145(2) of the LRA. It follows
therefore that a litigant who wishes to challenge an arbitral
award
under section 145(2) must found his or her cause of action on one or
more of these grounds of review.”
3
[27]
In
Southern
Sun Hotel Internationals (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
4
the
Court acknowledged the test for review of Commissioner’s award
as enunciated in the
Sidumo
decision
(reasonable decision maker test) but added that:
“
Section
145 of the Act clearly invites a scrutiny of the process by which the
result of an arbitration proceedings was achieved,
and a right to
intervene if the Commissioner’s process related to conduct is
found wanting. Of course, reasonableness is
not irrelevant to this
inquiry – the reasonableness requirement is relevant to both
process and outcome.”
5
[28]
The issues that the Court has to decide on are outlined above in
paragraph 22. Briefly stated, the Court has to decide whether
the
applicant signed the withdrawal notice voluntarily and or whether the
commissioner, coerced him to sign same.
[29]
I have indicated above that the matter was referred for oral evidence
to specifically determine the two issues mentioned in
the preceding
paragraph.
[30]
At the trial of this matter, the applicant led evidence that at the
commencement of the arbitration proceedings the fourth
respondent’s
representative asked the commissioner to revert to conciliation as he
did not attend the conciliation process.
The commissioner agreed and
allowed the parties to explore possible settlement on their own as he
did want to be privy to the merits
of the matter. He testified that
the fourth respondent’s representatives made the following
proposals:
[30.1]
that he would be re-employed in another capacity
[30.2]
monetary compensation\
[30.3]
that the applicant would not be black listed.
[31]
The applicant testified that he needed the said proposals in writing
something that the fourth respondent were not in a position
to do at
that stage as they needed to consult the fourth respondent. He then
asked the commissioner for postponement to enable
him to receive the
said proposal in writing. The commissioner refused this and this is
confirmed by both parties in their common
cause issues under the
pre-trial minutes although the parties do not agree with regard to
the reasons.
[32]
The fourth respondent’s main witness, Mr. Morris emphatically
denied any proposal having been made at the arbitration
hearing let
alone proposals as mentioned at paragraph 23 above. He did so even
when it was shown to him that he had confirmed such
discussions in
his affidavit. Furthermore, the commissioner in his evidence
confirmed that such negotiations were entered into
although he did
not have details thereof. This was also confirmed by the respondent’s
other witness, Mr Mateo at page 62
paragraph 20 of the record. The
commissioner’s evidence is to the effect that he had given the
parties time to discuss such
proposals and after a long time it
appeared to him that an arrangement had been arrived at by parties.
The commissioner says the
following at page 69 paragraph 20:
“
....I
was called, I only came in the office, I still remember they
indicated. The applicant is actually withdrawing. Withdrawing
the
matter. Then I went. I went down stairs to collect the withdrawal
notice.”
[33]
It appears that towards the end of time allocated, the commissioner
asked the parties whether the matter was settled. It appears
that he
was informed of a possible settlement, because his evidence as I
mentioned was to the effect that it seemed the parties
had come to an
arrangement. It is in dispute as to who of the parties and the
commissioner suggested the withdrawal of the dispute.
However, what
is not in dispute is that once the issue of the withdrawal was
mentioned the commissioner went away and brought with
him a fully
completed withdrawal form. What is further in dispute is whether the
applicant was coerced to sign the withdrawal form.
[34]
The applicant testified that when the commissioner came back with the
withdrawal form, he instructed him to sign thereby withdrawing
the
case and as a result of this and the undertakings the respondent made
he signed the withdrawal. He further said that the withdrawal
was not
explained to him before signing. However, the commissioner and Mr
Mateo say that it was explained to him. Mr. Morris cannot
remember
but he is of the view that it must have been read to him. However,
both the commissioner and Mr. Morris confirmed that
they have
forgotten most of what happened on that day. The commissioner other
than to remember that there appeared to him to have
been an
arrangement between the parties stated that he had forgotten much
including also that an application for postponement was
made. What is
striking; however is that the applicant appears to remember vividly
what transpired at the arbitration hearing.
[35]
It appears that once the fourth respondent had made certain
undertakings, which appeared enticing to the applicant, but were
not
in position to reduce them to writing the commissioner faced an
administrative problem. The case had to be closed. The only
way of
closing it was by way of a settlement or by arbitration. How would he
arbitrate when it appeared to him that the parties
had come to an
arrangement? How would the applicant want to proceed with arbitration
when it appears that the matter is resolved
in principle and there
are undertakings to finalise it after consultations? The only
convenient way was to rely on a withdrawal
of the dispute. I say this
because the commissioner states at page 77, paragraph 10:
“
There
is no way that I can actually allow parties, to give them days ,or to
stand down the matter, maybe up until another date,
for them to
settle or to draft a settlement agreement outside.”
This
was in response to the question whether it was permissible to
postpone the matter for purpose of allowing parties to finalise
the
agreement outside the CCMA. This fits well into the evidence of the
applicant that he was refused postponement for this purpose.
I can
safely take judicial notice that it is practice in the CCMA that when
there is strong possibility for parties to settle a
dispute,
postponement is usually granted for that purpose.
[36]
This falls into place as the applicant testified that after signing
the said withdrawal an appointment was made that he should
visit the
fourth respondent on the following Thursday for purpose of finalising
the settlement negotiations. Mr. Morris testified
that there was no
such arrangement. However, fourth respondent’s other witness Mr
Mateo confirms that indeed the applicant
did present himself at the
fourth respondent to see him and Mr Morris and he spoke to them.
Applicant testified that he first spoke
to Mcineka who told him that
he does not have the said necessary details and that he should see
Mr. Morris which he did. The applicant
states that Mr. Morris told
him that there is no reason why the fourth respondent should make any
settlement. Mr Mateo confirmed
further at page 62 paragraph 20 that
the issues discussed were re-employment and the moneys owed to him.
[37]
Once Mr. Morris said what he said to him the applicant returned to
the CCMA to report that the negotiations have broken down
and that
the matter should be reinstated which request was refused by a Senior
Commissioner and subsequently by the Convening Senior
Commissioner.
This is a further indication that the applicant laboured under a
belief that the matter would be resolved which was
in fact not the
case.
[38]
The applicant, although a single witness and his evidence needed to
be treated with caution, appeared to me to be a credible
witness. He
remembered vividly what transpired on that day and some of his
evidence is corroborated by both the commissioner and
the fourth
respondent witnesses in certain cases as I have shown above. Mr.
Morris appears to have forgotten much of what transpired
on that day
and contradicted himself and persisted to do so when he was shown
such contradiction. For that reason he is an unreliable
witness. Mr
Morris furthermore is contradicted by Mr Mateo and this calls into
question the credibility of his evidence. What is
also striking is
that the person who led the fourth respondent’s delegation, Mr.
Mcikane was not called to counter what the
applicant said which was
clear from the papers. It was not indicated why he was not called to
counter the applicant as he was the
best person better placed to know
what happened as he was representing the fourth respondent and is the
one who according to the
applicant’s evidence called for
reversion to conciliation. He would have resolved this issue, “why
revert to conciliation
if there was no proposal to make” for
example. The correct course of action the commissioner should have
followed was to
adjourn the matter and give parties time to explore
further consensus on the settlement. It was not correct for him to
insist on
withdrawal while on the other hand directs the applicant to
visit the respondent the following Thursday to discuss the matter
further.
[39]
On this basis, I find that the commissioner unreasonably refused
postponement when it was clear that it was necessary in the
circumstances. It is my further finding that both the commissioner
and the applicant laboured under the mistaken believe that the
matter
was resolved in principle and thereby causing the commissioner to
inadvertently making undue pressure to bear on the applicant
to sign.
It is therefore my finding that the applicant did not sign the said
notice of withdrawal voluntarily. Secondly, it is
also clear to me
that the parties have not agreed and it appears to me that the
applicant laboured under the mistaken belief that
the matter will be
resolved which is not the case. I take into account that the
applicant is a lay person in this matter. That
being the case, I see
no reason why the applicant cannot revert to his former claims.
[40]
Having arrived at the conclusion that I reached, I am of the opinion
that I need to deal with the issue of withdrawal in general.
I must
say without hesitation that the remedy that I will grant at the end
would be the same even if I had not reached the conclusion
I reached
above, that is, even if the applicant voluntarily withdrew the
dispute. The following are my reasons.
[41]
Withdrawal of a dispute is a unilateral act by an applicant and no
act by a functionary and therefore not reviewable. See in
this regard
–
Ncaphayi
v Commission for Conciliation, Mediation and Arbitration and Others
.
6
[42]
In the
Public
Servants Association of South Africa obo Strydom v SARS,
7
the
question was whether a party can be permitted to withdraw a
withdrawal, and whether the Labour Court has discretion to grant
that
permission. Moshoana AJ held that the answer to the first question
lay in the doctrine of election, which is part of our law.
He held
that where a man has two courses open to him and unequivocally takes
one, he cannot thereafter turn back and take the other.
There was no
reason why this principle should not be applied to the withdrawal of
a withdrawal, he said. On the second question
he said that the Court
has no discretion to exercise. He further said that even if the Court
was wrong in holding this view, the
discretion would have to be
exercised judiciously and that case the exercise of this discretion
was not called for.
[43]
However, in the case of
Ncaphayi,
Lagrange
AJ said the following at paragraph:
“
Implicit
in the commissioner’s reasoning is an assumption that the
applicant’s submission of a notice of withdrawal
by a referring
party constitutes action which this Court can review. However, the
withdrawal of a dispute referral to the CCMA
is not an act of any
functionary, but the action of an employee party to a dispute. The
commissioner plays no role in that decision.
This is the first
difficulty with the commissioners reasoning in arriving at this
conclusion that he had no jurisdiction to entertain
the matter.”
8
[44]
The Court went further and stated that:
“
...The
LRA does not deal with the withdrawal of matters referred to the CCMA
and neither do the rules of the CCMA. Rule 13 of Labour
Court merely
deals with the procedure to be followed if a party wishes to withdraw
proceedings. It is in structive to note how
High Court has considered
the effect of a withdrawal of a matter. It has been held that the
withdrawal of a matter by a party is
akin to an order of absolution
from the instance. Ordinarily an order of absolution from the
instance does not prevent a party
from reinstating proceedings and
the defendant absolved in the first proceedings will not be able to
raise exception rei judicatae
if sued again on the same cause of
action.”
9
[45]
The court on the strength of
Kaplan
v Dunell, Ebden and Co,
10
Wildlife
and Environmental Society v MEC for Economic Affairs, Environment and
Tourism, Eastern Cape, and Others,
11
and
MV Wisdom C United Enterprises Corporation v STX Pan Ocean Co Ltd
12
decided
that withdrawal of a dispute at the level of conciliation does not
preclude a party from making a fresh referral. The court
said further
that however, if the withdrawal is part and parcel of a final
settlement of a dispute the situation will be different.
[46]
As it now turns, we have two opposing decisions on the issue of
withdrawal of a notice of withdrawal.
[47]
I must say at the onset that I am respectively unable to agree with
my brother, Moshoana AJ and inclined to agree with the
latter
decision for reasons that I will state here under.
[48]
In the case of
Public
Servants Association of South African obo Strydom v SARS,
the
court relied on a number of cases and rejected the case of
Roupell
v Metal Art (Pty) Ltd and Another,
13
as
an authority to the proposition that a party can be allowed and the
Court has a discretion to allow such a withdrawal of a dispute.
The
Court did so on the basis that
Roupell
did
not deal with all legal arguments and therefore should not be
regarded as an authority to the proposition.
[49]
In that case, Counsel for the applicant argued that the doctrine of
election should be confined to instances of not prosecuting
an
appeal.
[50]
Indeed almost all the cases that the court cited related to an appeal
against a judgment. In the case of
Cohen
v Cohen,
14
Fieldsend
CJ
summarised
the differing approaches as follows:
“
To
summarise the differing approaches:
Wessels J in
Bongers
v Ekstein
(Supra at
913) said that if a party litigant does an act by which he
communicates to the other party that he acquiesces in the
judgment
he is deprived of the right to appeal;
Mason and Britowe JJ in the same
case merely decided that to satisfy a judgment without any
reservation of rights was inconsistent
with an intention to appeal
from it;
De Villiers JP in
Clarke
v Bethal Co-oprative Society
(Supra
at 1158) indicated that the authorities required either an express
or as implied agreement between the parties;
Bristowe J in the same case at
1161 appeared to require either an expression of intention made under
circumstances amounting to
a contract, although he also referred to
the doctrine of election. Election he said, require unequivocal
choice of one of two alternative
courses.
Solomon J in
Hlatshayo
v Mare and Deas
(Supra
at 253) appeared to go very much further in that he rejected the idea
that any agreement was necessary or that the conduct
need to amount
to an estoppel. He considered that only one party’s act need be
looked at, and if that led one to the conclusion
that he did not
intend to appeal that was sufficient.”
15
[51]
The issue that all these cases dealt with was prosecution of an
appeal and in the circumstances that the applicant acquiesced
to the
judgment either by payment of the judgment debt, costs of suite,
wrote a letter indicating that he want to submit a bill
for taxation
etc. In other words by making such payment or offers it is taken that
he has waived his rights to appeal.
[52]
Even the
Cohen
case
itself involved an appeal. This is evident from page 436E of that
judgment where the court held as follows:
“…
when
the appeal was noted on 20 November the respondent’s attorneys
wrote that, in view of the unequivocal acceptance of the
judgment of
the Court aquo as appeared from the letters, they considered that the
right to appeal had been perempted, and this
is now the respondent’s
contention.”
[53]
After analysing comments by various judges and authorities the Court
in
Cohen
said
the following:
“
The
proper approach is to consider whether, applying the ordinary and
well-recognised law governing agreement, express or implied,
waiver
or estoppel, a person is to be debarred from his right of appeal.”
16
[54]
In my view the authorities dealt with in the case of
Public
Service Association of South Africa obo Strydom v SARS
dealt
with peremption of appeal and nothing else and should be confined
thereon. On the other hand
Roupell
dealt
directly with the withdrawal of a notice of withdrawal and it should
serve as authority that such a withdrawal can be withdrawn.
The Court
dealt with the question of whether an order to withdraw a notice of
withdrawal can be made and proceeded to hold as follows
at page 303C
- D:
“
The
real enquiry is whether the version of the settlement asserted by the
defendants differs in a material respect from that alleged
by the
plaintiff, and whether the plaintiff is properly entitled to claim
that the parties were not ad idem, or that the defendant
has
repudiated the true settlement. If the plaintiff could establish such
basis, then he would be entitled to revert to his original
claims.”
[55]
The Court went further and held that:
“
The
situation upon this analysis is that the plaintiff contended that the
settlement was unconditional and that this defendant contended
that
the settlement was subject to the terms or condition referred to
above. In that situation I think that the plaintiff was entitled
to
take up the attitude that there was not settlement and was entitled
to revert to his original claim.”
17
The
Court went further and held that:
“
.....in
substance the case amounts to this, that the plaintiff says that the
two attorneys thought they had arrived at a settlement,
but that the
defendant’s attorney now thinks that the terms were otherwise
than plaintiff’s attorney thinks they were
and, that being so,
the plaintiff is prepared to accept that there was no settlement and
wishes to revert to his original rights.
It follows, in my view that
the plaintiff must succeed on the merits of this application. In
arriving at that conclusion I have
not found it necessary to deal
with any of the submission on the interpretation of the fourth
schedule to the Income Tax Act.”
18
[56]
On the basis of the above I am of the view that a firm principle is
established in this case and I see no reason why it should
not be
authority for the proposition that a withdrawal can be withdrawn. The
submissions not attended to as mentioned above would
in my opinion
only help to the extent of arriving at the conclusion of whether the
Income Tax Act should be read into that particular
agreement or not.
It will not answer the question whether a notice of withdrawal can be
withdrawn. This I think could be the reason
why the court found the
submissions not relevant for deciding the issue.
[57]
The fact that the applicant has the right to reinstate the matter
back on the roll does not mean that he or she is guaranteed
success
in every such case. I’m of the view that were the respondent
may be prejudiced by the reinstatement, for example,
where a long
time had elapsed before such case is reinstated and all evidence is
lost, e.g. witness can no longer be traced, have
died, etc. An
applicant should not succeed. This will be in line with the comments
made by Van Der Riet J in
Kaplan
v Dunell, Ebden and Co
.
19
where
the learned judge said the following:
“
If,
moreover, they are prejudiced by the action of the plaintiff in
withdrawing the case before it has been adjudicated upon and
there is
any real cause to fear that the plaintiff will recommence the action
against them they may avail themselves at common
law right given to
them to apply for a decree of perpetual silence.”
It
is my view that such an order may also be sought at the beginning of
the proceedings in which a party seeks to reinstate such
a
withdrawal.
___________________________
19
1924
EDL 91
, at page 94
[58]
In the premise, my order is as follows:
(1)
The notice of withdrawal signed by the applicant is set aside.
The
decision by the second respondent to refuse reinstatement of the
arbitration proceedings in case number GAJB25081-07 withdrawn
by the
applicant is reviewed and set aside.
The
first respondent is ordered to reinstate the matter on the roll
within 30 days of receipt of this order to be heard by a
commissioner other than the third respondent.
Fourth
respondent to pay the costs.
SHAI
AJ
APPEARANCES
FOR
THE APPLICANT : ADVOCATE MPHO MAKGATO
INSTRUCTED
BY : RASEGOETE ATTORNEYS
FOR
THE RESPONDENT : MR X MATYOLO
INSTRUCTED
BY : PERROTT, VAN NIEKER,
WOODHOUSE,
MATYOLO INC.
1
2008
(2) SA 24
(CC).
2
Id
at para [162]
3
Id
at para [189]
4
[2010]
31
ILJ 452(LC),
5
Id
at para [14]
6
(2011)
32 ILJ 402 (LC)
7
(2007)
JOL
20040
LC
(JS591/04)
8
Above
n 6 at para [26]
9
Id
at para [27]
10
1924
EDL 91
11
2005
(6) SA 123
(E
)
12
[2008] ZASCA 21
;
2008
(3) SA 585
(SCA)
13
1972
(4) 300 (W)
14
1980
(4) SA 435
(ZA)
at
page 439
15
Id
at 439A - E
16
Id
at 440D
17
Roupell
n13
above at 304D
18
Id
at 304G - H
23