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2011
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[2011] ZALCJHB 84
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Buthelezi v Liberty Group Ltd (JS 707/10) [2011] ZALCJHB 84; (2012) 33 ILJ 607 (LC) (22 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Reportable
Case Number: JS 707/10
In the matter between:
LIZZY PHILLISTUS BUTHELEZI
….........................................................................
Applicant
and
LIBERTY GROUP
LIMITED
…............................................................................
R
espondent
Date of Hearing: 8 and 14 September
2011
Date of Judgment: 22 September 2011
JUDGMENT
MOSHOANA AJ
Headnotes:
Validity of a
settlement agreement.
Introduction
[1] This is a referral in terms of
section 191 of the Labour Relations Act as amended (LRA).
1
This matter involves the question of
the validity of a settlement agreement, in terms of which the
applicant agreed to be dismissed
for operational requirements. The
applicant contends that the agreement is invalid for reasons of
compulsion. Put it differently,
the applicant contends that she
signed the agreement under duress. Accordingly, the Court should find
that the agreement is unenforceable
in law. The respondent on the
other hand contends that the agreement is valid and enforceable in
law. The agreement extinguishes
the applicant’s claim for
unfair dismissal, so it was contended. The applicant testified in her
own case. The respondent
called two witnesses in support of its
contention.
The postponement application
[2] At the commencement of the trial,
an application for postponement was launched on behalf of the
applicant. The reason for that
was that such a postponement will
allow the parties to comply with the Judge President’s
directives on matters involving
dismissal based on operational
requirements. Matlejoane for the applicant submitted that on reading
the signed minutes filed in
Court, there appears a contradiction
between the issues to be decided and the facts in dispute. The
parties highlighted as facts
in dispute the fairness of the dismissal
as per the CCMA referral. On the other hand, the parties requested
the Court to decide
on the validity of a settlement agreement. I was
not persuaded and refused the application. I did so because no
good
cause
was shown why the trial should be postponed. The
postponement would have served no purpose as it seemed clear to me
that what the
applicant was seeking to do was to resile from the
pre-trial agreement.
[3] The purpose of a pre-trial in this
Court and any court is to narrow down the issues for trial. It is
improper for a party to
agree on what issues are to be dealt and
later seek to resile therefrom simply because the agent, in this case
an attorney, was
negligent in the manner in which the issues were
dealt with. Ironically, the applicant yet again seeks to be not bound
by the settlement
agreement she signed. I take this opportunity to
state that if the directives are not complied with, a matter ought
not to be set
down for trial. It is the duty of practitioners in this
Court to ensure that the directives are complied with at all material
times.
Having said so, I do not mean that non compliance could be
used as a
stratagem
to seek postponement. It is improper for a
practitioner who has a duty to ensure compliance with the directives
to benefit from
such a failure on the part of his or her client.
Brief relevant evidence.
[4] As pointed out above, this matter
turns on the validity or otherwise of the settlement agreement. The
bulk of the evidence dealing
with what happened before the agreement
was entered into is irrelevant, taking into account the parole
evidence rule. On 4 May
2010, the applicant and the respondent
entered into a settlement agreement. It is common cause that the
applicant signed and understood
the contents of the settlement
agreement of 4 May 2010. According to the applicant, the agreement
was not explained to her in any
details. Nkuna presented the
agreement to her and asked to sign because if she does not sign she
will get nothing. She signed because
she had children to look after
and other financial obligations. She went and sat in her car called
her husband and only read the
agreement at home. At that point she
realised that she was actually unhappy with the agreement.
[5] Nkuna testified that she took the
applicant through the agreement and gave her option to either sign or
not sign. If she does
not sign consultation will continue. The
applicant took the agreement and returned after about 45 minutes with
it signed. The applicant
effected amendments by removing the place of
signature. She inserted her address. After the agreement was signed,
the applicant
sought through attorneys to enforce the agreement. On
23 June 2010, the applicant referred a dispute to the CCMA. The
jurisdiction
of the CCMA was challenged. The basis of the challenge
was that the matter was settled. On 15 July 2010, a certificate was
issued
by the CCMA referring the dispute to this Court. It is
apparent that the CCMA did not entertain the jurisdictional
challenge. Nonetheless
the issue was raised again in this Court;
hence the parties agreed that the issue of the validity of the
settlement agreement is
determinative of the future of the alleged
unfair dismissal dispute.
Argument.
[6] The only question to be answered
by this Court is whether the settlement agreement entered into on 4
May 2010 is valid and binding
on the parties. Both representatives
presented very helpful set of heads. It is unnecessary to repeat them
in this judgment. Suffice
to mention that it was argued on behalf of
the applicant that she was coerced into the agreement. I t was
submitted that by being
told that “sign or else you will get
nothing” amounts to coercion. On the other hand the
respondent’s representative
contended that there was no
coercion and the applicant waived her rights to claim unfair
dismissal. She has not demonstrated the
requisite elements of
coercion.
Analysis
[7] Is the settlement agreement valid
and binding between the parties? If yes
cadit
qauesto
. It is correct as
submitted by the respondent’s representative that as a general
rule a person is bound by the terms of a
signed agreement-the
caveat
rule. The rule applies even where the
signatory has not read the agreement. See in this regard
Bhikhagee
v Southern Aviation (Pty) Ltd
2
.
A party seeking to resile from the agreement has to prove that the
agreement is not binding on him or her (
Union
Government v Gowar.
3
[8] A party seeking to raise duress,
like the applicant before me must allege and prove a threat of
considerable evil to the person
or his family which induced fear, the
fear was reasonable, the threat was imminent or inevitable, the
threat was unlawful and that
the contract was concluded as a result
of a threat (
Arend v Astra
Furnishers (Pty) Ltd.
4
The applicant before me failed to show
that. On the contrary at the CCMA proceedings she testified as
follows:
“
Ms
Nkuna took out the documents which turned out to be the severance
package calculations annexed to the settlement agreement. She
explained the figures to me and some of the clauses, whereafter she
advised me to sign.
She
indicated that I had an option, I could sign and receive the package
or I could decline to sign in that event I would be dismissed
and go
away empty handed.”
This version she repeated in this
Court. Nowhere did she mention any threat whatsoever. She had an
option. A person who is under
threat will ordinarily be without an
option. Although the applicant paints a picture that she had no
chance, was confused and traumatised,
the evidence above proves
otherwise. The Court accepts the version of Nkuna. The Court accepts
that the applicant had an opportunity
to read and actually left with
the agreement for 45 minutes as testified. The applicant failed to
show any compulsion. This is
a case of a person who afterwards felt
that she made a mistake to sign. Her actions of seeking to enforce
the agreement are totally
inconsistent with her assertion of
compulsion.
[9] This case is distinguishable from
that of
Roberts and Others v
WC Water Comfort (Pty) Ltd.
5
In this matter a detailed settlement
agreement was signed by both parties. In clause 3 of the agreement
reference is made to mutual
agreement to terminate for operational
requirements on 31 May 2010. In clause 5 the applicant waived her
rights to claim unfair
dismissal.
[10] Therefore, the agreement is valid
and binding between the parties. In the result, I make the following
order:-
The settlement agreement is valid and
binding between the parties.
The applicant’s claim is hereby
dismissed
There is no order as to costs.
____________________________
G. N MOSHOANA
Acting Judge of the Labour Court
Appearances
For the Applicant: ADV M B MATLEJOANE
Instructed by L J Bam Attorneys
For the Respondent: ADV G I HULLEY
Instructed by Hlatswayo du Plessis Van Der Merwe Nkaiseng.
.
1
66
of 1995.
2
1949
(4) 105 (E).
3
1915
AD 426.
4
1974
(1) SA 298
(C).
5
(1999)
1 BLLR 33
(LC).