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[2014] ZALCJHB 230
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John v Afrox Oxygen Ltd (JS532/13) [2014] ZALCJHB 230 (3 July 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
NOT
REPORTABLE
CASE
NO JS 532/13
In
the matter between:
LOU-ANNDREE
JOHN
Applicant
and
AFROX
OXYGEN
LIMITED Respondent
Application
heard: 12 June 2014
Judgment
delivered: 3 July 2014
JUDGMENT
VAN
NIEKERK J
[1]
This is an interlocutory application in which the applicant seeks to
strike out a portion of the respondent’s statement
filed in
response to her statement of claim, in which she contends that she
was dismissed for a reason that is automatically unfair.
[2]
The clause that the applicant seeks to have struck out reads as
follows:
’
22.3
Applicant was consulted and presented with a termination proposal
before Respondent could terminate her employment.
One of the terms of
the proposal was that Respondent would pay an equivalence of three
months’ salary to the Applicant. Applicant
rejected the
particular proposal and demanded to be paid an equivalence of 24
months’ salary, which she later reduced to
12 months at the
meeting with Mr. Kimber and Mrs Makwela. Respondent increased the
offer to a maximum of an equivalence of 6 months’
salary.
Applicant rejected the second offer.
This
is a response to the following averment in the statement of claim:
’
18.
On 19 March 2013 the applicant was summarily dismissed by the
respondent…
18.3
without prior consultation.’
[3]
The applicant contends that the contents of clause 22.3 of the
statement of response ought to be struck out on the basis that
they
disclose the content of settlement negotiations which by their nature
are privileged.
[4]
The applicable rule can be simply stated – statements made,
either expressly or impliedly, without prejudice in the course
of
bona fide negotiations for the settlement of a dispute may not be
disclosed in evidence unless both parties consent (seed Zeffertt
and
Paizes
The South
African Law of Evidence
(2
nd
ed.) at 700. It is well-established that the words ’without
prejudice’ hold no particular magic; what matters
is whether
the statement forms part of genuine negotiations for the compromise
of a dispute (Zeffertt and Paizes (supra) at 703).
[5]
In the present instance, it is not disputed that on 14 March 2013,
the respondent addressed a letter to the applicant proposing
a basis
on which the applicant’s employment would terminate, by mutual
consent. This letter, and the terms of the proposal,
are annexed to
the statement of claim. What transpired afterward appears from the
respective statements to have been an engagement
between the
applicant and a Mr Kimber and Mrs Makwela at which various
counter-proposals were made. This is what appears to be
captured in
the first (unnumbered) paragraph contained in clause 22.3 of the
respondent’s statement. What follows, in the
second and again
unnumbered paragraph of clause 22.3 is a reference to later
correspondence conducted between the parties’
respective
attorneys at which during which further proposals were made and
responded to. Indeed, copies of letters from the applicant’s
attorney to the respondent’s attorney on 24 April 2014
specifically marked ‘without prejudice’ and a response,
dated 26 April 2013 in which a counter-proposal is made, is attached
to the statement of defence.
[6]
In my view, there is a clear distinction to be drawn between the
first and second paragraphs of clause 22.3. The first directly
addresses the averment that the applicant’s termination of
employment had been effected without any consultation, and suggests
that prior to the termination of the applicant’s employment and
prior to any dispute between the parties, an attempt was
made to
secure a termination by mutual consent. This attempt was initiated by
the respondent’s proposal, to which the applicant
referred in
her statement of claim, and to which she responded prior to the
termination of her employment. These were not proposals
made in the
context of any negotiation to settle a dispute between the parties;
rather, they were negotiations on the terms of
a mutually agreed
separation.
[7]
The second paragraph concerns events that occurred subsequent to the
termination of employment and once both parties had instructed
attorneys. The content of the correspondence referred to and annexed
to the statement of defence clearly reflects genuine negotiations
in
an effort to settle the dispute between the parties. In respect of
this averment, the applicant’s submissions stand to
be upheld
and it follows that the relevant portion of clause 22.3 ought to be
struck out.
I
make the following order:
1.
The second paragraph in
clause 22.3 of the respondent’s statement of defence,
commencing with the words “Applicant later
persisted with the
demand for …” is struck out.
2.
There is no order as to
costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Representation
For
the applicant: Adv I Posthumus, instructed by Senekal Simmons
Inc
For
the respondent: Mr J Baloyi, Baloyi Attorneys