About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 456
|
|
Simelane v Fidelity Security Services (Pty) Ltd (J986/2009) [2015] ZALCJHB 456 (13 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: J 986/2009
I
n
the matter between:
MADODA COLLEN SIMELANE
Applicant
And
FIDELITY SECURITY SERVICES (PTY)
LTD
Respondent
Heard:
22 August 2013
Delivered:
13 May 2015
Summary:
An order of court may not be set aside without valid reason.
JUDGMENT
LALLIE
J
[1]
On 17 July 2012, the applicant approached this Court for an order
mainly in the following terms:
‘
1. Declaring
clause 2 of the Deed of Settlement entered into between the parties
on 4 March 2009 to be legally unenforceable, null
and void
ab
initio.
2. In the alternative to prayer 1
above, declaring the entire Deed of Settlement entered into between
the parties on the 4 March
2009 to be of no legal force or effect,
and accordingly avoid
ab
initio.
3. ORDERING AND DIRECTING that the
matter be referred back to the CCMA for a determination only on the
question of retrospectivity
of the applicant’s agreed
reinstatement.
4. In the alternative to prayer 3
above, ORDERING AND DIRECTING that the matter be referred back to the
CCMA for arbitration
de novo’
.
[2]
The application is opposed by the respondent which filed a notice of
intention to oppose on 2 August 2012 and the answering
affidavit on
13 November 2012. In the answering affidavit the respondent raised
the following points in
limine:
The
deponent to the founding affidavit lacked capacity to depose to it,
the present application was brought under the same case
number
relating to a matter between the parties which had been dismissed on
1 August 2011 and a number of allegations had to be
struck out as
being irrelevant vexatious and scandalous. On 16 January 2013, the
applicant filed a conditional replying affidavit.
On 22 January 2013,
the applicant filed a notice of intention to amend his notice of
motion. The respondent did not object to the
amendment it, however,
filed a supplementary affidavit in terms of Rule 7A (8) (a). On 15
August 2013, the respondent filed an
application for condonation of
the late filing of the answering affidavit.
[3]
The effect of the amendment was that prayers 1 and 2 of the notice of
motion be deleted and substituted with the following:
‘
1.DECLARING
the Deed of Settlement entered into between the parties on 4 March
2009 to be legally unenforceable, of no legal force
or effect, and
accordingly null and void
ab
initio
.
2.
SETTING ASIDE the court order granted by this Honourable Court on 27
October 2009 on the basis that the underlying agreement
entered into
between the parties on 4 March 2009 is legally unenforceable, of no
legal force or effect, and accordingly null and
void ab initio’
[4]
The applicant did not file any opposing papers to the respondent’s
condonation application. It was, however, argued on
behalf of the
applicant that the respondent failed to make out a case for
condonation. The respondent submitted that it filed its
answering
affidavit out of time for a number of reasons. The first is that the
applicant served his founding papers on its attorneys
via email on 30
July 2012. As the attorneys had not been instructed to oppose the
application they had to seek the necessary instructions.
This factual
averment was not opposed. Rule 4 provides for service of documents
and excludes service via email. Further reasons
proffered by the
respondent for filing its answering affidavit on 16 November 2012,
are that the applicant was dismissed in March
2004. A portion of the
relevant files the respondent needed in order to oppose the current
application had to be retrieved from
the archives. As other
applications in respect of this matter had been determined, it became
necessary to consult the respondent’s
erstwhile attorneys who
assisted it in earlier applications. The Respondent is a large
organisation which employs over 33000 employees.
[5]
The respondent submitted further that the applicant suffered no
prejudice as a result of the delay, alternatively, that it stood
to
suffer more prejudice than the applicant in the event of this
application being refused because it will lose its opportunity
to
oppose the main application. The respondent added that the applicant
had no prospects of success in the main application. It
submitted
that if the application for condonation was necessary, it had made
out a case for its delay to be condoned. However,
Rule 4 does not
provide for service of documents via email and the applicant provided
no legal basis for filing his founding papers
in a manner which is
not provided for by the Rule. Absent proof that the respondent filed
its answering affidavit in breach of
Rule 7 (4) (b), a conclusion
cannot be reached that the answering affidavit was filed late.
[6]
I have considered the respondent’s point in
limine
that
Mr Voyi (“Voyi”), the applicant’s attorney lacked
the capacity to bring this application as well as personal
knowledge
of the facts he deposed to. The applicant attached to his conditional
replying affidavit, a confirmatory affidavit in
which he confirmed
its contents as well as having instructed and authorised Voyi to
proceed with the current application and depose
to any necessary
affidavits on his behalf. The confirmatory affidavit therefore cured
the defect and a proper construction of the
founding affidavit
reflects that Voyi had personal knowledge of all the facts relevant
to the current application. He was present
at the CCMA when the
settlement agreement was entered into. This point in
limine
must therefore be dismissed.
[7]
A further point in
limine
raised by the respondent is that the
present application stands to be dismissed as it has been brought
under a case number relating
to a matter between the parties which
was dismissed on 1 August 2011. The respondent submitted that the
defect was fatal and warranted
a dismissal of this application. I
have considered the applicant’s opposing views on this point.
The factual averment that
the case number was given to the applicant
by the registrar was not made in his replying affidavit. It could
therefore not be relied
on in argument as it is not foreshadowed in
the papers. I am of the view that there is a duty on this Court to
deal with the actual
dispute referred and not deny a litigant the
right to be heard based on the form rather than substance of any part
of a case. I
am not convinced that this point in
limine
can be
used as a basis to non-suit the applicant, it must therefore be
dismissed.
[8]
The respondent moved an application to strike out some allegations in
the founding affidavit as being irrelevant, vexatious
and scandalous.
The respondent submitted that in paragraphs 9, 49 and 50 of the
founding affidavit, Voyi deals with the dismissal
of the applicant.
In paragraph 9 Voyi contends that the applicant was unfairly
dismissed by the respondent on 25 March 2004. In
paragraph 49 he
makes the averment that the applicant’s dismissal amounted to a
gross violation of his right not to be unfairly
dismissed as
entrenched in section 185 (a) of the LRA. And in paragraph 50 he
stated that when agreeing to reinstate the applicant,
the respondent
effectively acceded to the claim that the applicant’s dismissal
was unfair. All the allegations have been
denied by the respondent
which also raised the defences of estoppel and waiver because the
applicant was at all relevant times
represented by an attorney. He
must have been aware of his right to have the settlement agreement
and court order declared null
and void.
[9]
Waiver is not presumed easily. The respondent needs to prove that the
applicant took the decision to abandon his right with
full knowledge
of the right and conveyed the decision to the respondent. See
Feinstein
v Niggli and Another
[1]
.
The respondent proved the requirements of neither waiver nor
estoppel.
[10]
The court in
Bezuidenhout
v Patensie Sitrus Beherend Bpk
[2]
held that an order of a court of law stands until set aside on appeal
in terms of Rule 42 of the Uniform Rules of Court or common
law
grounds. The applicant sought to rely on a number of judgements which
advocate the view that an agreement which has been made
an order of
court can be set aside on recognised grounds including that the
underlying agreement had been induced by fraud, duress,
iustus
error, misrepresentation or some other ground for rescission, was
void for any other reason including vagueness, or being impossible
to
perform.
[11]
When the settlement agreement was made a court order it ceased to
exist. The value of the agreement at this stage is that it
is the
underlying agreement on which the order of 27 October 2009 is based.
An order of court may not be set aside without valid
reason. Each
case is decided on its merits. After the settlement agreement had
been breached, the applicant launched an application
in terms of
section 158 (1) (c) of the Labour Relations Act 66 of 1995 (“the
LRA”) for the agreement to be made an
order of court. Opposing
the application the respondent submitted that Mr Mkhonto (“Mkhonto”)
indicated that he could
not agree to the date of reinstatement and
the amount to be paid to the applicant and insisted that performance
of the underlying
agreement was impossible but the applicant denied.
After the agreement had been entered into, the applicant,
particularly because
he was legally represented, should have known
that it was impossible to perform. A further opportunity for the
applicant to acknowledge
that it was impossible to perform the
agreement presented itself on 14 July 2010 when the application in
terms of section 158 (1)
(c) was opposed. The applicant did not seize
it. He instead insisted that the order be granted with costs. He was
successful. The
applicant made his choice which is binding on him. He
could not, on 17 July 2012, without valid reason, take the liberty to
seek
an order nullifying the order, making that the settlement
agreement an order of court. Fairness requires that litigation should
start, continue and be brought to finality within reasonable time.
The applicant acknowledged that clause 2 of the underlying agreement
was unenforceable. The clause existed before the application in terms
of section 158 (1) (c) was launched. He cannot be allowed
to
deliberately, without valid reason, stand in the way of having this
matter finalised. Because of the binding nature of court
orders, the
applicant needed valid reason for abandoning the judgement making the
settlement agreement an order of court with the
view to resuscitate
the dispute the parties had settled and have it arbitrated. The
real reason for seeking the order making
the settlement agreement an
order of court set aside or for abandoning it is that the applicant’s
attorney made an error.
He erred in not recognising that the
settlement agreement reached when he represent the applicant was
unenforceable at the time
it was entered into and when he had it made
an order of Court. He should have reasonably foreseen that it was
unenforceable.
The error does not constitute valid grounds to
have the order of court or the underlying agreement declared null and
void
ab initio
.
[12]
Having considered the authority the parties sought to rely on, I have
noted that even the cases the applicant sought to rely
on require
valid reason for setting aside an order of court. The applicant
provided none. His application cannot succeed.
[13]
In the premises the application is dismissed.
__________________________
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCE
For
the Applicant:
Advocate
Kela
Instructed
by:
Ndumiso Voyi Incorporated
For
the Respondent:
Advocate Westhuizen
Instructed
by:
Crafford Attorneys
[1]
1981 (2) SA 684 (A)
[2]
2001 (2) SA 224
at
229 A-E