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[2016] ZALCJHB 4
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Gobombo v Servest (Pty) Ltd t/a Servest Security (JS1052/13) [2016] ZALCJHB 4 (6 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 1052/13
Reportable/Not
Reportable
In the
matter between:
SISA
MARADONA GOBOMBO
Applicant
and
SERVEST
(PTY) LTD T/A SERVEST SECURITY
Respondent
Heard:
05 November 2015
Delivered:
06 January 2016
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
The
applicant, in this matter seeks an order setting aside the settlement
agreement concluded between him and the respondent.
[2]
The
applicant who is a former employee of the respondent was prior to the
termination of his employment contract employed as a security
guard.
He was employed on a fixed term contract.
[3]
It
appears from the pre-trial minutes that the applicant challenged the
termination of the fixed term contact on the basis that
he had
reasonable expectation that the fixed term contract would be renewed
and that he would be offered a permanent employment
with the
respondent. It would appear it was for this reason that the applicant
referred a dispute concerning an unfair dismissal
to the CCMA. At the
time of his dismissal he was earning R2643.25. In the mean time
before the matter could be set down for arbitration
hearing the
parties signed the settlement agreement.
[4]
The
matter was then set down for arbitration hearing on 23 October 2013.
At that hearing the respondent raised a
point
in limine
concerning the jurisdiction of the CCMA to entertain the dispute. The
respondent contended that the CCMA did not have jurisdiction
because
of the agreement concluded between the parties. The settlement
agreement reads as follows:
‘
The
“Parties” agree that Servest Security will pay SM Gobongo
a settlement calculated in the amount of R2, 643.25, which
includes
an ex-gratia payment of R50.00 in full and final settlement of all
monies due as a result of the employment/subsequent
termination of
employment with Servest Security. The agreement constitutes full and
final settlement of all and any claim of whatsoever
nature, whether
directly or indirectly related to the Contact of Employment, arising
by the operation of law, in delict, in contract,
in equity, in terms
of any statutory enactment or otherwise. This agreement is entered
into by both parties freely and without
duress. It is furthermore
agreed that in the event of there being further tax liability in
connection with this settlement, it
will be for the account of
Employee…’
[5]
The
Commissioner upheld the point in limine, that the CCMA did not have
jurisdiction to entertain the dispute. He reasoned that
the CCMA did
not have jurisdiction because the dispute was settled.
[6]
It
would appear that the applicant contended during the arbitration
proceedings that he was forced to sign the settlement agreement.
The
Commissioner found that the applicant had failed to show that he was
forced or that the signed the agreement under duress.
He in this
regard relied on the authority of
Arend
v Another v Astra furnishers
[1]
where
the Court in dealing with the requirement of duress had the following
to say:
‘…
it
is clear that a contract may be vitiated by duress (metus), the
reason d’etre of the rule apparently being that intimidation
or
improper pressure renders the consent of the party subject to the
duress no consent….Duress may take the form of inflicting
fear
by means of threats, Where a person seeks to set aside a contract, or
resist the enforcement of a contract on the ground of
duress based on
fear, the following elements must be established:
(1)
The
fear must be a reasonable one.
(2)
It
must be caused by the threat of some considerable evil to the person
concerned or his family.
(3)
It
must be a threat of an imminent or inevitable evil.
(4)
The
threat or intimation must be unlawful or
contra
bones mores.
(5)
The
moral pressure must have caused damage.’
[7]
The
Commissioner further relying on the case of
Makiwane
v
International. Healthcare Distributors
[2]
,
observed
that where a party accepts the benefit in full and final, of the
benefit owing to him by the employer he placed himself
having the
jurisdiction of the jurisdiction of the CCMA.
[8]
The
case of the applicant as set out in the statement of case is that:
(1)
The
Commissioner did not have jurisdiction to determine the existence of
the settlement agreement.
(2)
The
findings made by the Commissioner are not supported by what he said
during the proceedings.
(3)
He
signed the settlement agreement believing that he was signing for the
salary that he worked for.
[9]
The
legal issues which the applicant requires the Court to determine are:
(1)
The
respondent deliberately concealed facts in order to induce him to
sign the agreement.
(2)
The
respondent took advantage of his mental state.
(3)
The
respondent recklessly made the representation to him whilst knowing
them to be untrue.
(4)
The
respondent induced him to act upon the untruthful facts represented
to him.
[10]
In
his testimony before this Court the applicant stated that on arrival
on the day in question he was given a cheque and a document
to sign.
He further stated that he signed the document with the understanding
that he was signing for his salary.
[11]
The
only witness of the respondent Ms Mulder testified that at the time
she was amongst other things responsible as assistant pay
clerk. She
further stated that on the day in question she gave the applicant the
settlement agreement to read and to come back
if there was anything
that he did not understand.
[12]
The
applicant accordingly to her came back after reading the settlement
agreement and stated that he understands the document.
Evaluation
[13]
It
is clear from the reading of the Commissioner’s ruling that the
jurisdiction ruling was made on the basis of upholding
the validity
of the settlement agreement. In this respect the applicant contends
that the Commissioner did not have jurisdiction
to determine the
existence of the settlement agreement.
[14]
The
applicant has not despite the contention that the Commissioner did
not have jurisdiction to consider the existence of the agreement,
challenged the ruling on review.
[15]
The
issue that arises is whether this Court can ignore the decision of
the Commissioner regarding the validity of the agreement
and set it
aside.
[16]
It
is now trite that an invalid or unlawful decision of an administrator
is enforceable until it is rescinded or reviewed and set
aside. In
the present matter the decision of the Commissioner, that the
agreement concluded between the parties is valid and enforceable,
has
not been set aside. In the absence of the rescission or review of
that decision this Court is bound to respect and uphold the
decision.
It follows from this reason that the applicant’s application
stands to fail.
[17]
It
would however be inappropriate in the circumstances of this case to
allow costs to follow the result.
Order
[18]
In
the premises the applicant’s application is dismissed with no
order as to costs.
________________
E,
Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
In Person
For
the Respondent:
Adv. B Bezuidenhout
Instructed
by:
Fullard, Mayer & Morrison Inc.
[1]
1974
(1) SA 298 (C).
[2]
(2003)
24
ILJ
2150 (LC).