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[2017] ZALCJHB 514
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Messina Associated Carriers CC v Mashaba (J1332/07) [2017] ZALCJHB 514 (7 June 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No
:
J
1332/07
In
the matter between:
MESSINA
ASSOCIATED CARRIERS CC
Applicant
And
HENRY
H MASHABA
Respondent
Heard:
07 June 2017
Delivered:
07 June 2017
Edited:
11 September 2018
EX TEMPORE
JUDGMENT
SALOOJEE,
AJ
[1]
This is an
application for declaratory relief that the second respondent is not
entitled to any further relief or payment arising
from an award to
reinstate due to this, to reinstate the second respondent with full
back pay. The background is as follows.
[2]
On 2
November 2000 an award was issued to reinstate the second respondent
with full back pay. On 28 September 2004 an application
was
filed to make the award an order of court. On 9 September 2005
the award was made an order of court.
[3]
During June
2006 the second respondent returned to employment with the
applicant. During November 2006 the applicant’s
attorneys
addressed a letter to the second respondent’s attorneys.
This letter which is found at page 31 of the bundle,
sets out a
calculation for back pay of 11 months for periods of unemployment
between 3 April 2000 to 2006 plus interest.
This was as the
second respondent was allegedly employed for some time over that
period.
[4]
Attached to
the letter was a cheque in favour of the second respondent’s
attorneys in the amount of R53,135.86. The
letter also
concludes with a sentence which states,
“
We trust this
settles the matter.”
Subsequently
the cheque was honoured and at the end of January 2007 the applicant
received a demand for the outstanding amount of
R172,349.03.
[5]
The issue
in this application is whether there was a waiver of a court order in
the honouring of the cheque for R53,000 odd.
In the case of
Seagull
v Seagull
1992(3) SA 136C the court stated that the debtor can have no greater
right to accept or reject the waiver where the creditor has
already
obtained judgment but waives the right to enforce it.
[6]
In
Ex
parte
Sussence
1941
TPD 15
the court stated that the necessity for full knowledge of the
law in the case of waiver follows from the principle that waiver is
a
form of contract in which one party is taken deliberately to
surrender his rights therefore, there, to have surrendered its rights
there must therefore be prove of an intention so to surrender which
can only exist where there is knowledge both of the facts and
the
legal consequences thereof.
[7]
In this
case the honouring of the cheque is important. Or if we even go
a little, the honouring of the cheque is important,
sorry. The
cheque was deposited and honoured. There is no explanation as
to why the second respondent’s attorneys
deposited the cheque
or why there was no objection to the amount of the cheque and what
would happen to the balance of the amount
only until about two and a
half months later after the cheque was made out.
[8]
In Christie
the Law of Contract at page 460 it is stated,
“
Once it is decided
that the sending of the cheque is an offer of compromise or a tender
and not payment of the creditor’s
acceptance of the cheque
normally commits him to acceptance of the compromise or tender so
that he cannot sue for the balance.”
[9]
And this
statement is made on the basis of the case of
SA
Scottish Finance Corporation Ltd v Smit
,
1966(3) SA 629P at page 635. The statement is conclusive of
this case where the surrounding circumstances dictate what the
intention of the second respondent was, that is to accept the cheque
and also to accept the amount as settling the matter.
[10]
It is also
clear from the authorities that the second respondent is able to
waive his right in terms of the court order and by accepting
the
cheque did so.
ORDER
[11]
As a result
I make the following order:
1.
In terms of
prayers 1, 2 and 3 of the notice of motion each party to pay their
own costs.
_____________________
YF
Saloojee
Acting Judge of the
Labour Court of South Africa