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[2019] ZALCJHB 11
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Malapeng v South Deep Gold Mine Joint Venture (JS388/18) [2019] ZALCJHB 11 (22 January 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JS 388/18
In
the matter between:
EDWIN
MALAPENG Applicant
and
SOUTH
DEEP GOLD MINE JOINT
VENTURE Respondent
Date
heard: 16 November 2018
Delivered:
22 January 2019
JUDGMENT
RABKIN-NAICKER,
J
[1] This interlocutory application was
set down by South Deep Gold Mine Joint Venture (referred to as in the
main claim, the respondent).
In its statement of response, the
respondent notes a ‘Special Plea’ that the dispute
between the parties has been settled
by means of the signing of a
settlement agreement on 7 February 2018.
[2]
The applicant submits in his statement of claim that he was
threatened with dismissal in order to force him to sign an agreement
which violated his right to fair labour and the right not to be
unfairly dismissed. Further that the respondent “used the
threat of dismissal for alleged misconduct to circumvent its
obligation in terms of Section 189 of the Labour Relations Act
[1]
(LRA) and in the process achieve through the impugned settlement
agreement, what it could not achieve through properly constituted
disciplinary hearing or a fair process for termination of employment
for operational requirements.”
[3] The respondent brings the
interlocutory application to establish the validity and
enforceability of the settlement agreement.
It argued the following:
3.1 Mr Matlapeng
admits to signing the settlement agreement;
3.2 Mr Matlapeng admits to querying
the terms of the settlement agreement but finally relenting and
accepting the terms;
3.3 Mr Matlapeng has not prayed for
the setting aside of the settlement agreement;
3.4 Mr Matlapeng does not claim the
settlement agreement was invalid when entered into;
3.5 Mr Matlapeng has not claimed that
he did not understand the contents of the settlement agreement;
3.6 All Mr Matlapeng seeks from the
Court in respect of the settlement agreement is for the Court to
declare the Settlement agreement
a dismissal; and
3.7 South Deep has performed in terms
of the Settlement agreement.
[4] The Pre-Trial Minute signed of
record however does include the following issue which the Court is
required to decide: “Whether
the Applicant has made out a case
of duress to set aside the settlement agreement.” The factual
issues in dispute as recorded
in the minute include: “Whether
or not the Applicant was threatened with dismissal for misconduct if
he did not accept retrenchment
and signed the settlement agreement
under undue pressure/threat.”
[5] The applicant has pleaded duress
in respect of the settlement agreement. There are in addition factual
issues in dispute and
relevant to this plea contained in the
Pre-trial Minute. These are quoted as follows:
“
1.14
Whether or not Mr Preece discussed the misconduct with the Applicant
on 24 January 2018 and presented a settlement agreement
to him on the
same day.
1.15
Whether or not the Applicant initiated the discussion on voluntary
severance and negotiated the terms of the settlement agreement.
1.16
Whether or not the settlement agreement was already prepared on the
23
rd
of January 2018 when the Applicant and the Respondent were discussing
the alleged misconduct…..
...
1.21
Whether or not the Applicant was threatened with dismissal for
misconduct if he did not accept retrenchment and signed the
settlement agreement under undue pressure/threat.”
[6]
The respondent expects the Court to determine that the settlement
agreement is binding despite the parties having agreed that
disputed
facts exist to be determined by the trial court, as referred to
above. It does so on the basis of what it terms a “special
plea’’. Special pleas have to be established by the
introduction of fresh facts from outside the circumference of the
declaration and those facts have to be established by evidence in the
usual way. Thus, as a general rule, the exception procedure
is
appropriate when the defect appears
ex-facie
the pleading, whereas a special plea is necessary to place facts
before the court to show that there is a defect.
[2]
[7] In its Argument contained in a
Note handed up on the day the application was heard, the respondent
deals extensively with the
proposition that the settlement agreement
was valid and binding and in addition submits that there is no legal
definition of dismissal
contained in the LRA that allows for the
entry of parties into a termination agreement to be considered a
dismissal. The argument
ends in the following submission:
“
Applicant’s
statement of case therefore does not disclose a legally valid basis
for his claim and his claim falls to be dismissed.”
[8] The application before me was thus
ill-conceived. In as far as the allegation into whether duress was at
play when the settlement
agreement was entered into there is a
dispute of facts
ex-facie
the pleadings and this must be
determined at trial. Only an exception procedure brought by the
applicant could have led to a determination
as to whether there was
any merit in the respondent’s submission that no legal basis
for the claim was disclosed in the statement
of claim. Such an
exception would have been properly brought before the statement
of response was drafted.
[8] In the premises, I make the
following order:
Order
1.
The
interlocutory application is dismissed with costs.
_________________
H. Rabkin-Naicker
Judge of the Labour
Court
Appearances:
For the Applicant: Edward Nathan
Sonnenbergs Inc.
For the First Respondent: Kokong
Attorneys Inc
[1]
Act 66 of 1995 as
amended.
[2]
Van Winsen et al
‘
The
Civil Practice of the Supreme Court of South Africa’
4
th
edition at page 471.