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[2019] ZALCJHB 257
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Cory v City Manager: City of Tshwane Municipality and Another (JS146/17) [2019] ZALCJHB 257 (5 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JS
146/17
In
the matter between:
MARTIN
CORY
Applicant
and
THE CITY MANAGER:
CITY
OF TSHWANE
MUNICIPALITY
First
Respondent
THE
STRATEGIC EXECUTIVE DIRECTOR:
CORPORATE
AND SHARED SERVICES
Second Respondent
Heard
:
22 August 2019
Delivered
:
05 September 2019
Summary:
Application to make a settlement agreement an order of Court.
Counter application to set aside the agreement.
Parole
evidence
rule apply to the settlement agreement.
Held:
(1) Application to set aside and or rectify the agreement dismissed.
(2) Settlement agreement is made an order of Court. (3)
The
respondents to pay the costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
The
applicant believed that he was discriminated against in relation to
pay parity. As a result, he referred a dispute alleging
discrimination. On 7 August 2017, the applicant and the respondents
entered into a settlement agreement. Having failed to comply
with the
terms of the settlement agreement, the applicant launched an
application seeking to make the settlement agreement an order
of this
Court. In opposing the application, the respondents sought to have
the settlement agreement set aside. Both applications
came before me
for a decision
[1]
. After hearing
all the submissions, a judgment of this Court was reserved. Both
Counsel approached me in chambers and asked that
the judgment be
delayed by a week as they possibly might resolve the matter. A week
came and passed without any resolution. Any
attempts by my Associate
to get the parties to advise me of any resolution drew blank.
Accordingly, there was no longer a valid
reason to delay the issuance
of this judgment.
Background
facts
[2]
Facts relevant to this judgment are brief. On or about 07 June 2017,
the
applicant served and filed a statement of case referring a
dispute that remained unresolved on 05 December 2016. The respondents
failed to file a statement of response. Subsequently, and on 07
August 2017, parties concluded a written settlement agreement.
Owing
to non-compliance with the terms of the settlement agreement, the
applicant launched an application to make it an order of
this Court.
Despite a written undertaking not to oppose the section 158(1) (c)
application, the respondents made a
volte-face
and opposed the
application as well as launching a counter-application seeking to set
aside the settlement agreement. Both applications
were heard on the
same day.
Evaluation
[3]
In matters involving making a settlement agreement an order of this
Court,
this Court retains a discretion to be exercised judiciously.
Of importance is whether the agreement is one that is valid and that
the other party to it is refusing to comply. It is common cause in
this matter that the respondents are refusing to comply. At
this
stage, the respondents are questioning the validity of the agreement.
[4]
I now turn to the question whether the agreement is valid or not. In
other
words, I now deal with the counter-application. In the notice
of motion, the respondents prayed for the setting aside or rescinding
of the settlement agreement and in the alternative a rectification of
the agreement to reflect the parties’ correct understanding.
In
seeking to set aside the agreement, the respondents plead mistake. It
was alleged and disputed that the applicant drafted the
agreement
incorrectly and that there was an error that vitiated a consent.
[5]
In our law,
only a material mistake can vitiate consent. The respondents allege
that the mistake creeped in only at the drafting
stage. The agreement
was allegedly crafted in a manner which altered the employment
regime. This is an
error
in qualitate
.
This type of an error is generally not material.
[2]
The general rule is that the mere existence of an erroneous belief in
the mind of one of the parties to a contract is not a sufficient
ground for annulling it, the reason being otherwise the security of
written engagements would be destroyed.
[3]
[6]
The
agreement is signed by the respondent’s attorney with authority
to do so. The question is, if the agreement was crafted
in a manner
altering the employment regime, why was it signed by the attorney? On
application of the
caveat
subscriptor
[4]
rule, the respondents cannot allege material mistake that seeks to
vitiate its consent in the circumstances where the recorded
terms
were assented to by their attorney with full authority to do so.
[7]
During oral submissions, the respondents’ counsel, Advocate
Pillay
made reference to some emails which were exchanged prior to
the signing of the agreement. In that regard, when a contract has
been
reduced to writing, the writing is, in general, regarded as the
exclusive memorial of the transaction and in a suit between the
parties no evidence to prove its terms may be given save the document
or secondary evidence of its contents, nor may the contents
of such
document be contradicted, altered, added to or varied by
parole
evidence
. By application of this rule, the emails that seeks to
contradict the written document are not admissible.
[8]
In the
alternative, the respondents seek to rely on a mistake common to both
parties and thus sought rectification of the agreement.
A party
claiming rectification must establish that as a result of an error or
mistake the document does not reflect the common
intention of the
parties. In this matter, the respondents allege that the regulatory
regime was not factored in the agreement.
This is not a mistake
common to both parties. As pointed out in the respondents’
affidavit, it was a
bona
fide
mistake on the part of the respondents by overlooking the aspect of
how the regulatory regime between the parties is governed.
There is a
serious dispute of fact between the parties on this aspect in
particular. On application of the
Plascon-Evans
[5]
rule, the respondents, being the applicants must fail on the
rectification claim.
[9] Accordingly,
this Court concludes that the written agreement is valid and
enforceable
in law. Therefore, there is nothing that prevents this
Court to make it an order of this Court.
Costs
[10]
I turn to the issue of costs. The respondents had taken a view that
the section 158(1)
(c) application shall not be opposed. This view is
understood when regard is had to the terms of the signed settlement
agreement.
One of the agreed terms was that the settlement agreement
be made an order of court. The
volte-face
of the respondents
is a conduct that invites an order as to costs. The respondents did
not have any basis to oppose the application.
In bringing a
counter-application instead, the respondents acted frivolously and in
a vexatious manner. Accordingly, an order of
costs must, in law and
fairness, be made against the respondents.
[11]
For all the above reasons, the
following order is
made:
Order
1.
The application to set aside or rectify the
agreement is dismissed.
2.
The application to make the settlement agreement
an order of this Court is hereby granted.
3.
The respondents are ordered to, jointly and
severally, the one paying absolving the other, pay the costs of this
application.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant
: H Lee of Anton
Baker Attorneys, Brooklyn.
For
the Respondents
: Advocate L Pillay
Instructed
by
: Noko Ramaboya Mason Attorneys, Pretoria
[1]
Parties agreed that, in the papers, the correct respondent is the
City of Tshwane Metropolitan Municipality (CoT). Where reference
is
made to respondents in this judgment, such shall refer to the CoT
[2]
Trollip
v Jordaan
1961(1) SA 238 (A).
[3]
Stewart
v Kennedy and Another
15 A.C. 108.
[4]
George
v Fairmead (Pty) Ltd
1958 (2) SA 465 (A).
[5]
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A).