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[2025] ZALCD 22
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Gottlieb v Procure Genii (Pty) Ltd (D131/2022) [2025] ZALCD 22 (1 July 2025)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case
No: D131/2022
Not
Reportable
In
the matter between:
MARLENE
GOTTLIEB
First Applicant
LUCILLE
NAICKER
Second Applicant
BEVERLEY
HORSLEY
Third Applicant
CAYLEE
REYNEKE
Fourth Applicant
TYRON
ELS
Fifth Applicant
and
PROCURE
GENII (PTY) LTD
Respondent
Heard:
13 and 14 February 2025
Delivered:
This judgment was handed down electronically by circulation to
the parties and / or their legal representatives by email. The date
and time for handing-down is deemed 10h00 on 1 July 2025
JUDGMENT: point in limine
ALLEN-YAMAN J
Introduction
[1]
Having been dismissed by the respondent, the applicants instituted
action in which they claimed the following relief,
‘
6.1
Reinstatement with full retrospective effect in the event that the
applicants’ dismissals are
found to be substantively unfair,
alternatively compensation equal to 12 months pay each;
6.2
In the event that the applicants’ dismissals are found to be
procedurally unfair only, compensation
that is fair and equitable;
6.3
Statutory monies as referred to in schedule “B”;
6.4
Further and / or alternative relief;
6.5
Costs on a party and party scale.’
[2]
In opposing the applicants’ claim the respondent raised a point
in limine
in addition to having addressed the merits thereof.
The respondent pleaded that the parties had entered into a settlement
agreement,
the effect of which was that the dispute between the
parties had been finalised, and that the applicants’ claim was
accordingly
‘
lis pendens / res judicata’
.
[3]
In view of the fact that the issue raised by the respondent could
potentially have disposed of the applicants’ claim,
and the
trial of the matter had been enrolled for two days only, the parties
were directed to limit their evidence to this issue
only.
Background
[4]
The parties’ pleadings reflected their opposing views
concerning the events which led to the termination of the
applicants’
employment by the respondent, but it was nonetheless common cause
that their services were terminated on 16 August
2021.
[5]
This led the applicants to referring a dispute to the Commission for
Conciliation, Mediation and Arbitration (‘the
CCMA’)
three days later, which referral was allocated case number KNDB
7750-21. A certificate of outcome was issued on 1
December 2021, in
which the dispute was reflected as having been unresolved and the
presiding commissioner recorded that the dispute
was to be referred
to arbitration. By way of the completion and submission of a form
7.13 the following day, the applicants requested
the CCMA to
arbitrate their dispute.
[6]
Having submitted their request for arbitration, the applicants
referred a second dispute to the CCMA on 8 December 2021,
such second
dispute also having related to the termination of their employment
with the respondent. In view of the fact that such
dispute had not
been referred to the CCMA within 30 days of the date on which their
employment had been terminated, the applicants
applied for
condonation for the delay which was granted on 18 January 2022. On
that date a certificate of outcome was also issued
reflecting that
the dispute then remained unresolved.
[7]
On 13 April 2022 the applicants initiated action in this court. By 3
June 2022 the respondent had failed to enter any
defence to the
applicants’ claim as a result of which the applicants applied
for default judgment. In the meantime, on 19
May 2025, the parties
had entered into a settlement agreement at the CCMA utilising the
CCMA’s standard form document, which
evinced that the parties
had settled the dispute under KNDB 9750-21.
[8]
Service of the application for default judgment prompted the delivery
of the respondent’s Statement of Response,
in which the
respondent raised its special plea of ‘
res judicata / lis
pendens’
.
Analysis
[9]
Res judicata
is a special plea raised in circumstances in
which a court has granted a final and definitive judgment on the
merits of the claim
being pursued. Essential to such a plea is that
reliance is placed on a judgment of a competent court. The special
plea of
lis pendens
, whilst similar to that of
res
judicata
, does not require the existence of a final judgment, but
only that of pending litigation between the same parties based on the
same cause of action in respect of the same subject matter as that of
the claim being pursued. Neither such special pleas can be
upheld in
the present matter: there has been no final judgment of any court in
respect of any of the issues in dispute between
the parties, and nor
is there any pending litigation between the parties in any other
forum.
[10]
In consideration of the issue actually raised by the respondent, it
is event that it miscategorised the nature of its
special plea. It
was the respondent’s case that the applicants’ claim is
the self-same claim as had previously been
settled between them at
the CCMA. The respondent pleaded that,
‘
A settlement
agreement was concluded on 18 May 2022, after the service of the
Statement of Claim, in terms of which the Respondent
agreed to pay
the applicant an amount of severance pay in settlement of their
claims.
It is accordingly
submitted that the matter is res judicata, having been finalised at
the CCMA, and that this claim falls to be
dismissed, with costs.’
The
allegation by the respondent that the parties concluded a contract
which had as its object the termination of the litigation
between
them was, in effect, a plea of compromise.
[11]
The applicants, on the other hand, argued that the settlement
agreement had not been intended to settle all the applicants’
claims, but only their claim for severance pay.
[12]
Prior to
considering the effect, if any, of the settlement agreement on the
applicants’ claim in this court, it is necessary
to consider
the applicability of the parole evidence rule.
[1]
Mr Caro, for the applicants, argued that,
‘…
the
principle of the parole evidence rule generally prevents the use of
extrinsic evidence to contradict the clearly stated terms
of the
agreement unless valid exceptions apply. None, it is submitted,
exist.’
[13]
The terms of the settlement agreement are embodied in a written
document and the parole evidence rule must, accordingly,
find
application in relation to its terms. This does not, however,
preclude the admission of evidence for the purpose of establishing
the nature of the dispute that was intended to be settled by the
agreement itself. This principle was expressed in
Du Plessis v Nel
1952 (1) SA 513
(A),
‘
The correct
inquiry is not whether a contradiction exists, but whether the
writing was intended to cover a certain subject of negotiation.
If
not, the writing does not embody the transaction on the subject.’
[14]
The settlement agreement recorded at the outset thereof,
‘
The undersigned
parties record the settlement of their dispute in the following
terms. By signing this agreement, the parties acknowledge
that the
agreement was read to them and interpreted (where necessary) and that
they understand the content hereof. This agreement
is in full and
final settlement of the dispute referred to the CCMA as well as in
full settlement of all statutory payments due
to the applicant as
reflected at paragraph 5 of this agreement (where no statutory
payments are due and owing to the applicant
it shall be specified at
paragraph 6 of the agreement).’
[15]
Given the stated purpose of the settlement agreement, it is necessary
to determine (1) what dispute had been referred
to the CCMA, and (2)
what statutory payments, if any, were intended to be settled by the
payment to be made by the respondent.
In substantiation of each of
the parties’ respective cases, each introduced the evidence of
two witnesses: Mr Stefan Bruwer
and Ms Linda Harris testified on
behalf of the respondent, whilst the first and third applicants, Ms
Marlene Gottlieb and Ms Beverly
Horsely testified on behalf of the
applicants. Both relied upon a common bundle of documentary exhibits.
[16]
The first form 7.11 submitted by the applicants to the CCMA on 19
August 2021 which was subsequently allocated case number
KNDB 9750-21
categorised the nature of the applicants’ dispute has having
been ‘Severance Pay’. Despite such
categorisation, it is
evident that the applicants’ dispute concerned more than only
severance pay. They also indicated that
their dismissal had been for
‘
unknown reasons’
when asked to indicate the
reason for their dismissals (in circumstances in which their dispute
was an unfair dismissal dispute).
The facts of their dispute were
summarised to have been,
‘
Employer
selectively dismissed staff under the pretence of a s189 without
process of payment of any outstanding amounts.’
In relation to their
dismissals, the applicants asserted that these had been both
procedurally and substantively unfair. The result
they required was
recorded as having been, ‘
Payment of severance, &
compensation.’
[17]
This dispute was enrolled for conciliation on 1 December 2021 but
remained unresolved. Albeit that the categorisation
of the dispute by
the commissioner is not binding, the certificate of outcome indicated
that the dispute concerned, ‘
S41 – Severance Pay’
and could be referred to arbitration. The applicants requested their
dispute to be arbitrated by way of a form 7.13 which was completed
the following day. In this request, the issues in dispute were listed
as having been, ‘
Severance pay, unpaid salaries, unfair
dismissal based on s189 process.’
[18]
Notwithstanding such request for arbitration having been made, the
applicants referred a further dispute to the CCMA
on 8 December 2021.
In terms of this form 7.11, the nature of the dispute was categorised
as relating to a dismissal for operational
requirements. The facts
were summarised as having been,
‘
Employer
selectively dismissed staff under the false pretence of a s189, no
formal process was followed, no severance pay was paid
out, no UI 19
was issued.’
[19]
Again having asserted that their dismissals had been both
procedurally and substantively unfair, the applicants indicated
that
the result required was, ‘
Payment of severance, notice,
leave pay and compensation.’
[20]
Their
second dispute was allocated case number KNDB 10774-21. On 18 January
2022 the applicants were granted condonation for the
late referral of
their second dispute
[2]
and a
certificate of outcome indicating that their dispute concerning their
dismissal for operational requirements could be referred
to this
court.
[21]
In the dispute subsequently made to this court on 13 April 2022 the
applicants sought reinstatement, alternatively compensation
in
respect of their claim that they had been unfairly dismissed; notice
pay; and leave pay. In addition, the first and second applicants
sought payment of a
pro rata
portion of their salaries for the
month of August 2021.
[22]
The settlement agreement itself evinced that the obligations created
in relation to the respondent in favour of the applicants
were
intended to finally settle the dispute referred to the CCMA; and the
statutory payments due to the applicants, as detailed
therein.
[23]
To determine what dispute was being settled thereby, the starting
point must be the applicants’ initiating document:
their form
7.11 dated 19 August 2021. Although the applicants indicated that the
nature of their dispute had been that of severance
pay, the remainder
of the document reflected that they then also challenged the fairness
of their dismissals. It cannot, however,
be found that they persisted
in that portion of their claim which related to the fairness of their
dismissals under KNDB 9750-21
post fact conciliation of the dispute
on 1 December 2021.
[24]
Ms Horsley’s evidence was that the applicants had been advised
by the conciliating commissioner in the course of
the first
conciliation process that the CCMA would be unable to deal with any
portion of their dispute other than the severance
payment aspect
thereof. Given the jurisdictional provisions of s191(12) of the LRA
in relation to dismissals as a result of an
employer’s
operational requirements, and the subsequent categorisation in the
certificate of outcome of the applicants’
dispute as being one
relating to severance payment, this court has no reason to doubt the
correctness of her recollection.
[25]
The form 7.13 in relation to KNDB 9750-21 which was submitted to the
CCMA by the applicants’ erstwhile representative
prior to their
submission of a second 7.11 form, whilst incompatible with their
version that they did not intend to persist in
anything other than
the severance pay portion of their dispute under that case number, is
nonetheless not dispositive of the respondent’s
suggestion that
their intention remained to prosecute all their claims under the
first of their disputes.
[26]
The 7.13
included a claim for unpaid salary, which had not only never been
conciliated, but in respect of which the first and second
applicants
(being the only applicants with claims of this nature) were precluded
from claiming in the CCMA in light of the fact
that their salaries
exceeded the threshold then prescribed by the Minister.
[3]
[4]
[27]
In addition, the applicants’ claim in relation to the fairness
of their dismissals was restated in the dispute
subsequently referred
by them to the CCMA and thereafter to this court, which fortified
their version that they had not intended
to prosecute that portion of
their claim any further under KNDB 9750-21.
[28]
The applicants’ version that the only aspect of their dispute
under KNDB 9750-21 remained extant at the time when
that dispute was
settled was unchallenged in cross-examination. Notwithstanding that
both the respondent’s witnesses testified
that they had
believed the settlement agreement had been intended to settle all the
applicant’s claims, those beliefs, if
held, were both
unsubstantiated and unreasonable.
[29]
Mr Bruwer testified that the only documentation to which he had been
privy prior to entering into the settlement agreement
had been the
‘postponement document’ and an attendance register. At no
point in the course of his evidence did he explain
how he came to
form the conclusion that the settlement agreement had been intended
to settle ‘all the disputes’ between
the parties in
circumstances in which, on his own version, he had been wholly
unaware of the particularity of the actual dispute
under KNDB 9750-21
before the CCMA and oblivious to the existence of the applicants’
claim in this court.
[30]
Ms Harris, on the other hand, conceded that she had been well aware
of the applicants’ claim in this court but
could not explain
how, in the absence of any term in the agreement having expressly
referred to such claim, she had formed a belief
that the applicants’
claim in this court was intended to be settled together with the
applicants’ claim under KNDB
9750-21.
[31]
The statutory payments claimed by the applicants in this court were
not covered by the settlement agreement at all. The
relevant clauses
of the settlement agreement read as follows:
‘…
This
agreement is in full and final settlement of the dispute referred to
the CCMA as well as in full settlement of all statutory
payments due
to the applicant as reflected at paragraph 5 of this agreement (where
no statutory payments are due and owing to the
applicant it shall be
specified at paragraph 6 of the agreement).
3.
MONETARY SETTLEMENT
3.1
The respondent agrees to pay the applicant the amount of R75 000
– 00 by no later than ………….
(date).
3.2
The amount in paragraph 3.1 is inclusive of statutory payments due to
the applicant unless specifically
excluded in terms of paragraph 6
below.
…
5.
BREAKDOWN OF THE AMOUNT REFLECTED AT PARAGRAPH 3.1
The
amount reflected at paragraph 3.1 above is inclusive of statutory
payments as reflected below
ÿ
Outstanding wages / salary
R X
X
Severance pay
R75 000 – 00 To be distributed
ÿ
Notice pay
R X among 5 applicants
ÿ
Leave pay
R X pro rata by attorney
ÿ
Overtime
R X
ÿ
Other
R X
6.
EXCLUSION OF STATUTORY PAYMENTS
ÿ
The parties agree that there are no statutory payments due and
owing to the applicant.
ÿ
A dispute about statutory payments is already before the
Department of Employment and Labour under the following reference
number:
…..
ÿ
A Compliance Order has been issued by the Department of Employment
and Labour under the following reference number: …..’
[32]
No interpretation can be given to these clauses, read together, but
to mean anything other than that the payment of R75 000,00
was
intended to be made as payment for severance pay, and that the
applicants remained at liberty to claim any other statutory
payments
which they believed were due to them.
[33]
The first part of the settlement agreement states clearly that the
payment is to be in full settlement of the statutory
payments
reflected at paragraph 5. Paragraph 5 clearly indicated that the
payment was in respect of severance pay only. Had the
exclusion of
the remaining options been intended to indicate that no such further
claims existed, this would have been indicated
in paragraph 6.
[34]
Moreover, save for the indication in the form 7.13 that the
applicants claimed unpaid salary, no other statutory payments
formed
part of the dispute referred under KNDB 9750-21. As has already been
mentioned, only the first and second applicants claimed
unpaid salary
in this forum, and by virtue of their rate of pay, their claims would
not have been competent in the CCMA. Other
than that form, the
respondent presented no evidence to substantiate its claim that the
settlement agreement was intended to have
been dispositive of any
other statutory payments to which the applicants claimed to have been
entitled.
[35]
It is accordingly the finding of this court that the settlement
agreement entered into between the parties on 19 May
2022 under KNDB
9750-21 settled only the applicants’ claim for severance pay,
and that the applicants did not, by having
entered into the
settlement agreement, compromise their claim in this court.
[36]
The respondent’s
in limine
point will accordingly be
dismissed.
Costs
[37]
The applicants asked that that the dismissal of the respondent’s
point
in limine
be accompanied by an order as to costs, it
having been the applicant’s argument that the point was
frivolously taken.
[38]
Having considered the issues involved, the dearth of evidence in
support of the respondent’s position in and of
itself suggests
an absence of
bona fides
in having taken the point.
Dispositive of the matter, however, was clause 7 of the settlement
agreement,
‘
7.
OTHER
The
monetary amount is subject to a tax directive. UI 19 form to be
issued to the applicants no later than 23/05/2022. The UI 19
documents is solely for the purpose of the Applicants claiming UIF
and parties agree that it will not be used in any other forum.
…’
[39]
From this clause it is clear that at the time when the settlement
agreement was entered into the respondent was well
aware of the
existence of the applicants’ dispute in this court, and alive
to the fact that the applicants intended to persist
therewith. When
Mr Caro put it to Ms Harris that the reason for the inclusion of the
clause was as a result of the respondent’s
concern that the
provision of UI 19 documents to the applicants might adversely affect
its defence in this court, Ms Harris was
unable to furnish any other
possible explanation. This being the case, the point appears to have
been opportunistically taken and,
for that reason, this court is of
the opinion that fairness necessitates that the applicants not be
required to be burdened with
the costs associated therewith.
Order
1.
The respondent’s
in
limine ‘res judicata / lis pendens’
(compromise) point is dismissed.
2. The registrar is
directed to enrol the matter for trial on the merits.
3. The respondent
is ordered to pay the applicants’ wasted costs incurred in
opposing the respondent’s
in limine
point.
K Allen-Yaman
Judge of the Labour Court
of South Africa
Appearances
Applicants:
Mr
D Caro, Dean Caro & Associates
Respondent:
Mr S Hansjee, Cox Yeats
Attorneys
[1]
A document is conclusive as to the terms of the transaction which it
is intended to embody.
[2]
The application for condonation was not placed before this court.
[3]
The threshold in 2021 was R211 586.30
[4]
S73A of the BCEA excludes from its provisions employees who earn in
excess of the threshold established by the Minister.