THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS98/25
In the matter between:
SOLLY MARUMO SELLO Applicant
and
THE COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER TANYA ROBERTS-KRUGER Second Respondent
THE FALCONS BODY CORPORATE Third Respondent
Heard: 7 May 2025
Delivered: 13 August 2025
JUDGMENT
ENGELBRECHT, AJ
2
Introduction
[1] This is an application to set aside a settlement agreement concluded
between the applicant (Mr Sello) and the third respondent (Falcons) as a result of
conciliation efforts of the second respondent (Commissioner) who had been
appointed to conduct an arbitration under the auspices of the first respondent
(CCMA), pursuant to Mr Sello’s unfair dismissal dispute initially remaining
unresolved. Mr Sello asks that, in consequence, his dispute be set down for
arbitration afresh before a different commissioner.
[2] The application is not opposed, despite clear evidence that:
2.1. It was served on the CCMA and Falcons on 20 March 2025; and
2.2. The notice of motion called upon the respondents to notify Mr Sello of
any opposition within 10 days of receipt of the application, as well as to serve
and file an answering affidavit in the event that the application was to be
opposed.
[3] Of course, the mere fact that the application is not opposed does not entitle
Mr Sello to the relief he seeks: this Court must be satisfied that a proper case for the
relief Mr Sello prays for has been established.
Background
[4] For 18 years, until his suspension in January 2024 and his dismissal for
misconduct in February 2024, Falcons employed Mr Sello as a “ general worker and
in-house access control officer”. From about November 2018, Mr Sello also assisted
a previous caretaker to prepare shift time sheets and calculate shift allowances
following prescribed rates set by the Private Security Industry Authority (PSIRA). It
appears that he was paid an additional R750 per month to perform these extra
duties, because the previous caretaker “ did not have the necessary skills and
expertise to use a computer” and to perform these tasks.
[5] In 2023, Falcons appointed a new caretaker. This marked the end of Mr
Sello's role in performing the additional work, and he was reportedly instructed to
3
assist with the handover, including explaining the PSIRA fee structure and helping
Falcons with his formulas and calculations so the new caretaker could assume the
duties. According to an annexure to the founding affidavit, he was offered R300 for
his service to assist with the handover.
[6] Mr Sello’s account of what happened is that he handed over his file and
provided the PSIRA formula. He states that he refused to train the new caretaker,
reasoning that it was not part of his usual duties. He also believed there was little
else he could do beyond supplying the formulas, which he had already done. An
annexure to the founding affidavit indicates that Mr Sello was “unhappy with the
situation because he had been complaining about his salary for some time and he
felt the R300 payment was unfair. There was never a proper sit down or
conversation where everything was properly discussed with him” . Evidently, due to
Mr Sello’s reluctance to assist, no timesheets were submitted for a period, leading to
mistakes in the calculations.
[7] The then chairperson of the Falcons Board of Trustees filed a complaint
against Mr Sello, leading to his summons to a disciplinary hearing. An external
labour consultant chaired the hearing. Her finding was that Mr Sello had been guilty
of not completing timesheets during a period when he remained responsible for the
task, and of not following a lawful and reasonable instruction without good reason.
She concluded that he was “ angry at management structures about his salary and
the amount he would receive to assist. Thus, the instruction was ignored maliciously
and intentionally”. Furthermore, she found that Mr Sello “ acted insolently and with a
poor attitude toward the new management structures and refused to be helpful and
assist”, as well as “refusing to follow instructions and help with his task to ensure a
smooth handover ”. Her conclusion was that, if Mr Sello “ submitted and assisted
smooth handover ”. Her conclusion was that, if Mr Sello “ submitted and assisted
[Falcons] with the handover and breakdown of how salaries and overtime were
calculated, the salaries would not have been done incorrectly. The Chairperson did
not want to take over the task. It was a necessity due to [Mr Sello’s] actions and
refusal to assist”.
[8] Mr Sello states that he was suspended without pay and warned to train the
new caretaker, failing which he would face a further disciplinary hearing. During his
4
suspension, Mr Sello received a text message to attend a second disciplinary
hearing at short notice. He explains that he did not attend because he had been
instructed not to go to the workplace. After his suspension, Mr Sello was informed
that he had been dismissed. On 27 February 2024, Mr Sello was formally issued with
a written notice of termination of employment.
[9] On 22 March 2024, Mr Sello referred a dispute to the CCMA, claiming unfair
dismissal due to misconduct. In the section where he was asked to outline the facts
of the dispute, he stated: “ I was employed as a security guard. So I get dismissal
when I refuse to teach a new complex manager Administration Work. When I
commend [sic] about salary, Chairperson said am talking nonsense”.
[10] The dispute remained unresolved after the conciliation meeting of 12 April
2024. The matter was then referred to arbitration, and on 12 July 2024, Mr Sello was
informed by text message to attend an arbitration on 2 August 2024.
[11] The arbitration was set down before the Commissioner. However, she
indicated that she would attempt conciliation again. Mr Sello states that he did not
give his consent for this. Nevertheless, he participated, allegedly because he “ was
confused and did not want to interrupt the Commissioner”. He asserts in his founding
affidavit that -
11.1. He explained to the Commissioner that he had been unfairly dismissed,
maintaining his stance that “ training of a caretaker who was in fact his
superior was not part of his employment contract” , and telling her that “ he
refused to train a new white caretaker to perform the core managerial duties
for which she was appointed”.
11.2. When asked what he wanted, he is said to have explained that “he was
unfairly dismissed for misconduct and wanted to clear his name, that he
wanted his job back, back pay from January 2023 [sic] to 2 August 2024 when
he was suspended for tw o weeks without pay and for loss of income, and
he was suspended for tw o weeks without pay and for loss of income, and
service benefit of which he is legally entitled as an employee in normal
service. The applicant gave an amount of around R50 000, which he thought
was the approximate amount owing to him if he were reinstated”.
5
[12] Apparently, the Falcons representative stated that he “could not give him his
job back” because all the access control in- house security officers had been
retrenched effective from 31 July 2024. According to Mr Sello’s account, the
Commissioner and the Falcons representative then proceeded to hold “bilateral
discussions and discussed [his] retrenchment and severance pay as a settlement
without [Mr Sello’s] participation in those discussions” . The Falcons representative is
said to have then indicated that he needed to speak to the Falcons' legal
representative and another trustee (presumably to take instructions), and was given
an opportunity to leave the room for that purpose. Upon his return, the legal
representative accompanied him and “did the calculations” . Then, so Mr Sello
claims, “The Commissioner completed the form, a settlement agreement and gave it
to [him] and [the Falcon’s representative] to sign. During this time she spoke directly
to [Mr Sello] in English. The Commissioner gave him a copy… [Mr Sello] was
confused, misled by the Commissioner, and did not realise that the arbitration
concerning his dispute for unfair dismissal for misconduct had not been resolved and
that he could no longer pursue his referral. The Commissioner’s Outcome Report
leaves blank the notes for the dispute concerning misconduct”.
[13] The outcome of the Commissioner’s intervention was the conclusion of a
settlement agreement, which both Mr Sello and the Falcons representatives signed.
Mr Sello was to be paid R25,698.05 in three instalments. This amount was
equivalent to one week’s salary for each year of service, representing the severance
pay that would have been payable in the event of retrenchment.
[14] Now, Mr Sello states that the amount “ is not compensation as intended in
s193(1)(3), s194, and more specifically, s195 of the Labour Relations Act”. He claims
that the dispute over his unfair dismissal was never resolved. He states that he
that the dispute over his unfair dismissal was never resolved. He states that he
would have rejected the settlement if he had been properly informed. The
Commissioner allegedly spoke English to him and did not give him a proper
explanation of the consequences of signing the settlement agreement, including
clarifying that there would be no arbitration regarding his unfair dismissal dispute. In
summary, he asserts that “ the Commissioner unfairly, unreasonably and unduly
influenced the applicant to sign the piece of paper put before him which he did
without taking independent advice and without his informed consent and knowledge
6
of the adverse and prejudicial consequences to the applicant” . Mr Sello says he did
not participate in negotiations or in calculating the severance pay and was not
involved in drafting the settlement agreement. He alleges that he was “ unduly
influenced by the Commissioner to sign this impugned agreement”, that he would not
have signed this impugned agreement if he had received independent legal advice ,
and that the elements of a valid contract under common law between the parties
have not been satisfied. Consequently, “the impugned settlement agreement is void
ab initio”.
[15] In this application, Mr Sello argues that the settleme nt agreement did not
resolve the issue between the parties, which was unfair dismissal for misconduct.
Legal principles
[16] A contract or agreement exists if there is acceptance of an offer made
between parties who have the intention and capacity to enter into an agreement.
[17] As a general rule, contractual arrangements must be honoured. In
Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd
1 the
Supreme Court of Appeal (SCA) underscored that the “privity and sanctity of contract
entails that contractual obligations must be honoured when the parties have entered
into the contractual agreement freely and voluntarily. The notion of the privity and
sanctity of contracts goes hand in hand with the freedom to contract. Taking into
consideration the requirements of a valid contract, freedom to contract denotes that
parties are free to enter into contracts and decide on the terms of the contract”.
[18] In Baedica
2 the Constitutional Court made it clear that the rule of law
requires that the law of contract should result in predictable outcomes, “enabling
individuals to enter into contractual relationships with the belief that they will be able
to approach a court to enforce their bargain” .
3 Therefore, the “ enforcement of
contractual terms does not depend on an individual judge’s sense of what fairness,
contractual terms does not depend on an individual judge’s sense of what fairness,
1 2018 (2) SA 314 (SCA); [2017] ZASCA 176.
2 Bediaca 231 CC and others v Trustees for the Time Being of the Oregon Trust and others (Baedica)
2020 (9) BCLR 1098 (CC); [2020] ZACC 13.
3 Baedica at para 81.
7
reasonableness and justice require. To hold otherwise would be to make the
enforcement of contractual terms dependent on the ‘idiosyncratic inferences of a few
judicial minds’. This would introduce an unacceptable degree of uncertainty into our
law of contract. The resultant uncertainty would be inimical to the rule of law”.
4
[19] In doing so, it restated the approach in Pridwin,
5 including that public policy
“demands that contracts freely and conscientiously entered into must be honoured”.6
[20] The judgment of the Constitutional Court in Gbenga- Oluwatoye v Reckitt
Benckiser SA (Pty) Ltd & another (Gbenga-Oluwatoye CC)7 further gives effect to the
sanctity of contracts. The apex Court noted that “we must consider the importance of
giving effect to agreements, solemnly concluded, by parties operating from the
necessary position of approximate equality of bargaining power… What is at issue
here is a powerful consideration of public policy – the need for parties to settle their
disputes on terms agreeable to them. That need arises in their own interests and in
the interests of the public”.
8 It continued:
‘The public, and indeed our courts, have a powerful interest in enforcing
agreements of this sort. The applicant must be held bound. When parties
settle an existing dispute in full and final settlement, none should be lightly
released from an undertaking seriously and willingly embraced.’9
[21] The sum of the precedent on contract is that a party should not easily
escape one that is voluntarily entered into. Nonetheless, an agreement may be set
aside if it was fraudulently obtained or on the grounds of iustus error , provided that
the error vitiated true consent, and did not merely relate to motive or to the merits of
a dispute which it was the very purpose of the parties to compr omise.
10 The burden
upon an applicant who wants to have an agreement set aside is high.
4 Id. Footnotes omitted.
4 Id. Footnotes omitted.
5 AB and Another v Pridwin Preparatory School and Others (Pridwin) 2019 (1) SA 327 (SCA); [201 8]
ZASCA 150.
6 Pridwin at para 27.
7 (2016) 37 ILJ 2723 (CC); [2017] 1 BLLR 1 (CC).
8 Gbenga-Oluwatoye CC at para 22.
9 Gbenga-Oluwatoye CC at para 24.
10 Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and others 1978 (1)
SA 914 (A).
8
Analysis
[22] The first basis for seeking relief in this application appears to be the
suggestion that the Commissioner somehow acted improperly in reverting to
conciliation, even though the matter had reached the arbitration stage, because Mr
Sello had not consented.
22.1. Section 138(3) of the Labour Relations Act
11 (LRA) specifically
provides that a commissioner may at any time suspend the arbitration
proceedings and attempt to resolve the dispute by conciliation. That the
Commissioner in the present case did so right at the outset is not, in and of
itself, a cause for complaint.
22.2. However, reverting to conciliation requires the consent of the parties.
22.3. Mr Sello states that he did not give his “ informed consent” to attempt
conciliation a second time. The inclusion of the word “ informed” indicates that
Mr Sello did consent, but not with full knowledge of the possible
consequences. His own account of events shows he engaged in the
conciliation discussions, even explaining to the Commissioner what he would
want the outcome to be. The Commissioner would have been justified in
relying on Mr Sello’s actions to at least infer his consent to another attempt at
conciliation.
22.4. The question that arises is: what potential consequences of engaging
in conciliation was Mr Sello required to have been made aware of, and which
he was not, that would have invalidated his consent due to it not being
“informed consent”? Mr Sello does not assist the Court in this regard. If the
conciliation had not succeeded, that might have resulted in consequences
(such as referral to a different commissioner, to prevent later allegations that
the Commissioner obtained information during the conciliation that could have
influenced her assessment of the claim). But that is not the situation here. The
difficulty for Mr Sello is that the act of engaging in conciliation itself was not
what had consequences in this case; rather, it was the conclusion of the
what had consequences in this case; rather, it was the conclusion of the
settlement agreement that led to consequences. In the circumstances of the
11 Act 66 of 1995, as amended.
9
case, this Court cannot conclude on the available facts as pleaded that relief
can be granted on the basis of the Commissioner proceeding to conciliation.
[23] If the relief is to be granted, it must be found in the events relating to the
conclusion of the settlement agreement that followed upon the conciliation process.
In that respect, t his Court understands Mr Sello’s position to be that there had not
been true consent when he signed the agreement, because –
23.1. The Commissioner misled him;
23.2. He was confused; and
23.3. He did not appreciate the consequences of signing the agreement.
[24] Regarding the claim that the Commissioner misled Mr Sello, this Court notes
that while the affidavit provides detailed information, including the times at which
certain events occurred, Mr Sello offers no description of what the Commissioner
actually said to him. He merely states that the Commissioner spoke to him in English
but makes no effort to detail what was communicated, which could have been
misleading.
[25] The issue for Mr Sello is that there is no factual foundation pleaded for the
conclusion he advances – that he was misled. Questions arise. What did the
Commissioner say to mislead him? What about what the Commissioner said, or her
conduct, caused him to sign the settlement agreement presented to him, despite
stating that he was confused? Since these allegations have not been pleaded, there
is no factual basis for the Court to determine that the Commissioner misled Mr Sello.
[26] Mr Sello’s allegation that the Commissioner “ unfairly, unreasonably and
unduly influenced [him] to sign the piece of paper put before him” suffers from the
same shortcoming. What did the Commissioner do to influence him? What did she
say? Did she bring pressure to bear? In what way? The Court is not told. The same
goes for the allegation that Mr Sello did not sign the agreement voluntarily. That
suggests he was coerced. How? By whom? Mr Sello does not take the Court in his
confidence.
10
[27] It must be borne in mind that Mr Sello approaches this Court on motion. In
application proceedings, the affidavits serve not only as substitutes for pleadings (as
would be filed in action proceedings) but also as the essential evidence that would
have been presented at trial if action proceedings had been initiated. The deponent
thus “testifies” in motion proceedings. From this, it follows that generally, relief may
only be granted in motion proceedings if it is supported by admissible evidence
contained in the affidavits.
[28] The Constitutional Court in President of the Republic of South Africa and
Others v M & G Media Ltd
12 confirmed criticism of the Supreme Court of Appeal
(SCA) in that litigation where deponents to affidavits offered “no more than bald
assertion” and “perfunctory conclusions”. Although the context is quite different, the
criticisms remain valid in motion proceedings more generally: an applicant cannot
rely on “ bald assertions” and “perfunctory conclusions”, with no evidential basis to
support those assertions and conclusions.
[29] This Court takes Mr Sello’s allegation that he was confused seriously. Upon
examining this claim, the key question is: what was the nature of his confusion? The
confusion is alleged to have existed from the beginning, when the Pedi interpreter
present in the room is said to have explained that the Commissioner intended to
attempt conciliation once more, as well as at the time of reaching the settlement
agreement (that is, when the agreement was presented for signature and signed).
And if, as he claims, he was confused, why did he sign the agreement? In raising
this question, I make the following observations.
29.1. The settlement agreement is a simple, one- page document that
requires very little legal knowledge to understand. The parties confirm that
they read the agreement and that they understand it, record that the
agreement is in full and final settlement, and that the dispute was settled by
agreement is in full and final settlement, and that the dispute was settled by
agreement to pay certain monies in instalments that are recorded. The
wording of the agreement leaves little room for confusion.
29.2. This Court has only Mr Sello’s version of events. His own account of
the background facts shows that he tends to assert his rights when he
12 2012 (2) SA 50 (CC); 2012 (2) BCLR 181 (CC).
11
believes he has them. That appears to have led to disciplinary proceedings.
Why did he not speak up and ask questions before signing a settlement
agreement, to ensure he would not be surrendering his rights upon signing it?
29.3. In the founding affidavit, Mr Sello explains that the representative of the
Falcons “told the Commissioner that he needed to consult his legal
representative" and was allowed to do so. Why, if he was confused, as he
claims he was, did he not ask for the same opportunity? According to his own
version, he consulted an attorney when he first received the set -down notice
for the arbitration. Why did he not at least try to contact that attorney? He
cannot complain, as he does, that the Commissioner did not give him a
chance to call his attorney if he did not request such an opportunity, just as
the Falcons representative did.
29.4. Finally, the settlement agreement, in terms, records that “ By signing
this agreement, the parties acknowledge that the agreement was read to them
and interpreted (where necessary) and that they understand the content
thereof. This agreement is in full and final settlement of the dispute referred to
the CCMA” . If Mr Sello read the agreement, there could have been no
confusion on his part that the agreement would bring to an end his dispute of
unfair dismissal before the CCMA. His complaint that “ the Commissioner did
not tell [him] that there would be no arbitration of his dispute for reasons of
misconduct” rings hollow in light of the express and simple wording of the
settlement agreement.
[30] From an examination of the papers filed, it is clear that Mr Sello is an
intelligent and well -informed man. After all, he was entrusted with doing PSIRA
calculations that his superiors apparently could not complete correctly without his
help. According to the founding affidavit, he and a colleague showed a Falcons
trustee the relevant Government Gazette, the Basic Conditions of Employment Act,
trustee the relevant Government Gazette, the Basic Conditions of Employment Act,
and the PSIRA rates to demonstrate why the formula he used was correct. Someone
capable of navigating legislation and regulations in this way is not a layman with no
understanding of the law and its consequences. It appears unlikely that someone
with such an understanding of legal matters would sign a settlement agreement
without knowing what it involved or its implications.
12
[31] Added to that consideration is the fact that the notice of motion states that, at
least when the application was launched, Mr Sello was representing himself as a
litigant in person. In the founding affidavit, he also states that he is “ a layperson and
a litigant -in-person”. However, the affidavit includes an explanation of legal
principles, including references to Constitutional Court jurisprudence in cases such
as Eke v Parsons (Eke).13 As deponent, Mr Sello uses terminology like “ the review
gateway”, “lis”, “domicilium citandi et executandi”, “impugned agreement”, “burden of
proof”, “informed consent”, “fait accompli”, “op cit”, “ab initio ” and similar terms, and
even quotes foreign law. From this, I must infer that (i) Mr Sello received assistance
from a legal practitioner in preparing his papers; (ii) he is capable of navigating the
legal landscape; or (iii) a combination of these.
[32] Assuming in favour of Mr Sello that, despite his assertion on oath that he
was self-representing, he did not draft the founding affidavit without assistance from
a legal practitioner, this Court cannot conclude that Mr Sello is the type of person
who would have signed a settlement agreement if he did not agree to its terms and
understood its effect.
[33] In this regard, the Court takes guidance from the unreported judgment of the
LAC in Aveng Trident Steel, a Division of Aveng Africa (Pty) Ltd v Thembeka
Nkonyane:14
‘In an attempt to escape the consequences of… an agreement, the
respondent argued that the contents of the agreement were never explained
to her and as such, she is not bound by the terms thereof. I disagree… The
agreement is a simple two-page document…
The argument by the respondent’s counsel that she was in a disadvantaged
bargaining power with fewer resources compared to t he appellant holds no
water… She is an educated person and had demonstrated an ability to
negotiate for herself as evident from the pleadings. She signed the
negotiate for herself as evident from the pleadings. She signed the
retrenchment agreement and her signature serves as proof that she was
aware of the content of the document. By signing the agreement, her
intentions were to be bound by the terms thereof . We have to deal with her as
13 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC).
14 Case No JA16/2022, judgment of 17 April 2023.
13
the sort of person she is and she is not entitled to escape the consequences
of the agreement on the basis that she was of less bargaining power than the
appellant.’15
[34] There is a further consideration.
34.1. The settlement agreement was entered into on 2 August 2024. It
required payment to Mr Sello of instalments of R8 566.02 on 31 August, 30
September and 31 October 2024.
34.2. Mr Sello says that, as at 31 October 2024, he had received two of the
three instalments (after tax deduction), and he now tenders to repay the
monies that he had received. The Court is not told what the position is in
respect of the third instalment (i.e. whether it was paid subsequent to 31
October, or not paid at all, or any of the circumstances surrounding the
payment or non-payment of the third instalment). All that is said is that, since
the third instalment had not been paid by 31 October 2024, Falcons is in
breach.
34.3. The application was launched on 20 March 2025, more than seven
months after the conclusion of the settlement agreement . This Court
understands that the delay was occasioned by Mr Sello initially instituting
review proceedings sometime in 2024. Ostensibly, Mr Sello was then told that
he could not review a settlement agreement that had not been made into an
arbitration award, and he was advised to bring the present application.
34.4. This Court does not know when the review application had been
launched (other than to deduce from the case number that it was sometime in
2024) or when Mr Sello received the advice that he ought rather to bring the
present application. What this Court is not told is when and how Mr S ello
came to the conclusion that , on his version, he had been improperly
compelled to enter into a settlement agreement, and that the settlement
agreement did not reflect his intentions.
34.5. Tellingly, there is no allegation in the founding papers that Mr Sello,
having signed the settlement agreement and/or receiving payments under it,
having signed the settlement agreement and/or receiving payments under it,
sought to enrol for determination his unfair dismissal dispute, which, if his
15 Ibid at paras 17 and 18.
14
position is understood, he considered not to have been settled by entering into
the settlement agreement. If he verily believed that the settlement agreement
did not settle that dispute, why is there no evidence of him pursuing the
dispute, only to be told that he can no longer do so?
34.6. What is clear is that Falcons made at least two payments that Mr Sello
accepted at the time. There is no indication that, at the time those payments
were made, Mr Sello objected to them, or expressed the view that the
settlement agreement fell to be set aside on account of the various objections
he now raises.
[35] Mr Sello’s reliance on Eke , making the point that the settlement agreement
must (i) relate directly or indirectly to an issue or lis between the parties; (ii) not be
objectionable and accord with the Constitution and the law; (iii) no be at odds with
public policy; and (iv) hold some practical or legitimate advantage, does not provide
a basis for the grant of the relief sought.
35.1. The settlement agreement resolved a dispute between the parties. Mr
Sello wished to challenge his dismissal as unfair, and he sought
compensation and re- instatement. Re- instatement was not an option, given
the re- organisation of the workplace following his dismissal. Mr Sello could
receive compensation. Falcons proposed a calculation based on a formula
commonly used in retrenchment cases as a guide for determining the
settlement amount they would offer. The fact that this was presented as the
basis of the calculation did not change the fact that the amount paid as
compensation in settling the unfair dismissal dispute was final. In other words,
the formula Falcons used to calculate the settlement amount is irrelevant to
whether the dispute before the CCMA was settled; it c ould have been any
amount, derived from whatever basis Falcons chose to base their offer on. By
signing, Mr Sello accepted the compensation and payment terms, which were
signing, Mr Sello accepted the compensation and payment terms, which were
expressly recorded as constituting “ full and final settlement of the dispute
referred to the CCMA”.
35.2. There is nothing legally objectionable about the settlement agreement.
It provided for a sum of money to be paid to Mr Sello as compensation to
resolve his unfair dismissal dispute. He now appears to believe that the
amount settled upon was too low, and/or that he would like another
15
opportunity to seek reinstatement before a different commissioner. However,
the fact that he desires a different outcome from the one he agreed to does
not make the settlement agreement unlawful. In this context, I note that Mr
Sello’s assertion that he did not participate in the negotiations does not seem
credible: as shown by the factual background above, he explained to the
Commissioner what outcome he sought after she initiated a further attempt at
conciliation. That is not what he received in the end, but that is because he
agreed to accept less.
35.3. Insofar as there w as not an “ equality of arms” , because the Falcons
representative consulted a legal representative and Mr Sello did not, that does
not vitiate the agreement reached. Mr Sello could have asked for time to
speak to a legal representative, or even requested the Commissioner directly
to explain to him the implications of the agreement before signature, if he was
unsure.
35.4. The settlement agreement held the practical advantage of resolving the
issue between Mr Sello and the Falcons without the need to engage in a full -
fledged arbitration. Arbitration outcomes are unpredictable. Yes, Mr Sello
might have obtained a more favourable outcome if he had succeeded in
proving that his dismissal had been unfair. Equally, the possibility existed that
the Commissioner might have concluded that Mr Sello’s dismissal had not
been unfair, in which event he would have walked away with nothing. The
settlement agreement ensured that Mr Sello received some compensation
and, for him, avoided the uncertainty and unpredictability of the outcome of
the arbitration. Mr Sello may now think that he has been short -changed, but
he ignores that the possibility existed that he might have received nothing at
all if he were unsuccessful in an attempt to convince the Commissioner that
his dismissal had been unfair. The law reports are strewn with ostensibly
“open and shut” cases that turned out not to be so. Mr Sello cannot assume
“open and shut” cases that turned out not to be so. Mr Sello cannot assume
that he would have been successful.
35.5. Mr Sello cannot complain that his right to court access has been
trampled upon. It is legitimate for parties to enter into a settlement agreement
to bring disputes to an end. This is what happened here, because Mr Sello
elected to sign the agreement.
16
[36] In the circumstances, I make the following order:
Order
1. The application is dismissed.
2. There is no order as to costs.
MJ Engelbrecht
Acting Judge of the Labour Court
Appearances:
For the applicant: R Naidoo (pro bono)
For the respondents: No appearance