IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CASE No. JS 554/02
In the matter between:
MPILO MAKIWANE Applicant
And
INTERNATIONAL HEALTHCARE DISTRIBUTORS
Respondent
JUDGEMENT
P. ZILWA AJ:
[1] The applicant had been in the employ of the respondent from 21
June
1999 until 5 April 2002. The versions between the parties differ
as to what caused the applicant to leave the respondent’s
employment. On the applicants version he left because he was
compulsorily retrenched by the respondent whereas on the
respondent’s version he, on his own initiative, had applied for
and was granted a retrenchment package as he wished to join
his wife who had relocated to Durban.
[2] The present application arises from the applicant’s contentions
that he was never consulted before his retrenchment was decided; that
he was never offered any alternative employment; and that his
retrenchment package was never negotiated with him.
[3] Responding to the averments in the applicants Statement of
Claim the respondent contends that:
(i) it wasthe applicant who had approached it requesting a
voluntary retrenchment,
(ii) consultations and negotiations took place over an
extended period of time between the parties with regard
to the proper retrenchment package payable to the
applicant,
(iii) such negotiations culminated in the parties reaching an
agreement with regard to such retrenchment package,
(iv) the Retrenchment Agreement (the agreement) was
reduced into writing and duly signed by both parties to
signify their assent to its contents on 15 August 2002 and
is, as such, binding on the parties,
(v) the respondent has duly paid the applicant in terms of the
agreement and the latter has accepted such payments.
[4] In his response to the respondent’s contentions regarding the
agreement the applicant has averred that he had been verbally
informed by an official of the respondent, one Ms Rekha
Ramjatan, that the agreement would be nullified if the applicant
did not withdraw his unfair dismissal claim which he had since
lodged with the Commission for Conciliation, Mediation and
Arbitration (CCMA). As he had not withdrawn his claim with the
CCMA, so contends the applicant, he had assumed that the
agreement had automatically lapsed.
[5] On the pleadings it thus remains in issue as to how the
applicant’s retrenchment came about i.e whether it was voluntary and
initiated by the applicant himself as the respondent contends, or it was
forced upon him by the respondent as he avers. However, for the
reasons which will become apparent later, it is not necessary for me to
decide this issue.
[6] When the matter came up for hearing before me the applicant
appeared in person while the respondent was represented by Mr Ross.
[7] In its Notice of Intention to Oppose Applicant’s Notice of Motion /
Statement of Claim the respondent had raised a point in limine ,
contending that this court lacks jurisdiction to adjudicate the
matter since the parties had settled the dispute through the
agreement. At the hearing it was agreed between the parties
that before any evidence is led on the merits the point in limine
should first be argued and determined since its determination
could be dispositive of the entire case. I shared the same
sentiment.
[8] Arguing for the respondent Mr Ross submitted that the
agreement effectively and completely settled the dispute
between the parties and that as such there is no valid reason for
the matter to come before this Court at all. The applicant has
been paid the settlement figure in terms of the agreement in full
and final settlement of any claims that may arise from the
employment relationship and the subsequent termination
thereof. In the premises, since the dispute has been settled, this
Court lacks the jurisdiction to entertain such (settled) dispute, so
ran the argument.
[9] In his papers the only manner in which the applicant deals with
the agreement and the respondent’s averments threreanent is in
the following terms:
“It is a matter of record that the package was never
negotiated but was presented as a fait accompli with the
proviso that it will be nullified if I had not withdrawn the
matter with the CCMA. This was a message relayed
verbally by A Miss Rekha Ramjatan on behalf of Warren
Elsworth and subsequently confirmed by her in a
telephonic conversation between us on the 23 April
2002…. I wish to bring to the Court’s attention that as a
confirmation of the nullification of the so-called agreement
the company failed to pay the money into my account as
per agreement on the 26 April 2002.”
[10] In his argument against the point in limine the applicant made a
number of rather startling submissions and made crucial
allegations regarding the agreement which do not appear
anywhere in his papers. He argued that he first saw the
agreement on 15 April 2002 when it was shown to him at the
respondent’s offices by the respondent’s Ms Ramjatan. By then
he had already lodged his claim for the alleged unfair dismissal
with the CCMA. Ms Ramjatan ordered him to sign the agreement,
failing which he would have to resume his work with the
respondent. He glanced at the first page of the agreement and
saw that it was a retrenchment agreement between himself and
the respondent. He requested an opportunity to first study the
agreement before signing it but Ms Ramjatan refused to afford
him such opportunity. He thus had no option but to sign the
document without first reading it. When he so signed the
document he knew that his signature signified his concurrence
with whatever was contained therein. After he had signed the
agreement he was verbally advised by Ms Ramjatan that if he did
not withdraw his complaint before the CCMA the agreement
would be nullified. He only read a copy of the agreement later on
the same day i.e 15 April 2002 and when he became aware of its
contents he regarded them as unfair. He then phoned Ms
Ramjatan and told her that he had made a mistake by signing
the document but the latter insisted that its contents were
binding on all the parties as he had signed it. When he enquired
about the later verbal agreement that the agreement would be
nullified if he failed to withdraw his complaint before the CCMA
Ms Ramjatan reconfirmed that the respondent would abide by
such verbal agreement also. The monies set out in the
agreement as payable to him were not paid by the respondent
on the stipulated dates but later. When he noticed that such
amounts had been deposited in his bank account he left them
there.
[11] As already stated, most of the averments set out above by the
applicant in argument do not appear in any of his papers before the
Court. They are very crucial averments which, of necessity, should
have been made in the applicant’s papers, particularly in his reply to
the respondents Statement of Defence. In such statement the
agreement is attached as an annexure and it is stated in very clear and
unequivocal terms that full reliance would be put on it by the
respondent. Clearly this was an ideal opportunity for the applicant to
distance himself from the written agreement if he had been forced to
sign it without knowing its contents as he alleged only at the argument
stage. In fact this contention is so crucial that the applicant would have
been expected to allude to it even in his Statement of Claim because
at that stage he already knew about the agreement and its contents.
On his own version the applicant signed and read the agreement (in
that order) on 15 April 2002. His Statement of Claim is dated 13 May
2002.
[12] Even though I am quite mindful of the fact that the applicant
handled this entire litigation on his own without any legal assistance I
am of the view that the necessity for making the averments referred to
above by the applicant in the pleadings is so glaringly obvious that it
above by the applicant in the pleadings is so glaringly obvious that it
does not require a legal mind to realise it. When he appeared and
argued the matter in person before me the applicant struck me as a
person of ordinary, if not even above average, intelligence. He could
not explain his failure to make the necessary averments in his papers. I
got the distinct impression that the applicant’s averments as to how he
came to sign the agreement are of recent fabrication and I am not
inclined to attach any weight to them. I consider it improbable that the
applicant, who seems to be so aware of his legal rights that by the
time the agreement was signed he had already lodged a claim with the
CCMA, could knowingly sign a Retrenchment Agreement without first
satisfying himself that its terms were acceptable to him.
[13] His explanation that he signed the agreement because the other
alternative given to him if he were not to sign the agreement there and
then without first having read it, would be to resume his old job, does
not make a great deal of sense to me. If he had been given that kind of
an alternative I would have expected him to seize that opportunity with
both hands and resume his old job, especially given that one of the
reliefs he wanted was reinstatement. If his averments are to be
believed, the reason he felt pressurised to sign the agreement, without
first reading it, was to avoid reinstatement, which defies
comprehension and logic. In the premises I have no hesitation at all in
accepting that the applicant voluntarily and knowingly signed the
agreement after duly satisfying himself that its terms were acceptable
to him and I reject any contention to the contrary. The fact that the
applicant kept the monies paid to him in terms of the agreement puts
the matter beyond doubt.
[14] This then brings me to the final issue of what the effect of the
agreement is on the present proceedings.
[15] Sub paragraph 1.2 of the agreement provides that “ the parties
have
reached agreement on the terms of the employee’s
termination of employment on a basis deemed to be fair to
termination of employment on a basis deemed to be fair to
both parties and thus wish to record the terms in writing”
Sub-paragraph 1.4 provides that “ payments recorded in this
agreement are made in full and final settlement of any/or all claims
which the employee may have against the company arising from her
(sic) employment with the company, its termination or otherwise”
[16] I further deem it opposite to quote the terms of paragraph 9 of
the agreement verbatim. It reads thus:
“9. WHOLE AGREEMENT, NO AMENDMENT.
9.1 This agreement constitutes the whole agreement
between the parties relating to the subject matter hereof.
9.2 No amendments or consensual cancellation of this
agreement or any provision or term shall be binding unless
recorded in a written document signed by the parties. Any
such amendment or cancellation which is so given or made
shall be strictly construed as relating to the matter in
respect whereof it was made or given.
9.3 To the extent permissible by law no party shall be
bound by any express or implied term, representation,
warranty, promise or the like not recorded herein, whether
it induced the contract and/or whether it was negligent or
not.”
[17] The above quoted paragraph 9 of the agreement clearly puts
paid to any reliance by the applicant on any purported
subsequent verbal representations or promises such as those
that he alleges were made by Ms Ramjatan with regard to the
agreement being subject to his withdrawal of his claim before
the CCMA. Each page of the agreement is initialled by each of
the parties and their witnesses and they have all put their full
signatures at the last page thereof.
[18] It is common cause between the parties that the applicant has
been paid all the monies set out in the settlement agreement,
that he has kept such monies and has made no tender to return
them to the respondent. To my mind this clearly signifies his
acceptance of such monies in full and final settlement of his
claims against the respondent.
[19] Our law is trite that where a party accepts the benefits under any
settlement agreement in full and final settlement of the benefits owing
to him by his former employer arising from the termination of his
employment relationship with such employer, and has abided by such
acceptance of those benefits, he has placed himself beyond the
jurisdiction of this Court. (see UNITED TOBACCO Co LTD v BAUDACH
(1997) 18 ILJ 506 ( LAC))
[20] Similarly, in the present case I am of the view that when the
applicant signed the agreement, thereby signifying his acceptance of
its terms, and later accepted the benefits paid to him in terms thereof,
the dispute between him and the respondent was finally settled. From
that time onwards there was no live dispute between the parties (see
also SPILLHAUS & Co (WP) LTD v CCMA & OTHERS (1997) BLLR 116
(LC). There being no live dispute for this court to determine, it follows
that this Court has no jurisdiction to deal with this matter.
[21] In the result, the point raised in limine succeeds, which
effectively disposes of the whole matter. After a careful
consideration of all the relevant facts I have decided to make no
order as to costs.
[22] In the premises:
(i) The applicant’s claim is dismissed,
(ii) There will be no order for costs.
_______________
P.H.S ZILWA, A.J.
APPEARANCES:
FOR THE APPLICANT : In person
FOR THE RESPONDENT : Mr D Ross
Date argued : 29 July 2003
Date of Judgement Delivery: 06 August 2003