THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No. 2025-167345
In the matter between:
MASETSABI SETSABI Applicant
and
SYSPRO (PTY) LTD Respondent
Heard: 14 May 2026
Delivered: 29 May 2026
JUDGMENT
MAKHURA, J
Introduction
[1] On 24 September 2025, the applicant lodged an application seeking an order
declaring that the Voluntary Retrenchment Package (VRP) agreement invalid on
the ground that it was “induced by misrepresentation, coercion and/or duress”
and that it be declared invalid and of no force and effect. The applicant also
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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sought relief under the Labour Relations Act 1 (LRA) that her termination of
employment was substantively and procedurally unfair, alternatively that it
constituted a breach of contract.
[2] In relation to the alleged unfair dismissal claim, the applicant seeks just and
equitable compensation in terms of sections 193 and 194 of the LRA. Regarding
the alleged breach of contract, she cl aims damages for the loss of income and
benefits she would have earned but for her termination until her “normal
retirement age of 65 years”.
[3] The respondent opposes the application, arguing primarily that the applicant
cannot approbate and reprobate. It contends that she should have exercised her
election to cancel the VRP agreement within a reasonable time, did not prove
that any misrepresentation was material, and is bound by the terms of the VRP
agreement. Further, the respondent relies on the integration cl ause that any
undertakings, representations, and terms and conditions not incorporated in the
VRP agreement were not binding to argue that the misrepresentation was not
material. Lastly, the respondent contends that the applicant failed to tender
payment of the benefits of the VRP agreement.
Material facts
[4] The applicant was employed by the respondent as an Office Assistant with effect
from October 2013. On 2 June 2023, she received a notice in terms of section
189(3) of the LRA indicating that her position, along with two others , might be
affected by a restructuring process. The notice recorded that:
‘As a further attempt to minimise the effect that a possible forced retrenchment
process may have on the business, it was decided to make available a voluntary
retrenchment-process (“VRP”), in terms whereof employees are entitled to apply
for a VRP. This process is set out in the annexed letter and we urge you to
carefully consider applying for the VRP in view of the enhanced benefits provided
in comparison to an involuntary retrenchment. It is further proposed that the
in comparison to an involuntary retrenchment. It is further proposed that the
1 Act 66 of 1995, as amended.
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consultation process be held over until the VRP is finalised, i.e. the consultation
process can commence on the date stated in paragraph 12 below should you fail
to apply for a VRP.’
[5] The notice set a provisional date of 7 June 2023 for consultation if the applicant
and/or those affected do not apply for VRP. The notice attached a letter which
set out the VRP proposal. The proposal required applications to be submitted by
midday on 6 June 2023. It included benefits such as salary payment until the end
of June 2023, notice pay for July, termination on 28 July 2023, severance pay
calculated at 1.5 weeks per completed year of service, and an additional ex
gratia payment equal to two months’ salary.
[6] On 6 June 2023, Angela Chandler , the respondent’s Finance and Sales
Administrator, addressed an email to the respondent’s Head of Human Resource
Operations, Annie Jurbandam, copying, amongst others , the applicant,
confirming the applicant’s acceptance of the VRP . The email also noted the
applicant’s request for a complete and final breakdown of the package and
indicated that Bidvest had agreed to offer her a position, for which she requested
the details. Jurbandam responded that feedback would be provided the following
day.
[7] The applicant accepted the VRP offer , and both parties signed a written VRP
agreement on 15 June 2023. The VRP agreement stated that the applicant
entered into it voluntarily, that the parties reached consensus in respect of the
mutual separation and termination of employment, that “she has been free to
secure independent legal and other professional advice (including financial and
taxation advice)”, and that:
‘This Agreement constitutes the whole of the agreement between the parties
relating to the matters dealt with herein and, save to the extent otherwise
provided herein, no undertaking, representation, term or condition relating to the
subject matter hereof and not incorporated in this Agreement shall be binding on
either party.’ (Emphasis added)
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[8] On 28 June 2023, Chandler sent the applicant a voice note urging her to be at
the office by 9h30 for an interview with Bidvest at 10h00. The applicant states
that she was interview ed on 29 June 2023, together with another affected
employee, who was subsequently employed by B idvest on their last day of
employment, which was 30 June 2023. Although the applicant does not disclose
the details of her interview in the founding affidavit, she alleged in her referral of
the unfair dismissal dispute to the Commission for Conciliation, Mediation and
Arbitration ( CCMA) that Bidvest informed her that they only employ individuals
from Khayelitsha. As a result, it appears that she was not offered employment
because she did not reside in Khayelitsha.
[9] On 11 July 2023, the applicant emailed Jurbandam requesting assistance from
the respondent with completing the documentation to withdraw her provident
fund benefits.
[10] The applicant then alleges that on 11 August 2023, she received a telephone call
from Jurbandam informing her of another job opportunity that had been arranged
for her in Century City.
[11] On 22 January 2024, the applicant referred an unfair dismissal dispute to the
CCMA in Bloemfontein. She also applied for condonation for the late referral of
the dispute. When summarising the facts of the dispute, the applicant alleged
that the respondent was not “honest” in the retrenchment process, that her job
had effectively been outsourced or transferred and that although she was
promised alternative employment, she was informed that she could not be
employed because she was not from Khayelitsha.
[12] In her application for condonation, the applicant explained that the delay in
referring her dispute arose because she was unable to obtain assistance from
the CCMA in Cape Town. She added that she had to wait for the respondent to
update the Department of Labour and noted a discrepancy between the UIF code
update the Department of Labour and noted a discrepancy between the UIF code
issued to her and the description of her termination as a voluntary severance
package.
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[13] The CCMA dismissed her condonation application on 6 February 2024, and her
subsequent attempt to review that ruling in the Labour Court was also
unsuccessful on 18 August 2025. She thereafter instituted the present
proceedings.
The applicant’s case
[14] In her founding affidavit, the applicant complained that the time afforded to her
from 2 to 6 June 2023 to respond to the VRP proposal was short and that t he
“intervening weekend made it practically impossible to seek proper legal or
financial advice”. She argued that this created undue pressure on her – in her
words, the time was “arbitrary” and created “urgency and fear”.
[15] She also relied on a voice note from Angela Chandler, the respondent’s
administrator, indicating that failure to respond to the VRP proposal by 12h00 on
6 June 2023 w ould result in her losing the enhanced package and facing
retrenchment, while also suggesting that alternative employment had been
secured with Bidvest, to argue that the VRP was therefore “offered under threat”
with their roles being earmarked for Bidvest.
[16] The applicant characterised the VRP as a coercive mechanism tantamount to
forced retrenchment , referring to the section 189 notice stating that the
respondent urged employees to “carefully consider applying for the VRP in view
of the enhanced benefits provided in comparison to an involuntary retrenchment”.
She criticised the section 189 notice and the rationale for restructuring, alleging
that the consultation process was not genuine but a sham , that the redundancy
of positions was unfounded, and that her role had in fact been outsourced.
[17] The applicant then alleged that she was pressured by Jurbandam into signing the
VRP agreement on 15 June 2023. She said Jurbandam instructed her to sign the
agreement immediately, did not allow her to take the agreement home for
consideration, and assured her that Bidvest would provide alternative
employment.
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[18] Regarding the reason for bringing the current proceedings , the applicant
explained that during the hearing of her review application in August 2025, the
presiding judge asked whether she had sought to set aside the VRP agreement.
She indicated that she had not, and:
‘That moment made it clear to me how the Respondent’s conduct, combined with
the misleading wording of the VRP agreement, created the false impression that I
had no right to challenge the agreement itself…
This application is now brought in response to that judicial prompt…’
The respondent’s opposition
[19] In opposition, the respondent’s primary defence is that the applicant accepted the
terms of the VRP agreement and cannot now adopt a contradictory position. It
maintains that, even if she were entitled to cancel the agreement, she failed to do
so within a reasonable time. The respondent highlights that more than two years
elapsed before she attempted to challenge the agreement, which it contends is
unreasonable.
[20] The respondent further submits that the applicant has not demonstrated that any
alleged misrepresentation was material and plac es its reliance on the integration
clause, which excludes reliance on any representations not incorporated in the
written agreement. Finally, the respondent relies on the applicant’s failure to
tender restitution.
[21] The respondent contends t hat the unfair dismissal dispute was referred after the
applicant learned she could not claim benefits from the unemployment insurance
fund because she had signed a VRP agreement. In other words, the applicant
had taken no issue with the VRP agreement. Further, t he respondent states that
nowhere in her referral form nor the application for condonation does the
applicant s tate or s uggest that she signed the VRP because of
misrepresentation, coercion or duress.
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[22] The respondent then takes issue with various orders sought by the applicant ,
particularly those under the LRA in terms of which she seeks , upon declaring the
VRP agreement void, to declare that her termination of employment was
substantively and procedurally unfair and payment of compensation.
Analysis
[23] The doctrine of approbation and reprobation seeks to prevent a party from
adopting two positions inconsistent with one another . In other words, a person
who has consented to a particular act, either expressly or through conduct ,
cannot later reject that same position and adopt a different one. This principle is
well-established and has been affirmed as prohibiting a party from blowing hot
and cold.2
[24] In Bowditch v Peel and Magill3 (Bowditch), the Appellate Division held that:
‘…A person who has been induced to contract by the material and fraudulent
misrepresentations of the other party may either stand by the contract or claim a
rescission… It follows that he must make his election between those two
inconsistent remedies within a reasonable time after knowledge of the deception.
And the choice of one necessarily involves the abandonment of the other. He
cannot both approbate and reprobate. Here the plaintiffs alleging that the
contract was fraudulently induced not only claimed damages as distinct from
rescission, but they claimed damages for breach of contract. By their pleadings
they elected to stand by the contract, and thereby they abandoned any right to
rescind it …’
[25] Similarly, in Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd4, it
was emphasised that where there is a material breach, the innocent party must
elect either to cancel the contract or to enforce it. Once that choice is made, it
becomes binding, and the party cannot later change course without the consent
of the other party.
2 Hlatshwayo v Mare and Deas 1912 AD 242 at pages 259.
3 1921 AD 561 at 572 – 573.
4 1996 (2) SA 537 (C) at 542E – F.
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[26] The primary enquiry, therefore, is whether the applicant has established grounds
to invalidate the VRP agreement. As is evident from the above, even in the
absence of an express decision, a party may make an election through their
conduct, and whether such an election has occurred depends on the facts of
each case.
[27] After referring to the alleged pressure exerted by Jurbandum, t he applicant
summarised her case as follows:
‘Faced with this pressure, and in reliance on the assurance of alternative
employment, I signed the agreement and thereafter left the company.’
[28] The central aspect of the applicant’s case is the alleged assurance that she
would secure alternative employment. The respondent does not dispute that
such an assurance was given in the terms described by the applicant. However,
the respondent argues that the applicant accepted and benefited from the VRP
agreement and is therefore not entitled to later repudiate it. According to the
respondent, the applicant’s conduct demonstrates a clear and binding election,
rendering her unable to revisit that choice
[29] The material facts between 2 and 28 June 2023 are largely common cause. The
applicant was presented with the VRP proposal on 2 June 2023. On 6 June
2023, she accepted the offer and requested the final breakdown of the VRP. The
VRP agreement was signed on 15 June 2023. After signing the agreement , she
was invited for an interview with Bidvest on 29 June 2023. She attended the
interview but was unsuccessful because she did not reside in Khayelitsha.
[30] After her unsuccessful attempt to secure employment with Bidvest, the applicant
took no steps to raise or challenge the situation with the respondent. Instead, she
proceeded to apply for unemployment insurance benefits, and only after learning
that she was not entitled to those benefits did she refer an unfair dismissal
dispute to the CCMA. This referral occurred more than seven months after her
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employment had ended, yet she still did not raise any complaint regarding the
validity of the VRP agreement.
[31] It was only during the hearing of her review application, when the Court
questioned whether she had sought to set aside the VRP agreement, and after
the judgment issued on 18 August 2025, that the applicant brought these
proceedings, and in her own words, in response to the Court’s enquiry, which, for
the first time , she raised allegations of misrepresentation, coercion, and duress.
This stance was inconsistent with her earlier conduct, particularly given that she
had been aware as early as 29 June 2023 that she would not be employed by
Bidvest.
[32] Considering all the facts, the applicant had clearly elected to accept and benefit
from the VRP agreement. Having made that election, she could not later adopt a
contradictory position by seeking to invalidate the agreement. The principle of
irrevocability of choice applies; her decision to accept the contract had therefore
become final and binding.
[33] In any event, even if she were allowed to change her election or choice and
cancel the VRP agreement, she did not act within a reasonable time. In Segal v
Mazzur
5 (Segal), the Court held that an innocent party to a contract confronted
with an election to stand by the contract or cancel it , must do so within a
reasonable time. The Court said that:
‘Now, when an event occurs which entitles one party to a contract to refuse to
carry out his part of the contract, that party has the choice of two courses. He can
either elect to take advantage of the event or he can elect not to do so. He is
entitled to a reasonable time in which to make up his mind, but when once he
has made his election he is bound by that election and cannot afterwards change
his mind. Whether he has made an election one way or the other is a question of
fact to be decided by the evidence. If, with knowledge of the breach, he does an
fact to be decided by the evidence. If, with knowledge of the breach, he does an
unequivocal act which necessarily implies that he has made his election one
5 1920 CPD 635 at p 644; see also Bowditch fn 3 above; Christie’s The Law of Contract in South Africa,
8th edition, 2022, (Christie) p350.
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way, he will be held to have made his election that way … [T]he question
whether a party has elected not to take advantage of a breach is a question of
fact to be decided on the evidence …’ (Emphasis added)
[34] Therefore, in this case, the applicant knew as early as 29 June 2023 that she
would not be employed by Bidvest, yet she waited approximately 26 months
before attempting to challenge the agreement. Such a delay is plainly excessive
and unreasonable. The applicant did not have to wait for the Court to enquire if
she had challenged the VRP agreement to remember that she was misled.
[35] This long and unreasonable delay also undermines the claim that any
misrepresentation was material in inducing the applicant to conclude the VRP
agreement. A party seeking to rescind a contract on the basis of
misrepresentation must demonstrate that, but for the representation, they would
not have entered into the agreement. The respondent argued that the alleged
assurance of alternative employment was not material, particularly because it
was not recorded in either the VRP proposal or the written agreement. Had it
truly been material , the applicant would have insisted on its inclusion before
signing the written VRP agreement . Instead, the agreement expressly contains
an integration clause stating that only its written terms are binding.
[36] The respondent further argued that the applicant, despite seeking cancellation of
the VRP agreement , failed to tender restitution of the benefits she had already
received under the VRP agreement. It is trite that an innocent party who seeks to
set aside the contract and restore the status quo ante or claim restitution must
return or tender to return any benefits received so as to restore the parties to the
original positions.
6 The purpose of this was explained in Feinstein v Niggli and
Another7 as follows:
‘The object of the rule is that the parties ought to be restored to the respective
‘The object of the rule is that the parties ought to be restored to the respective
positions they were in at the time they contracted. It is founded on equitable
considerations. Hence, generally a court will not set aside a contract and grant
6 Christie at p 353.
7 1981 (2) SA 684 (A) at p 700.
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consequential relief for fraudulent misrepresentation unless the representee is
able and willing to restore completely everything that he has received under the
contract. The reason is that otherwise, although the representor has been
fraudulent, the representee would nevertheless be unjustly enriched by
recovering what he had parted with and keeping or not restoring what he had in
turn received, and the representor would correspondingly be unjustly
impoverished to the latter extent…’
[37] Despite this being raised in the answering affidavit, the applicant did not make
any tender of restitution. Although she indicated an understanding of this
principle during the hearing, she still failed to offer to repay the benefits received.
The application will also fail on this basis alone.
[38] The complaint that she was coerced into accepting the VRP is also unconvincing.
The statement that she would lose the enhanced benefits if she declined the offer
does not amount to coercion, nor was it misleading. In any event, she confirmed
her acceptance of the offer on 6 June 2023 and had a further nine days before
signing the agreement, during which she could have reconsidered her position.
[39] Finally, many of the applicant’s remaining allegations concern the fairness of the
retrenchment process, including claims that it was a sham or disguised
outsourcing. These issues are relevant, if at all, to an unfair dismissal claim, not
to the contractual challenge presently before the Court. Her breach of contract
claim is unsupported and cannot succeed. These issues need not detain me any
further.
[40] Having considered the facts and legal principles , the application cannot succeed
and must be dismissed. This effectively brings the matter to an end. Even if the
Court had jurisdiction to entertain the unfair dismissal and damages claims, the
findings on the validity of the VRP agreement preclude any further enquiry.
Costs
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[41] Mr Bosch argued that the applicant should be ordered to pay costs as a mark of
disapproval for pursuing what it considered a meritless claim, particularly since
this is a contractual matter where the general principle on costs should apply and
the general principle in this Court that costs do not follow the result 8 does not
apply. In other words, the respondent, as a successful party, should be entitled to
its costs.
[42] While the matter is indeed contractual in nature, the Court retains a discretion on
the issue of costs. However, the Court observed that the applicant only raised
allegations of misrepresentation after being prompted during the August 2025
proceedings. Prior to that, there was no suggestion that the VRP agreement had
been improperly induced. This indicates that the application was opportunistic
and, in my view, lacked bona fides.
[43] For that reason, I consider it appropriate that the respondent should not bear the
full financial burden of opposing the application, and also that the applicant
should not be mulcted with the full costs despite her mala fides. A partial costs
order is therefore justified, and the applicant should be ordered t o pay half of the
respondent’s costs, including counsel’s fees, as a mark of disapproval for her
afterthought and meritless application.
[44] In the premises, the following order is made:
Order
1. The application is dismissed.
2. The applicant is ordered to pay 50% of the respondent’s costs of opposing
the application.
8 Section 162 of the LRA; Zungu v Premier of the Province of KwaZulu- Natal (2018) 39 ILJ 523 (CC);
[2018] 4 BLLR 323 (CC) at paras 24 – 26; National Union of Mineworkers obo Masha and others v
Samancor Ltd (Eastern Chromes Mine) and others [2021] 9 BLLR 883 (CC); (2021) 42 ILJ 1881 (CC) at
paras 28 – 33; Union for Police Security and Corrections Organisation v SA Custodial Management (Pty)
Ltd and others (2021) 42 ILJ 2371 (CC) at paras 38 – 40; Motor Industry Staff Association and another v
Great South Autobody CC t/a Great South Panelbeaters; Solidarity on behalf of Strydom and others v
State Information Technology Agency SOC Ltd [2024] ZACC 29; (2025) 46 ILJ 481 (CC) at paras 77 –
78.
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____________________
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: In person
For the Respondent: Mr C. Bosch
Instructed by: Da Silva Attorneys