Confidential
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: J 736-24
In the matter between:
WCL TRADING CC Applicant
and
SETHOLE SAMSON NKANYANE First Respondent
ROSALINA KANGATA JOSE Second Respondent
PORTIA DERA Third Respondent
ROSELINE PALESA MOLEBATSI Fourth Respondent
JOSEPH MADIOPE Fifth Respondent
MANNERS KRAAI Sixth Respondent
TEBOGO EDMUND MOJELA Seventh Respondent
THABO CHIMALIZENI Eighth Respondent
THANDO MESHACK XABA Ninth Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Tenth Respondent
SIBONGISENI SITHOLE N.O. Eleventh Respondent
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
Heard: 14 May 2026
Delivered: 25 August 2026
JUDGMENT
LAUBSCHER, AJ
Introduction
[1] The Applicant is in the shuttle service business, which operates mainly in the
tourist industry. Its main base of operations is in Cape Town.
[2] The Applicant had a contract with Peermont Global (Pty) Ltd t/a Emperor’s
Palace to render shuttle services. The First to Ninth Respondents ( “the
Employees”) were employed by the Applicant by virtue of its agreement with
Emperor’s Palace. Emperor’s Palace is in Gauteng. The Applicant employed
Mr Cassim at its Emperor’s Palace business unit to inter alia manage this
branch.
[3] On 2 November 2021, at the offices of the Tenth Respondent (“the CCMA”) in
Benoni, Gauteng, the Applicant and the Employees concluded a written
settlement agreement (“the Settlement Agreement”). This Settlement
Agreement was the outcome of conciliation proceedings under case number
GNJB8286-21.
[4] The salient aspects of the Settlement Agreement are as follows:
1. The Applicant shall pay each of the E mployees an amount equal to six
months’ remuneration in settlement of the dispute.
2. The Rand value of the amounts due to each of the Employees is
expressly stated.
3. The settlement amount would be paid to each of the Employees in two
instalments, the first on 29 November 2021 and the second on
31 December 2021.
4. Any variation of the Settlement Agreement must be in writing and
signed by the parties.
5. The parties consent to the S ettlement Agreement being made an
arbitration award in terms of section 142A of the Labour Relations Act.
6. The Settlement Agreement is in full and final settlement of the dispute,
as well as in full and final settlement of all statutory payments due to
the Employees, unless excluded in terms of clause 4. No such
exclusions are recorded.
7. In the event of non- compliance with the Settlement Agreement, the
defaulting party shall pay the full costs incurred by the other party in
enforcing the agreement.
[5] Mr Cassim signed the S ettlement Agreement on behalf of the Applicant , and
the First Respondent signed on behalf of the Employees.
[6] The Managing Member and a fifty per cent membership holder of the
Applicant, and the deponent to the Founding Affidavit, is Mr Unis Khan. Mr
Cassim did not inform the members of the Applicant, including Mr Khan, of the
Settlement Agreement at the time.
[7] The Applicant did not pay the settlement amounts to the employees as set out
in the Settlement Agreement.
[8] The Employees took steps to enforce the S ettlement Agreement, and on
6 April 2022, the Sheriff attended the premises of the Applicant ’s business
unit at Emperor’s Palace and served the Applicant with a notice of
attachment. One of the Applicant’s vehicles was attached. Mr Cassim did not
immediately inform the members of the Applicant, including Mr Khan, of the
notice of attachment.
[9] Mr Cassim convened an urgent meeting with the members of the Applicant on
26 April 2022 and informed the members that he had entered into the
Settlement Agreement on 2 November 2021.
[10] On 2 June 2022, the Applicant instituted a review application in terms of
section 145 of the Labour Relations Act 1 (LRA) in this Court under case
number JR260- 2022 (“the review application”). In terms of the review
application, the Applicant sought the review of the arbitration award under
case number GAJB8286-2021, the Settlement Agreement having been made
an arbitration award in terms of section 142A of the LRA. (The papers in this
review application are not before this Court . It seems, on the face of it, that
the review application was brought about five months out of time.)
[11] The review application came before Justice Phehane on 24 April 202 4, who
struck it from the roll for want of jurisdiction.
[12] The Applicant did not request reasons for the striking off.
[13] On 3 July 2024, the Applicant instituted this application.
[14] In terms of the Notice of Motion, the Applicant seeks an order in the following
terms:
1. Condonation for the instituting of this application for the
declaring null and void ab initio, alternatively setting aside and
rescission of a settlement agreement made an arbitration award
on the 2
nd of November 2021 under the auspices of the CCMA
under case number GAJB8286-2021;
2. Declaring null and void ab initio the settlement agreement made
an arbitration award under the auspices of the Commission for
Conciliation Mediation and Arbitration on the 2
nd of November
2021 under case number GAJB8286-2021;
3. ALTERNATIVELY setting aside and rescinding the settlement
agreement made an arbitration award under the auspices of the
Commission for Conciliation, Mediation and Arbitration on the
2nd of November 2021 under case number GAJB8286-2021;
4. Directing that such of the Respondents as may oppose the relief
sought herein be ordered to pay the costs of the application,
1 Act 66 of 1995, as amended.
jointly and severally, the one paying, the others to be absolved,
and on a scale that this Honourable Court deems fit;
5. Granting the Applicant further and/or alternative relief.
[15] The Notice of Motion does not indicate the sections of the LRA or any other
employment law, or the applicable rule in terms of the Rules of this Court , in
terms of which it seeks the order set out in the Notice of Motion. This is clearly
contrary to the principle set out in Malinga and Others v KwaZulu- Natal
Provincial Department of Education and Others 2 where this court held that an
applicant must clearly identify the basis of the relief sought, set out the legal
source and identify the specific statutory provision that confers jurisdiction.
[16] Insofar as the prayer for condonation is concerned, I assume that condonation
is sought for the late filing of the application, although this is not clear from the
Notice of Motion.
[17] During argument, counsel for the Applicant indicated that there is actually no
need for condonation, because the application is brought in terms of section
77(3) of the Basic Conditions of Employment Act.
3 Later on, counsel argued
that, actually, the appropriate section is section 158(1)(a)(iv) of the LRA,
because this is an application for a declarator in terms of which the Settlement
Agreement is declared null and void ab initio . He also argued that i nsofar as
the setting aside or rescinding of the arbitration award is concerned, section
145 of the LRA is, in fact, the applicable section.
[18] Counsel for the Applicant argued that insofar as the Notice of Motion does not
contain the specific sections of the applicable legislation in terms of which the
application is brought, the Applicant is entitled to this relief on the basis that
the Notice of Motion includes the prayer for “further or alternative relief”.
[19] Counsel for the Employees argued that the Applicant should stand or fall by
[19] Counsel for the Employees argued that the Applicant should stand or fall by
its pleadings. In this case, there is no application for review of the arbitration
award in terms of section 145 in these papers. In fact, the Honourable Justice
2 (2020) 41 ILJ 2504 (LC).
3 Act 75 of 1997, as amended.
Phehane struck the review application that was brought on that basis under
case number JR260-2022 off the roll for want of jurisdiction.
[20] As mentioned above, the Applicant did not request reasons for the striking off.
In the circumstances, it is not clear whether this was because the Court took
the view that it did not have jurisdiction by virtue of section 145 of the LRA , or
whether, for example, there was no application for condonation. We do not
know. What we do know is that the matter was struck for want of jurisdiction.
[21] The current application is one for a declarator t hat the Settlement Agreement
is void ab initio . It is not a review application brought in terms of section 145
(or for that matter, section 158(1)(g)) of the LRA. As mentioned above, there
is no application for review of the arbitration award in terms of section 145 in
these papers.
[22] In Member of the Executive Council of the Department of Education, Eastern
Cape v Gqebe
4, the Labour Appeal Court held that the court cannot simply set
aside an arbitration award under the generic prayer of “further and/or
alternative relief” where no basis has been laid for such relief in the supporting
papers and the order sought is inconsistent with the substantive relief
claimed.
[23] This Court is not sitting as a reviewing c ourt and no proper case for review
has been made out on the papers. In the circumstances, t his Court cannot of
its own accord apply section 145 of the LRA and cannot, on the basis of
granting “further and/or alternative relief” re- open the case on the basis of
section 145.
[24] At the heart of this matter is the validity of the Settlement Agreement. What
complicates this case and what has led to some confusion is that the
agreement was made an arbitration award, notably by consent. Given the
nature of the application, the first question is whether the Labour Court has
jurisdiction to determine it and the power to grant the relief sought.
jurisdiction to determine it and the power to grant the relief sought.
4 (2009) 30 ILJ 2388 (LAC) at par 29- 31. See also Mulaudzi & Another v MEC, Infrastructure
Development and Property Management (Gauteng Provincial Government) (unreported) case number
JS56/2025 of 11 August 2026.
[25] Section 157(1) of the LRA provides that the Labour Court has exclusive
jurisdiction in respect of all matters that elsewhere in terms of the LRA, or in
terms of any other law , are to be determined by the Labour Court . In terms of
section 15 7(2), the Labour Court has concurrent jurisdiction with the High
Court in respect of any alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution and arising from, inter alia ,
employment and labour relations.
[26] Section 158 of the LRA sets out the powers of the Labour Court. The mere
fact that a body or forum has a certain legislative power does not mean it has
jurisdiction.5
[27] What is wrong, however, is that section 158 of the LRA cannot be read as
granting the Labour Court jurisdiction. In Merafong City Local Municipality v
SAMWU6 the Labour Appeal Court held in this regard that “a proper reading
of section 157 makes it clear that other provisions of the LRA are sources of
jurisdiction of the Labour Court and section 157(1) and section 158(1) of the
LRA list both specific remedial powers and provide a substantive jurisdictional
basis of that court.7
[28] Section 157 must accordingly be read with section 158 of the LRA (and for
that matter other relevant , applicable sections of the LRA or any other
employment law) in order to determine whether the court has jurisdiction in a
particular case.
[29] This brings us then to section 158. In terms of section 158(1) of the LRA, the
powers of the Labour Court include, among others, that the Labour Court may
make any appropriate order 8 including a declaratory order ,9 an order to make
a settlement agreement an order of the Court 10 and the power to deal with all
5 Merafong City Local Municipality v SAMWU [2016] 8 BLLR 758 (LAC).
6 [2016] 8 BLLR 758 (LAC).
7 See also O Thorpe Construction v Minister of Labour (2015) 36 ILJ 935 (WCC) where the High
7 See also O Thorpe Construction v Minister of Labour (2015) 36 ILJ 935 (WCC) where the High
Court held that the Labour Court had exclusive jurisdiction over a dispute relating to the Minister of
Labour’s failure to extend a bargaining council agreement to non- parties as contemplated in section
32(2) of the LRA.
8 Section 158(1)(a) of the LRA.
9 Section 158(1)(a)(iv) of the LRA.
10 Section 158(1)(c) of the LRA.
matters necessary or incidental to performing its functions in terms of this Act
or any other law.11
[30] Section 158 does not expressly include the power to set aside a settlement
agreement. However, in Western Platinum Ltd v Swart
12, this Court accepted
“that given the C ourt’s jurisdiction to make settlement agreements orders of
this Court, it has jurisdiction to deal with incidental matters, including a setting
aside of the agreement on any recognised ground”. This residual power was
recognised in Ulster v Standard Bank of South Africa.
13
[31] The Labour Court does not have the power to make every settlement
agreement an order of the Labour Court. F or purposes of section 158(1)(c) , a
settlement agreement is a written agreement in settlement of a dispute that a
party has the right to refer to arbitration or to the Labour Court. It expressly
excludes disputes contemplated in section 22(4), 74(4) and 75(7) of the
LRA.
14
[32] Consequently, the incidental power to set aside a settlement agreement is
also limited to such settlement agreements.
[33] In this case, the Employees referred a dispute regarding their alleged unfair
dismissal to the CCMA . As set out in more detail below, it was this dispute
that was settled in terms of the S ettlement Agreement. The Settlement
Agreement meets the requirements of section 158(1A): the dispute was one
which the Employees were entitled to refer to arbitration (the alleged unfair
dismissal claim), and it was reduced to writing and signed by representatives
of the applicant and the Employees respectively.
[34] In light of what is stated above, I am satisfied, for present purposes, that this
court has jurisdiction to determine this application and that it has the incidental
power to grant the relief sought.
The facts contained in the Answering Affidavit
11 Section 158(1)(j) of the LRA.
12 Case number J2195/14 [2016] ZALCJHB 454 (25 May 2016) (Western Platinum).
12 Case number J2195/14 [2016] ZALCJHB 454 (25 May 2016) (Western Platinum).
13 (2013) 34 ILJ 2343 (LC) (“Ulster”). See also Eckhard v Filrpo Industrial Filters (Pty) Ltd & Others
(1999) 20 ILJ 2043 LC).
14 Section 158(1A) of the LRA.
[35] The sixth respondent, Mr Kraai, deposed to the Answering Affidavit.
[36] The second, third , fourth, fifth, seventh, eighth and ninth respondents filed
confirmatory affidavits in support of the averments contained in the Answering
Affidavit insofar as they related to them.
[37] The Applicant took issue that Mr Kraai, the sixth respondent, did not file a
confirmatory affidavit. There is no merit in this contention, given that Mr Kraai
deposed to the Answering Affidavit.
[38] The first respondent, Mr Nkanyane , did not file a confirmatory affidavit. Other
supporting documents relating to the allegations pertaining to Mr Nkanyan e
were, however, attached to the answering affidavit.
[39] It is common cause that the fourth respondent, Ms Molebatsi, passed away on
28 February 2023.
[40] Ms Molebatsi’s confirmatory affidavit was signed on 7 August 2024. The
signature of the deponent to this affidavit is entirely different from copies of
the signature of Ms Molebatsi on documents the Applicant had in its
possession.
[41] The Applicant contends that this is highly irregular and, on the face of it,
fraudulent.
[42] In addition, the Applicant t akes issue with the fact that the confirmatory
affidavits were deposed to before a different commissioner of oaths than the
commissioner who commissioned the Answering Affidavit ; and that the
confirmatory affidavits were commissioned in Sandton whereas the Answering
Affidavit was commissioned in Johannesburg.
[43] The Applicant submits that the totality of the Answering Affidavit ought to be
disregarded and that the Applicant should be granted a punitive cost order for
the unnecessary legal costs incurred by the Applicant in replying to the
Answering Affidavit.
[44] The Justices of the Peace and Commissioners of Oaths Act 15 and the
Regulations Governing the Administering of an Oath or Affirmation 16 contain
the rules for commissioning an affidavit. Of relevance is Regulation 3(1) ,
which provides that the deponent must sign the declaration in the presence of
the commissioner of oaths. In terms of Regulation 4(1), the commissioner of
oaths must certify that the deponent has acknowledged that s/ he knows and
understands the contents of the declaration, and the commissioner must state
the manner, place and date of taking the declaration. As per R egulation 4(2),
the commissioner of oaths must sign the declaration and print her/ his full
name and business address below her/his signature; and state her/his
designation and the area for which s/ he holds the appointment or the office if
s/he holds this appointment ex officio.
[45] Confirmatory affidavits are self -standing affidavits. They do not need to be
commissioned before the same commissioner as the one before whom the
main affidavit is signed. However, being a self -standing affidavit, confirmatory
affidavits must comply with the procedural requirements set above.
[46] In the circumstances, there is no merit in the suggestion that the confirmatory
affidavits deposed to by the second, third, fifth, seventh, eighth and ninth
respondents are defective merely because they were commissioned before a
different commissioner than the commissioner who commissioned the
Answering Affidavit.
[47] As regards the confirmatory affidavit of Ms Molebatsi, counsel for the
Employees agreed that the Employees ought to have provided an explanation
of what had transpired with the signing of this affidavit . In the absence of a n
explanation, Ms Molebatsi’s confirmatory affidavit, which on the face of it is
signed by someone else, is no affidavit at all.
[48] The consequence is that any allegations or averments pertaining to her in the
Answering Affidavit are inadmissible hearsay evidence.
Answering Affidavit are inadmissible hearsay evidence.
15 Act 16 of 1963
16 GNR. 1258 of 12 July 1972
[49] I do not agree that the entire Answering Affidavit ought to be disregarded.
Rather, as was held in Swissbourgh Diamond Mines, (Pty) Ltd and Others v
Government of the Republic of South Africa and Others,17 a surgical approach
is what is required: only the inadmissible or prejudicial portions should be
struck out, not the affidavit as a whole, unless the affidavit is so
overwhelmingly defective that it prejudices the administration of justice.
[50] Likewise, in Mokoena-Masoeu v Nhlapho-Masoeu and Others
18 allegations in
the main affidavit that relied on defective confirmatory affidavits were treated
as unsupported and hearsay. The court did not discard the entire main
affidavit, only the material dependent on the defective confirmations.
[51] In the circumstances, any allegations and averments related to Ms Molebatsi
are disregarded, including, insofar as they are relevant, facts related to the
Settlement Agreement that was concluded on 2 November 2021.
The applicable legal principles for setting aside a settlement agreement that was
made an arbitration award
[52] Section 142A (1) of the LRA provides that the CCMA may make any
settlement agreement in respect of a dispute that has been referred to the
CCMA an arbitration award. This can be done by agreement between the
parties to the settlement agreement or on application by one of the parties.
[53] In terms of section 142A(2), a settlement agreement is a written agreement in
settlement of a dispute that a party has the right to refer to arbitration or the
Labour Court, excluding disputes contemplated in sections 74(4) or 75(7) of
the LRA.
[54] Section 143 of the LRA provides that an arbitration award is final and binding
and that it may be enforced as if it were an order of the Labour Court in
respect of which a writ has been issued, unless it is an advisory arbitration
award. Such enforcement of an award may only take place if the director of
17 [1998] JOL 4144 (T).
18 [2023] JOL 59478 (FB).
the CCMA has certified that the arbitration award is an award contemplated in
section 143(1).
[55] Section 142A of the LRA was introduced with effect from 1 August 2002.
[56] Before section 142A took effect, a party had to launch a separate court
process in order to enforce the terms of a settlement agreement. This was
obviously expensive and time- consuming. Section 142A cut out this process
by giving the settlement agreement the same legal status as an arbitration
award for enforcement purposes . Accordingly, once a settlement agreement
is made an arbitration award, it c an be enforced in terms of section 143 of the
LRA.
[57] Section 142A streamlines the enforcement of settlement agreements,
provided that the agreement is in writing and it is in settlement of a dispute
that a party has referred to arbitration or the Labour Court (excluding section
74(4) and 75(7) disputes).
[58] Section 142A does not prescribe the manner in which a party may seek to set
aside the settlement agreement or the consequent arbitration award. There
also appears to be conflicting judgments of this Court on this point.
[59] In Department of Health v Jones19 the Court held that a settlement agreement
that has been made an arbitration award in terms of section 142A obtains the
status of an arbitration award and can be enforced in terms of section 143, or
made an order of the Labour Court in terms of section 158 of the LRA . As
regards the setting aside of such a settlement agreement, the Court held as
follows:
“It would seem to me that there are at least two ways in which the original
settlement agreement that has now been made an arbitration award can be
set aside. To revert to its status of being an agreement, the plaintiff needed to
either apply for the rescission of the award in terms of section 144 or review it
in terms of section 145 of the Act . It therefore means that until such time that
the arbitration award was either rescinded in terms of section 144 or reviewed
the arbitration award was either rescinded in terms of section 144 or reviewed
19 [2009] 3 BLLR 195 (LC) at para 15.
and set aside in terms of section 145 of the Act, the court does not have
jurisdiction to set aside the settlement agreement that g ave rise to the
arbitration award.”
[60] The effect of Jones is a two -stage approach: the award must first be
rescinded or set aside in terms of section 144 or 145 so that it can revert to its
status of being an agreement , and only then will the court have jurisdiction to
consider the validity of the settlement agreement.
[61] Applying this approach, it is common cause that the Applicant did not apply
for the rescission of the award . The Applicant did bring a review application in
terms of section 145, but that application was struck off the roll. As explained
above, there is no section 145 application before me. In the circumstances,
the arbitration award has not been reviewed and set aside, which means that
this Court cannot consider the validity of the settlement agreement and th is
application ought to be dismissed on this basis.
[62] I am, however, not satisfied that this is the correct approach.
[63] In Department of Education v Shilowa
20 the court was asked to review the
commissioner’s refusal of an application for rescission of an arbitration award
made under the auspices of the Education Labour Relations Council . The
arbitration award in question came about by virtue of section 142A of the LRA.
In this case, the respondent, Mr Shilowa, had referred an unfair labour
practice dispute to the Council. Before the arbitration commenced, the parties
concluded a settlement agreement. This agreement was made an arbitration
award. In addition, Mr Shilowa instituted an application in the Labour Court to
have the same arbitration award made an order of court in terms of section
158(1)(c) of the LRA. The Department sought to rescind the award in terms of
section 144 of the LRA . This was while the section 158(1)(c) application was
still pending. In the circumstances, the commissioner ruled that the matter
still pending. In the circumstances, the commissioner ruled that the matter
was sub judice and that the Council did not have jurisdiction to preside over it.
The Department applied to have the commissioner’s ruling reviewed and set
aside.
20 [2023] JOL 60361 (LC) (Shilowa).
[64] Moshoana J held that the commissioner was correct that the Council did not
have jurisdiction to consider the application for rescission, but for a different
reason. It stated:
“[11] … There was no jurisdiction because the arbitration award sought to be
rescinded is in itself, effectively, is a consensual product. (sic) Parties settled
a dispute which they had the right to refer for arbitration and/or adjudication;
parties, in agreement, asked that the settlement agreement they reached
should be given another colour, which is that of an arbitration award. Put
differently, as allowed by the LRA, all what the Commissioner did was, in the
exercise of his discretion, paint the settlement agreement and adorn it with
arbitration award colours . This arbitration award is not the same as the one
contemplated in section 138(7) of the LRA.
[12] The one contemplated in section 138(7) is a sequel of arbitration
proceedings. … The arbitration award involved herein is not the product of
arbitration proceedings.”
[65] Whereas Jones suggests that the section 142A arbitration award could be
rescinded in terms of section 144, Shilowa takes the view that, once the
settlement agreement is made an arbitration award, the Council (or CCMA)
does not have jurisdiction to entertain such an application, because the
underlying ratio for the arbitration is the parties’ agreement.
[66] Unlike in the matter before this court , the court in Shilowa was not asked to
consider the validity of the underlying settlement agreement; only to review
the rescission ruling.
[67] In Ulster21 this Court did consider the validity of the underlying settlement
agreement. In this case, the employee entered into a settlement agreement
with the Bank, which was made an arbitration award in terms of section 142A.
She claimed that she concluded the agreement under duress and wanted to
have the agreement set aside. The Court, per the late Steenkamp J, noted
have the agreement set aside. The Court, per the late Steenkamp J, noted
that this Court has jurisdiction to review the award in terms of section 145 of
the LRA, but in any event, “this Court has a residual power to set aside
21 Ibid n 1.
settlement agreements in terms of section 158(1)(j) of the LRA on such
grounds as are acceptable in common law.”
[68] In my view, this is the correct approach.
[69] The underlying rationale for a section 142A arbitration award is the settlement
agreement. Section 142A does nothing more than to streamline the
enforcement of the agreement. Without the settlement agreement , there is
nothing to enforce. Accordingly, if a party seeks to escape a settlement
agreement that has been made an arbitration award in terms of section 142A ,
it should approach this Court in terms of section 158(1)(a)(iv) or section
158(1)(j) read with section 158(1)(c) of the LRA for an order that the
settlement agreement is set aside. The normal contractual principles will apply
in this regard.
[70] If the settlement agreement is not set aside, it remains of full force and effect,
and if it was made an arbitration award in terms of s ection142A, it can be
enforced in terms of section 143.
[71] If the settlement agreement is set aside, the section 142A arbitration award
becomes a nullity, because the underlying rationale for the award falls away.
As mentioned above, there is then nothing to enforce.
[72] I accordingly disagree with the approach in Jones that the arbitration award
must be set aside first before this Court would have jurisdiction to consider the
validity of the settlement agreement. The settlement agreement is what gives
rise to the section 142A award and what gives the section 142A award its
identity. Without the settlement agreement, the award is meaningless.
[73] I am not suggesting that there would never be a case where the award itself
would not be subject to review in terms of section 145 of the LRA, or to
rescission in terms of section 144 of the LRA . If a settlement agreement is
concluded and there is no agreement between the parties for it to be made an
arbitration award, and a commissioner does so of her/his own accord in the
arbitration award, and a commissioner does so of her/his own accord in the
absence of the other party ( and not on application by a party) , there may well
be grounds for the rescission of the award in terms of section 144. Likewise, if
the commissioner makes a settlement agreement a section 142A award
outside the parameters of section 142A, this could amount to misconduct or a
gross irregularity in the conduct of the proceedings which could justify the
review of the award in terms of section 145. This would have the effect that
the speedy enforcement mechanism of being an arbitration award is removed
– the settlement agreement itself will remain in force until it is set aside on
common law grounds.
[74] It would accordingly be expedient for a party who complains about the validity
of a settlement agreement to bring an application to have the agreement set
aside in terms of section 158(1)(a)(iv) , which makes provision for the making
of a declarator, or in terms of section 158(1)(j) read with 158(1)(c) , being the
court’s residual powers, as per Ulster.
[75] As mentioned above, the Applicant has applied for condonation. It is not
entirely clear what this court is required to condone. Be that as it may, neither
section 158(1)(a)(iv) nor section 158(1)(j) of the LRA requires such
applications to be brought within a prescribed time period. The only applicable
period would be prescription. ( I pause to note that, i nsofar as this case was
brought in terms of section 77(3) of the Basic Conditions of Employment Act,
this section also does not prescribe a time period and no application for
condonation would have been necessary. Section 77(3) does not , however,
appear to me to be the appropriate section to set aside an agreement in terms
of which a dismissal dispute is settled. Section 77(3) confers jurisdiction on
this Court to determine any matter concerning an employment contract,
irrespective of whether a basic condition of employment constitutes a term of
that contract. While a mutual termination agreement would conceivably be “a
matter concerning an employment contract” because it regulates its
termination, the same may potentially not apply to a settlement agreement in
termination, the same may potentially not apply to a settlement agreement in
terms of which a dismissal dispute is resolved . In such circumstances, the
court’s jurisdiction would be based on sections 158(1)(a)(iv) and 158(1)(j)
read with section 158(1)(c) of the LRA, as set out above. However, given the
approach I take in this matter, I do not need to decide this point.)
[76] In the circumstances, there is no need for condonation, and I do not need to
consider this aspect any further. What needs to be determined is the validity
or not of the Settlement Agreement dated 2 November 2021.
The events that led to the conclusion of the Settlement Agreement
[77] The COVID-19 pandemic hit South Africa in 2020. The declaration of the state
of disaster and the lockdown had a particularly negative effect on the
Applicant, as its business is dependent on tourists.
[78] On 4 May 2020, the employees of the Applicant were temporarily laid off. The
Applicant relied on the Temporary Employer/Employee Relief Scheme
(“TERS”) for the partial payment of its e mployees’ salaries during the lay-off.
By December 2020, the TERS benefits were no longer available.
[79] In February 2021, the Applicant provided its employees with a certificate of
service dated 10 February 2021. The certificate of service of the second
respondent, Ms Jose, is attached to the Answering Affidavit. It appears that
she signed for this certificate on 18 February 2021.
[80] The certificate of service states that Ms Jose “was in employment” “ until
31.01.2021”. The other Employees received similar certificates of service,
indicating that their employment terminated on 31 January 2021.
[81] The Applicant’s explanation is that this certificate formed part of a bundle of
documents that were provided to its e mployees by Mr Abrahams, the Human
Resource Manager of the Applicant , to enable the m to continue to obtain
benefits from the Unemployment Insurance Fund (“the UIF”).
[82] Mr Abrahams was apparently told by the Department of Employment and
Labour that the Applicant could complete the required UIF forms by utilising
either code 05 (contract expired), code 06 (resigned), code 14 (business
closed) or code 17 (reduced working time). The Applicant chose code 17 as
the “reason for termination” on the UI-19 form.
[83] The Applicant does not indicate who Mr Abrahams liaised with at the
[83] The Applicant does not indicate who Mr Abrahams liaised with at the
Department of Employment and Labour, or at which UIF office, when he
obtained the advice above. No emails between Mr Abrahams and
representatives of the UIF are attached to the papers.
[84] The bundle of documents referred to above included the certificate of service,
Form UI -19, Form UI -2.7 as well as a letter from the Applicant dated 18
January 2021. As mentioned above, the certificate of service indicated a
termination date of 31 January 2021. Form UI -19 indicated the termination
date as 31 January 2021 and “reduced working time” as the “reason for
termination”. Although Form UI -2.7 indicated that the contributor was
expected to resume full working hours on 1 May 2021, the Salary Schedule
Form attached to this form indicated the termination date as 31 January 2021.
[85] The letter from the Applicant dated 18 January 2021, which formed part of the
bundle that was provided to the Employees on about 18 February 2021,
confirmed that the Applicant believed that it was prudent to continue with the
implementation of temporary lay -offs until 30 April 2021 as a risk mitigation
measure to attempt to preserve funds as far as possible and to avoid
retrenchments. It also confirmed that a “temporary lay -off” meant that
employees would not be paid but that they remained employees of the
Applicant; that the Applicant was hoping that the amount of work would
increase and that the temporary lay -off might be replaced by “reduced work
time” where employees would be paid for work hours/days worked. As
regards UIF benefits, the Applicant undertook to assist the employees to
apply for UIF benefits during the lay-off period.
[86] Thus, by February 2021, the Applicant had provided its employees with two
conflicting messages: on the one hand it stated that the employees would be
on temporary lay -off and remain employees ; and on the other hand, it
provided the employees with a number of documents (and represented to the
UIF) indicating that their services had terminated on 31 January 2021. On the
UIF) indicating that their services had terminated on 31 January 2021. On the
Applicant’s version, this was to assist the employees to claim UIF benefits.
Notably, the TERS benefits were no longer available, and the benefits which
the Applicant assisted the employees to obtain could have been nothing other
than unemployment benefits.
[87] I pause to state that t he Applicant is very critical of the E mployees for
allegedly not taking the Court into their confidence, and attempting to mislead
the Court, by averring that they were dismissed on 31 January 2021 when
actually they remained employed; this in circumstances where the Applicant
itself misrepresented the date of dismissal in order to secure the payment of
unemployment benefits from the UIF.
[88] On 17 March 2021, the Applicant commenced a retrenchment consultation
process with all its employees at the time, including the E mployees. The letter
in terms of section 189(3) invited the employees to contact Mr Abrahams if
they required additional information. Mr Cassim was , however, tasked with
managing the retrenchment process. Following the first consultation meeting
on 17 March 2021, the Applicant halted the process, ostensibly to explore
alternatives.
[89] No alternatives were identified and the second retrenchment consultation
meeting took place on 19 October 2021. The Applicant makes the point that
the Employees were still receiving their UIF benefits by this date.
[90] During the consultation on 19 October 2021, Mr Cassim was informed that Mr
Nkanyane and 16 other employees had referred a dispute to the CCMA and
that conciliation was set down in November 2021.
[91] The Applicant contends that this was the first time it became aware of this
CCMA referral. Mr Cassim made inquiries with the CCMA . He was provided
with the notice of set down, but was not provided with the Form 7 -11 dispute
referral. The notice of set down is not attached to the papers.
[92] What happened after the first consultation meeting in March 2021 is that on
4 May 2021, the Employees referred an unfair dismissal claim to the CCMA
under case number GAJB8286- 21. In terms of the Form LRA 7.11, the
Employees contended that they were dismissed, that this was for “unknown
reasons” and that the dispute arose on 19 March 2021.
reasons” and that the dispute arose on 19 March 2021.
[93] The employees applied for the condonation of the late filing of their referral.
From Mr Nkanyane’s affidavit in support of condonation of the late filing of the
dispute, it seems that the Employees were advised by the Department of
Employment and Labour a few days prior to their dispute referral on 4 May
2021 that their employment had terminated. This was apparently based on the
certificate of service.
[94] Condonation was granted on 11 June 2021. In the condonation ruling, (not
surprisingly) the commissioner stated that the case was “somewhat
confusing”. This was because the Employees had contended on the one hand
that they were dismissed within the meaning of section 186(1)(a) of the LRA ,
while on the other hand that they were dismissed for reasons relating to
operational requirements. The commissioner held that there was not sufficient
information before the CCMA to make finding s in this regard. Importantly, the
commissioner ruled that the prejudice favoured the Employees because the
employer would still have its day in court to defend itself against the unfair
dismissal claim.
[95] On 22 October 2021, Mr Abrahams addressed a termination letter to each of
its employees in terms of which it was stated: “I regret to inform you that your
employment with the Company will be terminated on the 30
th of November
2021. Severance payments shall be made in accordance with the LRA, this
will be communicated with you soonest.”
[96] On 2 November 2021 the dispute referred under case number GAJB8286- 21
was set down for conciliation.
[97] Mr Cassim represented the Applicant at the conciliation during which the
Settlement Agreement was signed. The Applicant contends as follows:
1. The Commissioner did not want to consider any submissions made by
Mr Cassim regarding the retrenchment process.
2. The Commissioner unduly pressured him to settle with the Employees.
3. The Commissioner had intimated to Mr Cassim that the retrenchment
process was flawed and that each of the Employees may be awarded
compensation equal to twelve months’ salary.
4. Mr Cassim panicked . He was fearful that he might have made a
mistake in the retrenchment process and that he was the cause of why
each of the Employees might be awarded twelve months’
compensation.
5. He was under enormous stress and nearly suffered a nervous
breakdown.
6. He offered payment of two months’ remuneration per E mployee. The
Commissioner rejected this. He increased the offer to three months’
remuneration per Employee. Again, the Commissioner rejected this.
7. The Commissioner indicated that if the Applicant did not settle for six
months’ remuneration per Employee, the arbitration would commence
immediately.
8. He accordingly signed the Settlement Agreement.
[98] The Applicant contends that Mr Cassim had no mandate to settle the dispute
on the terms he did, and that he knew this . Mr Cassim accordingly did not
disclose to the management of the Applicant that he had settled the dispute
on the basis of payment of six months’ remuneration per Employee. The
Applicant’s management also did not follow up with Mr Cassim after the
conciliation as to what had transpired.
[99] The Employees’ version of the events at conciliation is that:
1. Mr Cassim was the only manager of the Applicant the Employees had
had dealings with . He was in charge of the Applicant’s Johannesburg
business branch.
2. Mr Cassim was constantly taking instructions by phone during the
conciliation.
3. The Applicant does not state that Mr Cassim did not have a mandate at
all. All it does is state that Mr Cassim did not have the mandate to
settle at six months.
After 2 November 2021
[100] The Applicant did not perform in terms of the Settlement Agreement.
[101] Other employees, including one Mr Mb ema, signed a retrenchment
agreement on 16 November 2021. The Applicant explains that Mr Mbema
was initially one of seventeen employees (including the Employees) who had
referred the dispute to the CCMA . Mr Mbena and seven other employees
withdrew their case after Mr Cassim explained to them that the retrenchment
process had now been finalised; that their employment would terminate on 30
November 2021 and that their severance packages were being prepared .
These employees were subsequently paid.
[102] The Employees were not given similar retrenchment agreements nor were
they paid their severance packages as a consequence of their retrenchments .
The Applicant states that this was because the Applicant had thought that the
CCMA dispute set down for 2 November 2021 related to the retrenchment
process and that this dispute would be addressed at the conciliation on 2
November 2021. The Applicant states further that if not for the unfair dismissal
referral and the Applicant’s assumption that the dispute related to the
retrenchment process , it would have prepared retrenchment agreements for
the Employees as well.
[103] This explanation is troubling. All the employees had received the letter
terminating their employment on 22 October 2021. They were told that they
would be paid their severance pay as soon as possible . The retrenchment
agreements were dated 16 November 2021, two weeks after the conciliation
took place on 2 November 2021. By this stage, Mr Cassim was well aware
that he had concluded a settlement agreement with the Employees. There
was accordingly no need to conclude a retrenchment agreement for them as
well.
[104] On 6 April 2022, the Sheriff attended at the premises of the Applicant’s branch
at Emperor’s Palace. The Applicant was served with a notice of attachment.
[105] Again, Mr Cassim did not immediately inform the Applicant’s management of
[105] Again, Mr Cassim did not immediately inform the Applicant’s management of
the notice of attachment. He only did so on 26 April 2022 when he informed
them that he concluded the Settlement Agreement on 2 November 2022.
[106] The Applicant thereupon, on 2 June 2022, institute d an application for the
review of the arbitration award, the S ettlement Agreement having been made
an award in terms of section 142A by consent, under case number JR260-
2022.
[107] On 29 June 2022, the Sheriff removed a Hyundai motor vehicle in execution
of the award.
[108] On 20 July 2022, the Sheriff informed the Applicant that the vehicle would be
sold for R60,000.
[109] In order to stay the sale in execution of the vehicle, the Applicant paid the
Sheriff the amount of R61,473.17. When the Applicant’s driver went to the
Sheriff’s premises to obtain the vehicle, the Sheriff informed the Applicant that
there was a new attachment order . The vehicle was accordingly released but
reattached as per the new attachment request.
[110] It subsequently transpired that the Sheriff distributed the amount of
R50,427.07 to the First Respondent, Mr Nkanyane, on 26 July 2022.
[111] The Applicant thereupon approached the Labour Court under case number
J1044/22 and on 30 August 2022 obtained an urgent stay of the enforcement
of the award pending the finalisation of the review application.
[112] These facts are relevant insofar as the Employees allege that the Applicant
“partially performed” under the Settlement Agreement in that Mr Nkanyane
was paid his settlement amount, and therefore that the S ettlement Agreement
ought not to be set aside. Counsel for the Employees has confirmed that,
insofar as the S ettlement Agreement is not set aside, Mr Nkanyane has been
paid and the Applicant will not be required to pay him his settlement amount.
[113] The review application was struck off the roll for want of jurisdiction on
24 April 2024.
[114] For completeness, o n 17 May 2024 , the Employees’ attorneys of record
instructed the Sheriff Cape Town East to attach the Applicant’s assets . On
23 May 2024, the Sheriff attached property of the Applicant . It was, however,
agreed between the parties that the Employees’ attorneys would instruct the
Sheriff to halt further steps in the execution of the award. The Applicant
further undertook to finalise and pay the severance packages to the
Employees.
Principles for declaring a settlement agreement void ab initio alternatively setting
aside a settlement agreement
[115] There is a strong public interest in upholding settlement agreements . W ith
reference to the Labour Appeal Court’s decision in GB Engineering (Pty) Ltd v
Mbongo & O thers,22 this Court, in Sizakancane Business Enterprises cc v
CCMA and O thers,23 emphasised that parties who settle disputes “seriously
and willingly” should not lightly be released from such undertakings. Likewise,
in Buthelezi v Liberty Group Ltd 24, the Labour Court confirmed that, as a
general rule, a person is bound by the terms of a signed agreement, even if
they later regret it, and that a party seeking to escape such an agreement
bears the onus of proving that it is not binding.
[116] Normal contractual principles apply pertaining to declaring a settlement
agreement void ab initio, alternatively setting aside a settlement agreement.
[117] Where a party is unduly influenced into concluding an agreement, or induced
into doing so by misrepresentation, the agreement is voidable rather than void
ab initio. Such an agreement remains in effect until it is set aside.
25
[118] An agreement is void ab initio if it does not satisfy all the requirements of a
valid contract and is therefore unenforceable. In Pillay v MPC Managed
Solutions (Pty) Ltd 26 this Court held that this would be the case where the
terms of the contract are illegal. Similarly, where a party is placed under
duress to the extent that it destroyed true consent, the contract may be void
ab initio.
22 [2023] ZALAC 29; [2024] 1 BLLR 14 (LAC); (2024) 45 ILJ 267 (LAC).
23 Case number JR542/23 of 18 March 2025 (“Sizakancane”).
24 [2011] JOL 27902 (LC) (“Buthelezi”).
24 [2011] JOL 27902 (LC) (“Buthelezi”).
25 Pillay v MPC Managed Solutions (Pty) Ltd [2025] JOL 74704 (LC) (“Pillay”) at para 10
26 [2025] JOL 74704 (LC) (“Pillay”) at para 10.
[119] This might be the case where the party concluding the agreement was
subjected to an “unlawful threat, physical force or imminent harm , which
caused them to be afraid”. 27 The Labour Appeal Court expressed the test in
this regard that actual violence or reasonable fear must be shown. This fear
must be caused by the threat of some considerable evil to the person
concerned, or to her/his family. The threat must be unlawful or contra bonos
mores and the moral pressure used must have caused damage.28
[120] “Hard bargaining is not the equivalent of duress, and that is so even where
the bargain is the product of an imbalance in bargaining power ”.29 Something
more is accordingly required for economic bargaining to be “illegitimate or
unconscionable and thus to constitute duress”.30
[121] In Shange & Another v U nico Tec (Pty) Ltd 31 emphasised that the threat
giving rise to duress must be imminent and inevitable. Insofar as the threat is
one of financial or economic pressure, the court referred to Medscheme
Holdings (Pty) Ltd & Another v Bhamjee
32 in which the Supreme Court of
Appeal confirmed that this principle is yet to be accepted into our law. Here
the Supreme Court of Appeal held that “economic ruin” could, in appropriate
cases, be recognised as constituting duress, but cautioned that such cases
would be rare.
[122] In Sizakancane, the applicant arrived at the con- arb prepared for arbitration
and resolute not to settle. Despite this, the applicant and the employee
concluded a settlement agreement which required the applicant to pay the
employee an amount of R37,500 in five instalments. The applicant sought to
have the settlement agreement set aside because the commissioner allegedly
informed the applicant that if the arbitration proceeded, it could end up paying
about R300,000 for legal costs and the matter could take years to finalise.
The applicant contended that in doing so, the commissioner abused his
27 Sizakancane at para 6.
27 Sizakancane at para 6.
28 Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd & Another [2016] JOL 36085 (LAC)
(“Gbenga-Oluwatoye”).
29 Medscheme Holdings (Pty) Ltd & another v Bhamjee 2005 (5) SA 339 (SCA) (“ Bhamjee”) at para
18.
30 Ibid.
31 [2024] JOL 64742 (LC) (“Shange”)
32 Bhamjee at para 18
position of authority , was biased against the applicant , and the applicant
accordingly concluded the agreement against its will.
[123] In dismissing the application, this Court held that “it is trite that effective
mediation or conciliation requires the commissioner to address the potential
consequences of failing”. 33 Likewise, in Lahee Construction v Nkomo &
Others34 this Court held that by no stretch of the imagination could the
conduct of a commissioner amount to duress or undue influence where the
commissioner informed a party of the consequences of failed negotiations.
[124] The Court in Sizakancane further took into account that the settlement
agreement was concluded by the owner of the business in the presence of the
HR manager. This was therefore not a case of an “innocent, impressionable,
uneducated or naïve individual having been induced into a settlement”. 35
Rather, it was a case where the applicant accepted the advice of the
commissioner, entered into the settlement and then regretted doing so. 36 This
was not a basis to set aside the agreement.
[125] Likewise, in Ulster , the application for the setting aside of the settlement
agreement was dismissed. The court took into account that Ms Ulster “ is an
experienced and informed woman , wise to the world of business and
contracts. … She could have rejected the Bank’s counter -proposal at any
stage and insisted on proceeding with the arbitration. She could have asked
to consult with her legal representatives again before saying “OK” and
subsequently signing the agreement. And even if she were unhappy with her
representative, she could have taken it up with her trade union and asked for
a postponement; she did not do so.”
37
[126] Turning to the facts of this matter , the Applicant contends that the Eleventh
Respondent (“the Commissioner”) unduly pressured Mr Cassim to settle with
the Employees. This pressure consisted in the Commissioner indicating that
the Employees. This pressure consisted in the Commissioner indicating that
the arbitration would proceed immediately and that the Employees “may” be
33 Sizakancane n 10 at para 6.
34 Case number J2178/13 dated 12 April 2016 (“Lahee Construction”) at para 29.
35 Sizakancane n 10 at para 10.
36 Ibid at para 11.
37 Ulster n 1 at para 13. See also Lahee Construction at para 30.
awarded twelve months’ remuneration as compensation . Mr Cassim further
thought that he had done something wrong in relation to the retrenchment
process and that he was the reason why the Applicant may be ordered to pay
the Employees an amount equal to twelve months’ remuneration as
compensation.
[127] I deal first with Mr Cassim’s confusion regarding the nature of the dispute that
was being conciliated. As mentioned above, i t is alleged that he had thought
that the dispute related to the retrenchment process that was under way at the
time. The Applicant contends that it obtained the dispute referral form for the
first time when the file was uplifted for purposes of instituting the section 145
review application. It is extraordinary that a business manager would attend a
legal process at the CCMA, sign a settlement agreement under a particular
case number and not know what dispute he was settling. At the very least, Mr
Cassim should have asked for the dispute referral form while at the CCMA in
order to satisfy himself of the nature of the dispute that was being conciliated.
This is particularly so because Mr Cassim was told on 18 October 2021 that a
dismissal dispute was set down for conciliation in November 2021, well before
Mr Cassim issued the letter of termination to the Applicant’s employees on
22 October 2021. In the circumstances, Mr Cassim could not reasonably have
thought that the dispute being conciliated on 2 November 2021 was the
retrenchment process that was under way at the time. Insofar as Mr Cassim
failed to satisfy himself regarding these facts and nevertheless concluded the
Settlement Agreement, he did that at his (and the Applicant’s) peril.
[128] There is nothing untoward for a commissioner during conciliation to put the
risks of proceeding with the litigation process to the respective parties. On the
Applicant’s own version, the Commissioner indicated that the Employees
“may” be awarded twelve months’ remuneration. This is the legal position in
“may” be awarded twelve months’ remuneration. This is the legal position in
the case of an unfair dismissal.
[129] Was this potential risk “imminent”? The Applicant contends in the Founding
Affidavit that the matter was set down for “ conciliation” on 2 November 2021.
During argument, counsel for the Applicant suggested that it was set down for
“con-arb”. As mentioned above, the notice of set down is not before me.
[130] If the matter was set down for conciliation only, then the arbitration could not
have proceeded to arbitration immediately after conciliation, and there would
have been no possibility of an arbitration award being made immediately on
2 November 2021 if no settlement agreement was concluded. Then the
dispute would have been set down for arbitration at a later date , and the
Applicant would have had the opportunity to present all the relevant facts and
evidence before an award would be made.
[131] If the matter was set down for con- arb then one would have expected that the
Applicant would come prepared. This means that all the witnesses necessary
to explain the Applicant’s version would have been present in order for the
Applicant to present its case . One of these witnesses was Mr Abrahams, who
was the one who issued the certificates of service and the letter dated
18 January 2021 to the Employees, and whose name appear ed on the
section 189(3) letter as the one who could be contacted by the Employees.
[132] If the matter was set down for con- arb and the Applicant was not prepared to
proceed with the arbitration, Mr Cassim could have applied for a
postponement in order to ensure that all the relevant evidence was placed
before the arbitrating commissioner before a finding was made. There was
accordingly not an immediate or imminent threat.
[133] Even if there was, there was no risk of violence or some considerable evil to
the person or family of Mr Cassim. Nor was the risk unlawful or contra bonos
mores. The risk was one of economic pressure. There is no evidence that
suggests that there was a risk of financial ruin , which is what the SCA held in
Bhamjee could potentially amount to duress. There could not have been a risk
of financial ruin, given that the Applicant is still in business and is pursuing this
application.
[134] Another factor weighing against the argument that Mr Cassim was “unduly
application.
[134] Another factor weighing against the argument that Mr Cassim was “unduly
pressured” is that he actively took part in the negotiations . He offered two
months’ remuneration per Employee. When that offer was rejected, he offered
three months’ remuneration per Employee. Ultimately, the settlement at six
months’ remuneration per Employee was concluded.
[135] The Settlement Agreement contains the Rand amounts which differ per
Employee. Surely this required verification and confirmation by Mr Cassim
that these numbers were correct. Mr Cassim accordingly actively participated
in crafting the Settlement Agreement.
[136] It must therefore be accepted that it is not a case where Mr Cassim did not
have a mandate to settle at all. Rather, he negotiated and concluded an
agreement at an amount higher than what the Applicant had hoped to pay.
[137] Mr Cassim contends that he “panicked” and hence concluded the agreement.
This is, however, not a basis to conclude that he was “unduly pressured” or
placed under duress that would cause the agreement to be declared void ab
initio or set aside.
[138] In the words of this Court in Ulster , Mr Cassim entered into the agreement
with open eyes, fully aware of its consequences. This is why he kept it hidden
from the Applicant. He knew that he had concluded a valid and enforceable
agreement.
[139] In the circumstances, there is no basis for the Settlement Agreement to be
declared void ab initio or set aside and the Applicant is bound by the
agreement.
Arbitration award
[140] The settlement agreement remains in force.
[141] Being the underlying rationale for the section 142A arbitration award, the
Settlement Agreement remains an arbitration award which can be enforced in
terms of section 143 of the LRA.
Partial performance
[142] As set out above, it is common cause that Mr Nkanyane has received his
settlement amount, albeit through the Sheriff.
[143] As regards Ms Molebatsi, all facts pertaining to her are struck out, including
the facts pertaining to the Settlement Agreement insofar as she is concerned.
Costs
[144] The Settlement Agreement entitles a party to costs, but only insofar as they
relate to proceedings to enforce the award.
[145] This application is an application to have the Settlement Agreement declared
void ab initio, alternatively set aside. It was necessitated by a considerable
amount of confusion. Some of this confusion was of the Applicant’s own
doing, such as the misrepresentation pertaining to the Employees’ termination
date as 1 January 2021, however well -intended. There was furthermore the
issue of the initial section 145 review application, which was struck off the roll.
[146] At the same time, the Employees filed a confirmatory affidavit signed by
someone other than the Employee to whom it related, with no explanation of
how this came about.
[147] In the circumstances, I do not believe that this is a case that warrants a cost s
order.
[148] In the results, the following order is made:
Order
1. The application is dismissed.
2. The Settlement Agreement remains enforceable as an arbitration award in
respect of each of the respective Employees, except in respect of Mr
Nkanyane, who has received his settlement amount, and except in
respect of Ms Molebatsi’s estate.
3. There is no order as to costs.
______________________
T. Laubscher
Acting Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant: U. Mlamleli, instructed by Rwasabisi Attorneys
For the Respondent: T. Malungani, instructed by Mphatlalazana Attorneys