Lahee Construction CC v Nkomo and Others (J2178/13) [2016] ZALCJHB 150 (12 April 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J2178/13

In the matter between:

LAHEE

CONSTRUCTION CC Applicant And

THANDO NKOMO First Respondent

COMMISSIONER JOYCE

NKOPANE Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Third Respondent

Heard: 4 February 2016

Delivered: 12 April 2016

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] This is an application to set aside a settlement agreement concluded under the auspices of the CCMA. The settlement agreement between the Applicant and the First Respondent (Nkomo) was facilitated by the Second Respondent (Commissioner). The application before the court is rare in that it is not always that it is the employer (the Applicant in this case) that seeks to set aside a settlement agreement entered into with an ex-employee.

[2] The Applicant seeks to have the said settlement agreement declared void or alternatively for it to be reviewed and set aside on a variety of grounds that will be set out shortly. Nkomo opposed the application. The Commissioner, who was accused of improper conduct also submitted an ‘Explanatory Affidavit’ in regards to the events leading to the conclusion of that agreement.

[3] This application was brought before the court in terms of section 158 (1) (a) (iv) of the Labour Relations Act[1] (the LRA). It can also be accepted that ordinarily and by virtue of the provisions of section 145 of the LRA, this Court has jurisdiction

to review a settlement agreement that has been made an award in terms of section 142A (1) of the LRA. Furthermore, this Court has a residual power to set aside settlement agreements in terms of s 158(1)(j) of the LRA on such grounds as are permissible in common

law.[2]

Background:

[4] Nkomo is an erstwhile employee of the Applicant. Pursuant to the termination of his contract of service on 11 September 2012, he

referred an unfair dismissal dispute to the CCMA. No conciliation could take place as a result of Applicant’s absence at those proceedings, and the matter was referred to arbitration.

[5] There is a dispute between the parties as to what occurred at the arbitration proceedings leading to the conclusion of the agreement.

What is however common cause is that the arbitration proceedings did not take place, as a settlement agreement was ultimately entered into between Nkomo and the Applicant. In concluding the agreement, the Applicant was represented by its Office Assistant, Aisha Yamba Ogoula and Petite Gwarada, its Administrative Manager.

[6] In terms of the settlement agreement, the Applicant was to pay Nkomo an amount of R167 800.00 in four equal instalments. The settlement agreement further provided that the amount was inclusive of all statutory payments due to Nkomo.

[7] A number of allegations have been levelled against of the conduct of the Commissioner insofar as the facilitation of the settlement

agreement was concerned. The founding affidavit was deposed to by the Applicant’s Director, Mr. Lahee. Both Ogoula and Gwaranda filed confirmatory affidavits. This had resulted in the Commissioner filing a detailed explanatory affidavit, wherein she essentially disputed the allegations levelled against her and explained the events which led to the conclusion of the agreement.

The Applicant’s case and submissions:

[8] The validity of the settlement agreement is attacked on four main grounds, viz misrepresentation by Nkomo; enrichment; irregular

proceedings and duress. Essentially, it is alleged that in performing her functions in terms of the LRA, the Commissioner exceeded her powers by inter alia determining the amount of the settlement. Secondly, it is alleged in the founding affidavit that the Commissioner instructed Nkomo to sign a document under the guise that it served as proof that they attended the proceedings. Further averments made by the Applicant were as follows;

8.1 The Applicant’s understanding was that an agreement was to be reached to settle the matter on the basis of payment to Nkomo in the amount of R63 000.00 being the equivalent of two months’ remuneration.

8.2 The Commissioner had however on her own proceeded to do calculations for the payment of leave pay which she was informed by Nkomo was owed him.

8.3 The leave pay allegedly owed was added to the settlement resulting in the final amount reflected in the settlement agreement. The Applicant contends that the leave pay should not have been considered in that Nkomo misrepresented that 62 days’ leave was due to him whilst according to the employer’s records, it was Nkomo that actually owed it money in respect of leave taken after his allotted leave was exhausted. Nkomo would thus be unduly enriched if he was paid the money in respect of the leave pay as he was not entitled to it.

8.4 The Commissioner placed undue pressure on the Applicant’s representatives, induced fear in them and thereby causing them to

enter into the settlement agreement without explaining the processes to the parties.

8.5 The Commissioner misrepresented the nature and the purpose of the settlement agreement by telling the Applicant’s representatives

that they were signing a document (settlement agreement) as proof that they had attended the proceedings.

8.6 The arbitration hearing was irregular because the Applicant did not receive a notice of set down.

[9] Based on the above allegations, the Applicant was of the view that the Commissioner committed misconduct, gross irregularities and acted ultra vires, rendering the settlement agreement and the proceedings as a whole, subject to being reviewed and set aside.

The Explanation proffered by the Commissioner:

[10] The Commissioner does not oppose the application but had merely submitted an affidavit to “set the record straight” and to explain the process that she had followed leading to the conclusion of the Settlement Agreement[3]. In this regard, the Commissioner averred the following;

10.1 She confirmed having arrived late at the proceedings as she had attended to a personal matter earlier in the day. In the light of her being delayed, she had called and asked the interpreter assigned to the matter to advise the parties accordingly. Upon her arrival at the proceedings, the parties were already discussing settlement of the matter.

10.2 She had asked the parties whether there were any prospects of resolving the dispute and had explained that although the matter was set down for arbitration, the parties were at liberty to revert to conciliation.

10.3 Having explained the process in full, the representatives had also indicated their willingness to negotiate a settlement. One of the Applicant’s representatives had also indicated that they had a particular mandate, and pointed out that the Applicant was struggling financially.

10.4 As the parties attempted to resolve the matter, the Commissioner had in view of a stalemate asked the representatives to make a call the Applicant to see if they could not get a fresh mandate. One of the representatives had left the hearing room to make a telephone call. She came back with an improved offer which Nkomo was willing to accept, provided that all his outstanding monies were paid.

10.5 The parties had agreed on a settlement (two months’ pay). Nkomo was however adamant that he also wanted the money due to him in in respect of outstanding leave pay, failing which the dispute should be arbitrated.

10.6 Initially, the Applicant and its representatives were averse to Nkomo’s counter-proposals, but the representatives reconsidered their position when the decision was made to proceed with arbitration.

10.7 Prior to the commencement of arbitration proceedings, one of the Applicant’s representatives again made a call to the company,

the outcome of which was that if statutory monies were owed to Nkomo, then they would be paid.

10.8 Attempts were thereafter made to calculate the leave pay owed to Nkomo, but Applicant’s representatives appeared to do the calculations in an incorrect manner. The Commissioner then explained to the parties how to calculate outstanding leave pay in terms of the Basic Conditions of Employment Act, which was duly done and the settlement agreement was completed.

10.9 The Commissioner disputed that the representatives did not understand what they were signing or the impact thereof. She described as disingenuous on the part of the Applicant’s representatives that they had signed the document because they believed that they signed a document as confirmation that they had attended the proceedings. This was so as they had already signed the attendance

register earlier.

10.10 The Commissioner further pointed out that the representatives were highly proficient in English and were aware of what was going on. The Commissioner further denied having placed the representatives under pressure and pointed out that she had allowed them to call the employer during the course of negotiations. She further highlighted that the instalment payments to be made were as a result of their requests for this due to Applicant’s financial situation.

10.11 The Commissioner denied that there is any merit in the present application and submitted that the Applicant intended to mislead the Court.

Nkomo’s submissions and application for condonation:

[11] The Applicant’s application was filed on 1 October 2013. The Notices in terms of Rule 7A (8) and Rule 7A (6) were served on Nkomo on or about 30 October 2013. He had filed his notice of opposition on 11 December 2013. On 28 March 2014 he had then filed his answering affidavit in which he also sought condonation for its late filing.

[12] The issue of condonation was not addressed by the parties during the hearing of this matter. Be that as it may, in seeking condonation,

Nkomo averred that he did not receive the Applicant’s Notice in terms of Rule 7A (8) as he was no longer staying at his previous

residence since he had relocated to Zimbabwe, which fact the Applicant was aware of. He only came to be aware of the review application when the Applicant served it together with the application to stay execution of the writ he had obtained. He came to back to South Africa on or about 26 November 2013 and had approached his attorneys of record for assistance.

[13] According to Nkomo, the delay was further occasioned by the failure of the Applicant to file a record. Correspondence was sent to the Applicant’s attorneys of record in that regard, and a copy was then received by Nkomo’s attorneys on 22 January 2014. As Nkomo went back to Zimbabwe and further due to inability to communicate with his attorneys, he was only able to do so on 28 February 2014, and came back to South Africa on 7 March 2014 for consultations with his attorneys, and thereafter the answering affidavit was filed.

[14] I have had regard to the principles applicable to applications for condonations as enunciated in Melane v Santam Insurance Co. Ltd[4], and I am of the view that a delay of 22 days in filing the answering affidavit is not excessive in the extreme. Even if the delay is five months as alleged by the Applicant, which delay is prima facie excessive, having had regard to other considerations, I am of the view that the delay should nevertheless be condoned. I am satisfied

with the explanation proffered by Nkomo for the delay. I am further of the view that Nkomo has reasonable prospects of success in the main case, and he stands to suffer extreme prejudice should condonation not be granted. In the end, I am of the view that good cause has been shown, and considerations of the interests of justice[5] dictate that condonation ought to be granted.

[15] Nkomo’s response to the Applicant’s main allegations was as follows;

15.1 He was employed from 14 May 2009 until 18 February 2013 (with a three-month break towards the end of 2012) as a Site Electrician.

During his employment there were a number of times when he was deployed to projects including ones overseas where he worked continuously for a certain period and then would be off for a certain time, which time was not considered leave.

15.2 During his employment, he did not apply for or take any leave whatsoever and the 62.5 days leave as reflected in his October 2012 payslip was correct.

15.3 Upon attending at the CCMA, the interpreter had advised the parties that the Commissioner was running late but suggested that in the meantime the parties should discuss settlement of the dispute which they duly did.

15.4 His version of events leading to the settlement agreement is essentially the same as that proffered by the Commissioner in relation to the settlement negotiations. He disputed that the Applicant was unaware of the proceedings and submitted that its representatives were fully aware of the matter and arrived with a mandate for a settlement of the dispute.

15.5 Nkomo contended that the Applicant’s version that its representatives did not know what they were signing and further that they had signed the settlement agreement under duress placed on them by the Commissioner was mutually destructive and ought to be rejected.

Evaluation:

[16] A standard CCMA ‘Settlement Agreement’ was completed in concluding the agreement between the parties. In terms of the

agreement dated 29 August 2013, Nkomo was to be paid an amount of R167 800.00 in four equal instalments commencing from 19 September

2013 until 15 December 2013. The total amount was also recorded as having included leave pay due to Nkomo. In accordance with the

agreement, the parties acknowledged that it was read to them and interpreted where necessary and that they understood the contents

thereof. Crucially, the agreement was in full and final settlement of the dispute referred to the CCMA as well as in full settlement of all statutory payment due to Nkomo, and the parties further consented to the agreement being made an arbitration award in terms of section 142A (1) of the LRA.

[17] In his written heads of argument, Nkomo pointed out that the Applicant’s application in seeking the settlement agreement to be declared void and invalid came about in an impractical manner. It was pointed out that the review of the agreement came about as an alternative without the filing of a supplementary affidavit. Furthermore, it was pointed out that Mr. Lahee’ who had deposed to the founding affidavit was not part of the arbitration proceedings and thus the facts averred were not within his personal knowledge.

[18] One of the difficulties that emanate from bringing an application in the manner that the Applicant did is where material dispute of facts arise. In such cases, and where such material facts of dispute should have been anticipated, the Court in Bay Projects 10 CC v Masingita Auto Body and Another [6] held that:

‘The appellant sought a final order for the payment by way of motion proceedings. In this regard there are two principles that are

relevant. Firstly, it is trite that motion proceedings are not appropriate for resolution of material disputes of facts. Should a factual dispute arise which is incapable of being resolved in the papers there is a risk of dismissal of the application should the court, in the exercise of its discretion, not refer the matter for trial nor direct that oral evidence be heard on specified issues. A court will exercise a discretion to dismiss the application if the applicant ought to have foreseen, or in fact did foresee, when launching his application, that a serious dispute of fact, incapable of resolution on the papers was bound to develop. (Footnotes

omitted).”[7]

[19] To the extent that these material dispute of fact have arisen from the papers, which the Applicant ought to have foreseen, but had

nevertheless chosen not to implore the Court to refer for oral evidence, I am in agreement with Nkomo’s submissions that in the light of Applicant’s approach to this application, and in particular, to the extent that the relief that the Applicant seeks is in the nature of a final order, these disputes ought to be determined in accordance with the well-known principles laid down in Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Limited[8].

[20] In accordance with the above principles, where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, is far-fetched or is so clearly untenable that the court would be justified in rejecting them merely on the papers[9].

[21] In this case, Mr. Lahee deposed to the founding affidavit when it was clear that the facts averred were not within his personal knowledge. He nevertheless insisted in his replying affidavit that the facts were within his persona knowledge. Two confirmatory affidavits were filed by the Applicant’s representatives who were present at the arbitration proceedings. Both Nkomo and the Commissioner had filed an answering and explanatory affidavits, and to a large extent, the two corroborate each other’s versions.

[22] It is trite that a party that seeks to avoid the application and enforcement of a settlement agreement (which constitutes a contract)

allegedly entered into involuntarily by reason of undue influence bears the onus of proving on a preponderance of probabilities, that it did not enter into the agreement voluntarily[10]. I have had regard to the contents and averments made in the founding affidavit with its accompanying confirmatory affidavits, together

with the replying affidavit. I have also had careful consideration of the answering affidavit of Nkomo and the explanatory affidavit as filed by the Commissioner. There is nothing in the last two sets of affidavits that can be construed as consisting of bald or

uncreditworthy denials, or that raises fictitious disputes of fact, or that is palpably implausible, or far-fetched or so clearly

untenable that would justify this court to reject them merely on the papers.

[23] To the extent that the Applicant chose to bring this application by way of motion proceedings notwithstanding the foreseen disputed facts, and further to the extent that the Applicant did not deem it necessary to respond in any manner to the contents of the Commissioner’s explanatory affidavit, the averments made by the latter must be taken to have been admitted. On the Plascon-Evans Paints principles, I must accept Nkomo’s and the Commissioner’s versions of what transpired when the settlement agreement was concluded insofar as those versions corroborate each other and conflicts with that of the Applicant. My conclusions in this regard are further fortified by the following considerations;

[24] The principal attack in the founding affidavit is mainly directed at the conduct of the Commissioner. The latter, who is also an attorney, had in detail, refuted all allegations of impropriety as contained in the founding affidavit. She had pointed out that having perused the CCMA file, she was satisfied that the Applicant was properly notified of the hearing in view of a copy of the notice of set-down, and further that since its representatives did not indicate to her that they were not ready to proceed.

[25] Having explained the purpose of that day’s proceedings, and further having been informed upon her arrival that the parties were engaged in settlement discussions, the Commissioner had facilitated same with the consent of the parties. I am satisfied on her averments, that in facilitating the settlement agreement, the Commissioner advised the parties of their rights in respect of all matters raised in such discussions, and afforded them an opportunity to call the employer to seek a further mandate. It is inconceivable that a Senior Commissioner and an attorney would purposefully wrongly advise and mislead parties in the course of settlement discussions, misrepresent the law, determine a settlement amount and/or advise an employee to refer an unfair dismissal dispute to this Court when the matter was ripe for arbitration. The Applicant’s contentions in this regard are indeed far-fetched.

[26] Even more far-fetched is the allegation that the representatives, whom it was never alleged were either illiterate or unsophisticated, were presented with a copy of the settlement agreement and informed to sign as it was merely a recordal of their attendance at the proceedings. This implies that the Commissioner had deliberately misrepresented to the Applicant’s representatives the true state of affairs pertaining to the settlement agreement. It is trite that for an applicant to succeed with a claim or plea of misrepresentation, she must show that she was induced to enter into the settlement agreement by virtue of a misrepresentation of fact; that the misrepresentation was material and false; that it was intended to induce her to enter into the contract, and that the misrepresentation had succeeded in doing so[11]. The Court in Novick and Another v Comair Holdings Limited and Others[12], had added a further requirement, which was to the effect that it had to be shown that the misrepresentation was material, in a sense that it would have induced a reasonable person to enter into the agreement.

[27] In my view, there is no substance to the contention that the Commissioner had misrepresented to the Applicant’s representatives, the true state of affairs surrounding the settlement agreement. This is so in that there is a clear distinction between what a copy of the standard CCMA settlement agreement looks like, as compared to an attendance register. The allegation that the Commissioner misrepresented the nature and purpose of the document to the Applicant’s representatives is completely incomprehensible if not implausible, as at the time that they signed the settlement agreement, they had already signed the attendance register. A reasonable person in the position of the Applicant’s representative in my view would have been able to distinguish between a copy of an attendance register, and a copy of a settlement agreement. It is therefore implausible that the two representatives could have signed the settlement agreement without fully understanding and appreciating what it was that they were attaching their signature to.

[28] More astonishing with the allegations is that the Commissioner had placed the Applicant’s representatives under duress, induced fear in them, and recorded the terms of the settlement agreement without confirming those terms with them. In regards to whether the Applicant’s representatives had concluded and signed the settlement agreement as a consequence of duress and fear induced in them, it has been stated in Gebenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another[13] that;

“A contract may be vitiated by duress where “intimidation or improper pressure renders the consent of the party subjected to

duress no true consent”. Compulsion may be exercised by way of physical force, or indirectly, by way of a threat of harm. In order to obtain an order setting aside a contract on the grounds of duress, actual violence or reasonable fear must be shown. The fear must be caused by the threat of some “considerable evil” to the person concerned, or to his, or her, family. The threat or intimidation must be unlawful, or contra bonos mores and the moral pressure used must have caused damage. The burden of proving the existence of duress rests on the party raising it.” (Authorities omitted)

[29] On the papers, and further in the light of the conclusions made that there was nothing that could be considered as bare or uncreditworthy

in the averments and denials made by both Nkomo and the Commissioner, there is no basis for a conclusion to be made that the Applicant’s

representatives were subject to intimidation or improper pressure. If the ‘duress’ or ‘undue influence’ alleged pertained to the Commissioner informing the representatives that should negotiations fail, the matter would proceed to arbitration, this could not by any stretch of imagination have constituted duress or undue influence, in that the Commissioner was merely stating a fact in the light of the matter having been set down for arbitration, and further in the light of the Commissioner having been satisfied that the parties were properly informed of the arbitration proceedings. To the extent that it may be alleged that any form of compulsion was exercised by way of physical force, or indirectly, by way of a threat of harm, it cannot possibly be for Mr. Lahee to make any substantial submissions in that regard, as he was not present in the proceedings when the agreement was concluded.

[30] It has already been stated that there were no contentions made to suggest that the two representatives were uneducated or unsophisticated not to have understood what was going on. They had further communicated with the employer prior to the agreement being signed, and if it was not the intention of the Applicant to enter into an agreement, the two representatives could have insisted on the

matter being arbitrated or in the alternative, to the extent that they could have alleged that they were unprepared for the hearing,

they could have sought a postponement.

[31] The allegations made that Nkomo had misrepresented facts to the Commissioner in relation to the amounts owed to him in regards to

leave pay were equally denied and have no merit. According to the Commissioner, Nkomo had during the negotiations produced a document

outlining the amounts owed to him in respect of leave pay. Upon the Applicant’s representatives disputing the amount, the

Commissioner had then afforded them an opportunity to call the employer and to verify the amounts. After a call was made, the feedback received by the Commissioner was that there were indeed amounts owed which had to be paid. It was on that basis that the

Commissioner had assisted the parties in making the correct calculations in accordance with the provisions of the BCEA.

[32] There is therefore no merit in the contention that the Commissioner determined the amount to be paid in terms of the settlement agreement. The terms and conditions of a settlement agreement can never be determined by a Commissioner. It is a matter to be agreed upon between the parties, and I am satisfied that on the Commissioner’s averments, she had only assisted the parties in calculating the leave pay alleged owed in terms of the provisions of the BCEA, which she was obliged to do. In the light of these factors, there is no merit in the contention that the settlement agreement was concluded as a result of misrepresentation or duress.

[33] It has already been stated that the settlement agreement as signed between the parties constituted a ‘full and final settlement’

of the dispute between the parties as well in full settlement of all statutory payments due to Nkomo. The fact that this application was launched on 1 October 2013, some one month after the settlement agreement was concluded, casts doubts on the Applicant’s bona fides. The Applicant, has not demonstrated any basis for the agreement to be declared void or invalid. I am satisfied on the papers that the Applicant’s representatives at the time that they entered into and signed the settlement agreement were fully aware of the nature of proceedings that they had attended, had fully understood the terms and conditions of the agreement they had entered into on behalf of the Applicant, and the consequences thereof. The Applicant has thus failed to discharge the onus placed on it to show cause why the agreement should be declared invalid or void or be set aside. The Applicant is thus bound by its terms, and it therefore follows that the application ought to be dismissed.

[34] In regards to the issue of costs, it is taken into account that despite Nkomo having been legally assisted up to the filing of heads of argument, he had appeared in court unrepresented. Considerations of law and fairness in these circumstances dictate that a cost order should not be made.

Order:

i. The late filing of the answering affidavit by the First Respondent is condoned.

ii. The application to set aside the settlement agreement entered into between the Applicant and the First Respondent or to declare it as void is dismissed.

iii. There is no order as to costs.

______

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant:

Ms Nasreen Jajbhay of Yusuf Nagdee Attorneys

For the First Respondent:

In Person.

[1] Act 66 of 1995

[2] See Eugiene Ulster v The Standard Bank of South Africa Ltd and another (C647/2012) and the authorities cited at para [6]

[3] Page 28 of the pleadings bundle

[4] 1962 (4) SA 531 (A) at 532B-E, where it was held that; ‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually

relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily

these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked”

[4] 1962 (4) SA 531 (A) at 532B-E, where it was held that;

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually

relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily

these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects may tend to compensate for a long delay. And the Respondent’s interests in finality must not be overlooked”

[5] See Brummer v Gorfil Brothers Investments (Pty) Ltd [2000] ZACC 3; [2000] (2) SA 837 (CC) at 839 F

[6] (2011) ZAGPHC (14 June 2011)

[7] At para 11

[8] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C.

[9] See National Director of Public Prosecution v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA). See also Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235., where the principle followed was that where material facts are in dispute, and there is no request for the hearing of oral evidence, a final order sought by appellants can only be granted, if the facts as stated by the respondent together with the facts as alleged by the applicant, that are admitted by the respondent, could justify such an order.

[10] See Gebenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another (JA95/2014) [2016] ZALAC 4 (3 February 2016) at para [15]

[11] See Karroo & Eastern Board of Executors & Trust Company v Farr and Others 1921 AD 413 at 415

[12] 1979 (2) SA 116 (W) at 149C-150D

[13] At para [15]