Messina Associated Carriers CC v Mashaba (J1332/07) [2017] ZALCJHB 514 (7 June 2017)
- Citation
- [2017] ZALCJHB 514
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- YF Saloojee
- Case number
- J1332/07
More details
- Court
- Labour Court Johannesburg
- Panel
- YF Saloojee
- Case number
- J1332/07
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the respondent, by accepting and depositing the cheque for R53,135.86, demonstrated an intention to settle the matter and waive any further claim under the court order. The surrounding circumstances, including the correspondence and the absence of objection to the amount at the time of acceptance, indicated that the respondent accepted the payment as full and final settlement. The legal principles governing waiver and compromise supported the conclusion that the respondent relinquished his right to enforce the balance of the award.
Court disposition
Application granted. Each party to pay their own costs.
Orders
- Prayers 1, 2 and 3 of the notice of motion are granted.
- Each party is to pay their own costs.
02
Material facts
Parties
Messina Associated Carriers CC
ApplicantHenry H Mashaba
RespondentAmounts and remedies
- Cheque Amount Paid: ZAR 53,135.86
- Outstanding Amount Claimed: ZAR 172,349.03
03
Procedural history
Posture
Declaratory Application / Ex Tempore Judgment
04
Questions and positions
Legal issues
- 01
Whether the respondent waived his right to enforce the full amount of the court order by accepting and depositing the cheque for R53,135.86.
- 02
Whether the acceptance of the cheque constituted a compromise and settlement of the matter.
- 03
Whether the respondent is entitled to any further relief or payment arising from the reinstatement award.
Party arguments
- Applicant
- The applicant contended that by accepting and depositing the cheque for R53,135.86, the respondent waived his right to claim any further payment under the court order. The applicant relied on the correspondence stating 'We trust this settles the matter' and argued that the respondent's conduct indicated acceptance of the settlement and compromise.
- Respondent
- The respondent argued that the payment of R53,135.86 did not constitute full settlement of the amount due under the court order and that he remained entitled to claim the outstanding balance of R172,349.03. He asserted that there was no clear intention to waive his rights or accept the payment as a compromise.
05
Court’s reasoning
Legal principles
- 01
Seagull v Seagull 1992(3) SA 136C
A creditor who has obtained judgment may waive the right to enforce it, and the debtor cannot insist on enforcing the judgment if the creditor has waived it.
- 02
Ex parte Sussence 1941 TPD 15
Waiver requires full knowledge of the facts and legal consequences, and there must be proof of an intention to surrender rights.
- 03
Christie, The Law of Contract, p. 460; SA Scottish Finance Corporation Ltd v Smit, 1966(3) SA 629P at 635
Acceptance and deposit of a cheque offered as compromise or tender commits the creditor to acceptance of the compromise, precluding further claims for the balance.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the respondent, by accepting and depositing the cheque for R53,135.86, demonstrated an intention to settle the matter and waive any further claim under the court order. The surrounding circumstances, including the correspondence and the absence of objection to the amount at the time of acceptance, indicated that the respondent accepted the payment as full and final settlement. The legal principles governing waiver and compromise supported the conclusion that the respondent relinquished his right to enforce the balance of the award.
Obiter and limits
- The absence of immediate objection to the amount paid and the delay in raising further claims is inconsistent with an intention to preserve rights under the court order.
- Parties should be mindful that acceptance of payment offered as settlement may preclude further claims unless expressly reserved.
Court disposition
Application granted. Each party to pay their own costs.
- Prayers 1, 2 and 3 of the notice of motion are granted.
- Each party is to pay their own costs.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case No: J 1332/07
In the matter between:
MESSINA
ASSOCIATED CARRIERS CC Applicant And
HENRY
H MASHABA Respondent
Heard: 07 June 2017
Delivered: 07 June 2017
Edited: 11 September 2018
EX TEMPORE JUDGMENT
SALOOJEE, AJ
[1] This is an application for declaratory relief that the second respondent is not entitled to any further relief or payment arising from an award to reinstate due to this, to reinstate the second respondent with full back pay. The background is as follows.
[2] On 2 November 2000 an award was issued to reinstate the second respondent with full back pay. On 28 September 2004 an application was filed to make the award an order of court. On 9 September 2005 the award was made an order of court.
[3] During June 2006 the second respondent returned to employment with the applicant. During November 2006 the applicant’s attorneys addressed a letter to the second respondent’s attorneys. This letter which is found at page 31 of the bundle, sets out a calculation for back pay of 11 months for periods of unemployment between 3 April 2000 to 2006 plus interest. This was as the second respondent was allegedly employed for some time over that period.
[4] Attached to the letter was a cheque in favour of the second respondent’s attorneys in the amount of R53,135.86. The letter also concludes with a sentence which states,
“We trust this settles the matter.”
Subsequently the cheque was honoured and at the end of January 2007 the applicant received a demand for the outstanding amount of R172,349.03.
[5] The issue in this application is whether there was a waiver of a court order in the honouring of the cheque for R53,000 odd. In the case of Seagull v Seagull 1992(3) SA 136C the court stated that the debtor can have no greater right to accept or reject the waiver where the creditor has already obtained judgment but waives the right to enforce it.
[6] In Ex parte Sussence 1941 TPD 15 the court stated that the necessity for full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract in which one party is taken deliberately to surrender his rights therefore, there, to have surrendered its rights
there must therefore be prove of an intention so to surrender which can only exist where there is knowledge both of the facts and the legal consequences thereof.
[7] In this case the honouring of the cheque is important. Or if we even go a little, the honouring of the cheque is important, sorry. The cheque was deposited and honoured. There is no explanation as to why the second respondent’s attorneys deposited the cheque or why there was no objection to the amount of the cheque and what would happen to the balance of the amount only until about two and a half months later after the cheque was made out.
[8] In Christie the Law of Contract at page 460 it is stated,
“Once it is decided that the sending of the cheque is an offer of compromise or a tender and not payment of the creditor’s acceptance of the cheque normally commits him to acceptance of the compromise or tender so that he cannot sue for the balance.”
[9] And this statement is made on the basis of the case of SA Scottish Finance Corporation Ltd v Smit, 1966(3) SA 629P at page 635. The statement is conclusive of this case where the surrounding circumstances dictate what the
intention of the second respondent was, that is to accept the cheque and also to accept the amount as settling the matter.
[10] It is also clear from the authorities that the second respondent is able to waive his right in terms of the court order and by accepting the cheque did so.
ORDER
[11] As a result I make the following order:
1. In terms of prayers 1, 2 and 3 of the notice of motion each party to pay their own costs.
_____
YF Saloojee
Acting Judge of the Labour Court of South Africa
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