Phiri v Ntshawini Community Trust (D218/2011) [2014] ZALCD 51 (8 October 2014)

Phiri v Ntshawini Community Trust (D218/2011) [2014] ZALCD 51 (8 October 2014)

The applicant failed to prove, on a balance of probabilities, that she reported for duty as required by the settlement agreement. The evidence established that she did not tender her services to the respondent, nor did she make reasonable efforts to announce her presence or contact the relevant persons after her initial attempt. The onus rested on the applicant to prove performance, and she did not discharge this burden. The respondent was therefore excused from its reciprocal obligations under the agreement. The application was opportunistic and unsupported by credible evidence, warranting dismissal with costs.

Citation
[2014] ZALCD 51
Parties
Applicant: Nosipho Patience Phiri; Respondent: Ntshawini Community Trust
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
8 October 2014
Case Number
D218/2011
Procedural Posture
Application to Make Settlement Order of Court / Final Judgment After Oral Evidence
Outcome
Application dismissed with costs.
Judges
AC Basson
Legal Topics
Settlement Agreement, Exceptio Non Adimpleti Contractus, Onus of Proof, Section 158 1 C Lra, Employment Contract, Costs Order
Labour Law Civil Procedure Settlement Agreement Exceptio Non Adimpleti Contractus Onus of Proof Section 158 1 C Lra Employment Contract Costs Order

Case Brief

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Parties

Nosipho Patience Phiri

Applicant

Ntshawini Community Trust

Respondent

Procedural Posture

Application to Make Settlement Order of Court / Final Judgment After Oral Evidence

Legal Issues

  1. 1 Whether the applicant reported for duty as required by the settlement agreement.
  2. 2 Whether the respondent was obliged to re-employ the applicant and pay her salary under the agreement.
  3. 3 Who bears the onus to prove performance under the settlement agreement.

Ratio Decidendi

The applicant failed to prove, on a balance of probabilities, that she reported for duty as required by the settlement agreement. The evidence established that she did not tender her services to the respondent, nor did she make reasonable efforts to announce her presence or contact the relevant persons after her initial attempt. The onus rested on the applicant to prove performance, and she did not discharge this burden. The respondent was therefore excused from its reciprocal obligations under the agreement. The application was opportunistic and unsupported by credible evidence, warranting dismissal with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the respondent's costs, including costs reserved on 22 August 2012.