Thupaemang v Mmabana Arts, Culture And Sports Foundation and Another (J2789/13) [2016] ZALCJHB 192 (19 May 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO: J2789/13

DATE: 19 MAY 2016

Not reportable

In the matter between:

KELOPILE FRANS THUPAEMANG....................................................................................Applicant

And

MMABANA ARTS, CULTURE AND

SPORTS FOUNDATION.............................................................................................First Respondent

DEPARTMENT OF ARTS, CULTURE AND

TRADITIONAL AFFAIRS......................................................................................Second Respondent

Date heard: 22 October 2015

Date delivered: 19 May 2016

EVERETT, AJ

Introduction

[1] This is an opposed application to set aside a settlement agreement reached prior to arbitration of an unfair dismissal dispute by the CCMA.

Background facts

[2] The applicant was the Chief Financial Officer of the first respondent and, after a period of suspension, he was dismissed on a number of allegations of misconduct. He referred an unfair dismissal dispute to the CCMA and, on 20 February 2013, the parties concluded a comprehensive settlement agreement. The agreement was ‘in full and final settlement of all and any claims’ between the parties and it included payment of six months’ salary, retrospective resignation of the applicant and withdrawal of the CCMA matter. The applicant was legally represented at the time. There is no contention that either of the parties failed to comply with the agreement.

[3] On 27 January 2014 the applicant launched an application to set aside the agreement. In essence he claimed that he had to sign the settlement agreement under pressure and economic duress, as he had debts and he was on the point of losing his house, his vehicle and other belongings.

[4] The applicant also applied for condonation for the delay in launching this application. He acknowledged that the application was about 340 days late. His reason for the delay was that he could not secure a legal representative on a pro bono basis. He had visited the Legal Advice Centre at the Labour Court on 6 June 2013, Legal Aid (Mafikeng) on 10 July 2013 and the University of the North West Law Clinic, also in June that year. His prospects of success detailed the allegations against him and his proclaimed innocence. Finally, he claimed prejudice if condonation were refused because there was no justice in his disciplinary hearing, he lost his job and income on fake charges, his reputation was destroyed and he was not employable.

Evaluation

[5] The starting point is that there is no specified time period for referral of a matter of this nature to this court. However, it is generally recognised that where no time limit is specified, the referral should be made within a reasonable time period.[1] A period of approximately a year from the signing of the settlement agreement is excessively late.

[6] The reasons for the delay are hopelessly inadequate. His efforts to obtain legal advice in mid-2013 do not explain a further delay of approximately six months.

[7] The prospects of success are similarly poor. Whereas they detail the allegations against him and he claims they were ‘faked and fabricated’, the real prospects to consider in an application of this nature are his prospects of having the settlement agreement set aside due to economic pressure. It is worth noting that the applicant had legal representation at the time of signing the settlement agreement. Part of the agreement was to withdraw his matter at the CCMA when he was fully in his rights to proceed with arbitration which was scheduled for 1 March 2013, a mere 10 days or so later.

[8] Parliament recognises that dismissal can, and usually does, result in severe economic hardship and this is one of the reasons that there is in our law a right not to be unfairly dismissed and a right to challenge an alleged unfair dismissal through the proper channels. When a party elects to enter into a settlement agreement, that party chooses, generally, to compromise and go the route of a certain and agreed outcome rather than risk a negative finding by an arbitrator – the risk of ‘all or nothing’. There is no doubt that the applicant’s financial situation would have played a part in the decision to settle, along with many other considerations such as finality, certainty and limiting risk. The financial pressures he faced at the time are not sufficient basis to set the agreement aside.

[9] The LRA encourages parties to resolve their disputes through consensus and this court is loath to set carefully considered agreements aside.

[10] Condonation for late referral of this application is refused. Even if condonation were granted, the application to set aside the settlement agreement would fail as there is no basis therein.

Costs

[11] The applicant is now a desperate man, with very limited resources. While this application was without merit, I suspect he was advised or believed, mistakenly, that it might succeed and the application was not brought out of malice. In the circumstances, it seems unduly harsh that he should bear the costs and accordingly, each party should cover its own costs.

Order

[12] For the above reasons, the order is as follows:

1. Condonation is refused and the application to set aside the settlement agreement is accordingly dismissed.

2. There is no order as to costs.

Everett AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: In person

For the Respondent: Adv. Eulenda Mahlangu

Instructed by: M.E Tlou Attorneys & Associates

[1] See CWIU v Ryan [2001] 3 BLLR 337 (LC).