Article 16/2021

Labour Edge

In the scenario where an employee alleges that, as a result of a misrepresentation by his or her employer, a termination agreement was concluded, why, according to the labour appeal court in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), would it be the wrong approach to seek a declarator that the agreement is void and what should be the correct approach?

  1. Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC) held that, ordinarily, when pleading that sort of case in a contractual dispute, such a contention would be the foundation for a cancellation of the agreement and a tender of the return of any performance received by the aggrieved party in order to re-establish the status quo ante. This would typically be an action for restitutio in integrum (see L A Lambiris, Orders of Specific Performance and Restitutio in Integrum in South African Law (1989) Butterworths, Durban, page 182. The remedy is an exercise of equitable jurisdiction. It has three elements: A justa causa, sustaining of material damage and may require restoration of benefits received).
  2. This is not how the appellant chose to articulate his claim. He sought a declarator that the agreement was void. He did not allege that he had elected to resile for good cause. He did not unequivocally tender a return of the respondent’s performance. That performance was the payment of money. The appellant did not allege that it had been impossible to repay the sums, though he alluded to a set-off of future receipts of salary upon reinstatement of his employment, a tender that had, therefore, to be contingent on an order of specific performance of the initial employment contract, a remedy which was itself discretionary (Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)). Indeed, none of the ordinary language of a contractual cause of action was evident. The labour court noted the omission to properly tender a return of performance and, in consequence, held that the appellant’s case fell on that ground alone. Because of the view the labour appeal court took of the matter, it was unnecessary to make definitive findings on this aspect of the case. The case was decided on the misrepresentation question, the true dispute between the parties.



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