Article 47/2022

To what extent may a party resile from pre-trial minutes?

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In Telkom SA Soc Ltd v Van Staden and Others (2021) 32 SALLR 8 (LC); (2021) 42 ILJ 869 (LAC), the labour court answered this question as follows:

  • a pre-trial agreement is a consensual document which narrows down the issues in dispute between the parties so as to limit the scope of litigation. Such an agreement binds the parties and the court in the same way as pleadings (National Union of Metalworkers of SA v Driveline Technologies (Pty) Ltd and Another 2000 (4) SA 645 (LAC); (2000) 21 ILJ 142 (LAC); [2000] 1 BLLR 20 (LAC), at paragraph [94]; Filta-Matix (Pty) Ltd v Freudenberg and Others [1997] ZASCA 110, 1998 (1) SA 606 (SCA), at 614B–D; Zondo and Others v St Martins School (2015) 36 ILJ 1386 (LC), at paragraph [10])
  • where parties have concluded such a minute, the issues as set out in pleadings have not been abandoned but:

‘…the premises upon which the issues were to be advanced had been refined and limited by the terms of the minute, which is the very purpose of the minute … It was therefore inappropriate to fall back on the generalities of averments about procedural and substantive unfairness. Were that approach to be permissible, there would be no point at all to efforts to narrow issues and trim down the scope of contestations. It was suggested in argument on behalf of Louw that the contention on behalf of SAB was that Louw had narrowed his cause of action; that understanding is incorrect. The argument, properly understood, was that the terms of the minute narrowed the permissible grounds upon which the cause of action was to be presented’ (South African Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC); [2018] 1 BLLR 26 (LAC), at paragraph 14)

  • in Filta-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA); [1998] 1 All SA 239 (A):

‘To allow a party, without special circumstances, to resile from an agreement deliberately reached at a pre-trial conference would be to negate the object of Rule 37 which is to limit issues and to curtail the scope of the litigation. If a party elects to limit the ambit of his case, the election is usually binding. No reason exists why the principle should not apply in this case.’

  • there is no reason why the same should not equally be applicable to the rules of the labour courts (see Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and Others v CTP Ltd and Another [2013] 4 BLLR 378 (LC); (2013) 34 ILJ 1966 (LC), at paragraph [104])
  • in National Union of Metalworkers of SA v Driveline Technologies (Pty) Ltd and Another 2000 (4) SA 645 (LAC); (2000) 21 ILJ 142 (LAC); [2000] 1 BLLR 20 (LAC), the labour appeal court made it clear that ‘a party would be able to resile from such an agreement on the same basis as he would be able in law to resile from any other contract’
  • in Rademeyer v Minister of Correctional Services [2008] JOL 21787 (W); [2008] ZAGPHC 141, the high court indicated that, for special circumstances to exist such as to allow the court to exercise its discretion in favour of a party seeking to resile from the agreement:

‘Three requirements must be met: firstly, the defendant must furnish an explanation sufficiently full of the circumstances under which the concession was made and why it is sought to be withdrawn; secondly, he should satisfy the court as to his bona fides; and thirdly, show that in all the circumstances justice and fairness would justify the restoration of the status quo ante.’

  • yet, in Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union and Others v CTP Ltd and Another [2013] 4 BLLR 378 (LC); (2013) 34 ILJ 1966 (LC) (‘CEPPWAWU’), at paragraph [110], the labour court differed, taking the view that:

‘…setting the test for special circumstances as being substantially equivalent to the test for the grant of condonation (as Rademeyer does) is too lenient and does not take account of the fact that a pre-trial agreement equates to a contract between the parties. Once this is accepted, then special circumstances in the present context should, in my view, be understood as meaning that, in order to resile from the agreement (or part thereof), the applicant must establish a basis for doing so in the law of contract’.

  • given the status of a pre-trial agreement as a contract entered into between the parties, the labour appeal court was satisfied that the approach taken in CPT Ltd was correct. No special circumstance had been shown such as would allow the respondents to resile from the agreement. In any event, the respondents raised the issue in argument on appeal for the first time, which is impermissible (Bo-Kaap Civic and Ratepayers Association and Others v City of Cape Town and Others [2020] ZASCA 15; [2020] 2 All SA 330 (SCA), at paragraph [64])

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Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).