IN THE NORTH GAUTENG HIGH COURT, PRETORIA

APPEAL CASE NUMBER: A809/07 

DATE: 29/07/2010

N DE BRUYN N.O Second Appellant

and

JUDGMENT
LOUW J 
Introduction
[1] The appellants are trustees of a nature conservation trust (the Trust) that owned a nature reserve on which the four respondents lived, in houses erected on the reserve. The respondents' occupation of the houses was by virtue of their employment by the Trust.

[2] The Trust intended to investigate bringing disciplinary charges against the respondents and sought to have them vacate their homes on the reserve, pending this investigation. On 13 June 2007 the Trust sent its Johannesburg attorney to the reserve, accompanied by two security guards. The first respondent and his common law wife, the second respondent, together with their children lived in the one house whilst the third respondent and his wife, the fourth respondent, resided in another house.

[3] They vacated the houses on 13 June 2007 and were put up in a guest house in nearby Bela Bela.

[5]     The following facts are common cause:
(i). The respondents had no inkling that the attorney, Ms van der Linde, was instructed as set out above and would arrive on 13 June 2007 to investigate the bringing of disciplinary charges.
(ii). She arrived with two armed security guards, Schagen and Swart.
(iii). Van der Linde met with the respondents in the dining room of the main guest house. She read out the allegations which were levelled against the respondents in their capacity as employees of the Trust. This meeting lasted for approximately two hours.
(iv). Towards the end of the meeting she presented documents to the respondents for signature. They refused to sign. According to Van der Linde these were letters of suspension, all four of which are annexed to the answering affidavit, in which each respondent was informed of his/her suspension on full pay pending a disciplinary hearing and were also required to immediately leave the reserve. According to the respondents the documents annexed to the answering affidavit are fabrications. They state that the only documents they were presented with were notices in which they acknowledged their purported misconduct and undertook to leave the reserve immediately. What is common cause however, is that they were presented with documents which they refused to sign.
(v). Later that afternoon, after packing a few personal belongings, the four respondents left the reserve for Bela bela accompanied by Van der Linde and Schagen. There they were booked into a guest house at the expense of the Trust.
(vi). The next day Van der Linde spent the majority of the day communicating with the respondents telephonically.
(vii). On the day thereafter, i.e. 15 June 2007 all four respondents signed identical settlement agreements. The relevant terms of the settlement agreements were the following:

Matters in dispute
[6] What is in dispute is whether the respondents willingly left the reserve on 13 June 2007 and whether the settlement agreements they signed on 15 June are enforceable.
Spoliation

[7] The case for the respondents is that they feared that a confrontation would ensue, were they to refuse to adhere to the demands made by the Trust's attorney. They vacated the reserve because they felt frightened and intimidated by the presence of the armed guards.

[9] Van der Linde's version, supported by affidavits of Schagen and Swart, differs materially from that of the respondents. She states that after the respondents had refused to sign the documents suspending them on full pay pending the disciplinary hearing, she suggested to them that they be booked into a guest house in Bela Bela at the Trust's expense pending the conclusion of the investigation and the disciplinary hearing. At that stage she stepped outside to give them the opportunity to consider the offer.

[12] A further aspect which casts doubt on the allegations of spoliation is that this application was made more than a month after the events. I find that spoliation was not proved.

The settlement agreements

[15] Later that day the third respondent also phoned and advised her that he and the fourth respondent accepted the settlement offer.

[16] The settlement offer was meant to provide a clean break between the parties. She at no stage threatened the respondents. She chose a public venue for the signature of the settlement agreements as she did not feel safe and also asked Swart to accompany her. Swart waited outside in a car and at no stage displayed a firearm.

(at 492H)

[18]   To set aside a contract on the basis of duress the following has to be proved:
"Where a person seeks to set aside a contract, or resist the enforcement of a contract, on the ground of duress based upon fear, the following elements must be established:

(Hi)    It must be the threat of an imminent or inevitable evil.

[20]    It is for the respondents to prove undue influence or duress. Where the facts are in dispute I rely on the version of Van der Linde.

[23] In considering the matter on the basis of undue influence, it can be accepted that the Trust was in a more powerful bargaining position. I can however not find that this made the will of the respondents pliable, that the influence was exercised in an unscrupulous manner and that the settlement agreements were not agreements which they would not have concluded with normal free will. None of the elements of duress were proved.

Other issues raised by Respondents
[27] In regard to the onus of proof in spoliation proceedings, Mr Vorster for the respondents presented the following interesting argument:

Where a person deprives an occupier of his home forcibly or wrongfully against his will, and the spoliator relies on a settlement or compromise as a defence in subsequent spoliation proceedings, a court shall have regard to, but not be bound by the settlement or compromise in so far as that settlement or compromise seeks to limit the rights of the occupier to claim for restoration of possession of his home, and the onus shall be on the spoliator to prove on a balance of probabilities that the settlement or compromise was entered into freely and willingly, while the occupier was aware of his or her rights.'"

[28] The argument is that in terms of s 39(2) of the Constitution of the Republic of South Africa, 1996, the common law should be so developed in accordance with the spirit, purport and objects of the Bill of Rights.

[29] In the light of my finding that no spoliation took place, it is not necessary to decide this point. However it seems to me that our law of evidence can adequately deal with such cases, especially where the compromise is in writing.

[30] Counsel further attempted to argue that the Extension of Security of Tenure Act, 1997, is applicable to the second to fourth respondents and that the procedures prescribed by ESTA were not followed.

[31] The insurmountable problem is that ESTA was never raised on the papers and thus the jurisdictional elements to render this Act applicable were not pleaded. For instance, it has not been established that these respondents were "occupiers" as defined. It seems probable that their income, taking fringe benefits into account, exceeded the statutory limit.

Conclusion
[32] I therefore find that no spoliation had taken place and, that even if so, any right to rely on spoliation was compromised by the settlement agreements.

[33] The appeal therefore has to succeed. The complexity and importance of the case warranted the employment of two counsel.

[34]    I make the following order:

AA LOUW 
JUDGE OF THERE  HIGH COURT

I agree

E BERTELSMANN

I agree
MF LEGODI
JUDGE OF THE HIGH COURT

ADV FOR APPELLANTS: CE WATT-PRNGLE SC MF WELZ
ATTORNEYS FOR APPELLANTS: VAN DER LINDE ATTORNEYS ADV FOR RESPONDENTS: A VORSTER
		      I OSCHMAN
ATTORNEYS FOF RESPONDENTS: VAN DEN BOGERT GOLDNER INC.