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Judgment No. SC 32/18
Civil Appeal No. SC 807/16
The content and tone of this acceptance letter by the respondent in my view admits of
no doubt as to the intention, by him as much as by the appellant, to bring finality to the dispute in
this manner. This is regardless of some indications in the letter that the respondent had signed the
‘retrenchment’ package on a ‘without prejudice basis 3’. It is also significant that the only recourse
that the respondent at that point contemplated in the event of the appellant’s failure to pay the
package in question, was to sue the latter for ‘interest and damages’. Sight must also not be lost
of the fact that the respondent accepted the termination of his employment and expected immediate
notification thereof to his two Pension Funds.
Finally, it is not in dispute that the appellant thereafter paid, and the respondent
received, the package that the parties had signed for.
Against this background I have no doubt in my mind that the process engaged in by
the parties, as outlined above, clearly speaks to:
•
•
•
•
•
3
Negotiations for a package to be paid to the respondent following the abolition of his
employment post with the appellant;
Agreed referral for final resolution of the dispute, to Arbitrator Bvumbe
An offer made by the appellant to the respondent, of a package worked out in terms of
the arbitral award;
Acceptance in clear terms of the offer, by the respondent; and
Implementation of the agreement through release of the relevant benefits, into the
respondent’s bank account.
This would, in any case not have changed the character and effect of the agreement, for that is not capable of
being concluded on a “without prejudice” basis . See Yakub Mahomed v John Arnold Bredenkamp HH 130/16
where it was held as follows;
“I also find persuasive the submission made on behalf of the plaintiff that an agreement cannot be
without prejudice or privileged, only the negotiations can…”
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