Out-of-court settlements are binding

Thuli Zungu Consumer Line
Image: 123RF/zerbor

If you enter into an out-of-court settlement agreement, know that it is binding and cannot be reviewed unless you can prove that you have been coerced.

Zimbile Nkwane, 37, of Mamelodi East, learned the hard way that he should not have agreed to settle his train accident claim without his matter going to trial.

The father of one said he was disembarking from a train when the door jammed on him, breaking his left leg in July 2011.

Nkwane was later hospitalised at Helen Joseph Hospital where he was treated for two weeks, he said.

He subsequently lost his job as an excavator and a telescopic handler at a demolition company due to his injuries, Nkwane said.

Nkwane subsequently enlisted the services of Heyman Attorneys to lodge a claim for compensation from the Passenger Rail Agency of South Africa (Prasa), he said.

He said his discontentment stems for the fact that on the date on which the out-of-court settlement was discussed, he was prepared to defend his case against Prasa but was not invited to the financial settlement discussion.

"I was just told what the settlement was going to be and I had to agree," Nkwane said.

Nkwane received R125000 in compensation.

He felt that he could have won a higher settlement had he been given an opportunity to state his case and challenge the Prasa witnesses.

Tracy Olivier of Heyman Attorneys said her law firm received a report from Prasa reflecting that he was the sole cause of the accident in that he was attempting to jump from a moving train when he was injured.

She said counsel was able to negotiate an increased offer, resulting in a R250000 settlement offer.

She said her office made a proposal in respect of the merits for a 50/50 apportionment of the settlement.

"Attempts were made to negotiate a high apportionment but this was not successful," Olivier said.

She added that counsel was once again presented with the report as well as the two witnesses from Prasa.

She said these witnesses were inspectors on duty who both confirmed that Nkwane jumped from a moving train.

"This was explained to Nkwane and the risks were elaborated upon as his version was contradictory," Olivier said.

She said Nkwane was advised of the cost implications and risks before he agreed to the proposal.

Olivier said she paid Nkwane what was due to him and provided proof of payment, adding that Nkwane later tried to extort more money from her law firm.

Olivier also sent Consumer Line a copy of the court order that made the out-of-court settlement agreement binding on Nkwane and Prasa.

An out-of-court settlement is a contract between parties who are suing each other at civil proceedings.

The contract is based upon the bargain that one forgoes one's ability to sue in return for certainty written into the settlement.

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