Penalty clause for termination or resignation during a probation period

[Citizen X]

Hi Mike,

This is my opinion on your matter.

The law of contract is largely regulated by the common law. One of the requirements for a valid contract is that the conclusion, object and purpose of the contract must be lawful. An unlawful contract cannot be enforced.

1. Firstly, the only way for this company to claim this money whatsoever is to sue out summons for breach of contract;
2. Secondly, unlawfulness is not just the dictionary meaning of unlawfulness, in this case, if it were me, upon receipt of the summons, I would enter a notice of intention to defend, and in my plea cite as my defence that those clauses are contrary to ‘Public Policy,’ and therefore unenforceable. The Constitution is the face of public policy,
3. You can also cite as a defence that the bargaining power between you and the employer was not the same, as you really needed the job and signed it without fully understanding it, therefore there was no consensus and no meeting of the minds. (consensus is one of the requirements for a valid contract); the implication is this, They will then still deduct from your provident fund and leave pay(this will naturally not cover the full amount). There is case law to support this.
4.The onus of proving that you have breached the contract is on the employer(the party claiming breach of contract);
5.You can also cite ‘misrepresentation,’ as a defence, which is a very strong defence. You can base this on the fact that you were not evaluated whatsoever during this period, and that the employer represented to you that you would be evaluated;
6.You can also state that those terms and conditions are completely unreasonable and therefore also contrary to public policy.
So, if I was in your position I would take the other job offer. I would also accept that whatever little amount of my provident fund and leave pay will be deducted. I will accept that they will sue out summons for breach of contract, but also that I will have several defences.
7. You say that the courses are 'college accredited,' are you sure??? Find out from the National Qualifications Framework, if not, You can also state as a defence that the 'training courses,' are not accredited by the NQF and therefore not recognized as official, formal training and argue that an employee has a right to be trained and not charged for what is an induction program. All qualifications and courses must be registered with the NQF. I doubt very much that these in-house programs even stand a chance of been registered with the NQF. Not even a University charges that much.

Many years ago, I was in a similar position, I accepted a position of branch manager for a business college. It had similar provisions about costs of training etc. Upon commencing employment, I found that I was doing largely administrative work and not the work of a manager. I left after one week. I received a summons, at that time I knew nothing whatsoever about the law. I was scared, I went to the Johannesburg magistrates court library and began researching what I should do, I entered a notice of intention to defend and a very poorly drafted plea. My defence was simple ‘exceptio non adimpleti contractus.’(if you don’t perform , I don’t have to perform). I also cited ‘misrepresentation,’ my explanation was simple but effective. I used this illustration in my very poorly drafted plea: if one is offered a position as a truck driver and arrives at work only to find that he is required to be a forklift driver, that is misrepresentation. Even though my plea was very poorly drafted and contrary to every court rule there is, they withdrew the matter completely.

So there are valid defences that you will have at your disposal.

I hope this helps.