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2024
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[2024] ZALCJHB 156
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Bhovha and Others v Askari Game Lodge (JS 185/2018) [2024] ZALCJHB 156 (11 April 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
JS
185/2018
In
the matter between:
TAWANDA
BHOVHA AND 2 OTHERS
Applicant
and
ASKARI
GAME
LODGE
Respondent
Heard:
15 August 2022
Delivered:
11 April 2024
JUDGMENT
RAMOLEFE,
AJ
Introduction
[1]
The applicants come before Court alleging an unlawful dismissal
following
what were said to be the operational requirements of the
respondent. They seek an order declaring their dismissal procedurally
and substantively unfair. They also seek reinstatement and an order
for costs.
Background
facts
[2]
Following being served on 12 January 2018 with a letter headed
“
Notice of intention to retrench
” (letter), the
applicants moved swiftly and declared a dispute with the Commission
for Conciliation, Mediation and Arbitration
(CCMA). This was the
first referral.
[3]
The letter mentions that “
the company is contemplating
embarking upon a retrenchment process which may lead to the possible
termination of employee’s
services
”. It proceeds to
indicate that it will be necessary to consult with the applicants
regarding possible retrenchments, and
that “
none of these
issues has (sic) been finally determined
”.
[4]
Also stated in the letter is that there would be no alternative to
retrenchments
because “
the company will no longer be
involved in the operations of the reserve
”. Finally, the
date of the retrenchment, termed “
timing of retrenchment
”,
was given as January 2018.
[5]
The matter was conciliated on 14 March 2018 and a certificate was
issued
on the same day. The certificate records an unfair dismissal
for operational requirements and, that being unresolved, it could be
referred to the Labour Court. So the matter came before this Court.
[6]
Central to
the respondent’s answer, pleaded in terms of Rule 6(3)
[1]
,
is that on 18 January 2018, the applicants referred “
an
unfair dismissal dispute based on operational requirements to the
CCMA
”.
This was the second referral. The respondent also alleges that, in
the second referral, the applicants specifically stated
that they
were dismissed without prior consultation and that they sought
reinstatement or compensation. There were, accordingly,
two referrals
serving before the CCMA.
[7]
On 24 January 2018, the parties appeared at the CCMA and reached a
settlement
which was reduced to writing. This related to the second
referral. The settlement agreement, under case number NWRB177/18,
recorded
that the agreement was in “
full and final
settlement of the dispute referred to the CCMA as well as in full
settlement of all statutory payments
”.
[8]
Three blocks appear on the front page of the settlement agreement.
Reinstatement
was excluded, and so too was re-employment. Only
monetary settlement is contemplated and the settlement amounts are
R31 741.74
in respect of Kenneth Mupepe, R31 741.74 in respect of
Washington Pedzisai, and R31 499.18 in respect of Tawanda Bhovha.
[9]
The respondent undertook to pay the monetary settlement amounts by 25
January 2018. The settlement agreement was duly signed by the
applicants and also on behalf of the respondents. Attached to the
settlement agreement was an attendance register bearing the names of
the applicants, and a G de Bruin on behalf of the employer.
The
attendance register is signed by the applicants and G de Bruin. Proof
that the monetary settlement amounts were paid on 31
January 2018 is
attached.
Analysis
[10]
The manifest difficulty faced by the applicants is that
ex facie
the settlement agreement, receipt of the amounts mentioned as
payments to the applicants constituted a severance of employment
ties
with the respondent. And if this is in fact the case, which I find it
to be, the applicants are non-suited to allege an unfair
dismissal
following receipt of the amounts. To hold otherwise would be to allow
the applicants to bargain unduly. In any event,
by its very terms,
the settlement agreement made it clear that there would be neither
reinstatement nor re-employment.
[11]
What is cause for concern is that in the statement of claim, dated 14
June 2018, the applicants
did not disclose that they had referred a
second dispute to the CCMA which resulted in the conclusion of the
settlement agreement.
[12]
In the premises, I make the following order:
Order
1.
The application is dismissed;
2.
There is no order as to costs.
K. D. Ramolefe
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
S.
Mphakathi, of Mphakathi (Sipho) Attorneys.
For
the Respondent:
B.L.
Roode, instructed by Victor and Partners Incorporated.
[1]
Rules
for the Conduct of Proceedings in the Labour Court as promulgated by
GN 1665 GG 17495 of 14 October 1996.