AB Civils (Pty) Ltd t/a Planthire v J A Barnard (JA6/99) [1999] ZALAC 19 (15 September 1999)

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[1999] ZALAC 19
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AB Civils (Pty) Ltd t/a Planthire v J A Barnard (JA6/99) [1999] ZALAC 19; (2000) 21 ILJ 319 (LAC); [1999] 12 BLLR 1233 (LAC) (15 September 1999)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
Case no.:JA6/99
AB CIVILS (PTY) LTD t/a
PLANTHIRE
Appellant
and
J A BARNARD
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
CONRADIE JA
[1] Revelas J granted the appellant
leave to appeal against an order made pursuant to the court’s
powers under section 158(1)(c)
of the Labour Relations Act 66 of 1995
(‘the Act’). Paragraph (c) empowers the court to make ‘any
arbitration award or any
settlement agreement ... an order of court.’
[2] The appellant was brought by the
respondent before a commissioner of the Commission for Conciliation,
Mediation and Arbitration
(‘the CCMA’) to answer a claim that his
dismissal for operational reasons had been unfair and that not all
remuneration due to
him had been paid. The parties agreed that the
commissioner could arbitrate the unfair retrenchment claim.
[3] A settlement agreement was
concluded. In it the appellant undertakes to retrospectively
reinstate the respondent with immediate
effect ‘on the same terms
and conditions that existed immediately prior to the retrenchment.’
and to pay ‘all monies due
to the applicant in terms of this
agreement’ on or before 7 September 1998. It is no simple matter
to tell from the agreement
what money was agreed by the parties to
be due to the respondent. Before the court
a quo
the
respondent introduced evidence of a document which he maintained had
been before the commissioner. This document contains
claims for
unpaid commission going back more than a year from the date of the
hearing before the commissioner and for remuneration
for overtime
work on unspecified dates. It also contains a claim relating to the
respondent’s unfair retrenchment and one for
the delivery of
certain documents.
[4] The appellant in its answering
affidavit seems to deny that the claims for commission and overtime
were ever placed before the
commissioner. At any rate it clearly
denies that they had been compromised. I think that the appellant is
probably correct in this.
The commissioner would have had no power
to make an award on the outstanding commission or overtime claims or
the claim for the
delivery of documents. It is therefore unlikely
that they were dealt with as the respondent thinks they were. In his
replying affidavit
he says, somewhat cryptically, that ‘annexure
‘G’ (his claim document) was presented and discussed with
respondent (now the
appellant) and his attorneys on arbitration. The
only item that was removed was the compensation sought for unfair
retrenchment.’
Elsewhere in his affidavit the respondent says -
‘
The contents of Annexure “G”
was presented to and discussed with the respondent during
arbitration and the matter was never
opposed by the respondent in
the matter, except the compensation for unfair dismissal which were
removed because an agreement
for re-instatement was reached,
but the respondent failed to comply with it.’
[5] According to the respondent,
then, it seems that the only matter which was opposed - and which
was therefore capable of being
settled - was the respondent’s
unfair dismissal for operational reasons and the compensation
therefor. I find it difficult to
accept that if any other matters
were meant to have been settled the commissioner would have allowed
a settlement agreement making
no mention of them to see the light of
day.
When the settlement agreement is interpreted in the
light of these background features it seems to me reasonably clear
that where
it refers to ‘monies due ... in terms of this
agreement’ it means the agreement by which the respondent was
reinstated. The
‘monies due’ would then be the salary which the
respondent had lost from 1 June to 7 September 1998.
[6] The respondent contended that he
had not been properly reinstated. He had been employed as a plant
controller and was reinstated
as a mechanic’s assistant. An amount
of R5000.00 was withheld from his compensation on the pretext, so he
said, that a loan of
this amount had been given to him by the
appellant.
[7] In the court
a quo
the
appellant denied that the agreement had not been complied with. Its
denial, however, lacked conviction. It repetitively asserted
that it
had complied with the settlement but gave no facts to support this
assertion. An affidavit is not a pleading. It
is a means of
putting evidence before the court. It takes the place of
viva
voce
testimony. If these had been proceedings in which oral
evidence was received, it would have been clearly inadequate, in the
face
of a challenge, to baldly assert that the appellant had
complied with the settlement. The same is true of evidence on
affidavit.
Facts must be detailed. In the present matter it could
not have been difficult to do. All the relevant transactions would,
in the
normal course of keeping the appellant’s books, have been
recorded. The documentation should have been produced. If the
appellant
really did deduct R 5000.00 from the respondent’s
compensation, proof that there was a loan should have been
furnished.
[8] The result of the appellant’s
failure to deal with the respondent’s complaints head-on is that
it is uncertain whether or
not the settlement agreement has been
complied with. Since there would be no point in enforcing an
executed agreement, a court
would not normally make one an order of
court.
(Phefo & Another v Consteen Brickworks (Pty) Ltd
(1998) 19 ILJ 874 (LC) at 877 para 9;
Food & Allied Workers’
Union v Buthelezi & Others
(1998) 19 ILJ 829 (LC)). It was
stated in
Ceramic Industries t/a Betta Sanitaryware v National
Construction Building and Allied Workers’ Union
(1999) 20 ILJ
123 (IC) that the power to make an award an order of court is a
discretionary one which must, of course, be judicially
exercised
(
Deutsch v Pinto & Another
(1997) 18 ILJ 1008 (LC) at
1016 E). Where, however, there is a dispute about compliance with an
award, the court’s discretion
is given full play. It would then,
depending on all the factors in each individual case, decide whether
it is or is not in the
interests of justice to convert the binding
but unenforceable award into an order of court which may be enforced
through the court’s
execution machinery.
[9] The crisp question, then, is
whether Revelas J, in granting the order, exercised her discretion
properly. She had before her
a dispute of fact on affidavit
.
The appellant gives little, and then only generalised, information
about implementation of the settlement agreement. The information
is
so sketchy that it tends to raise a suspicion about the appellant’s
compliance. It would not astonish me if Revelas J thought
that the
appellant’s bland assertions lacked conviction. I am thus not
satisfied that she exercised her discretion incorrectly.
[10] It may well be that another
dispute will develop when the respondent seeks to execute on the
order of court. One hopes that
it does not come to that. But if it
does, it will have been the fault of the appellant which could so
easily before the court
a quo
have demonstrated its
compliance with the settlement agreement. It chose to rely on
generalities and legal niceties when, if it
was not in breach, good
old fashioned straight-forwardness would have carried the day.
The respondent has throughout
appeared on his own. A costs order will therefore be of no use. The
appeal is dismissed.
______________
CONRADIE JA
I agree
______________
NICHOLSON JA
I agree
______________
MOGOENG AJA
Date of hearing: 11 August 1999
Date of Judgment:
Attorney for appellant
:
Mr
Malan from Snyman Van Der Heever Heyns Inc
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7
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