Meyer v W C Butler t/a Wack-Em (DA6/2000) [2001] ZALAC 16 (15 February 2001)

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[2001] ZALAC 16
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Meyer v W C Butler t/a Wack-Em (DA6/2000) [2001] ZALAC 16; [2001] 8 BLLR 853 (LAC); (2001) 22 ILJ 1346 (LAC) (15 February 2001)

IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO: DA 6/2000
In
the matter between:
M G
MEYER
Appellant
and
W
C BUTLER t/a WACK-EM
Respondent
___________________________________________________________________________
JUDGMENT
__________________________________________________________________________
MOGOENG
JA
[1] The
Appellant was dismissed by the Respondent for operational reasons.
As a result, a dispute arose. It was arbitrated under
the auspices
of the Commission for Conciliation, Mediation and Arbitration
(“CCMA”). On 23 October 1997 a CCMA Commissioner
made an award
in favour of the Appellant in the following terms:
“
(1) The
dismissal of the Applicant by the Respondent without consultation was
unfair;
(2) Respondent
is ordered to pay Applicant an amount of R80 500,00 being
compensation;
(3) Respondent
to pay Applicant’s costs of this matter.”
[2] The
Respondent failed to comply with this award. Consequently the
Appellant brought an application in the Labour Court to make
the
award an order of the Labour Court in terms of s 158(1)(c) of
the Labour Relations Act No. 66 of 1995 (“the LRA”).
That order
was granted by Landman J on 16 April 1999 in the absence of
the Respondent.
[3] Pursuant
to the award being made an order of the Labour Court, a warrant of
execution was issued against the Respondent’s property.
The
Respondent’s property was attached and removed by the sheriff.
[4] The
Respondent then brought an application before Waglay J to suspend the
attachment. It was set down for hearing on 30 November
1998. It was
opposed. On the date of the hearing the Respondent effectively
withdrew his application and tendered costs.
[5] After
Waglay J had perused the file, he formed the view that the order
granted by Landman J in terms of s 158(1)(c) was clearly
wrong.
He informed the parties that he would be rescinding that order
mero
motu
in terms of s 165 of the LRA. Counsel for the Appellant
requested and was afforded an opportunity to present argument as to
why
the order should not be set aside. On 02 December 1999 Waglay J
set aside the order.
[6] All
dismissal disputes must first be referred for conciliation. In the
event of those disputes not being settled through conciliation,
they
may either be arbitrated under the auspices of the CCMA or be
adjudicated by the Labour Court. As to whether the CCMA or the
Labour Court has jurisdiction over a dismissal dispute would depend
on the nature of the dismissal dispute. The dispute in this
matter
arose from a dismissal based on operational reasons. Such a dispute
must, in terms of s 191(5)(b)(ii) of the LRA, be referred
to the
Labour Court to adjudicate upon. It may only be arbitrated under the
auspices of the CCMA if all the parties to the dispute
agree to refer
it to the CCMA in terms of s 141(1). Section 141(1) reads thus:
“(1) If a
dispute
remains unresolved after conciliation, the Commission must arbitrate
the
dispute
if a party to the
dispute
would otherwise be entitled to refer the
dispute
to the Labour Court for adjudication and, instead, all the parties
agree to arbitration under the auspices of the Commission.”
Waglay J
held that the word ‘agree’ as used in s 141(1) means an
express agreement and does not include a tacit or implied
agreement.
As there was no such express agreement in respect of arbitration
under the auspices of the CCMA, Waglay J found that
the CCMA did not
have jurisdiction to arbitrate the matter and set Landman J’s
order aside.
[7] The
Appellant appeals against the setting aside of Landman J’s order.
One of the grounds on which the Appellant relies to challenge
Waglay
J’s order is that the word ‘agree’ in s 141(1) of the LRA does
not only mean to agree expressly, as found by Waglay
J, but has a
wider meaning which encompasses a tacit or implied agreement.
[8] The
Labour Court’s power to set aside its order derives from s 165
which provides as follows:
“
The
Labour Court, acting of its own accord or on application of any
affected party may vary or rescind a decision, judgment or order
-
(a) erroneously
sought or erroneously granted in the absence of any party affected by
that judgment or order;
(b) in
which there is ambiguity, or an obvious error or omission, but only
to the extent of that ambiguity, error or omission; or
(c) granted
as a result of a mistake common to the parties to the proceedings.”
Although
Waglay J did not specify the subsection in s 165 on which he relied
for setting aside the order, it is clear that it is subsection
(a).
It must be so because he says in paragraph 13 of his judgment that
the order made by Landman J was erroneously granted. This
is the
language employed in s 165(a).
[9] For
the purpose of determining this appeal I am prepared to assume,
without deciding, that it was competent for Waglay J to set
aside
the order of Landman J. However, even if it was competent to do so
mero motu
, such a step should not be taken save in exceptional
circumstances.
[10] A
statute must be interpreted in the light of and in conformity with
the common law unless that statute provides otherwise.
Our Courts
have expressed themselves in the following terms on this issue:
“It is a well-known canon of construction
that we cannot infer that a statute intends to alter the common law.
The statute must
either explicitly say that it is the intention of
the legislature to alter the common law, or the inference from the
ordinance must
be such that we can come to no other conclusion than
that the legislature did have such an intention.” (Wessels J in
CASSERLEY v STUBBS
1916 TPD 310
at 312)
“It is a sound rule to construe a statute in
conformity with the common law rather than against it, except where
and so far as the
statute is plainly intended to alter the common
law.” (Tindall JA in
DHANABAKIUM
v SUBRAMANIAN & ANOTHER
1943 AD 160
at 167)
[11] It is
trite that, in terms of the common law, an agreement may be concluded
expressly, tacitly or impliedly. Therefore a construction
of s
141(1) which is in conformity with the common law is that the word
‘agreement’ means any lawful agreement - express, tacit
or
implied. Section 141(1) does not explicitly say that the agreement
must be express. Furthermore, there is nothing in s 141,
or
even the LRA itself, to justify the conclusion that the legislature
plainly intended to alter the common law with regard to forms
of
agreements so as to exclude tacit and implied agreements. All that s
141(1) requires of the parties to the dispute to do in order
to
clothe the CCMA with jurisdiction, is to agree to its (i.e. the
CCMA’s) jurisdiction. This section does not prescribe the form
of
that agreement.
[12] It
is clear that from the correspondence exchanged between the parties’
legal representatives that they tacitly or impliedly
agreed to the
jurisdiction of the CCMA.
[13] Because
of the view I take of this matter it will not be necessary to deal
with the other grounds relied on by the Appellant.
As the appeal was
unopposed the issue of costs does not arise.
[14] In
the result, I make the following order:
“
(a) The
appeal is upheld;
(b) The
order of Waglay J dated 02 December 1999 is set aside;
(c) There
will be no order as to costs.”
____________________
M.T.R.
MOGOENG
JUDGE
OF APPEAL
I
agree
_______________
R.M.M.
ZONDO
JUDGE
PRESIDENT
I
agree
_____________
M.M.
JOFFE
ACTING
JUDGE OF APPEAL
Appearances
Appearing
for the Appellant : Adv M. Daley
instructed by
Bakers
Appearing
for the Respondent : No appearance
Date
of hearing : 22 August 2000
Date
of judgment : 15 February 2001