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[2014] ZALAC 4
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South African Local Government Association v Independent Municipal And Allied Trade Union and Others (JA46/2012) [2014] ZALAC 4; [2014] 6 BLLR 569 (LAC) (25 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA46/2012
In the matter between:
SOUTH
AFRICAN
LOCAL
Appellant
GOVERNMENT ASSOCIAITON
and
INDEPENDENT
MUNICIPAL
AND First
Respondent
ALLIED TRADE UNION
SOUTH
AFRICAN MUNICIPAL
WORKERS’
Second
Respondent
UNION
SOUTH
AFRICAN LOCAL
GOVERNMENT Third
Respondent
BARGAINING COUNCIL
Heard
:
20 AUGUST 2013
Delivered:
04 March 2014
Summary: Collective
agreement- dispute relating to its implementation date- no
requirement for
signature by third respondent constitution- practice
and custom- principle that practice or custom is well-entrenched-
practice
that agreement binding when signed by all parties- no
agreement reached on 20 April 2010 without it being signed-
Rectification-
principle that party seeking rectification must prove that contract
does not reflect the true intention of the parties
restated- no
rectification can take place as there was no agreement reached by
parties. Appeal upheld- Court-
a quo’s
judgment set
aside.
CORAM
:
WAGLAY
JP, et C J MUSI et MOKGOATLHENG AJJA
JUDGMENT
C J MUSI AJA
[1] This
appeal, which was brought with the leave of the court
a quo
,
is against the judgment of the Labour Court (Basson J).
[2]
The South African Municipal Workers Union (SAMWU) and the Independent
Municipal and
Allied Trade Union (IMATU) sought the following relief
in the court
a quo
:
‘
i)
An order declaring that the 20 April Wage Curve Agreement constitutes
a binding collective agreement between IMATU, SAMWU and
SALGA.
ii) Alternatively to (i)
above, rectification of the wage Curve Agreement signed on 21 April
2010 by deleting clause 8.2 thereof
and inserting clauses 8.2 and 8.3
of the 20 April Wage Curve Collective Agreement.
iii) If the order in (i)
is granted, then an order is also sought declaring that the Wage
Curve Agreement signed on 21 April 2010
does not constitute a valid
agreement.’
[3] SAMWU
approached the court
a quo
on an urgent basis for an order
declaring the purported agreement signed on 21 April 2010 as
void
ab initio
. The order was sought in order to prevent the third
respondent (The South African Local Government Bargaining Council
(SALGBC)
from implementing the purported Wage Curve Collection
Agreement signed on 21 April 2010, until the dispute relating to the
said
“agreement” could be resolved. Due to irreconcilable
factual disputes, that could not be resolved on the papers, the
matter was referred to oral evidence. After a protracted trial, the
court
a quo
made the following order:
‘
1.
The categorisation and Job Evaluation Wage Curves (sic) Collective
Agreement signed
on 21 April 2010 by the first applicant and the
first and second respondents is rectified by deleting clause 8.2
thereof and inserting
clauses 8.2 and 8.3 of the categorisation of
Job Evaluation Wage Curves (sic) Collective Agreement on pages 42 –
53 of Bundle
C, subject to the amendment to clause 7.2.3 agreed to
just before the signing ceremony.
2.
The first respondent is ordered to pay the costs of the applicants
and the second
respondent including the costs of two council (sic)’
[4] Mr
Brassey, on behalf of the appellants, did not have any quarrel with
the court
a quo
’s analysis of the primary facts. The
facts can therefore be summarised as follows. In 2003, IMATU and
SAMWU (the Unions)
and the South African Local Government Association
(SALGA) concluded a Job Evaluation Collective Agreement. The parties,
thereafter,
were engaged in negotiations to conclude a Wage Curve
Collective Agreement to give effect to the Job Evaluation Collective
Agreement.
Agreement could not be reached. On 27 January 2009,
SAMWU referred a dispute to the third respondent for conciliation. It
demanded that a collective agreement be concluded to create a wage
curve for all the different job categories in municipalities.
[5] The
dispute could not be resolved during the conciliation process. On 26
March 2010,
SAMWU issued a strike notice. On 12 April 2010, its
member’s embarked on a strike in furtherance of its demand for
a Wage
Curve Agreement and the conclusion of a new Disciplinary Code
Agreement.
[6] During
the strike, the parties resumed negotiations. During bilateral
engagements between
SALGA and SAMWU, it was agreed that the wage
curves in the local government sector would be based on the 50
th
percentile market position as determined by Delloite & Touche in
its survey of September 2009. Draft collective agreements
relating to
the wage curves and disciplinary code were written.
[7] The
parties met formally, under the auspices of the third respondent on
19 and 20 April
2010, in order to conclude collective agreements
relating to the wage curves and disciplinary code. They met as a
Bargaining Committee
of the third respondent. In terms of clause
7.2.1 of the third respondent’s constitution, a Bargaining
Committee consists
of 20 seats divided equally between employer
parties and trade union parties. SALGA therefore had 10 seats
allocated to it. SAMWU,
because of its superior membership was
allocated 6 seats, whilst IMATU had 4 seats allocated to it.
[1]
[8] After
members of the Bargaining Committee and others had considered the
draft collective
agreements, and sufficient consensus achieved, the
parties decided that a team would refine the agreements reached in
the Bargaining
Committee and draft the final agreements, for
consideration by the principal decision-makers of the parties. The
Bargaining Committee
adjourned when the drafting team, consisting of
Messrs. Koen (IMATU), Forbes (SAMWU), Lebello (SALGA), Yawa (SALGA)
and Van Zyl
(SALGA), started its work. Many of the members of the
Bargaining Committee remained at the venue whilst the drafting team
were
refining the draft agreements.
[9] The
drafting team considered at least two issues on which the Bargaining
Committee
did not reach consensus i.e. the period over which back pay
should be paid and the date on which the wage curve scales would be
increased. After some deliberations and consultation with their
respective principals, the parties agreed on nine months’
back
pay over the ensuing nine months. The date on which the wage curve
scales would be increased is the subject of a factual dispute
that is
at the heart of this case. According to the appellant, no agreement
was reached. According to the unions, it was agreed
that the
implementation date for the increases would be 1 July 2010. The
“agreement” relative thereto reads as follows:
‘
8.2
The initial minimum salary on TASK Grade 1 of R 4,000.00 (four
thousand rand) per month shall
increase by the same percentage as
agreed to in the current Wage and Salary Collective Agreement.
8.3
The salary scales referred to in Annexures “B1” to “B8”
will be
adjusted with effect from 1 July 2010 and then annually
thereafter by the same percentage as agreed to in the applicable Wage
and
Salary Collective Agreement.’
[10]
SALGA’s version was that the implementation date would be 1
July 2011. The court
a quo
found that the union’s
version is the correct version and rejected SALGA’s version.
[11] The
drafting committee concluded their deliberations and refining of the
draft agreements whereafter
Adams (the Deputy General Secretary for
Legal Matters of IMATU) was requested to print hardcopies of the
“agreements”.
Adams gave Yawa a copy of the two
agreements. The unions indicated that they and SALGA discussed the
contents of the agreements
with their principals who were satisfied
therewith and prepared to sign the agreements. Some Johannesburg
branch members of SAMWU
were dissatisfied with the agreement reached.
According to Forbes, SAMWU would have signed the agreement
irrespective of the dissatisfied
members’ protestations.
[12]
On 20 April 2010, between 19H13 and 19H19, Mr George (SALGA’s
CEO) was interviewed on national
television by Jeremy Maggs. When
asked whether the matter was close to resolution he replied as
follows:
‘
We
have resolved the matter now. We have a deal on the table that
we have worked on this afternoon as a culmination of what
was worked
off overnight, last ..., I mean yesterday at the South African
Bargaining Council, so now we have a deal that as I leave
the studio,
I will be going back to the bargaining council to formalise the
signing of the deal ... there is a deal Jeremy, that
has been
accepted by SAMWU, it has been accepted by IMATU remember there is
(sic) three parties in the Bargaining Council SAMWU,
SALGA, IMATU,
all parties have now accepted the deal on the table.’
Jeremy
Maggs then said the following:
‘
Alright,
one more time, I want to get this 100 percent on the record. I
do not want to report this inaccurately, deal on the
table, the two
unions involved have agreed, you are off to go and make sure that pen
hits paper, that the deal is inked, strike
is over.’
George
replied as follows:
‘
Yes,
that is a (sic) correct position Jeremy, there is a deal on the
table, parties have agreed, I am going back now to the negotiating
table to formalise those arrangements.’
[13]
When George returned to the venue of the negotiations he did not sign
any document. The signing ceremony
was postponed to 21 April 2010 at
14H00.
[14] On
20 April 2010, at 19H09, Forbes e-mailed the agreements to Yawa and
Lebello, on Yawa’s request.
According to Forbes, the
implementation date of 1 July 2010 appeared on the document that he
e-mailed to Yawa and Lebello.
The subject of the e-mail was
final collective agreements.
[15]
On 21 April 2010, at 08H37, Yawa forwarded the e-mail sent to him by
Forbes to his colleagues as an
attachment. He wrote the following
message to them
‘
Morning
Colleagues
Herewith the final
versions of the agreement (sic) meant for signature today.
Kindly comb and advice if
your (sic) sport (sic) something untoward.’
[16]
At 10H25, on 21 April 2010, Yawa sent another e-mail to his
colleagues wherein he wrote:
‘
Quickly
tell whether 8.3 (in red) here means when we increase salaries in
July, we increase these scales or as I think it should
be, we
increase the salaries per the wage and salary agreement.’
Clause
8.3 refers to the implementation date of 1 July 2010.
[17]
At 12H48 on the same date, Yawa sent an e-mail to Forbes, Lebello and
Van Zyl and later to Koen and
Thaledi wherein he stated the
following:
‘
Guys
1.
See some improvements in the drafting we
did not translate the agreement reached on the Wage Curve. In
particular note our
removal of the initial clause 8.1 on increase on
the R4 000,00 minimum wage as that is taken care of by the
current wage and
salary agreement.
2.
See the improvement on 7.2.3 where we tried
to remove vagueness in the wage curve applicable higher notch by
using the applicable
Task Grade.’
[18]
Forbes responded, by e-mail, on 21 April 2010 at 01.02pm by stating
the following:
‘
See
my revised working of 7.2.3 below
4.1.1
Employees whose existing basic salary is higher than the maximum
notch of the Task grade to which he/she
is entitled to, must be
placed in the wage curve applicable to his/her municipality and will
retain his/her basic salary.
We have
to
retain the old 8.1 to indicate what the starting minimum wage is.’
[19]
It is not disputed that Forbes meant 8.2 and not 8.1. It is further
common cause that neither Forbes
nor any of the other negotiating
parties were made aware of the change effected on clause 8.3.
[20] Shortly
before 14H00, Molope (SAMWU) arrived at the signing ceremony venue
with hard copies of the agreements
to be signed, given to him by
Forbes the previous evening. Yawa gave him two documents and informed
him that those were the documents
to be signed. When Yawa was asked
whether he effected any changes to the agreements he answered in the
negative. This he said whilst
knowing that he had effected
far-reaching changes to the documents that Forbes e-mailed to him the
previous evening. Before the
changes the “agreement” read
as follows:
‘
8.1
There shall be salary scales from TASK Grade1 to TASK Grade 26 as
follows ...
8.2
The initial minimum salary on TASK Grade 1 of R4 000,00 (four
thousand rand) per month
shall increase by the same percentage as
agreed to in the current Wage and Salary Collective Agreement.
8.3
The salary scales referred to in annexures B1 to B8 will be adjusted
with effect from 1
July 2010 and then annually thereafter by the same
percentage as agreed to in the applicable Wage and Salary Collective
Agreement.’
[21]
After the changes, the “agreement” that was signed reads
as follows:
‘
7.2.5
Annual salary adjustments, in terms of 8.3 below, will be applied to
the basic salary of those employees referred
to in clause 7.2.3 and
7.2.4 above; and ...
8.1
There shall be salary scale from TASK Grade to TASK Grade 26 as
follows...
8.2
The salary scales referred to in annexure B1 to B8 will be adjusted
with effect from 1 July
2011 and then annually thereafter by the same
percentage as agreed to in the applicable wage and Salary Collective
Agreement.’
[22]
The following picture emerges from the above. Clause 7.2.5 was
amended. Clause 8.2 of the initial draft
was deleted. The original
8.3 became 8.2 with the date changed from 1 July 2010 to 1 July 2011.
[23]
The unions were of the view that the drafting team agreed on 1 July
2010 whilst SALGA was adamant that
it was agreed that the upward
adjustment would be from 1 July 2011.
[24]
When these changes were discovered, the union parties were,
understandably, furious and some hard words
were exchanged between
the parties. SALGA, however, was adamant that 1 July 2010 was an
error and that it ought to be 1 July 2011.
[25]
The court
a quo
resolved all the factual disputes in favour of
the unions. It correctly criticised the evidence of Yawa and found
that he unilaterally,
without the knowledge of his principals or
counterparts, amended the “agreement”. The court
a quo
found that although there was non-compliance with the Constitution of
the third respondent, the practice was that the drafting
team would
refine the terms of the agreement whereafter it would be presented to
the principals for signature. The court
a quo
found, lastly,
that the document signed on 21 April 2010 was signed on the basis
that it was the agreement reached on 20 April
2010 subject to the
amendment of clause 7.2.3 agreed to minutes before the signing of the
Wage Curve Agreement and the Disciplinary
Agreement.
[26]
Mr Brassey submitted that the court
a quo
erred firstly, in
finding that a practice or custom can override the express terms of
the Constitution of the third respondent.
Secondly, it erred in
finding that there was a valid collective agreement on 20 April 2010
because such “agreement”
was not signed. Thirdly that the
court
a quo
erred in finding that the agreement should be
rectified because the terms of the “agreement” were not
agreed to by
both parties.
[27]
Mr Van Riet on behalf of the unions argued that an agreement was
reached on 20 April 2010 by the parties.
He submitted that the
parties agreed and irrespective of the requirements of the
Constitution regard must be had to the practice
followed by the
parties.
[28]
The relevant clauses of the Constitution of the third respondent read
as follows:
‘
7.2
Bargaining Committee
7.2.1
The Bargaining Committee shall consist of 20 (twenty) seats divided
equally between the Employer Parties
and the Trade Union Parties.
7.2.2
The allocation of Representatives amongst the Employer Parties shall
be determined
mutatis mutandis
by the formula in sub-clause
5.4
7.2.3
The allocation of Representatives amongst the Trade Union Parties
shall be determined by the formula in
sub-clause 5.4
7.2.4
The delegates shall, at the first meeting of the year, appoint a
chairperson from amongst the delegates
to the Bargaining Committee.
The Bargaining Committee may appoint a chairperson from outside the
delegates of the parties’
representatives.
7.2.5
The Bargain Committee shall meet at such place, date and time it or
the Executive Committee may determine.
7.2.6 The
Bargaining Committee shall have the power to conclude any collective
agreement relating to terms and conditions
of service or any other
matter referred to it for bargaining by the Executive Committee.
7.2.7 A
dispute that arises in the Bargaining Committee shall be resolved in
terms of clause 11.’
[29]
The decisions taken by the different bodies of the third respondent
are governed by clause 16 of its
Constitution which reads:
‘
16.
Decisions
16.1
All decisions of the Central Council, Division or any Committee
concerning substantive matters shall
require a two-thirds concurrent
majority of the Employer Representatives on the one hand and a
two-thirds concurrent majority of
the Trade Union Representatives to
the Council on the other hand.
16.2
No decision of the Central Council, Division or any Committee
concerning substantive matters shall
be binding on the Parties
unless-
16.2.1 the subject
matter of the decision has been reduced to writing before the
decision is taken; or
16.2.2 if not
reduced to writing before the decision is taken, the subject matter
of the decision is reduced to writing and
adopted by a subsequent
decision of the Council.
16.3
Decisions of the Central Council, Division or any Committee
concerning administrative matters shall
require a simple majority of
those Representatives present.
16.4
The Central Council shall determine from time to time which matters
are substantive and which are administrative
in terms of the process
as is set out in clause 16.1 above.’
[30]
In
Cape United Sick Fund Society v Forrest,
it was said that:
‘
It
is of prime importance to decide in the first instance how to
approach the problem raised in this appeal. The Society’s
Constitution is in writing and to use the words of Stratford, JA, in
Wilken v Brebner and Others
1935 AD 175
at 187:
‘
We
have only to solve the question submitted to us by ascertaining the
meaning of a written document according to the well-established
rules
of the construction.’
This
dictum is in consonance with a long line of cases in which emphasis
is laid on the necessity of adhering to the terms of the
Constitution
of a body like a society.’
[2]
[31]
In my view, the same should apply to the Constitution of the third
respondent. The three parties embroiled
in litigation in this matter
are the parties who drafted and signed the Constitution of the third
respondent. They decided how
decisions taken under the auspices of
the third respondent should be taken and what body should have the
power to conclude collective
agreements.
[32]
The problem with the entire procedure followed in this matter is that
the Constitution does not make
provision for a drafting team. If the
parties decide to refer an administrative or substantive matter to an
unrecognised sub-committee,
it is incumbent on them to refer the
matter back to the recognised Council, Division or Committee so that
a resolution or decision
can be taken in terms of the Constitution.
[33]
In this matter, it is common cause that the Bargaining Committee did
not reconvene after the drafting
team was requested to refine the
agreement. It is also common cause that the drafting team reached an
agreement on one substantive
issue relating to back pay. There was a
dispute relating to the implementation of the increase date, it is
not clear, on the proven
facts, that there was also an agreement
relating to the implementation date. These substantive decisions or
agreements were never
put before the Bargaining Committee so that it
could vote thereon or for it to ratify the process that the drafting
team embarked
upon.
[34]
The union’s case was that the practice has also been that after
the drafting team had settled
an agreement it is then taken to the
principals, for vetting and signature. The court
a quo
found
that the practice had been established and that the Wage Curve
Agreement and the Disciplinary Code Agreement were validly
inferred
into in terms of the practice. I disagree.
[35]
Firstly, the practice itself has not been properly established. There
is no evidence as to when this
practice was started; how many
collective agreements have been adopted by following this practice or
whether this practice was
only followed in respect of administrative
matters or both administrative and substantive matters. Even if one
assumes that in
some circumstances a practice by parties can override
what they specifically agreed to in their Constitution, there must be
sufficient
evidence establishing that the practice or custom is
well-entrenched. Such evidence is lacking in this matter. The
existence of
this practice was never put to the appellant’s
witnesses. Mashilo, who was the facilitator and senior member of
SALGA and
the third respondent, was not asked a single question
relating to the existence of this practice. George, who signed
agreements
on behalf of SALGA, was not asked about the practice.
Lebello, a member of SALGA and the Bargaining Committee, was also not
asked
about its existence.
[36]
Secondly a practice cannot trump the express and unambiguous terms of
a Constitution. The decisions
taken by the drafting team clearly have
far-reaching implications, financial and otherwise. If this degree of
deviation from the
express provisions of the Constitution is
tolerated it would effectively write the decision-making requirements
set out in clause
16 out of existence. The Constitution of the third
respondent should not, without justification, be frittered away by
practice
or judicial decree. This would indeed be a dangerous path to
take because the parties testified that the intention was always to
request the Minister of Labour to extend the agreement to non-parties
to the agreement that are within the registered scope of
the third
respondent.
[37]
The decision of the drafting team is not a decision of the Bargaining
Committee. The reason why two
thirds concurrent majority of the
employer representatives on the one hand and two-thirds concurrent
majority of the Trade Union
Representatives on the other hand is
needed for a decision is very important. Trade Union Representatives
to the council are there
with a mandate but as individuals. They have
individual votes. If for an example three members of SAMWU who had
six votes decided
to agree with IMATU in favour of a proposal that
would be seven Trade Union Representatives voting in favour of a
proposal and
if all the employer representatives also voted in
favour; that decision would be a legal decision of the Bargaining
Committee,
irrespective of the mandate of the SAMWU delegation. The
purported agreement was therefore not a binding agreement in terms of
the third respondent’s constitution. Considerations of equity
cannot, when the provisions of the Constitution of the third
respondent are clear and unambiguous, affect the interpretation to be
placed on it.
[38]
The constitution does not require the collective agreement to be
signed. Although Forbes testified
that they regarded the unsigned
“agreement” of 20 April 2010 as binding it is clear that
it was within the contemplation
of the parties – whether by way
of practice or custom – that the agreement would only become
binding after it had been
signed. It is also clear from the evidence
that the parties did not consider themselves bound by the agreement
of 20 April 2010
before it was signed. I say so because the parties
had their principals ready to sign the agreement. When it could not
be signed
on 20 April 2010 a signing ceremony was arranged for 21
April 2010. George also told Maggs that he is going back to sign the
agreement
– which he did not do on 20 April 2010. The parties
amended the “agreement” on 21 April 2010 without
formality
because it was not yet a binding agreement. None of the
unions complained or demurred to the amendments being made because
they
believed that the agreement will only become binding on
signature.
[39]
Distasteful as Yawa’s conduct may be, it is clear that on the
morning of 21 April 2010 he sent
e-mails to his colleagues to recheck
the “agreement”. This also indicates that SALGA at least
did not regard the agreement
as binding before it was signed on 21
April 2010. The formality that the agreement should be signed before
it is binding was not
adhered to.
[40]
In my view nothing much turns on what George said during the
interview. There was sufficient agreement
in the Bargaining Committee
during the afternoon of 20 April 2010. His statement that the parties
agreed is in sync with the evidence
that the drafting team was tasked
with refining the agreement that the parties reached – without
a formal decision in the
Bargaining Committee.
[41]
The “agreement” of 20 April 2010 was not signed therefore
it was at best a draft or an
in principle agreement. In my view the
unions failed to prove that an agreement was entered into on 20 April
2010. All the appellant’s
witnesses testified that all
collective agreements are signed by the parties. That is the
practice. Their evidence in this regard
was not challenged by the
respondents. It stands uncontroverted. I accept that there was no
agreement before it was signed. There
was therefore no binding
agreement on 20 April 2010.
[42]
A party is entitled to rectification of a written agreement which,
through common mistake or mistake
in transcription which the other
party deliberately caused or knew about, incorrectly records the
agreement which they intended
to express in the written agreement.
[3]
It is well accepted that a party seeking rectification must show the
facts entitling him to obtain that relief in the clearest
and most
satisfactory manner.
[4]
The
prior agreement or common intention of the parties should therefore
be proved on a balance of probabilities by the party seeking
rectification.
[5]
Such party
must prove that the contract was entered into by the parties; that
the contract does not reflect the true intention
of the parties; what
the real intention was; that the contract must be rectified to
reflect the true intention of the parties.
[6]
[43]
The court
a quo
said the following relating to the signed
agreement and rectification:
‘
In
the event, the signed agreement is rectified to reflect the intention
and agreement of the parties on the evening of 20 April
2010 subject
to the amendment of clause 7.2.3.’
[44]
It is clear that the court
a quo
proceeded from the premise
that there was an agreement on 20 April 2010. The members of the
drafting team were, at best, agents
of their principals. The unions
must therefore prove that all the principals were satisfied with the
agreement reached by the drafting
team on the evening of 20 April
2010 and that the signed recordal of their agreement does not reflect
that consensus.
[45]
Much has been said about the principals but we do not know who the
principals were and whether the
final document was shown to them on
the evening of 20 April 2010. What we do know, as established by the
evidence, is that Forbes
e-mailed the final document to Yawa at 19H09
on 20 April 2010. I will also accept that Adams gave Yawa hard
copies. Yawa only e-mailed
it to his colleagues and presumably his
principals at 08H37 on 21 April 2010. George – who we know was
one of the SALGA principals-
testified that he did not see the
document on 20 April 2010. There is in any event no evidence that
George saw the finale document
on 20 April 2010. When he spoke to
Maggs on National TV he could not have seen the “final
agreement” because the interview
ended at 19H19 whereas the
document was sent to Yawa at 19H09. Lebello also did not see the
document on 20 April 2010.
[46]
The only evidence adduced by the unions in relation to the SALGA
principals agreeing to the “final
agreement” is that
Mashilo said that SALGA agreed thereto. It was put to Mashilo that
Forbes was entitled to assume that
he is conveying SALGA’s
position. He denied it and pointed out that SALGA was represented by,
inter alia
, George and Yawa. Mashilo was one of the
facilitators and not a spokesperson or principal of SALGA. He had no
mandate to speak
on SALGA’s behalf. He testified that SALGA
principals did not see or agree to the document containing the
increase date of
1 July 2010. Lebello’s evidence was to the
same effect.
[47]
The evidence of Yawa, discredited as he was, that they did not
discuss the document with the SALGA
delegation on the evening of 20
April 2010 because they were not there is uncontroverted. The e-mail
which he sent to his colleagues
asking them to explain what clause
8.3 means is also indicative of the fact that there was no agreement
on the issue. If there
was one would have expected him to know what
he agreed to.
[7]
[48]
SAMWU was also not ready to sign the agreement because some of its
members were protesting against
the adoption thereof. They had to be
convinced that that the document is in order before it could be
signed by SAMWU. That was
not done on the evening of 20 April 2010.
It was going to be done on 21 April 2010.
[49]
It is clear that Roger Falken, one of the SALGA members, gave his
input, wherein he suggested changes
to the document, on 21 April at
13H47. He must have received the document after it was sent by Yawa
during the morning of 21 April
2010.
[50]
This clearly illustrates that the principals did not reach an
agreement on 20 April 2010. There having
been no agreement on 20
April 2010 there can be no rectification. The respondents failed to
prove that all the parties wanted the
date to be 1 July 2010. The
court
a quo
was in my view wrong to conclude, that the parties
entered into an agreement on the implementation date on 20 April
2010.
[51]
It is Yawa’s conduct, by not informing the other negotiating
parties about the amendments, which
led to this unfortunate state of
affairs and litigation.
[52]
The requirements of law and fairness, given Yawa’s conduct,
dictate that no order as to costs
should be made, irrespective of the
appellant’s success. The same applies to the costs in the court
below.
[53]
I accordingly make the following order:
The
appeal is upheld with no order as to costs.
The
order of the Court
a quo
is set aside and replaced with the following order:
The
application is dismissed with no order as to costs.
______________
C J Musi AJA
I agree.
_______________
Waglay JP
I agree.
_____________________
MOHGOATLHENG
AJA
APPEARANCES:
FOR THE
APPELLANT:
Adv. M.S.M. Brassey
SC, Adv. A. Cook
Instructed
by Tshiqi Zebediele Inc
KEMPTONPARK
FOR THE RESPONDENT:
Adv. J.G. Van der Riet SC, Adv. H. Barnes
Instructed
by Francois du Plessis Attorneys,
Cheadle
Thompson and Haysom
BRAAMFONTEIN
[1]
In
terms of clause 5.4 of the SALBC’s Constitution the allocation
of representations amongst Trade Union Parties shall be
determined
by the following formula:
A
C
B
x
1
Where
A
equals the membership of the Trade Union in question.
B
equals the total joint membership of the Trade Union Parties.
C
equals the number of seats allocated to the Trade Union Parties.
[2]
1956
(4) SA 519
at 527H to 528A. See also
Absa
Bank Ltd v South African Commercial Catering and Allied Workers
Union National Provident Fund
(under curatorship) 2012 (3) SA 585 (SCA).
[3]
See
Boundry
Financing LTD V Protea Property Holdings (PTY)
LTD
2009 (3) SA 447
(SCA) at para 7
[4]
See
Bardopoulos
and Macrides v Miltiadous
1947 (4) SA 860
(W) at 863 – 864.
[5]
See
Edelson
v Glenfields Estates (Pty) Ltd
1955
(2) SA 527
(E) 530A.
[6]
See
LAWSA 2
nd
Ed Vol 5 Part 1 page 377 to 378.
[7]
The
content of the email is quoted at para 16 above.