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[2014] ZALAC 77
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Fidelity Security Services v Sibobi and Another (PA3/2012) [2014] ZALAC 77 (12 December 2014)
REPUBLIC OF SOUTH
AFRICA
LABOUR APPEAL COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PA3/2012
In
the matter between:
FIDELITY
SECURITY
SERVICES
...........................................................................
Appellant
and
PATRICK
SIBOBI
.................................................................................
...... .
First
Respondent
JOSEPH
M.
NTSOANE
...................................................................
. .....
Second Respondent
Heard:
.......................
28
August 2014
Delivered:
.................
12
December 2014
Summary: Condonation
for the late filing of record – appellant’s explanation
for the delay in filing record unsatisfactory
– prospects of
success – appellant contending jurisdiction of the Labour Court
to interpret settlement agreement –
bargaining councils and/or
CCMA not competent to interpret orders of the Labour Court in terms
of section 24(8) of the LRA –
no prospects of success –
Condonation for the late filing of the record dismissed –
appeal dismissed.
Coram:
Waglay JP, Murphy
et
Dlodlo AJJA
JUDGMENT
DLODLO
AJA
Introduction
[1]
This is an appeal against the Labour Court judgment (Lagrange J)
in terms of which, the Appellant was ordered to comply
with the
portion of the court order dated 7 September 2009 (which dealt with
reinstatement). The Labour Court ordered the Appellant
to pay the
Respondents their full salary calculated at the salary the
Respondents were earning prior to their dismissal (calculated
over
the period from the date of reinstatement to the date of the hearing
of the application).
[2]
The Respondents referred separate disputes to the Commission for
Conciliation Mediation and Arbitration (“the CCMA”)
relating to their alleged unfair dismissal by the Appellant. The
disputes were resolved at the conciliation meeting held under
the
auspices of the CCMA and two settlement agreements were concluded. I
hasten to add that the settlement agreement in respect
of each
Respondent was identical. For completeness purposes, the material
term of the settlement agreements was that the Appellant
would
reinstate the Respondents on the same terms and conditions of
employment governing the employment relationship prior to 11
July
2008 and 19 June 2008 respectively; the Appellant would pay an amount
of R6 450.00 to each of the Respondents as a result
of the
retrospective effect of their reinstatement; and that the Respondents
were required to report for duty on 17 October 2008.
[3]
Curiously, under the heading of “other”, the parties
recorded at clause 6 of the settlement agreement that:
‘
The
offer of reinstatement is pending on the criminal case against the
applicant.’.
[4]
The Respondents approached the Labour Court seeking an order
that the settlement agreements be made an order of Court.
The matters
were brought before Cele J in 2009 and the settlement agreements were
made an order of Court. The Appellant subsequently
paid the
outstanding amounts (after settlement agreements became an order of
court) as the Sheriff threatened to execute on the
strength of the
then order of Court.
[5]
The Respondent alleged that the Appellant failed though to
comply fully with the settlement agreements in that it failed
to
reinstate the employees on the date specified in the settlement
agreements. This failure prompted the Respondents to approach
the
Labour Court for a further order in terms of which: (a) The Appellant
would be declared to be in contempt of the order of the
Labour Court
of 7 September 2009; (b) The Appellant would reinstate the
Respondents in its employ; (c) The Appellant would pay
the
Respondents their full salaries calculated as and from 17 October
2008 to the date of their reinstatement; (d) The Writ of
execution
would be authorised in the amounts payable to the Respondents; and
(e) That the Appellant would be ordered to pay their
costs.
[6]
The application came before Lagrange J who granted the order
prayed. The Appellant then brought an application for leave
to appeal
relying on the provisions of
section 24(8)
of the
Labour Relations
Act 66 of 1995
, challenging the jurisdiction of the Labour Court to
interpret the settlement agreement.
[7]
First and foremost it is imperative that I deal with the
condonation application brought by the Appellant. The Appeal lapsed
on about 30 October 2013, a point correctly taken by the Respondents.
On 17 October 2013, the Appellant filed an application for
the
reinstatement of the Appeal. The Respondents filed their opposition
to this application on 12 December 2013 setting out grounds
why they
opposed the application. There has been an inordinate delay in the
processing and prosecution of this appeal. The law
is clear in
matters such as the instant one.
[8]
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
,
[1]
the
Constitutional Court gave the following guiding exposition in matters
wherein condonation is sought:
‘
It is
appropriate that an application for condonation be considered on the
same basis and that such an application should be granted
if that is
in the interests of justice and refused if it is not. The interests
of justice must be determined by reference to all
relevant factors
including the nature of the relief sought, the extent and cause of
the delay, the nature and cause of any other
defect in respect of
which condonation is sought, the effect on the administration of
justice, prejudice and the reasonableness
of the applicant’s
explanation for the delay or defect.’
I
consider
infra
the
explanation tendered by the Appellant why condonation should be
granted. Before I do so, it may be necessary to mention in passing
that it is well established that the factors in a condonation
application “
are
not individually decisive but are interrelated and must be weighed
one against the other.”
See
Melanie
v Santam Insurance Co Ltd
[2]
.
In
Jansen
v General Public Service Sectoral Bargaining Council and Others,
[3]
the
Labour Court applying the decision in
PPWAWU
and Others v AF Dreyer and Co (Pty) Ltd,
[4]
stated
that: “Even if it is found that explanation does not constitute
a reasonable explanation it will not necessarily be
regarded as an
absolute bar to condonation.”
[9]
The Appellant was required in terms of
Rule 5(8)
of the rules of
the Labour Appeal Court to deliver the record within 60 days
calculated from the date of the order granting leave
to appeal. That
did not happen. The record was filed some 14 months late. In fact,
the 60 day period expired on or about July 2012.
[10] Mr Francois
Engelbrecht Le Roux, the Appellant’s attorney of record and the
deponent to the affidavit in the condonation
application, explains
that the reason for the delay was that he had informal discussion
with Mr Marius Van Zyl, the Respondents’
attorney of record.
According to Mr Le Roux, he together with Van Zyl shared the view
that the matter was capable of settlement
hence the discussion and
the exchange of some correspondence.
[11]
In an endeavour to explain this, Mr Le Roux stated the following
in his Affidavit:
‘
13. The
premise of our discussions was that we would try to resolve the
matter in an endeavor to avoid it running its course, and
without
incurring the associated delay and costs. My firm understanding from
my interaction with Mr Van Zyl, albeit not expressed
in so many
words, was that I would not have to take the usual steps associated
with prosecuting the appeal, at least until such
time as it became
apparent that we had reached deadlock as far as the settlement is
concerned.
14. Under the
circumstances I did not formally seek Mr Van Zyl’s consent to
extension of the 60-day period referred to in
rule 5
(8), since I was
firmly under the impression that such agreement had implicitly been
given. For the same reason, given the absence
of the refusal of
consent for purposes of
rule 5
(8).
1i
n; margin-top: 0.17in; line-height: 150%">
15. I should add that there is a
substantial level of trust between Mr Van Zyl and myself, to the
extent that we occasionally meet
on a partly social and partly
professional basis over coffee in order to discuss matters in which
we seek each other’s views.”
Mr
Le Roux averred that he was alarmed to receive a letter from the
Respondents’ attorney that the Appeal had lapsed. Mr Le
Roux
hastened to add that he does not suggest that Mr Van Zyl acted
mala
fide
in his dealing with him but clearly Mr Van Zyl did not share
his (Mr Le Roux’s) conclusion that prosecution of the appeal
could be left in abeyance pending finalisation of their efforts to
settle the matter. On the other hand, Mr Van Zyl explained in
his
Affidavit opposing condonation application that he made certain
proposals of settlement but no response was forthcoming from
Mr Le
Roux and his client. Mr Van Zyl referred this Court to a letter he
wrote to Mr Le Roux in which he cautioned the Appellant
to process
the appeal without delay. This letter is dated 15 May 2012. This was
also ignored by the Appellant. It is needless to
mention that there
are other letters and e-mails forwarded by Mr Van Zyl to Mr Le Roux
which were similarly ignored. Mr Van Zyl
is (in my view) rather
accommodative in stating that “
I have reason to believe that
while Mr le Roux was serious in his attempts to engage his client in
settlement negotiations, the
Appellant simply had no intention in
settling the matter.”
[12] In deciding
whether sufficient cause has been shown in condonation application,
the basic principle is that this Court
has a discretion which must
always be exercised judicially upon a consideration of all the facts.
In essence, it is a matter of
fairness to both sides. Relevant facts
are the degree of lateness, the explanation thereof, the prospects of
success and the importance
of the case. Importantly, if there are no
prospects of success there would be no point in granting condonation.
See
Melane v Santam Insurance Co. Ltd
supra
.
[13] What the
Appellant has tendered as an explanation is hopelessly wanting. A
prudent attorney would have filed the appeal
record timeously before
engaging in an attempt to settle the matter. The explanation is
simply not acceptable. It hardly informs
the Court why the rule
requiring the filing of the appeal record within a period stipulated
was not complied with. Furthermore,
the correspondence were largely
from the Respondents rather than the Appellant. The Appellant’s
correspondence also has no
reference to any settlement discussions.
Clearly as Van Zyl tactfully records, the settlement was only being
debated in Mr Le Roux’s
mind. There is no indication that his
client was aware of any proposals or was even considering any
proposals to settle the dispute.
[14] Even though the
explanation for the delay has been found wanting, I am obligated to
consider whether the prospect of success
on appeal are sufficient to
justify the granting of this application. A brief factual background
of this matter was set out
supra
. This appeal concerns a point
of law. The point in issue is whether the trial judge erred in
assuming jurisdiction pertaining to
the interpretation and
enforcement of the settlement agreement concluded by the parties. The
Appellant’s contention is that
the Court
a quo
was wrong
in assuming jurisdiction and that he should have referred the matter
to the CCMA for interpretation in terms of
section 24(8)
of the LRA.
It is absolutely not feasible for a commissioner of the CCMA to make
a ruling and finding on issues which served before
the Court
a quo
and on which the Court
a quo
had already ruled. How a CCMA
commissioner would differ from the interpretation and judgment
already handed down by the Court
a quo
defies one’s
imagination.
[15]
The Labour Appeal Court in
South
African Post Office Ltd v Communication Workers Union obo Permanent
Part-time Employees
[5]
and in
The
Public Servants Association of South Africa obo Members v T.T. Gwanya
NO and Another
[6]
held that where a court makes a settlement agreement an order of
court, then the settlement may either be a contract concluded
between
the parties to resolve the litigation between them by way of agreeing
to terms and conditions on how the future is to be
regulated or it
may be one that is prescriptive and sets out exactly what duty a
party to a settlement has to perform or refraining
from performing.
The former could speak of the parties agreeing to negotiate something
or the other, and, the later may for example
simply state that one
party must pay the other a specified sum of money by a certain date.
[16] In this matter,
the agreement made an order of court is clearly one that falls within
the latter category as it states
that the Appellant will reinstate
the Respondents from a particular date and pay each of them a
specified sum of money. These issues
are not open to interpretation
they are clear and unequivocal. The phrase that the “offer of
reinstatement is pending a criminal
case” is neither here nor
there. As the agreement which was concluded was that the Appellant
reinstates the Respondents and
Respondents accept the reinstatement.
[17] In the
circumstances, as the court order was not a contract open to
interpretation, the Respondents were in fact entitled
to execute
thereon and to institute contempt proceedings in respect of the
failure by those in authority at the Appellant from
complying with
the court order.
[18] Therefore, the
Appellant has no prospects of success on appeal. Condonation for the
late filing of the appeal record cannot
in the circumstances of this
case be granted.
Order
[19]
In the result, the following order is made:
(a)
The application to reinstate the appeal is dismissed.
______________
Dlodlo AJA
I agree
______________
Waglay JP
I agree
_______________
Murphy AJA
Appearances:
For
the Appellant:
.........................
Adv
GL van der Westhuizen
Instructed
by
Chris
Unwin Attorneys
For the
Respondents:
..................
Mr M Van
Zyl
Instructed by Francois
Roux Attorneys
[1]
[2000] 5 BLLR 465
(CC) at para 33.
[2]
1962 (4) SA 531 (AD).
[3]
U
nreported
decision, case no. JR1470/08 at para 5.
[4]
[1997] 9 BLLR 1141 (LAC).
[5]
[2014] 12 BLLR 1203 (LAC).
[6]
Unreported matter, case no. JA36/12,
judgment delivered on 27 November 2014.