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[2019] ZALAC 58
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Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA40/2018) [2019] ZALAC 58; [2019] 11 BLLR 1224 (LAC); (2019) 40 ILJ 2510 (LAC) (20 August 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA40/2018
In the matter between:
MURRAY AND ROBERTS
(PTY) LTD
Appellant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First
Respondent
NDUNA, X
N.O.
Second
Respondent
LEGWATI, E
N.O. Third
Respondent
ASSCIATION OF
MINEWORKERS AND
CONSTRUCTION UNION obo
MEMBERS Fourth
Respondent
Heard: 14
May 2019
Delivered: 20
August 2019
Coram: Waglay JP,
Jappie et Coppin JJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against the
judgment of the Labour Court (Nkutha-Nkontwana J)
[1]
reviewing and setting aside, in terms of section 158(1)(g) of the
Labour Relations Act
[2]
(“LRA”):
firstly, a settlement agreement concluded between the appellant
(“M&R”) and the fourth respondent
(“AMCU”)
in conciliation proceedings before the third respondent; and,
secondly, a jurisdictional ruling of the second
respondent based on
the settlement agreement. The second and third respondents were
commissioners acting under the auspices of
the first respondent (“the
CCMA”). The Labour Court granted M&R leave to appeal to
this Court.
[2]
Central to this matter are efforts made by the trade union, AMCU, to
secure organisational
rights at one of the workplaces of M&R,
including the validity of the settlement agreement and the
jurisdictional ruling.
Background facts
[3]
M&R is one of others engaged in the construction of the Kusile
Power Station for
Eskom. Two collective agreements were concluded at
Kusile between two employers’ organisations, namely, the South
African
Federation of Civil Engineering Contractors and the
Construction Engineering Association of South Africa, on the one
side, and
a number of trade unions, whose members are employed at
Kusile, but excluding AMCU, on the other.
[4]
The first collective agreement, namely, the Project Labour Agreement
(“PLA”)
is dated 29 February 2012. It provides,
inter
alia
, in clause 3 that it applies to all contractors and their
employees and employees of temporary employment services, as well as
to trade unions and their members and employees who were not members
of a trade union, for the duration of the project. In that
regard, it
purports to apply to all, but clause 3.3 states that “any other
registered trade union which is party to the respective
industry
bargaining structures may become a party to the agreement by signing
this agreement”, clearly implying that the
PLA only applies to
trade unions that are signatories to the agreement. This is confirmed
by its definition in clause 1.37 of the
term “trade union”
, where the term is defined as “a trade union or trade unions
that are signatories
to this agreement”.
[5]
In its preamble, the PLA provides, for example, in clause 2 that “the
[p]arties
commit themselves to the promotion of co-operation,
industrial peace and harmony on the Project Site and shall endeavour
to ensure
that fair and proper channels, practices, policies and
procedures are followed pro-actively to resolve differences between
and
amongst all of the parties”. The agreement itself purposes,
inter alia
, to regulate matters of remuneration and conditions
of employment of employees within the Bargaining Unit, including
collective
bargaining in respect of those matters (see, for example,
clause 5 and clauses 8 to 13).
[6]
The second collective agreement, the Final Partnership Agreement
(“the PA”),
is dated 7 June 2013. In its preamble, it
broadly enunciates similar objectives and aims as the PLA, and,
inter-alia
, seeks to commit the partners envisaged in it to
principles concerning participation, communication, transparency, et
cetera, and
to provide for the establishment of partnership forums.
It also seeks to regulate collective bargaining and provides, for
example,
a variety of levels at which collective bargaining
agreements may be concluded (clause 10), and,
inter alia
,
defines the rights and responsibilities of Eskom, the contractors and
trade unions.
[7]
Of significance for this matter, in clause 5.39, the PA also defines
“trade
union” as “a registered, recognised trade
union that is a signatory to this agreement”. In clause 6.4, it
provides,
in essence, that any trade union which is registered,
either with the MEIBC (Metals Engineering Industries Bargaining
Council),
or the BCCEI (the Bargaining Council for the Civil
Engineering Industry) – and which meets the threshold specified
in terms
of the policy of trade union recognition under the PA, may
become a party to the PA by signing it. Clause 11.3.3 contains the
threshold.
It provides, in essence, that upon signature of the PA,
trade union recognition will be accorded on the basis of a trade
union
meeting a threshold of 300 members per site and that such
recognition will entitle the trade union to a full time shop steward
as well as to participation within the partnership forums and the
collective bargaining structures.
[8]
It is common cause that AMCU was not a member of any of the
bargaining councils mentioned
and that it was not a signatory of
either the PLA or the PA.
Referrals to the CCMA
[9]
It was not an issue that on 26 February 2014, AMCU notified M&R
in writing, as
contemplated in section 21(1) of the LRA, that it
sought to exercise section 12, 13, 14 and 15 organisational rights,
which, respectively,
relate to a trade union’s access to the
workplace, the deduction of union subscriptions or levies, the
appointment of trade
union representatives, and leave for trade union
representatives. In the notice, AMCU, amongst other things, proposed
a meeting
between itself and M&R on 19 or 20 March 2014. M&R
was to confirm the meeting date before 7 March 2014. In the notice,
M&R’s attention was also drawn to sections 21(4) to 21(7)
of the LRA.
[10]
But for informing AMCU that there were collective agreements that
dealt with organisational rights
and of the requirements for becoming
a party to them, M&R did not meet with AMCU as per the notice, or
at all. AMCU then referred
an organisational rights dispute in
writing to the CCMA on 17 April 2014 (“the first referral”).
In the referral form,
AMCU states,
inter alia
, that the
outcome it requires “is to be granted organisational rights”
as it has “the majority of members in
the employment of the
employer”. In the alternative, it wanted the CCMA to grant it a
certificate permitting it to strike
concerning the matter.
[11]
On the day the dispute was scheduled for conciliation before the
third respondent, namely 21
May 2014, M&R raised a point at the
outset to the effect that for AMCU to become entitled to the
organisational rights it sought,
it was legally required to become a
member of the MEIBC, and in order for it to become such a member it
was required to demonstrate
to the MEIBC that it had no less than
5000 members in the industry in which that bargaining council
operated.
[12]
The point was not decided, but, instead, M&R and AMCU on 21 May
2014 entered into a written
settlement agreement, on a pre-printed,
pro-forma settlement agreement form of the CCMA. AMCU,
inter-alia
,
agreed to withdraw the dispute and to submit its audited membership
figures to the MEIBC in order for it to become a member of
that
bargaining council so as to secure organisational rights at Kusile
(“the settlement agreement”).
[13]
On about 20 March 2015, AMCU notified M&R in writing, as is
contemplated in section 21(1)
of the LRA, that it sought to exercise
“section 12, 13, 14, 15 and 16 organisational rights” at
M&R’s projects
in the Witbank/Ogies area (“the second
notice’). In the notice, it also informed M&R that it had
556 members at
M&R and enclosed a copy of its certificate of
registration. M&R was to confirm on or before 27 March 2015 when
the parties
were to meet, but M&R failed to comply with the
second notice and did not meet with AMCU within 30 days of receiving
the second
notice as required by section 21(3) of the LRA.
Consequently, on 20 April 2015 AMCU again referred an organisational
rights dispute
to the CCMA (“the second referral”). In
this referral form AMCU indicated that the result it required was for
M&R
to grant it organisational rights as it had members employed
by M&R.
[14]
The dispute in the second referral was set down for conciliation on
18 May 2015 before the second
respondent. M&R then raised a
preliminary point that the matter was
res judicata
, because
the CCMA had made a determination before, and because of the
existence of the PLA and PA. The second respondent issued
a
jurisdictional ruling on 28 May 2015 in which he upheld the
preliminary point, having also taken into account the settlement
agreement. The second respondent ruled that in those circumstances
the CCMA had no jurisdiction to determine the organisational
rights
dispute referred to it.
Proceedings in the Labour
Court
[15]
In reaction to that ruling in the CCMA, AMCU brought the application
which is the subject of
this appeal, namely to, in terms of section
158(1)(g) of the LRA, review and set aside the jurisdictional ruling
of the second
respondent and the earlier conciliation proceedings
before the third respondent, which culminated in the conclusion of
the settlement
agreement. AMCU also sought to have the settlement
agreement set aside on the grounds of mistake (unilateral,
alternatively, common
mistake), alternatively, on the grounds of
misrepresentation, or irregular conduct on the part of the presiding
commissioner that
resulted in the conclusion of the settlement
agreement.
[16]
M&R opposed the application. It alleged,
inter-alia
, that
after the third respondent conferred with the parties separately, as
he was entitled to do in conciliation proceedings, AMCU
conceded the
approach suggested in the preliminary point raised by it and the
settlement agreement was concluded; that the settlement
agreement was
in full and final settlement of the dispute between the parties and
that it also constituted a defence to AMCU’s
second referral,
rendering the dispute therein
res judicata
. In its answering
affidavit, M&R also took issue with the lateness of AMCU’s
application and denied that there was any
basis for reviewing and
setting aside the conciliation proceedings before the third
respondent, or for setting aside the settlement
agreement, or the
subsequent jurisdictional ruling of the second respondent.
[17]
In argument before the Labour Court, M&R raised yet another
preliminary point, one of non-
joinder. It submitted, essentially,
that AMCU was obliged to join the other trade unions that were
parties to the PLA and PA in
the review application.
[18]
The Labour Court condoned AMCU’s delay in bringing the review
application. It found that
even though the delay was one year and six
months, the nature of the application and its merits justified its
entertainment. The
Labour Court also found that the delay was
explained and that the “misapprehension” concerning the
status of the settlement
agreement persisted and frustrated AMCU’s
endeavours to re-enrol the matter; and that the jurisdictional ruling
was also
premised on the settlement agreement.
[19]
In respect of the merits - relying on this Court’s decision in
South
African Correctional Services Union (SACOSWU) v Police and Prisons
Civil Rights Union and Others (POPCRU)
[3]
(“
SACOSWU
”)
– the Labour Court held that the PLA and PA, which are
threshold agreements, do not proscribe minority trade unions,
like
AMCU, from requesting to exercise section 12, 13 or 15 organisational
rights; that once AMCU had proven that it was sufficiently
representative at the Kusile project – it was “within its
right” to request that it be allowed to exercise those
rights
in terms of section 21; and that it was “inescapable”
that M&R’s interpretation of section 18 of the
LRA was
“untenable as it was inconsistent with the constitutional
imperatives.”
[20]
The Labour Court upheld AMCU’s argument that its representative
at the first referral,
one Mr Mazibuko, laboured under a mistake when
concluding the settlement agreement and that the mistake was induced
by what the
third respondent and M&R’s representative had
stated at the first referral, but also found that even M&R’s
representative had been labouring under a mistake as to the state of
the law at the time. The Labour Court also relied on what this
Court
held in
Concor
Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for
Conciliation Mediation and Arbitration and Others
[4]
(“
Concor
”).
There this Court applied what was held in
Dickenson
Motors (Pty) Ltd v Oberholzer
[5]
(“
Dickenson
Motors
”),
namely, that “an agreement founded upon a common mistake, which
mistake is impliedly treated as a condition which
must exist in order
to bring the agreement into operation, can be set aside formally if
necessary, or treated as set aside and
as invalid without any process
or proceedings to do so”. The Labour Court then went on to find
that the erroneous construction
of section 18 of the LRA influenced
the conclusion of the settlement agreement as both parties held the
mistaken view that AMCU’s
eligibility for organisational rights
must be preceded by compliance with the thresholds of the PLA and PA,
read with the constitution
of the MEIBC. The settlement agreement was
thus held to have been concluded on the basis of a common mistake.
According to the
Labour Court, it had been established that AMCU
would not have agreed to settle the dispute (i.e. the first referral)
if it had
known what the true legal position was and that, similarly,
M&R would not have adopted the stance it took at the first
referral
if it had been appraised of the correct legal position. For
those reasons the Labour Court set aside the settlement agreement
and,
consequently, the jurisdictional ruling following the second
referral.
[21]
The Labour Court did not specifically rule on the issue of
non-joinder. But it is clear from
its main judgment and its judgment
on the leave to appeal that it was aware of the issue, but that the
point was apparently of
no consequence to it. The Labour Court,
however, granted leave to appeal on three grounds relied upon by M&R,
one of them being
the non- joinder issue, and the other two grounds
being, firstly, whether there was a common mistake or mistake at all
and whether
AMCU could only attain organisational rights through
meeting the threshold requirements of the PLA and PA, and, secondly,
whether
AMCU had made out a case for the setting aside of the
settlement agreement.
The Appeal
Non-joinder
[22]
Counsel for M&R argued that the Labour Court erred in finding
that the other trade unions,
who were parties to the PLA and PA
agreements, did not have to be joined in the review application. It
submitted that their joinder
was “required” for the
following reasons: because AMCU makes pertinent reference to the
threshold agreements in its
application; and because AMCU states that
those agreements do not bar it from exercising organisational rights
and from competing
with the seven trade union parties to the
threshold agreements, for membership; and because the threshold
agreements served to
“shield” the seven trade union
parties from minority unions and the removal of this “shield”
affected the
interests of those trade unions; and lastly, because
joinder of a party is essential if the order sought to be made
“cannot
be implemented without affecting the interests of that
party.” In support of the latter point, counsel for M&R
relied
on the decision of this Court in
Minister
of Public Service and Administration v Public Servants Association
obo Makwela
[6]
(“Makwela”)
and of the Labour Court in
BHP
Billiton Energy Coal SA Ltd v CCMA.
[7]
[23]
AMCU’s submissions on the point, in brief, were that the notion
that threshold agreements
could operate as a “shield” to
preclude minority unions, was rejected by the Constitutional Court in
SACOSWU
.
Further, that the seven trade union parties to the PLA and PA did not
have a “direct and substantial interest” in
the setting
aside of the first referral proceedings, the settlement agreement and
the jurisdictional ruling, which was essentially
based on the
settlement agreement. AMCU’s counsel relied on passages from
the decision in
Judicial
Service Commission and Another v Cape Bar Council and Another
[8]
(“Cape Bar Council”).
[24]
It is a trite proposition of law that a person must be joined as a
party to court proceedings
if that person has an interest which is of
such a nature that she (or he, or it) may be prejudicially affected
by the judgment
in the proceedings.
[9]
The true test for a joinder has also been said to be whether the
person has a “direct and substantial interest” in
the
proceedings.
[10]
It is
generally accepted that “direct and substantial interest”
means a legal interest in the subject matter of the
proceedings (i.e.
litigation) which could be prejudicially affected by the judgment of
the court.
[11]
[25]
In
Cape
Bar Council,
[12]
the
Supreme Court of Appeal reiterated those basic tenents of the law.
The joinder of a party is only required if it is a matter
of
necessity, and not for convenience. The mere fact that the party has
an interest in the outcome of litigation does not warrant
its
joinder, and the interest must be “direct and substantial”
in the sense mentioned earlier. Similarly, in
Makwela,
this Court confirmed those principles. This Court specifically held
that in court proceedings regarding a claim founded on a contract,
a
person that was not a party to the contract and had no rights or
obligations in respect of it, did not have to be joined as a
party.
[26]
The notion that threshold agreements served as a “shield”
for the majority trade
unions was debunked by the Constitutional
Court on appeal in
SACOSWU.
[13]
In addition, those entities, whose joinder M&R contended for,
were not parties to the settlement agreement, or involved in
any of
the proceedings relating to the first or second referrals. They have
no legal interest as defined in the decisions referred
to earlier and
they do not stand to suffer any prejudice as contemplated due to the
outcome of AMCU’s application which is
before us on appeal. The
non-joinder point was clearly an afterthought, and even though
non-joinder may be raised at any stage
of the proceedings,
[14]
it clearly has no merit in these proceedings. The Labour Court was
therefore correct in not ordering the joinder sought by M&R.
The settlement agreement
[27]
It is apparent from the pre-printed form itself what the terms of the
settlement agreement were.
It does not appear as if M&R had to
make any compromises. Instead, it appears as if AMCU capitulated –
accepting the
view that the only way it could acquire the
organisational rights sought, was by becoming a member of the MEIBC.
As a member, it
would have been obliged by the terms of the PLA and
PA to subscribe to those agreements. AMCU was at the time clearly
ignorant
of the law concerning the accessing, or exercise of those
rights. The settlement agreement, which was concluded on 21 May 2014,
predates the decisions of this Court and the Constitutional Court in
SACOSWU
.
[28]
In
SACOSWU
on appeal the majority in the Constitutional Court held that majority
trade union parties (and employers) could not, by entering
into
private threshold agreements contemplated in section 18 of the LRA
and which were not laws of general application, limit a
trade union’s
(and accordingly its members’) right to engage in collective
bargaining.
[15]
Accordingly,
such a private threshold agreement could also not preclude a minority
trade union from bargaining with the employer
about organisational
rights. Section 18 of the LRA does not authorise majority unions and
employers from determining which constitutional
rights other unions,
which were not parties to the threshold agreement, may exercise.
[16]
Section 20 of the LRA also declares expressly that nothing in part A
of Chapter III (being the place in the LRA where section 18
is
located) precludes the conclusion of a collective agreement that
regulates organisational rights. Thus, not even a threshold
agreement
concluded between an employer and a majority union, or unions.
[17]
Although section 23 of the LRA is not located in the position of the
LRA referred to in section 20, it also does not preclude a
collective
agreement between an employer and a minority union regulating
organisational rights where there is an existing threshold
agreement
in place between an employer and a majority trade union regulating
those rights.
[18]
[29]
According to the majority judgment of the Constitutional Court in
SACOSWU
:
“when properly construed Chapter III of the LRA reveals that a
minority union may access organisational rights in section
12, 13 and
15 in a number of ways. First, it may acquire those rights if it
meets the threshold set in the collective agreement
between the
majority union and the employer. In that event, a minority union does
not have to bargain before exercising the rights
in question. Second,
such a union may bargain and conclude a collective agreement with an
employer in terms of which it would be
permitted to exercise the
relevant rights. Third, a minority union may refer the question
whether it should exercise those rights
to arbitration in terms of
section 21 (8C) of the LRA. If the union meets the conditions
stipulated in that section, the arbitrator
may grant it
organisational rights in the relevant provisions.”
[19]
[30]
AMCU submits that if it had been aware of the true legal position, it
would not have entered
into the settlement agreement. Essentially, it
sought the setting aside of the settlement agreement on one of three
possible bases.
The first is that there was a unilateral,
alternatively common mistake regarding the legal position; secondly,
the mistake made
concerning the legal position and which induced the
conclusion of the settlement agreement, was as a result of
representations
made by M&R and the presiding commissioner (the
third respondent); thirdly, that the entire proceedings before the
said commissioner,
including the settlement, were to be set aside
because of a material irregularity in the proceedings when the
commissioner advised
AMCU’s lay representative regarding the
outcome, thus inducing him to enter into the settlement agreement on
behalf of AMCU.
[31]
The Labour Court found that the settlement agreement was based on a
common mistake regarding
the legal position. A common mistake is one
where both parties to the contract made the same mistake.
[20]
In this instance, the Labour Court found, in effect, that M&R and
AMCU made the same mistake regarding the legal position concerning
the exercise of certain organisational rights. Both were mistaken
about the legal position and this mistake underlies the conclusion
of
the settlement agreement.
[32]
It is settled that a compromise or settlement agreement may be set
aside on the grounds of fraud
or
iustus
error.
[21]
It may also be set aside for being void or on the ground that it was
entered into on the basis of a common, but false assumption.
[22]
In the case of the latter, there is no lack of consensus, but the
contract is regarded as void if the mistake relates to a material,
underlying fact.
[23]
A common
mistake has been said to have this effect because it is inferred that
the parties intended to contract on the grounds
of their common, but
false assumption – “that is, they tacitly agreed to
contract on the supposition that the fact
about which they were
mistaken did, in fact, exist.”
[24]
[33]
In
Concor
Projects,
[25]
this Court dealt with a settlement agreement concluded on the basis
of a common mistake regarding the law. This Court referred
with
approval to what was stated in
Dickenson
Motors (Pty) Ltd v Oberholzer
[26]
,
namely: “an agreement founded upon a common mistake, which
mistake is impliedly treated as a condition which must exist
in order
to bring the agreement into operation can be set aside, formally if
necessary or treated as set aside and as invalid without
any process
or proceedings to do so.” This Court then went on to find
(confirming the Labour Court’s decision) that
the agreement
there in question was based on a common mistake and that the Labour
Court was, accordingly, correct in disregarding
that agreement.
[34]
The submissions made on behalf of M&R concerning the Labour
Court’s reliance on this
Court’s decision in
Concor
Projects
were the following: that reliance on a common mistake on its own is
not enough and that the parties ought to have made the agreement
dependent upon an assumed fact; that in
Concor
Projects,
this Court found that the parties’ agreement was conditional in
that sense, but
Concor
Projects
is not authority for the proposition that a settlement agreement may
be set aside merely because the parties were under a common
misapprehension as to their respective rights; that AMCU never
alleged in its affidavits that the parties agreed that the validity
of the settlement agreement should depend (or be conditional) upon
the correctness of the legal proposition that the threshold
agreement
means that AMCU is not entitled as of right to organisational rights
(according to M&R that would not have achieved
any settlement at
all, because that was the “determinative issue” at the
time, i.e. that was the very matter the parties
compromised on); and
lastly, if the decision in
Concor
Projects
can
be read as authority for the proposition that the settlement
agreement may be set aside in the circumstances of the matter before
us, it would be against the weight of authority, including the
decisions in
Van
Reenen Steel (Pty) Ltd v Smith NO
[27]
(“ Van Reenen Steel”)
and
Van
McCulloch v Kelvinator Group Services of SA (Pty) Ltd
[28]
(“
McCulloch”).
[35]
In my view, these arguments raised by M&R have no merit. Firstly,
the parties did not compromise
regarding the legal position. AMCU
compromised by withdrawing its application and agreeing, in effect,
to join the MEIBC. Both
sides, including the Commissioner presiding,
were under a misapprehension as to the true legal position. The
decision of this Court
in
Concor
Projects
is not inconsistent with what was held in
Van
Reenen Steel
or
in
McCulloch
concerning the law on common mistake. What was held in
Van
Reenen Steel,
and subsequently confirmed in
Transnet
v Rubenstein
[29]
(“
Rubenstein”),
is that a party cannot vitiate a contract for a common mistake or
assumption, unless the contract was based on that common, but
mistaken assumption, or the mistake was induced by a
misrepresentation.
[36]
Others have read
Van
Reenen Steel
and
Rubenstein
to mean that for an assumption to have an effect, a litigant is
obliged to plead it as a tacit term, or a condition (suspensive
or
resolutive), because those concepts are well known in the law.
[30]
I do not agree, with respect. It is not what the court held in either
of those matters. But it was held that in order to have legal
effect
a supposition had to translate into either as a mistake,
misrepresentation, a term, or a condition (suspensive or
resolutive).
[31]
[37]
Having taken into account what was held in,
inter
alia
,
Van
Reenen Steel
and
Rubenstein
regarding
common mistake, the view, which I respectfully agree with, is
expressed by LTC Harms,
[32]
who was also the scribe of the court’s judgment in
Van
Reenen Steel
,
that a party who wishes to avoid a contract on the basis of a common
mistake – must allege and prove that: “(a) the
contract
was based on a common assumption; (b) the assumption was incorrect;
and (c) the subject-matter of the assumption was vital
to the
transaction – in other words, had both parties been aware of
the true position the transaction would not have been
entered into.”
[38]
It is clear from the affidavits, which make out, both, the pleadings
and constitute the evidence,
that even though M&R tried to deny
in its response that the parties had erred as far as the legal
position was concerned, such
denial was patently unconvincing, and
that the wrong legal position regarding the nature and effect of the
threshold agreements
was assumed by both M&R and AMCU (and the
presiding commissioner); that the settlement was based on that wrong
assumption of
the law; and that AMCU would not have entered into the
settlement agreement if it knew what the true legal position was.
AMCU had
therefore made out the case that the settlement agreement
was void because of the parties’ common mistake.
[39]
In any event, if M&R had known what the true legal position was
at the time of the first
referral (i.e. the position as expounded by
the Constitutional Court in
SOCASWU
), but had represented to
AMCU’s representative that AMCU could only acquire the
organisational rights by submitting its audited
membership figures to
the MEIBC, or by, effectively, becoming a member of the MEIBC, and a
party to the PLA and PA, that would
have constituted a
misrepresentation that induced the settlement agreement, being yet
another basis for its vitiation.
[40]
Thus, the Labour Court did not err in setting aside the settlement
agreement. Since it is really
the settlement agreement that formed
the basis of and had the effect of
res
judicata,
[33]
the setting aside of the settlement also justified the setting aside
of the jurisdictional ruling of the second respondent.
The Alternative review
ground
[41]
In its application, AMCU also relied upon yet another ground (beside
mistake), which is alluded
to earlier, for the setting aside of the
settlement agreement. Relying on section 158(1)(g) of the LRA, it
sought to review and
set aside the entire conciliation process
(including the settlement agreement) before the third respondent, on
the grounds of the
third respondent’s partiality, or on the
basis of a reasonable perception of bias on his part. The Labour
Court did not make
findings in that regard, apparently because it
decided the matter on the basis of the common mistake. The Labour
Court did not
grant M&R leave to appeal on that ground and AMCU
did not indicate that it was cross-appealing in respect of that
ground. Although
some argument was advanced by both parties in
elaboration of that point, it was not adequately ventilated in the
proceedings in
the Labour Court, or in this Court. This Court has a
discretion, in those circumstances not to entertain and determine
it.
[34]
In any event, in light
of the finding by this Court on the issue of common mistake, it is
not necessary to consider that ground.
Costs and result
[62]
Both parties sought costs orders in their favour should they succeed.
There is no reason either
on the facts or in law why the costs should
not follow the result.
[63]
In the result, the following order is made:
The appeal is dismissed
with costs.
___________________________
P
Coppin
Judge
of the Labour Appeal Court
Waglay
JP and Jappie JA concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT: Adv.
HA Van der Merwe
Instructed
by Fluxmans Inc.
FOR THE
RESPONDENTS: Adv. FA Boda SC
Instructed
by Larry Dave
[1]
The
Labour Court’s judgment is reported as
Association
of Mineworkers and Construction Union obo Members v Commission for
Conciliation, Mediation and Arbitration and Others
(2018)
39 ILJ 130; [2018] 7 BLLR 656 (LC).
[2]
Act
66 of 1995.
[3]
[2017]
9 BLLR 905
(LAC) paras 36-39.
[4]
[2014]
6 BLLR 534
(LAC) paras 40-41.
[5]
1952
(1) SA 443 (A).
[6]
(2018)
39 ILJ 376 (LAC) para 15.
[7]
(2009)
30 ILJ 2056 (LC).
[8]
2013
(1) SA 170
(SCA) (“Cape Bar Council”) para 12.
[9]
See
,
inter alia, Amalgamated Engineering Union v Minister of Labour
1949 (3) SA 637 (A).
[10]
See,
inter
alia
,
United
Watch and Daimond Co (Pty) Ltd v Disa Hotels
1972 (4) SA 409
(C) 415E-F.
[11]
See
,
inter alia
,
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953 (2) SA 151 (O).
[12]
See
para 12.
[13]
Reported
as
Police
and Prisons Civil Rights Union v South African Correctional Services
Workers’ Union and Others
[2018] 11 BLLR 1035
; (2018) 39 ILJ 2646;
2019 (1) SA 73
(CC).
[14]
See
inter
alia, Amalgamated Engineering Union v Minister of Labour
(above).
[15]
See
para 71 of the
SACOSWU
judgment.
[16]
See
para 93 of the
SACOSWU
judgment.
[17]
See
paras 96-98 of the
SACOSWU
judgment.
[18]
See
paras 99-101 of the
SACOSWU
judgment.
[19]
See
para 102 of the
SACOSWU
judgment.
[20]
See:
inter
alia
,
Gollach
& Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co
(Pty) Ltd
1978 (1) SA 914
(A) (“
Gollach
& Gomperts”).
[21]
See:
inter alia,
Wessels
v Badenhorst
1939 TPD 465
at 469;
Gollach
& Gomperts
at
922-923; and the other cases cited in GB Bradfield
Christie’s
Law of Contract in South Africa
(7ed)
535.
[22]
See:
Tauber
v Van Abo
1984 (4) SA 482
(E) 468,469.
[23]
See:
Dickenson
Motors
(above) and
Gollach
& Gomperts
(above).
[24]
Joubert
(ed)
The
Law of South Africa
(First Re-issue) Vol, 5 (Part 1) para 144;
Ornelas
v Andrew’s Café
1980 (1) SA 378
(W) 394B-C.
[25]
See
above.
[26]
See
above at 450C-E.
[27]
2002
(4) SA 264 (SCA) 269.
[28]
1998
(4) SA 814
(W) 823G-J.
[29]
2006
91) SA 591 (SCA).
[30]
RH
Christie
The
Law of Contract in South Africa (
5ed)
328
.
[31]
See
:
Transnet
Ltd v Rubenstein
(above) at 433.
[32]
LTC
Harms
Amler’s
Precedents of Pleadings
(8ed) 256.
[33]
See:
Gollach
& Gomperts
(above).
[34]
NUMSA
obo Sinuko v Powertech Transformers (DPM) and Others
[2014]
2 BLLR 133
; (2014) 35 ILJ 954 (LAC) paras 27-43.