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[2009] ZALCJHB 108
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Tsotetsi v Stallion Security (Pty) Ltd (J2023/08) [2009] ZALCJHB 108 (28 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J2023/08
In
the matter between:
S
A TSOTETSI
APPLICANT
and
STALLION
SECURITY (PTY)
LTD
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application for leave to appeal
against the order which this Court issued on 21
st
October 2008. In terms of that order this Court set aside the writ of
execution dated 20
th
February 2008. The Court further made the settlement agreement signed
by the parties an order of Court.
[2]
The applicant has also applied for
condonation for the late filing of his leave to appeal which was 17
(seventeen) days late. The
first respondent did not oppose the
condonation application. The condonation application for the late
filing of the application
for leave to appeal is granted regard being
had to the period of the lateness and the fact that it was not
oppose.
[3]
On the 13
th
August 2009 I granted the applicant leave to appeal to the Labour
Appeal Court.
Background
facts
[4]
At the time of his dismissal on 29
th
June 2006 the applicant (the employee), had been in the employ of the
first respondent for about 8 (eight) months. The employee
was
dismissed for gross negligence. Following his dismissal the employee
referred a dispute concerning an alleged unfair dismissal
to the
Commission for Conciliation, Mediation and Arbitration (the CCMA).
[5]
The arbitrator found the dismissal of the
employee to have been both procedurally and substantively unfair and
ordered reinstatement
with compensation in the amount of R12 000.00.
The first respondent then instituted the review application against
the arbitration
award.
[6]
It would appear in response to the review
application the employee instituted contempt of Court proceedings
against the first respondent.
The employee had also filed an
application with the CCMA in terms of section 143 of the Labour
Relations Act 66 of 1995 (the LRA).
[7]
Following the contempt of Court application
the first respondent forwarded to the employee a settlement offer in
the amount of R8000,00
which he accepted. Upon the acceptance of the
offer the first respondent issued a cheque in that amount in
compliance with the
settlement agreement.
[8]
However, despite the acceptance of the
offer and signing for the receipt of the cheque of the settlement
amount, the employee proceeded
by default to have the award made an
order of Court. Thereafter, the employee proceeded to have a writ of
execution issued to enforce
the Court order.
[9]
Paragraph 3 of the settlement agreement
provides that the settlement agreement is in full and final
settlement of all claims that
the parties may have against each
other. It is further stated in paragraph 4 that the employee forfeits
the right to proceeds with
any legal action and has accepted the
settlement in full and final settlement of all claims he may have
against the first respondent.
[10]
The application to have the writ of
execution set aside came before the Court on the 14 October 2008 and
the matter was postponed
to 21 October 2008. In terms of the order
granting the postponement the employee was ordered to file his
opposing papers by the
17 October 2008.
[11]
The employee failed to comply with the
Court order of the 17 October 2008 in that he failed to file his
opposing papers by the date
set in the order. In this respect he also
failed to show that he had served his opposing papers on the first
respondent. He indicated
during argument that he had handed his
opposing papers to the respondent before Court on the morning of the
21 October 2008.
[12]
It was for the above reasons that this
Court set aside the writ of execution issue on the 20 February 2008
aside and made the settlement
agreement an order of Court.
[13]
The applicant’s ground for leave to
appeal are based on the contention that the Court erred in making the
settlement agreement
an order of Court when in fact the settlement
amount was for payment of statutory amounts due to him being for,
leave pay, provident
fund and return of uniform. The employee further
contended that Court erred in implying that “
by
issuing the settlement agreement the applicant was signing what was
due to give (sic) by arbitration away”
and
that he could not have “
signed the
settlement agreement for R8000. 00 in favour of losing R12000, 00
stated in the arbitration award.”
[14]
It is trite that the test in considering
leave to appeal is whether or not there is a reasonable prospect that
another Court may
come to a different conclusion to that of the
Labour Court. In the present instance, I am of the view that there
are reasonable
prospects that the Labour Appeal Court is likely to
arrive at a different conclusion to the one reached by myself.
[15]
In exercising my discretion of making the
settlement agreement an order of Court, I overlooked the
interpretation of the law as
concerning which agreement can be made
an order of the Court.
[16]
In terms of section 158 (1) (c) of the
Labour Relations act 66 of 1995, the Court has the power to make any
settlement agreement
an order of Court. There seems to be nothing in
section 158 (1) (c) that limits the powers of the Court to only those
settlement
agreements relating to disputes for which the parties had
the right to refer to the Court. It seems to me that the Court has
the
power to make any settlement agreement an order of Court that a
party has a right to either refer to arbitration or the Court. There
is no specific reference to the definition of agreement in the
Labour
Relations Act. Thus
in considering whether an agreement should be
made an order of Court, account should also be taken of the
provisions of
section 142A
of the
Labour Relations Act. Section
142A
(1) reads as follows:
“
(1)
The Commission may, by agreement between the parties or on
application by a party, make any settlement agreement
in respect of
any dispute that has been referred to the Commission, an arbitration
award.”
Subsection
2 which defines settlement agreements reads as follows:
“
(2)
For the purposes of subsection (1), a settlement agreement is a
written agreement in settlement of a dispute that
a party has the
right to refer to arbitration or to the Labour Court, excluding a
dispute that a party is entitled to refer to
arbitration in terms of
either
section 74
(4) and
75
(7).”
[17]
In the case of
Tumelo
Stephen Molaba v Emfuleni Local Municipality and Others
unreported case number J1438/07,
Van Niekerk J in considering whether to make a settlement agreement
an order of Court had the following to say:
“
[6]
The wording of
s 142A
suggests that for an agreement to constitute a
settlement agreement, a number of requirements relating to nature and
form must
be met. First, the dispute that is the subject of the
settlement must have been “referred to the Commission”.
“Referred”
cannot mean referred to arbitration in terms
of
s 136
-
s 142A
(1) requires that the dispute must be one that a
party has the right to refer either to arbitration or to the Labour
Court. “Referred
to the Commission” therefore means
referred for conciliation in terms of
section 134.
This section, read
with the requirement that the dispute be one that a party has the
right to refer either to arbitration or to
the Labour Court, means
that it is only settlements of disputes about a matter of mutual
interest that are either arbitrable or
justiciable by this Court that
may be the subject of an arbitration award in terms of
s 142A.
This
excludes, for example, a settlement agreement in respect of a dispute
about wages. Finally, the agreement must be in writing.
Those cases
that deal with the definition of a collective agreement (which in
terms of
s 213
must be a “written agreement”) would
obviously be helpful in giving content to this requirement. See, for
example,
SAMWU v Weclogo [2000]10 BALR 1160 (CCMA).”
[18]
In my view, agreements that may be made
orders of Court include those disputes which may have not yet been
referred for which a
party had a right to refer to the Labour Court.
In other words, agreements which may be made orders of Court would
include those
agreements concluded before such disputes are referred
for conciliation or litigation. By way of example if parties reach an
agreement
regarding discrimination dispute before it is referred to
conciliation, such an agreement could be made an order of Court.
Similarly,
in the case of an arbitrable dispute, if parties reach an
agreement regarding an unfair dismissal before such a dispute is
referred
for conciliation, such an agreement could be made an
arbitration award because it is a dispute which a party has the right
to refer
to the Commission.
[19]
In the present instance, at the time the
agreement was concluded there existed no dispute between the parties.
The dispute that
had existed between the parties had already been
resolved by way of the arbitration award that had been issued under
case number
GAJB 15127-06.
[20]
It was for the above reason that I made an
order granting leave to appeal against the order making the agreement
an order of Court.
_______________
Molahlehi
J
Date
of Hearing :
13
th
August 2009
Date
of Judgment :
28
th
August 2009
Appearances
For
the Applicant :
Mr S A Tsotetsi (in person)
For
the Respondent: Mr B
Netshisumbewa (IR for the company)