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[2011] ZALCJHB 265
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Premier of Limpopo Province v Makgoka and Others (JR1194/2010) [2011] ZALCJHB 265 (16 February 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
NOT
REPORTABLE
DELIVERED
160211
CASE
NO JR 1194/2010
In
the matter between:
THE
PREMIER OF LIMPOPO PROVINCE
Applicant
and
THIVHAKONI
DAVID MAKGOKA
First
Respondent
GENERAL
PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
Second
respondent
THE
REGISTRAR, LABOUR COURT
OF
SOUTH
AFRICA Third
Respondent
SHERIFF
OF THE HIGH COURT FOR THE
DISTRICT
OF
POLOKWANE Fourth
Respondent
JUDGMENT
[1]
This is an application that has its roots in a judgment given by
Lagrange J on 29 June 2010. The applicant had brought an urgent
application to stay a written of execution issued in respect of a
settlement agreement between the applicant and the first respondent.
The settlement agreement had been made an arbitration award in terms
of s 143 (3) of the Labour Relations Act 66 of 1995 (‘the
LRA’). The applicant sought to have the writ set aside pending
an order that it had complied with the award, alternatively,
remitting the matter back to the second respondent (the
bargaining council) to determine the quantum of the settlement
between
the applicant and the first respondent.
[2]
In his judgment, Lagrange J issued an order staying the writ of
execution issued by the registrar of this court pending a
determination
of the quantum of the settlement agreement and whether
it had been complied with by the applicant. The dispute over the
determination
of the quantum of the settlement agreement was set down
for hearing on the opposed motion roll on 11 November 2010. Finally,
Lagrange
J gave directions as to particular issues that the parties
were required to address in the supplementary papers. The parties
filed
further papers as directed.
[3]
The factual background is set out in the judgment by Lagrange J and I
do not intend to repeat them in any detail. In brief,
the first
respondent attended a course in India from one February to 31 October
2008. The cost of the course, travel and accommodation
and a living
allowance were met by the High Commissioner for India. On his return
to South Africa, the applicant claimed a subsistence
allowance for
the time spent in India. There was a dispute about the tariff to be
applied. This was referred to the bargaining
council as an unfair
labour practice dispute. The dispute was ultimately referred to
arbitration. The parties settled the
dispute on terms that recorded
that "
the applicant\employee will be paid his subsistence and
travelling allowance for the period 1 February 2008 to 31 October
2008 using
the tariffs and rates that were applicable to the official
trips outside the RSA as contemplated in Annexure A of the Financial
Manual
." As I have noted above, the settlement agreement was
made an arbitration award in terms of s 143. Soon after the
settlement
was concluded, it became apparent that the parties had
different views on the amount that was payable to the applicant. In
short,
the applicant claims that it has satisfied the terms of the
settlement agreement by paying the applicant the amount of R 20 767,
61, a reduced special daily allowance, taking into account that
the High Commission for India sponsored the first respondent’s
trip. The applicant interprets the agreement differently and claims
the sum of R 208 744, 92. On 20 May 2010, the registrar issued
a writ
of execution in the latter amount in response to an affidavit deposed
to by the applicant in which he stated that he was
entitled to be
paid the amount in respect of which the writ was sought, as a
subsistence allowance while in India during 2008.
[4]
I deal first with the writ of execution. In
Butchard v Butchard
1996 (2) SA 581
(W) Wunsh J stated:
…
There is no
reason in principle or practice why a judgment or payment of a
category of expenses which can be quantified without
difficulty
should not be able to sustain a writ, if the accrual and the amount
of the expenses, on the basis of which liability
therefore is
established in a judgment, proved, for example, by an affidavit of
the judgment creditor. A writ is issued at the
judgment creditor’s
risk. If the debtor disputes liability for the amounts reflected
therein, for example because he says
he has paid them or because he
has been released from his obligations or because he contends that he
is not liable for them on
the ground that they are not within the
scope of the judgment, he can apply to the court for relief
(at
587, quoted in Herbstein and Van Winsen
The Civil Practice of the
High Courts and the Supreme Court of Appeal in
(5
th
ed. by Cilliers, Loots and Nel, 2009, at 1022).
[5]
As I have noted, the writ in the present instance was issued after
the first respondent filed an affidavit (which does not appear
to
have been served on any of the other parties to the dispute) stating
that he was entitled to the amount of R 208 744.92. The
first
respondent was fully aware at the time that the quantum of the
settlement agreement was the subject of dispute. The writ
was
accordingly issued at the first respondent's risk.
[6]
Insofar as the parties have sought to require this court to interpret
their settlement agreement, I am not persuaded that the
court as the
jurisdiction to do so. Although this court is empowered in terms of
section 158(1)(c) to make a settlement agreement
an order of court,
it does not necessarily follow that the court has the jurisdiction to
determine a dispute about the terms or
interpretation of that
agreement. There is nothing in s 157 which directly or indirectly
confers that jurisdiction on the court.
The authority referred to in
support of the proposition that the court is entitled to deal with
the interpretation of settlement
agreements, (
Mathosi & others
v Kintetsu World Express (Pty) Ltd & another
(2008) 29
ILJ
2785 (LC)) is limited to a statement that the court will not make a
settlement agreement an order of court unless the applicant
persuades
the court that the respondent has not complied with the terms of the
agreement.
[7]
The writ of execution was issued on the basis of a settlement
agreement that had been made an arbitration award. The settlement
agreement was not made an order of this court in terms of s
158(1)(c). Had it been, I could appreciate the scope of an argument
to the effect that this court, having issued an order, might be
called on to interpret the terms of the settlement agreement in
giving effect to that order. What is before this court is ultimately
an application to stay a writ in circumstances where the applicant
contests the first respondent’s quantification of the award. It
seems to me that this is a matter to be dealt with by the
bargaining
council, or as a contractual dispute, and that it remains for the
parties to refer their dispute about the interpretation
of the
settlement agreement to an appropriate forum for determination.
For
these reasons, I make the following order:
1. The
writ of execution issued by the third respondent on 20 May 2010 under
case number GPBC436/2009 is set aside
2.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application 11 November 2010
Date
of judgment 16 February 2011