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[2011] ZALCJHB 62
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Mogano v Commission for Conciliation Mediation and Arbitration and Others (JR2585/10) [2011] ZALCJHB 62 (20 July 2011)
MOLETSANE AJ
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JR2585/10
In
the matter between:
RAMOKONE
JOHANNA MOGANO
…............................................................
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBTRATION
…...................................................
First
Respondent
THENJIWE
NHLIZIYO N.O.
….........................................................
Second
Respondent
LAURICE
PRESTON
….........................................................................
Third
Respondent
Date of hearing : 20 July 2011
Date of judgment : 20 July 2011
JUDGMENT
MOLETSANE
AJ
In this application the
applicant seeks the following order:
1.1 Declaring Annexure A
attached hereto purporting to be a settlement agreement between
myself and the third respondent to be invalid
and of no force and
effect.
Setting aside Annexure A and
remitting the matter back to the second respondent for
reconsideration.
Alternatively, declaring that
the applicant was unfairly dismissed.
Cost of this application in
the event of opposition.
Granting the applicant further
and/or alternative relief.
The application is unopposed.
Brief
background
On 15 July 2010, at the
Commission for Conciliation, Mediation and Arbitration (“CCMA”)
offices in Pretoria, conciliation
took place between the applicant
and the third respondent. The said conciliation was conciliated by
the second respondent (Commissioner
Nhliziyo).
The outcome of conciliation was
the settlement agreement signed by the applicant and the third
respondent. The Commissioner thereafter
issued a certificate that
the matter had been resolved/settled. The settlement agreement
contained the following contents:
4.1 The applicant will hereby
withdraw this matter on condition that the respondent also withdraws
the criminal case that she has
opened against the applicant.
The relationship has come to
an end by mutual agreement between the parties.
The settlement agreement
further stated that it was in full and final settlement of the said
dispute, without further recourse.
Applicant`s
grounds for seeking the setting aside of the settlement agreement
The applicant states the
following in her affidavit:
The Commissioner advised her
that the third respondent had opened a criminal case against her.
That the Commissioner advised
her that she must withdraw her referral
and that the third respondent
would withdraw her criminal case against her.
6.3 She was forced and/or
instructed and/or pressured by the Commissioner to sign the
settlement agreement.
6.4 The Commissioner requested
the interpreter to call her sister (who was outside the conciliation
room) to explain to her the
proposition.
The confirmatory affidavit of
the applicant’s sister (Mapula Margaret Mokone) has been
attached to the applicant’s
founding affidavit.
My
concerns
The applicant’s founding
affidavit in incomplete in that it does not have page 6. Mr Mketsu
for the applicant conceded that
indeed page 6 was missing even in
this file. The incomplete affidavit has clearly prejudiced the
respondents in that when they
decided not to oppose the application,
they did not have page 6. I am therefore not in a position to
properly determine the matter.
On this reason alone the application
stands to be dismissed. Furthermore, there is a duty on the
applicant to substantiate how
she was forced to enter into a
settlement agreement facilitated by the Commissioner.
1
In casu
due
to missing pages, the applicant has failed to substantiate.
Secondly, the applicant is not
specific in terms of what ground she wants to rely upon. She states
that she was “forced”
and/or “instructed”
and/or “pressured” by the Commissioner. It shows that
she is not sure which ground
she wants to rely on.
Thirdly, the applicant seeks as
a prayer that the settlement agreement be set aside without seeking
to set aside the certificate
certifying that the dispute has been
resolved/settled.
Fourthly, the applicant seeks
that the matter be remitted back to the very same commissioner that
allegedly instructed and/or
forced and/or pressured her to enter
into that settlement agreement.
Under the circumstances the
applicant cannot be assisted by this court. In my view, an applicant
that seeks to be assisted by
the court needs to place proper and
sufficient information before the court. The applicant was at all
material times assisted
by firm of attorneys and one would have
expected that a proper work to have being done when drafting the
application.
In the event I make the
following order :
The applicant’s
application is dismissed.
There shall be no order as to
costs.
____________________
MOLETSANE
AJ
Appearances
For
the Applicant : Attorney Mketsu
1
See
Lutchman v Pep Stores and Another
[2004] 4 BLLR 374
(LC)
5