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[2011] ZALCJHB 242
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Lala v Standard Bank of South Africa (J958/11) [2011] ZALCJHB 242 (19 October 2011)
Not reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: J 958/11
In the matter between:
NKOSINATHI
LALA
..........................................................................
Applicant
and
STANDARD
BANK OF SOUTH AFRICA
.....................................
Respondent
Heard
:
19 October 2011
JUDGMENT
SAVAGE AJ
Introduction
This is an application to review and set aside a settlement
agreement entered into between the parties under the auspices of
the
Commission for Conciliation Mediation and Arbitration (“CCMA”)
on 11 March 2009. The application is made in terms
of section 145
read with section 158 of the Labour Relations Act No 66 of 1995, as
amended (“the Act”).
On 19 October 2011 I dismissed the review application with costs. My
reasons for the order appear below.
Section 145(1) of the Act provides:
‘
[A]ny
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the
arbitration
award
…”
(my
emphasis).
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.’ This is apparent from a reading of
section 158(1A) of the Act. Accordingly, a settlement agreement
entered into between the parties does not constitute an ‘arbitration
award’ for purposes of the Act, unless it has
been made an
arbitration award in terms of section 142A of the Act.
An arbitration award is that which is issued by a commissioner in
terms of section 138(7) within 14 days of the conclusion of
arbitration proceedings, or an award made in terms of section 142A
of the Act. No such arbitration award was issued by the CCMA
in this
matter.
This Court does not have jurisdiction to review a settlement
agreement in terms of the provisions of either section 145 or 158
of
the Act. In the circumstances, this Court lacks jurisdiction in this
matter. The review application is accordingly dismissed.
The applicant argued that there should be no order as to costs,
while the respondent sought costs. It is trite that a judicial
officer has a discretion as to whether or not to award costs taking
into account considerations of fairness. In exercising this
discretion,
ordinarily, it should be borne in
mind that the party that is wholly successful in an action or
application is awarded costs.
‘…
In
other
words, the judicial officer may not, as he or she pleases, deprive a
successful party of its costs. He or she must do so for
reasons which
he or she must set out or state. It similarly follows that, although
ordinarily a successful party will be awarded
its costs, it does not
follow that that will always be the case.’
1
I find no basis to conclude that costs should not be awarded in this
matter, nor are there particular considerations of fairness
which
would justify such an order. In the circumstances, costs are to
follow the result.
Order
The review application is dismissed with costs.
_______________________
K M Savage
Acting Judge
APPEARANCES
APPLICANT: Mr J Magodi
Instructed by: Madikizela Nyathi Attorneys
RESPONDENT: Mr Cithi,
Perrot Van Niekerk Woodhouse Matyolo
1
The
Trustees of the Time Being of the Biowatch Trust v Registrar
Genetic Resources and Others
(Open
Democracy Advice Centre as Amicus Curiae) (A831/2005)
[2008] ZAGPHC
135
(13 May 2008);
2008 JDR
0442 (T)
at para 31