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[2011] ZALCPE 10
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NEHAWU obo Tumana v Commission for Conciliation Mediation and Arbitration and Others (P115/08) [2011] ZALCPE 10; (2012) 33 ILJ 666 (LC) (29 September 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN PORT ELIZABETH)
CASE NO: P115/08
In the matter between:
NEHAWU
obo V N TUMANA
…...................................................
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
…....................................................
First
Respondent
ZOLA MADOTYENI N.O.
….......................................
Second
Respondent
NEW HAVEN PROVINCIALLY
AIDED
HOSPITAL FOR THE
CHRONIC SICK
….....................
.Third
Respondent
JUDGMENT
_________________________________________________________
LALLIE AJ:
[1] The applicant was
employed by the third respondent until she was dismissed for
misconduct. She referred an unfair dismissal
dispute to the first
respondent. The dispute was arbitrated by the second respondent who
found the applicant’s dismissal
substantively unfair but
procedurally fair and ordered the third respondent to pay the
applicant compensation in the amount of
R95401.00, the equivalent of
her 4 months’ remuneration.
[2] The applicant
approached the Labour Court to have the arbitration award of the
second respondent reviewed and set aside. In
addition it sought an
order reinstating her retrospectively from the date of her dismissal,
alternatively an order for the rehearing
of the arbitration by an
arbitrator of the first respondent other than the second respondent.
[3] The third respondent
lodged a cross-review application.
[4] Because of the
applicant’s delay in prosecuting its review application it was
directed to file an affidavit giving full
reasons for the delay. He
complied and the third respondent responded by moving an application
for the dismissal of the applicant’s
review application.
[5] The dismissal
application was argued on 3 March 2011 and the applicant’s
application was dismissed with costs. On 7 March
2011 the applicant’s
attorney, Mr Maseti (Maseti) addressed the following letter to Mr
Kirchmann (Kirchmann), the third respondent’s
attorney.
“
We
confirm that this matter was finalised by the Labour Court on 3 March
2011. We attach hereto the last page of the CCMA Arbitration
Award
which needs to be carried out by your client.
We therefore call upon
yourgoodselves to instruct your client to process the payment of R95
401.00 to our client.
Kindly keep us posted
with the processing of the payment”.
[6] On 28 July and 1
August 2011, the applicant filed its notice of application for leave
to appeal. The application is opposed
by the third respondent on the
grounds that by asking for payment in terms of the arbitration award,
the applicant acquiesced in
the judgement and the doctrine of
peremption therefore applies.
[7] The doctrine of
peremption was enunciated in
Hlatshwayo v Mare
& Deas
1912 AD
242
as follows:
“
...the
doctrine is based upon the application of the principle that no
person can be allowed to take up two positions inconsistent
with one
another, or as it is commonly expressed to blow hot and cold, to
approbate and reprobate.”
[8] Applying the
Hlatshwayo
decision the Labour Appeal Court found as follows
in
National Union of Metalworkers of SA & others v Fast Freeze
(1992) 13 ILJ 963 (LAC).
“
If
a party to a judgement acquiesces therein, either expressly or by
some unequivocal act wholly inconsistent with an intention
to contest
it, his right of appeal is said to be pre-empted, i.e. he cannot
thereafter change his mind and note an appeal. Peremption
is an
example of the well known principle that one may not approbate and
reprobate, or to use colloquial expressions, blow hot
and cold, or
have one’s cake and eat it”.
[9] in
Jusayo v Mudau
NO and 2 others
[2008] ZALC 34
;
[2008] 7 BLLR 668
(LC) the court confirmed the
relevance of the doctrine of peremption by finding that a party who
offers to comply with an award
unconditionally and unreservedly is
precluded from seeking to review the award.
[10] In this case the
applicant expressed its intention to challenge the arbitration award
by launching a review application. However,
3 days after an order
dismissing the applicant’s claim owing to the delay in its
prosecution was granted, Maseti addressed
a letter to Kirchman
telling him to instruct his client to comply with the arbitration
award by paying the applicant the amount
of R95401.00 the third
respondent was ordered to pay by the second respondent. In the letter
it is unequivocally stated that the
matter was finalised by the
Labour Court on 3 March 2011. By accepting that the matter was
finalised on 3 March 2011 the applicant
expressly communicated an
intention not to contest the decision of 3 March 2011. Having
accepted that the matter was finalised
the applicant is precluded
from changing its mind and seek to note an appeal. When a matter is
finalised it comes to an end and
many therefore not be pursued.
[11] The applicant’s
decision to inform the third respondent that the matter was finalised
was voluntary. It is inconsistent
with the intention to contest the
court’s decision. The applicant made its decision and
communicated it to the third respondent.
It is therefore precluded by
the doctrine of peremption from applying for leave to appeal.
[12] The application for
leave to appeal is therefore dismissed with costs.
_______________
LALLIE AJ
Date of judgment: 29
September 2011
For Applicant: Mr Maseti
of Maseti Incorporated
For the Respondents: Mr
Kirchmann of Kirchmanns Inc