Independent Municipal and Allied Trade Union and Others v South African Local Government Association and Others (J 1255/2010) [2012] ZALCJHB 60 (22 June 2012)

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[2012] ZALCJHB 60
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Independent Municipal and Allied Trade Union and Others v South African Local Government Association and Others (J 1255/2010) [2012] ZALCJHB 60 (22 June 2012)

REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case no: J 1255/2010
In the matter between:
THE INDEPENDENT MUNICIPAL
AND ALLIED TRADE UNION
….......................................................................
First
Applicant
DALE FORBES N.O AND NINE OTHERS
…........................
Second
to Eleventh Applicants
and
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION
…..........................................................................................
First
Respondent
SOUTH AFRICAN MUNICIPAL
WORKERS UNION
…..............................................................................
Second
Respondent
THE SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
….........................................................................
Third
Respondent
GERHARD JOHAN GREVELING N.O
AND ELEVEN OTHERS
….................................................
Fourth
to Fifteenth Respondents
Heard : 15, 16, 17, 18 and 19 November 2010
24, 26 November 2010, 24 June 2011
Delivered : 22 June 2012
Summary :
Rectification of a Wage Curve Collective
Agreement signed on 21 April 2010 to give effect to the agreement
reached between the parties
on 20 April 2010 and the agreement
reached in respect of the amendment of one clause immediately prior
to the signing of the Wage
Curve Collective Agreement.
JUDGMENT
AC BASSON, J
The parties
The applicant in this matter is the
Independent Municipal and Allied Trade Union (hereinafter referred
to as ‘IMATU’).
The second to eleventh applicants are
Mr. Dale Forbes (the Collective Bargaining Officer of SAMWU), Mr.
Ndhlovu (SAMWU), Mr.
Kennedy Nkosi (SAMWU), Mr. Andre Adams (SAMWU),
Mr. Phasoane Molope (President of SAMWU), Mr. Ntokoza Nzuza (SAMWU),
Mr. Barend
Koen (General Secretary of IMATU), Mr. Danie Carstens
(IMATU), Mr. Stanley Khoza (IMATU) and Ms Helen Duminy (IMATU)
(hereinafter
referred to as the ‘individual applicants’).
The application to join the individual applicants was not opposed
and
was granted at the commencement of the proceedings.
The first respondent is the South
African Local Government Association (hereinafter referred to as
‘SALGA’). The second
respondent is the South African
Municipal Workers Union (hereinafter referred to as ‘SAMWU’).
The second respondent,
although it did not file any papers, made
common cause with the applicants in these proceedings. For purposes
of this application
Mr. Van der Riet SC appeared on behalf of both
IMATU (the first applicant) and SAMWU (the second respondent).
(Where reference
is made to ‘the Unions’ reference is
made to both SAMWU and IMATU. I will refer to the unions and the
second to eleventh
applicants collectively as ‘the
applicants’).
The third respondent is the South
African Local Government Bargaining Council (‘the SALGBC’).
Although cited as a
respondent, the SALGBC took no steps to oppose
the application or to intervene in the proceedings. Mr. Brassey SC
and his junior
appeared on behalf of the first respondent. The
fourth and further respondents are members of the caucus of the
first respondent’s
Bargaining Committee representatives.
At the close of the applicants’
case, SALGA moved for absolution from the instance. The application
was dismissed.
The urgent application
The dispute about the validity of the
Categorisation and Job Evaluation Wage Curves Collective Agreement
first came before this
Court by way of an urgent application for a
temporary interdict against the SALGBC for a declaratory order that
the 21 April
2010 agreement is void
ab initio
. The order
sought to prevent the SALGBC from implementing the Wage Curve
Collective Agreement signed on 21 April 2010, until
the dispute
between the parties regarding the validity of the said Collective
Agreement could be resolved. On the day of the
hearing, the Court
indicated to the parties that the factual disputes could not be
resolved without hearing oral evidence. By
agreement it was ruled
that the application be referred to oral evidence so that the
dispute regarding the validity of the Categorisation
and Job
Evalution Wage Curve Collective Agreement signed on 21 April 2010
could be resolved. IMATU did not file any affidavits
in the urgent
application but aligned itself with the urgent application brought
by SAMWU.
The dispute
The dispute between the parties
relates to the validity of ‘the Categorisation and Job
Evaluation Wage Curves Collective
Agreement’ signed on 21
April 2010 at a signing ceremony by IMATU, SAMWU (the unions) and
SALGA under the auspices of the
SALGBC. (I will refer to this
collective agreement generally as the ‘Wage Curve Agreement’.)
The Wage Curve Agreement
was the result of negotiations on 19 and 20
April 2010 and led to the signing of a Wage Curve Agreement on 21
April 2010. It
is fundamentally in dispute whether the applicants
had intended to sign the version of the Wage Curve Agreement that
was actually
signed on 21 April 2010 or whether they had intended to
sign the Wage Curve Agreement that emerged from the deliberations of

the Drafting Committee (representing the respective bargaining
counterparts) that concluded their deliberations on 20 April 2010.

What is, however, common cause is the fact that a Wage Curve
Agreement was signed on 21 April 2010.
The applicants allege that the Wage
Curve Agreement that was concluded on 20 April 2010 is the
collective agreement that is binding
on IMATU, SAMWU and SALGA (the
collective bargaining parties). (I will refer to the Wage Curve
Agreement which the applicants
say came into existence on 20 April
2010 and therefore binding on the parties (although unsigned), as
the ‘20 April Agreement’.)
SALGA allege that the Wage
Curve Agreement that is binding on the collective bargaining parties
is the one that was signed on
the following day namely 21 April
2010. (I will refer to the Wage Curve Agreement which SALGA says
came into existence as the
‘21 April Agreement’).
The contents of the 20 April
Agreement and the 21 April Agreement are exactly the same but differ
fundamentally in respect of
the implementation date of the salary
scales referred to in the Annexures to the Wage Curve Agreement.
Both of these agreements
(the one of 20 April and the one of 21
April) therefore intend to deal with the same issues one of which is
the wage curves for
the different categories of municipalities.
Apart from the date of implementation of the wage curve agreement
(and one or two
minor issues not material to this dispute) the 20
April agreement is therefore identical to the 21 April agreement. (I
will return
in more detail to the crucial difference between the two
agreements hereinbelow).
It is common cause that the 21 April agreement was signed at a
signing ceremony under the auspices of the SALGBC. It is further

common cause that the parties under the auspices of SALGA were
involved in negotiations in the Bargaining Committee established
in
terms of SALGA’s constitution. (I will return to the said
constitution and the effect thereof hereinbelow).
It is further also common cause that the Wage Curve Agreement was
signed on 21 April 2010 in the context of a strike in support
of,
inter alia,
the conclusion of the Wage Curve Agreement. The
strike was also in support of the Disciplinary Code Collective
Agreement. (I
will refer to this collective agreement as ‘the
Disciplinary Agreement’). This agreement was also signed on 21
April
2010. The Disciplinary Agreement is however not in dispute in
these proceedings although reference will be made to this collective

agreement.
The negotiations to settle the strike took place over two days
namely on 19 and 20 April 2010 and ultimately culminated in the

signing of the 21 April Wage Curve Agreement. The parties also took
part in other bilaterals on other dates between the different
role
players.
SAMWU’s Statement of Claim
In essence what SAMWU and IMATU are
seeking is an order from this Court confirming that the Wage Curve
Collective Agreement signed
on 21 April 2010 does not reflect the
agreement reached during their prior negotiations with SALGA on 20
April 2010.
Consequently, the applicants seek the
following relief:
An
order declaring that the 20 April Wage Curve Agreement
1
constitutes a
binding collective agreement between IMATU, SAMWU and SALGA.
Alternatively
to (i) above, rectification of the Wage Curve Agreement signed on
21 April 2010
2
by deleting
clause 8.2 thereof and inserting clauses 8.2 and 8.3 of the 20
April Wage Curve Collective Agreement.
3
If the order in 12.1 is granted,
then an order is also sought declaring that the Wage Curve
Agreement signed on 21 April 2010
does not constitute a valid
agreement.
In order to decide the dispute this
Court has to decide the following:
Firstly, whether the parties did in
fact reach an agreement on the contents of the document referred to
as the 20 April Wage
Curve Agreement.
Secondly, did the trade union
parties sign the document referred to as the 21 April Wage Curve
Agreement on the understanding
that this document in fact reflected
the agreement reached on 20 April 2010, subject to the amendment to
clause 7.2.3 agreed
to just before signature?
Thirdly, did the Unions form the
understanding that what they signed on 21 April 2010 was the 20
April 2010 Agreement on the
basis of the representation made by Mr.
Yawa (hereinafter referred to as ‘Yawa’) that only
clause 7.2.3 had been
amended?
Fourthly, did SALGA also sign the 21
April Wage Curve Agreement on the understanding that they signed
the agreement reached
on 20 April 2010 subject to the amendment of
clause 7.2.3 agreed to just before signing?
Background facts
Some of the background facts are
common cause. The parties, however, materially differ in respect of
the events that culminated
in the signing of the 21 April agreement.
Events prior to 20 April 2010
In
2003 IMATU, SALGA and SAMWU concluded a Wage Curve Collective
Agreement to give effect to the Job Evaluation Collective
Agreement.
4
This agreement was
concluded in an attempt to regulate and consolidate jobs in
municipalities by classifying jobs and providing
for job
descriptions. In brief, it was the purpose of this agreement to
provide for a mechanism for this process. Although this
process had
started already in 2003, it was only o
n
27 January 2009 that SAMWU referred a dispute concerning its
proposals for the development of a wage curve to the SALGBC for

conciliation. SAMWU demanded that a collective agreement be
concluded to create a formalised wage curve for all the different

jobs in municipalities.
On 26 March 2010, SAMWU issued a
strike notice and its members embarked on a nation-wide protected
strike in support of the Wage
Curve Agreement and the conclusion of
a new Disciplinary Code Collective Agreement.
Negotiations
took place between the different parties during the strike.
5
SAMWU and SALGA also held bilateral
meetings at which it was agreed that the wage curve scale in the
local government sector would
be based on the 50
th
percentile market position as
determined by Deloitte and Touche in its salary survey of September
2009. IMATU was in agreement
with this determination.
Prior
to the commencement of the Bargaining Committee
6
negotiations, the parties have
therefore already settled the basis for the wage curve scale
agreement. The negotiations of the
Bargaining Committee focused on
the draft collective agreements on the wage curve and the
disciplinary procedure. SALGA had 10
representatives, SAMWU had six
representatives (in light of the fact that it enjoys more
representation than IMATU) and IMATU
had four representatives on the
Bargaining Committee. Counselor Mashilo of SALGA was the chairperson
of the Bargaining Committee
and also acted as the facilitator.
Negotiations of the Bargaining
Committee on 19 and 20 April 2010
When the Bargaining Committee
convened drafts of the two collective agreements were projected on a
big screen directly from Forbes’
laptop. The Bargaining
Committee then proceeded to consider the draft collective agreements
clause by clause.
The Bargaining Committee continued
its deliberations until the early hours of 20 April 2010. The two
major issues at that stage
were the issue of back pay and pay
progression. The back pay issue was about whether the employees
ought to get the benefits
of the wage curve agreement
retrospectively. SAMWU’s position was that the employees
should get 24 months’ back pay
whereas SALGA’s position
was that they should get no back pay at all. The pay progression
issue was whether employees’
movement up the wage curve
notches ought to be automatic or whether it should be merit based.
During the negotiations (on 19 April
2010) Mashilo advised the Unions that SALGA had a special meeting
scheduled for the following
morning (20 April 2010) and that SALGA
would seek a further mandate from its National Executive Committee
to resolve the issue.
That meeting was held and the negotiations
continued thereafter on 20 April 2010. The parties concluded their
negotiations on
two important issues:
In respect of the back pay issue,
the parties agreed that employees who are entitled to benefits in
the wage curve collective
agreement would receive nine months’
back pay. As it will become clear later in this judgment, the
parties had not reached
an agreement on the period over which the
back pay would be paid. It appears from the evidence that this
issue was first raised
during the deliberations of the Drafting
Committee.
In respect of pay progression, the
parties agreed that this issue would not be dealt with in the
present collective agreement,
but that it would stand over for
deliberation at another time.
Deliberations of the
Drafting/Refining Committee
It is common cause that when the
deliberations of the Bargaining Committee were finalised, a
Drafting/Refining Committee was appointed
by the members of the
Bargaining Committee to refine the two draft collective agreements.
It appears from the evidence that the
parties at the Bargaining
Committee had finally reached agreement on a set of principles that
they considered sufficient to form
the basis for the signing of the
two collective agreements. The Drafting Committee was then tasked to
draft the collective agreements.
The Drafting Committee commenced
its deliberations in a smaller room at approximately 16H00 on 20
April 2010. Forbes had the
draft substantive agreements concluded in
the Bargaining Committee on his laptop. He then acted as the typist
and proceeded to
type whilst the Drafting Committee refined the
clauses one by one. Koen’s undisputed evidence was that none
of the Drafting
Committee members had a hardcopy of the two
collective agreements and that they relied on the copies on Forbes’
laptop.
Yawa (who is employed by SALGA as the Executive Director
Municipality Institutional Development) gave evidence that he had a

hard copy and that he was looking at the hard copy and not at the
computer screen of Forbes. (I will return to his evidence in
more
detail hereinbelow.)
The Drafting Committee consisted of
Mr. Koen (obo IMATU – General Secretary); Mr. Forbes (obo
SAMWU – the Collective
Bargaining Officer) and Messrs Yawa
(SALGA’s chief negotiator), Lebelo (member of SALGA’s
negotiating team and Director
of Labour Relations of the City of
Johannsburg) and Van Zyl (a member of SALGA’s negotiating
team). The parties disagree
as to the precise function this team was
supposed to perform. This dispute is formulated as follows in the
pre-trail minutes:
SALGA alleges that the team was
appointed to refine the agreement on all other issues initially
agreed upon and formulate the
agreement in terms of back pay as
agreed by the principals in the properly constituted Bargaining
Committee and then to place
it before the Bargaining Committee for
ultimate acceptance.
The Unions contend that the team was
appointed to formulate a draft collective agreement on,
inter
alia,
the wage curve issue for approval by their principals.
The evidence on behalf of the applicants was that all the
principals
were there when the Drafting Committee was refining the
two collective agreements and that they had approved the final
drafts
of the two collective agreements which emanated from the
deliberations. (I will return to the dealings of the drafting
committee
in more detail hereinbelow).
At the outset, it must be pointed out
that it is common cause that the Bargaining Committee never
reconvened or held another meeting
before the signing ceremony on 21
April 2010. It is further common cause that all the principal role
players were present whilst
the Drafting Committee was deliberating.
Forbes testified that Mr. George (the CEO of SALGA) was there
throughout the deliberations
and so were Yawa, Van Zyl and Lebelo
for SALGA. Koen was also there on behalf of IMATU.
Forbes testified that a dispute arose
during the deliberations of the Drafting Committee about the timing
or period of the back
pay that was to be paid. It is common cause
that Mashilo was called into IMATU’s caucus delegation to
assist in settling
the issue. Mashilo informed them that SALGA had
proposed that the nine month back pay would be paid over a period of
nine months.
The parties then settled the issue of back pay on this
basis during the refinement process. Molope testified that although
he
was not involved in the Drafting Committee, he and the other
representatives waited around in the event their members on the

Drafting Committee needed a mandate to settle an issue. He also
could recall the issue of the timing of the back pay and that that

issue was settled during the deliberations of the Drafting
Committee. This issue was therefore settled whilst the Drafting

Committee was deliberating on the final draft and without referring
the matter back to the Bargaining Committee for a voting process
as
required in terms of the Constitution of the SALGBC. Forbes’
evidence that the practice was to conclude collective agreements

without referring the final collective agreements again to the
Bargaining Committee was confirmed by Koen. (I will return to
the
evidence of Koen hereinbelow where I consider the submissions made
on behalf of SALGA in respect of the validity of the 20
April 2010
agreement.)
Forbes testified that it was therefore the task of the Drafting
Committee to take the substantive agreement reached in the

Bargaining Committee and to translate that into wording. Forbes (and
Koen) was adamant that the negotiating parties would then
consider
the agreements and settle any disputes that may arise during the
deliberations. As already pointed out, one of the disputes
that was
in fact settled (the extent of the (nine months) back pay) was
settled after the members of the Drafting Committee had
obtained
mandates from their respective principals who were all waiting in
the event they were required to give a to their representatives
on
the Drafting Committee.
As regards the seating arrangements in the room where the Drafting
Committee deliberated, Forbes’ evidence was that he
set up his
computer and acted as the typist. Yawa and Koen were seated next to
him. Koen confirmed in his evidence that Yawa
sat to the right of
Forbes and that he (Koen) was seated on Forbes’ left. Van Zyl
sat on the other side of the table and
could not see the laptop
screen. Lebelo stood behind them and was therefore also able to look
at the laptop screen.
Forbes then went through the agreements that the Bargaining
Committee had ended with clause by clause until it was finalised.

The other members of the team looked at the wording on his laptop
screen. He specifically disputed that everyone could not see
what
was going on on his computer. He further testified that everyone was
involved in the wording and that everyone made suggestions.
Koen
also confirmed that they went through the draft agreement clause by
clause agreeing on the wording as they went along. Van
Zyl was,
according to Koen, the only one who did not say much during the
deliberations.
SALGA’s version is that Lebelo and Yawa never saw what Forbes
was typing in on his laptop. The laptop was not linked to
a screen
(similar to the one that was used during deliberations of the
Bargaining Committee). Yawa testified that he and Forbes
were seated
on the one end of the table. Koen was seated on the other side of
the table straight opposite him and Lebelo was
seated next to him
almost opposite of Forbes. According to Yawa, he was not able to see
what Forbes was typing on his laptop
and that no one in fact looked
at what Forbes was doing. He testified that he had a hard copy of
the agreements that had emerged
from the Bargaining Committee
plenary and that he was looking at the hard copies. Yawa however
conceded that Forbes read each
clause out loud.
During the deliberations, a crucial
issue arose regarding the date on which the wage curve scales would
be increased. The representatives
discussed the issue. The Union’s
stance was that the wage curve scales ought to be increased on 1
July 2010 by the same
percentage as the salary increase that was due
on the same date. The Unions initially proposed that the wage curve
scales set
out in Annexures B1 – B2 to the Wage Curve
Collective Agreement be adjusted by the percentage of the
inflationary linked
salary increase that was due on 1 July 2010.
SALGA pointed out to the Committee that the percentage figures had
not yet been
determined. The union parties then proposed the
formulation of clauses 8.2 and 8.3 (as contained in the 20 April
2010 agreement)
with the implementation date of the wage curve as 1
July 2010. Forbes was adamant that they had agreed to the
implementation
date being 1 July 2010 and that SAMWU would never
have agreed to the implementation date being 1 July 2011. Koen also
confirmed
that the date of the increase was discussed and that it
was discussed that it would happen on 1 July 2010. Koen further
testified
that he had explained to the meeting why it had to happen
on that day. According to him, the date of 2011 was not tabled.
Yawa
could not remember whether clause 8 had been read out. Yawa,
however, accepted that the Unions took the position during the

deliberations of the Drafting Committee that the wage curve scales
ought to be adjusted from 1 July 2010. Yawa further accepted
that
when the trade unions realised that the wage curve scales could not
be physically adjusted because the percentage of the
inflationary
salary increase had not yet been determined, that they proposed the
formulation of clause 8.2 and 8.3 (as reflected
in the 20 April
agreement). Yawa, however, maintained that the agreement was then
reached in the Drafting Committee that the
wage curve scales would
be increased on 1 July 2011. According to him, if they (SALGBC) had
agreed on 1 July 2010 as the implementation
date, this would have
amounted to an impermissible tampering with the agreement reached in
the Bargaining Committee. SALGA’s
version, therefore, is that
they had agreed that the implementation date of the wage curve
agreement would be 1 July 2011. Yawa
further testified that he was
not that concerned about what was in the agreement as it was clear
that the signing was not going
to happen.
7
As will be pointed out below, this
version can clearly not be accepted in light of the fact that Yawa,
at that time, could not
have known that the agreements would not be
signed that evening. Mr. George was adamant during an interview on
E-TV that the
collective agreements would be signed that evening. (I
will return to this interview in detail hereinbelow).
The Drafting Committee concluded
their deliberations after 18H00 on the evening of 20 April 2010.
Koen asked Mr. Craig Adams (the
Deputy General Secretary for legal
matters of IMTATU) to print the hard copies. Adams copied four
documents from the laptop of
Forbes. One document was the Wage Curve
Collective Agreement and the other was the Disciplinary Code
Collective Agreement (both
these two documents were in Microsoft
Word format). Two further documents in Microsoft Excel format were
printed out namely Annexure
A and Annexure B to the Wage Curve
Collective Agreement. Adams then stapled the Disciplinary Code
Agreement together and the
Wage Curve Collective Agreement together
with the two annexures (Annexure A and B).
Adams testified that he handed Yawa a
hard copy of the two agreements and handed another to Forbes (who
was in another room).
At that stage, Koen had already left. Adams
was clear that the copy of the agreement that he handed to Yawa and
Forbes on the
evening of 20 April 2010 was the one referred to in
this judgment as the 20 April 2010 agreement. Later, in the evening,
Adams
met Yawa in the foyer of the Hotel and he again gave Yawa a
copy of the two Annexures that he had ‘cleaned up’.
Despite Adams’ evidence, Yawa
denied that he had received hard copies of the collective agreements
on the evening of 20
April 2010. According to him the wage curve
collective agreement was not even ready on 20 April 2010. Koen also
confirmed that
Adams had told him that he had given a copy to Yawa.
Forbes testified that he took the two
agreements to his principals and indicated to them the contents of
the documents and indicated
the areas where there had been changes.
The SAMWU mandating structure was complicated. They had 15 people
there - one from every
province and six senior national office
bearers. He, however, testified that his principals were happy with
the changes and that
they were prepared to sign. Molope confirmed
that he had received a copy of the agreements and that Forbes
briefed SAMWU delegates.
He confirmed that the agreements that were
given to him were the ones that would have been signed that evening
(20 April 2010).
Molope also confirmed that those were the
agreements he was told to take to the signing ceremony.
Forbes testified that he took the
agreements to IMATU and Mashilo (on behalf of SALGA). Both indicated
to him that they were satisfied
with the agreements and that they
were prepared to sign.
According to Forbes, all the parties
were therefore willing to sign the two agreements. However, as
already pointed out the signing
did not go ahead because George was
not there for SALGA. Mr. Carstens (the President of IMATU) was also
not available to sign
the agreements on the evening of 20 April
2010. Koen made agreements for Mr. Stanley Khoza (the Deputy
President of IMATU) to
sign the agreements on behalf of IMATU. Koen
testified that the Drafting Committee could not reach a final
agreement because
they had to run the final agreement past their
principals before it was an agreement. He, however, confirmed that
at the end
of the deliberations on the evening of 20 April 2010 the
final collective agreements were taken to their principals for
ratification
and that the principals did ratify the agreements.
According to him, the only issue that was outstanding was the
signatures.
He also confirmed that the SAMWU principals had ratified
the agreement.
A further reason why the agreement
could not be signed on 20 April 2010 was the fact that some people
from SAMWU’s Johannesburg
branch were unhappy with the
agreement. However, despite all of these obstacles, the Unions are
adamant that there was a conclusive
agreement on the evening of 20
April 2010 in respect of the Wage Curves Agreement (and the
Disciplinary Code).
News interview on E-TV on 20 April
2010
It is common cause that Mr George (the CEO of SALGA) appeared on
E-TV’s 7 o’clock news (19H13 to 19H19) on the

evening of 20 April 2010. During an interview
8
with Mr. Jeremy Maggs (the presenter of that programme) George
stated that the parties have reached an agreement. Maggs asked
the
following question:
‘
So
where do we stand tonight, Xolile George is with us who speaks for
the South African Local Government Association, welcome, is
this any
closer to being resolved?’
George replied as follows:
‘
We
have resolved the matter now. We have a deal on the table that we
have worked on this afternoon as a culmination of what was
worked off
overnight, last…., I mean yesterday at the South African
Bargaining Council, so now we have a deal that as, I
leave the
studio, I will be going back to the bargaining council to formalise
the signing of the deal.’
George repeats in the next paragraph:
‘
there
is a deal Jeremy, that has been accepted by SAMWU, it has been
accepted by IMATU, remember there is three parties in the Bargaining

Council, SAMWU, SALGA, IMATU, all parties have now accepted the deal
on the table.’
9
Maggs then brings the interview to a conclusion by saying the
following:
‘
alright,
one more time, I want to get this 100 percent on the record. I do not
want to report this inaccurately, deal on the table,
the two unions
involved have agreed, you are off to go and make sure that pen hits
paper, that the deal is inked, strike is over.’
George replied as follows:
‘
Yes,
that is a correct position Jeremy, there is a deal on the table,
parties have agreed, I am going back now to the negotiating
table to
formalise those arrangements.’
Forbes testified that on the evening
of 20 April 2010 he met George who had just returned from the
interview with E-TV. According
to Forbes he informed George that the
signing ceremony would be the following day. He also indicated to
George that the agreements
were binding notwithstanding the fact
that the parties have not yet signed the agreements. According to
Forbes, George tried
to persuade him to sign the agreement that
evening.
Yawa, however, testified that he had
phoned George during the deliberations of the Drafting Committee and
told him not to hurry
back to the hotel as the parties were not
going to sign the agreements that evening. His evidence therefore
directly contradicts
that of Forbes.
Adams testified that he in the
meantime tidied up the formatting of the Annexures and that he had
printed out the copies of the
Annexures. As already pointed out, he
testified that he had met Yawa in the foyer of the hotel and handed
him the new copies
of the Annexures. He was surprised that most of
the other had had already left. Yawa advised him that the signing
ceremony would
be the next day.
Reasons why the agreements were not signed on 20 April 2010
As already pointed out, it common
cause that the agreements were not signed that evening as most of
the people who had to sign
on behalf of their respective
constituents had already left. It was then agreed that evening that
the two collective agreements
would be signed on 21 April 2010 at
14H00 at a signing ceremony. It is also common cause that the
Bargaining Committee and Drafting
Committee were never reconvened
nor was an arrangement to this effect made after the deliberations
were concluded on 20 April
2010 and before the agreements were
signed at the signing ceremony the next day.
Forbes, who had to leave for Cape
Town, could not attend the signing ceremony the following day and
handed the two collective
agreements to Molope to sign. Forbes
confirmed that the Wage Curve Agreement that he gave to Molope was
the one identified in
this judgment as the 20 April 2010 agreement.
In my view, it is clear from the
evidence that, at the end of the afternoon (early evening) of 20
April 2010, the parties were
ready to sign the two collective
agreements. George said so unequivocally on national television. In
fact, George stated unequivocally
that
all three parties
were
in agreement and willing to sign. It was only due to the
unavailability of some parties that it was decided that the signing

ceremony would be held on 21 April 2010 (the next day).
Events after the closing of the
deliberations by the Drafting Committee.
E-mail of Forbes to Yawa at 19H09
on 20 April 2010
Yawa
asked Forbes to e-mail the Wage Curve Agreement and the Disciplinary
Code Collective Agreement that were finalised by the
Drafting
Committee to him. According to Forbes, this request was made after
the negotiating parties (the principals) had already
looked at the
agreements and expressed their satisfaction with the contents
thereof. Forbes then e-mailed the two documents to
Yawa and Lebello
at 19H09 on 20 April 2010. The subject of the e-mail is: ‘
Final
10
collective agreements’.
The Wage Curve Agreement that was
e-mailed to Yawa and Lebello was the 20 April 2010 Agreement. Forbes
was adamant that the agreement
that he had sent to Yawa contained
the 1 July 2010 implementation date (in paragraph 8.3 of the
agreement) and not the 1 July
2011 implementation date (and the
other amendments to the numbering to clause 8).
Forbes referred to the attachments in
his e-mail as the ‘Final’ collective agreements which,
in my view, support the
contention by SAMWU and IMATU that they had
considered the agreements which emanated from the Drafting Committee
as the final
agreements which would be signed the following day.
The e-mail of Yawa on 21 April 2010
at 8H37
On
21 April 2010 at 08H37 Yawa, on the face of it, forwarded the e-mail
sent to him by Forbes (at 19H09 the previous evening)
to his
colleagues (amongst others George and Van Zyl). The subject of the
e-mail is: ‘FW: Final
11
collective agreements’. Yawa
therefore also referred to the attached collective agreements as the
‘Final’ versions.
It further appears from the subject
matter of the e-mail that he was forwarding the ‘Final’
collective agreements
sent to him by Forbes to his colleagues. In
the e-mail Yawa wrote as follows:
‘
Morning
Colleagues
Herewith
the
final
12
versions
of the agreement meant for signature today.
Kindly
comb and advise if your sport (sic) something untoward.’
Yawa testified that he read the Wage
Curve Agreement for the first time
after
he had sent it to
his colleagues at 08H37 at 21 April 2010. It was only then that he
discovered that clause 8.3 of the 20 April
Agreement contained
according to him, an ‘obvious error’. Why he did not
immediately and expressly communicate this
to his counterparts is
suspect.
The e-mail of Yawa on 21 April 2010
at 10H25
At 10H25 on 21 April 2010 Yawa sent a
further e-mail to some of his colleagues. Not included as recipients
in this e-mail is Mashilo,
Mr. Sonyo and George. In this e-mail Yawa
wrote as follows:
‘
Quickly
tell whether 8.3
13
(in
red) here means when we increase salaries in July, we increase these
scales or as I think it should be, we increase the salaries
per the
wage and salary agreement.’
From this e-mail it would appear that
Yawa was in possession of the 20 April 2010 Agreement sent to him by
Forbes which contained
clause 8.3 which reflected the implementation
date as 1 July 2010 hence his question about the implementation of
the wage scales.
E-mail from Roger Falken to Yawa
and others at 12H47
At 12H47 Falken responded to the
aforementioned e-mail from Yawa as follows:
‘
Hi
there
I
must say that I have seriously mad principles because the agreement
is outside the mandate.
The
agreement in its current form is problematic and the clause referred
to by Mzie [Yawa] has its problems. I suggest the following

amendments to 7.2.6 and 8.3 as both have to be amended to bring
sanity to the application:
“
7.2.6
Eligible employees…nine(9) months retrospective increases
based on the difference between the salary as at 30 September
2009
and 1 July 2010(new salary notch) and prior to the application of the
annual salary increase, taking into account any adjustment
to the
basic salary between the dates referred to herein. This
retrospective…”
And
“
8.3
The salary scales…with effect from 1 July 2010, [prior to]
after the annual salary adjustment referred to in the Wage
and Salary
Collective Agreement, and then annually thereafter by the same
percentage as agreed to in the [applicable Wage and Salary
Agreement]
said Agreement” (note [ ]=deleted words)
Mzie
good luck if you can get this right.
Regards
Roger’
Yawa’s e-mail on 21 April
2010 12H48 pm
At 12H48 Yawa sent an e-mail to
Forbes, Lebelo and Van Zyl. In this email he wrote as follows:
‘
Guys,
1.
See some improvement in the drafting we did not translate the
agreement reached on the Wage Curve. In particular note our removal

of the initial clause 8.1 on increase on the R 4000 minimum wage as
that is taken care of by the current wage and salary agreement.
2.
See the improvement on 7.2.3 where we tried to remove vagueness in
the wage curve applicable higher notch by using the applicable
Task
Grade.’
Shortly thereafter Yawa also sent the
e-mail to Koen and Theledi.
The Unions argue that Yawa had made
certain far reaching changes to the 20 April 2010 agreement during
the course of the morning
of 21 April 2010: He amended clauses
7.2.3, 7.2.5 and 7.2.6 of the agreement. He deleted cause 8.2 of the
20 April Agreement
and amended clause 8.3 which became clause 8.2.
Clause 8.2 was also amended to provide that the wage scales would
now increase
on 1 July 2011 and not as previously stated on1 July
2010.
Yawa attached to this e-mail the Wage
Curve Agreement that he had amended as indicated above. What Yawa
failed to mention in the
e-mail (nor did he draw the attention of
the parties thereto) is the fact that he was of the view (if it was
so) that the parties
have not agreed that the implementation date of
the wage curve would be 2010 as opposed to 2011. In other words,
despite the
fact that this amendment to the implementation date of
the Wage Curve Agreement was crucial and was included in a document
referred
to as the ‘final’ collective agreement, Yawa
simply decided to amend the date and not to inform the other
bargaining
partners accordingly. He therefore fundamentally amended
paragraph 8 without drawing the other bargaining partners’
attention
thereto. Yawa also did not indicate in the e-mail that he
was of the view that there was a ‘mistake’ or some
‘error’
nor did he indicate that (if that was so) he did
not have a mandate to agree to the implementation date being 1 July
2010. Despite
the importance of the amendments to clause 8.3 Yawa
deemed it fit to only highlight in red the changes to paragraph
7.2.3 (which
is to a large extent not nearly as contentious as
clause 8.3) but not to do the same in respect of clause 8 of the 20
April 2010
agreement.
It is therefore clear from the
exchange of e-mails that Yawa did not draw his colleagues’
attention to the fact that he
had affected crucial changes to clause
8.3. Moreover, Yawa also did not inform the decision makers of SALGA
namely George, Mashilo
and Somyo before the agreement was signed,
that he had changed the agreement finalised by the Drafting
Committee the previous
night.
It is important to point out that
Yawa sent this e-mail to Forbes, Koen, Lebelo and Van Zyl only
shortly before 13H00. The signing
ceremony was scheduled for 14H00.
Koen’s evidence was that he had left for the signing ceremony
at approximately 12H30
and that he did not see the e-mail from Yawa
until after he had returned to his office. Forbes who was in Cape
Town also only
saw the e-mail at approximately 13H02 when he
responded to the e-mail (see below). To a hypothetical question
whether or not
it could not have been possible that Yawa later
realised that the date had to be 2011 and not 2010, Koen testified
that if that
was so, at the very least Yawa should have e-mail him
and Forbes and said to them; ‘Guys, I have overstepped my
mandate’.
It is common cause that this did not happen.
Forbes’ e-mail dated 21 April
2010 at 01.02 pm
Forbes e-mailed back to Yawa and
recorded the following:
‘
See
my revised wording of 7.2.3 below:
4.1.1
Employees whose exiting basic salary is higher than the maximum notch
of the Task grade to which he/she is entitled to, must
be place in
the wage curve applicable to his/her municipality and will retain
his/her basic salary.’
We
have to retain the old 8.1 to indicate what the starting minimum wage
is.
’
It is common cause that Forbes meant
to refer to the old 8.2 and not
8.1
. It is also common cause
that Forbes did not say anything about the other changes to clauses
8.2 and 8.3. Forbes did not attend
the signing ceremony as he was
already in Cape Town. His evidence was that he looked at the e-mail
and that he had responded
to what Yawa had suggested in the e-mail
in respect of 7.2.3. He also indicated to Yawa that SAMWU was not
prepared to accept
a change to paragraph 8.2. In essence, it was his
evidence that the negotiations were completed the previous evening
and that
he had no mandate to re-open any negotiations with Yawa. He
also testified that he did not look at the rest of the agreement

because his attention was not drawn to any other changes and when he
did not hear anything from Yawa he accepted that Yawa did
not
persist with the amendments as suggested in the e-mail. Only later
when it was brought to his attention did Forbes realise
that Yawa
had affected a material change to the agreement.
The signing ceremony on 21 April
2010
Yawa arrived at the signing ceremony
just before 14H00. He testified that he had assumed that the
agreements Molope had with him
were the agreements that he had
e-mailed to Theledi at 12H49 that morning. He also assumed that Koen
had received the email from
him at 12H48 and that he (Koen) had the
(amended) collective agreements that he had e-mailed to him and
Forbes.
Molope arrived at the signing
ceremony venue sometime before 14H00 with the hard copies of the
collective agreements that had
been handed to him by Forbes the
previous evening. When he arrived at the ceremony Yawa handed him
two documents and informed
him that those were the collective
agreements for signature. Molope’s evidence was that he
started to read through the
two agreements. He first went through
the Disciplinary Code Agreement and just as he was starting to read
the Wage Curve Agreement,
did Yawa interrupt him. According to him
Yawa said: ‘Look, there is some changes that I have actually
effected to the document,
but I did not interfere with the content
of that particular agreement’. Yawa then drew Molope’s
attention to the
fact that he had affected certain grammatical
changes to clause 7.2.3. They then started to discuss the change.
Koen testified
that he did not even know that Yawa had effected
changes to clause 7.2.3 – he only saw this later on the email
when he
had returned to his office after the ceremony. Koen also
testified that Yawa must have realised by the manner in which he
(Koen)
approached the changes to clause 7.2.3 that he (Koen) had not
seen the e-mail. Yawa, however, did not mention to him (Koen) that

he had sent an e-mail to him. It is in fact common cause that Yawa
did not inform Koen and Molope that he had sent an e-mail
to Forbes
nor that Forbes had responded to his e-mail. Koen stated in his
evidence that he did not actually look at the Wage
Curve Agreement
because he took Yawa’s word when Yawa told him that he did not
change anything apart from the amendment
to clause 7.2.3. He further
stated that, with hindsight, it was probably the biggest mistake he
has ever made in the 14 years
that he had worked for IMATU.
Koen and Ms Grey (the Deputy General
Secretary of IMATU) joined Yawa and Molope and the four of them
debated the change to clause
7.2.3. Grey wrote down the agreed
formulation on a piece of paper and Adams was tasked to insert the
agreed formulation into
the electronic version of the wage curve
agreement.
After Koen, Yawa, Molope and Grey had
agreed on an improved formulation of clause 7.2.3, Koen asked Yawa
in the presence of the
others whether he had affected any other
changes to the agreement. Yawa answered that he did not. Molope also
testified that
Yawa confirmed that there were no other changes. He
testified that he thereafter did not look at the rest of the
agreement after
Yawa had assured him that he did not affect any
other changes. He testified that he had trusted Yawa’s
assurance and that
he had no reason not to believe Yawa.
Yawa’s evidence about what had
happened differs. According to him, Molope had reviewed the entire
document and it was only
after he had finished reading the Wage
Curve Agreement that he drew Molope’s attention to the fact
that he had made a change
to clause 7.2.3. Yawa admitted that Koen
asked him whether he had made any other changes to the agreement and
admitted that he
had replied that he did not. According to Yawa, he
referred to the document that they had and that ‘in the
document we
had, there were no other changes, everything else was
agreed’.
The agreement was printed and taken
to the signatories for signing. It is common cause that the document
that was signed is the
one contained at pages 61 – 73 of
Bundle D. George signed on behalf of SALGA. Koen signed on behalf of
IMATU and Molope
on behalf of SAMWU. The signed agreement could,
however, not be photocopied as the photocopying machine at the hotel
was not
working. The original signed copies were handed to a courier
to courier to the SALGBC’s Head Office. As a result, none of

the parties received copies of the signed agreements on 21 April
2010.
The Unions’ case is that they
were unaware that Yawa had made changes to paragraph 8 of the final
draft concluded on 20
April 2010 and that they had signed the
agreement on 21 April 2010 on the basis that the agreement that they
had signed was the
Wage Curve Agreement that was finalised the night
before save for the amendment to clause 7.2.3 on 21 April 2010 when
mere grammatical
adjustments were made to the clause. According to
the Unions, they were under a justified mistake caused by Yawa when
they signed
the collective agreement on 21 April 2010. Koen also
confirmed in his evidence that he was of the view that IMATU was
signing
the agreement that they had reached the night before save
for the grammatical change made to clause 7.2.3. He also confirmed

that he had not read the entire document before he signed it because
the agreements were ready to be signed the night before and
that he
had no reason to suspect that any other changes were going to be
made to the agreements: The agreements were therefore
settled the
night before and those were the agreements that Koen was going to
sign. Koen confirmed that he had asked Yawa whether
he had changed
anything else beside clause 7.2.3 and when Yawa assured him that he
did not, he signed the Wage Curve Agreement
under the impression
that he had signed the 20 April Agreement. He confirmed that it was
only later when he saw the e-mail that
he asked for the signed copy
to be faxed to him. It was then that he had discovered that clause
8.3 was removed and the date
amended. He confirmed that IMATU would
never have signed the agreement if the implementation date was 1
July 2011. Molope likewise
testified that, had he known about the
changes, he too would not have signed the agreement.
SALGA’s case is that they had
no reason to doubt that the union parties had perused and checked
the agreement before they
had signed it.
Events after the signing ceremony
Adams phoned Forbes on 22 April 2010
and informed him that there was a problem with the signed Wage Curve
Agreement. Forbes received
a copy of the signed Wage Curve
Collective Agreement by fax and he also realised that clause 8.2 was
deleted and that clause
8.3 became clause 8.2 to provide that the
wage curve scales would increase only on 1 July 2011.
There was a telephonic conference
meeting of the Bargaining Council Executive Committee on 22 April
2010. The meeting was convened
after the Unions had written letters
indicating that the wrong agreement was signed. During the telephone
conference Yawa indicated
that he had unilaterally changed the date
from 1July 2010 to 1 July 2011 because Forbes had made an error when
he typed in 1
July 2010 instead of 1 July 2011. According to him,
this was done to reflect the common intention of the parties during
the negotiations.
On 23 April 2010, Adams from IMATU
wrote as follows in a circular:
‘
Regrettably
however, it has subsequently emerged that the signature and execution
process have been tainted by scandalous and fraudulent
behavior on
the part of a SALGA official. By all accounts, the aforesaid SALGA
official fraudulently altered the documents just
prior to the
signature thereof and sought to mislead the signatories as to the
true nature of the contents of the documents that
were presented for
signature.’
Forbes, on behalf of SAMWU, wrote a
letter to George (the Chief Executive Officer of SALGA) on 23 April
2010 to indicate that
the changes to the agreement were made without
the consultation or agreement of the union parties. He wrote as
follows:
‘
Furthermore,
we wish to advise that during a special SALBC Executive meeting held
on 22 instant 2010 via telephone conference, the
relevant SALGA
official confirmed that he unilaterally amended the agreement as
drafted on Tuesday evening. Mr. Yawa tried to explain
his despicable
conduct by blaming it on a ‘drafting error’.
…
In
negotiations trust is of the utmost importance. Sometimes parties
have to take unpopular positions back to their constituencies.
This
requires that the counter-party does the same. Failure to act
honestly and ethically means that it become extremely difficult
to
negotiate in good faith. The actions by your official, Adv. Yawa,
effectively destroys this trust relationship.’
[73] Forbes ended the letter by
stating the following:
‘
This
leaves us with no effective collective agreement and thus the dispute
remains unresolved. Salga is called upon to speedily
correct the
breach of your official, Adv. Yawa. Should you fail to do so, this
will require us to re-engage in industrial action
in the forthcoming
period. We would also be required to made the actions of Salga
public.’
Koen’s letter dated 23 April
2010
[74] Koen also wrote a letter stating
that IMATU concurred with the views expressed by SAMWU. Koen stated
in this letter that Yawa
and Lebelo both made substantive input and
comments on the precise wording of clauses 8.2 and 8.3. According to
Koen, it was now
‘downright dishonest’ to claim that it
was a ‘drafting error’ by the ‘technical team’.
Koen
ended his letter by stating that IMATU agreed with the legal
conclusions as set out by Forbes in his letter (referred to in the

previous paragraph). Koen also stated that IMATU would join SAMWU in
further anticipated strikes.
[75]
A further Executive Meeting was held on 29 April 2010. Molope (on
behalf of SAMWU) pointed out to the meeting that the changes
were
only later discovered and that SAMWU intended to sign the 20 April
Agreement.
14
Forbes was also adamant at the meeting
that he did not accept the explanations from Yawa and that the
agreement concluded between
the parties was the one of the previous
evening.
[76] On 17 May, George wrote a letter
to Mr Nhlapo (General Secretary of SAMWU), Molope, Koen, Carstens,
Govender and the Minister
stating the following:
‘
That
clause 7.2.3 refinement having been a typical giving of effect to
what was agreed to at negotiations led by principals, must
be
differentiated from the two new clauses in clause 8.2 and 8.3, which,
per your letter, were inserted in the agreement at refinement.
SALGA
views same as issues of substance that cannot simply be inserted into
the agreement in the name of cleaning or refining same.
In fact, the
2010 instead of 2011 in the then clause 8.3 was typed in by your Mr
Forbes, in error as far as SALGA is concerned.
Our SALGA team, on
noticing same, corrected it.
That
is why our Adv Yawa referred to it as a typing /drafting error in the
teleconference on 22 April 2010. For IMATU, in their
letter, to refer
to that as “downright dishonest” is unfortunate. SALGA
however sincerely believes that neither Mr
Forbes nor Mr Koen had an
intention of materially changing the agreement reached in
negotiations led by principals prior to this
refinement process.
It
is SALGA’s considered view that what was agreed to in
negotiations, in essence, remains embodied in the signed agreement.

The agreement (wage curve and DC), in the form that was ultimately
signed, were equally sent to SAMWU and IMATU’s Deputy
General
Secretaries sometime before signing thereof. We must state that such
was at the verbal request of your Deputy General Secretary,
Mr
Theledi, to our Adv Yawa.’
[77] On 17 May 2010 SALGA respondent
and indicated that the signed agreement (the 21 April Agreement) was
in order and therefore
valid:
‘
Having
considered the views of SAMWU, IMATU and SALGA expressed at the
Special Executive Committee Meetings held on 22 and 29 April
2010
respectively, and the response of SALGA, dated 17 May 2010, detailing
the sequence of events prior to the signing of the agreement,
I
hereby attach my signature to the Agreements, signed by IMATU, SAMWU
and SALGA, at Irene in Pretoria on 21 April 2010.’
Summary of the differences between
the 20 April agreement and the differ 21 April agreement
[78] The changes between the 20 April
agreement and the 21 April agreement relate to the following:
78.1 A change was made to clause
7.2.3. This change is not at issue in these proceedings. Koen, Yawa
and Molope agreed to the changes
immediately before the signing of
the agreements (on 21 April 2010). These changes were, in any event,
purely grammatical and did
not change the substance or essence of the
clause.
78.2 Clause 7.2.5 was changed in the
final draft.
78.3 Clause 8.2 from the 20 April
draft was deleted from the 21 April draft.
78.4 An amended clause 8.3 was
inserted. This clause became clause 8.2. Apart from the numbering, a
crucial change was made to the
adjustment date of the salary scales
of the wage curve agreement: The 20 April 2010 agreement referred to
the adjustment date as
1 July 2010 whereas the 21 April agreement
referred to the adjustment date as 1 July 2011.
[79] The disputed clauses of the
collective agreement that Forbes sent to Yawa on 20 April 2010 read
as follows:
‘
8.1
There shall be salary scales from TASK Grade 1 to TASK Grade 26 as
follows: [This clause is not in contention.]
8.2
The initial minimum salary on TASK Grade 1 of R 4, 000.00 (four
thousand rand) per month shall increase by the same percentage
as
agreed to in the current Wage and Salary Collective Agreement. [This
clause was deleted from the signed agreement.]
8.3
The salary scales referred to in annexures B1 to B8 will be adjusted
with effect from
1
July 2010
and ten
annually thereafter by the same percentage as agreed to in the
applicable Wage and Salary Collective Agreement.’
[80] The disputed clauses of the
collective agreement that was signed on 21 April 2010 read as
follows:
‘
7.2.5
Annual salary adjustments,
in
terms of 8.3 below
,
will be applied to the basic salaries of those employees referred to
in clause 7.2.3 and 7.2.4 above; and..’
‘
8.1
There shall be salary scales from TASK Grade 1 to TASK Grade 26 as
follows: [This clause is not in contention.]
8.2
The salary scales referred to in annexures B1 to B8 will be adjusted
with effect from
1 July 2011
and then annually thereafter by
the same percentage as agreed to in the applicable Wage and Salary
Collective Agreement.’
[Clause 8.3 was deleted and replaced by
Clause 8.2.]
Crux of the dispute
[81] It is the Unions’ case that
the parties have reached an agreement that the wage curve scales
would be increased on 1
July 2010. SALGA dispute this and contend
that it was agreed that the wage curve scales would be adjusted with
effect 1 July 2011.
Constitution of the SALGBC
[82] As already pointed out,
negotiations took place within the context of the SALGBC. It is
common cause that SALGA’s activities
are governed by its
Constitution. Clause 7 of this Constitution provides for the
establishment of various committees. Clause 7.2
thereof provides for
the establishment of Bargaining Committees. Clause 7.2.6 of the
Constitution provides that a Bargaining Committee
shall have the
power to conclude any collective agreement relating to terms and
conditions of service or any other matter referred
to it for
bargaining by the Executive Committee. This clause reads as follows:
‘
7.2
Bargaining
Committee
7.2.1
The bargaining committee shall consist of 20 (twenty) seats divided
equally between the Employer Parties and the Trade Union
Parties.
7.2.2
The allocation of Representatives amongst the Employer Parties shall
be determined mutatis mutandis by the formula in sub-clause
5.4.
7.2.3
The allocation of Representatives among the Trade Union Parties shall
be determined by the formula in sub-clause 5.4.
7.2.4
The delegates shall, at the first meeting of the year, appoint a
chairperson from who the delegates to the Bargaining Committee.
The
Bargaining Committee may appoint a chairperson from outside the
delegates of the parties’ representatives.
7.2.5
The Bargaining Committee shall meet at such a place, date and time it
or the Executive Committee may determine.
7.2.6
The Bargaining Committee shall have the power to conclude any
collective agreement relating to terms and conditions of service
or
any other matter referred to it for bargaining by the Executive
Committee.
7.2.7
A dispute that arises in the Bargaining Committee shall be resolved
in terms of clause 11.’
[83] Clause 16 provides for the manner
in which decisions must be taken and the circumstances under which a
decision of (
inter alia
) a committee in respect of a
substantive matter will be binding on the parties. This clause reads
as follows:
‘
16.
Decisions
All
decisions of the Central Council, Division or any Committee
concerning substantive matters shall require a two-thirds

concurrent majority of the Employer Representatives on the one
hand an a two-thirds concurrent majority of the Trade Union

Representatives to the Council on the other hand.
No
decision of the Central Council, Division or any Committee
concerning substantive matters shall be binding on the parties

unless-
the
subject matter of the decision has been reduced to writing before the
decision is take; or
if
not reduced to writing before the decision is taken, the subject
matter of the decision is reduced to writing and adopted by

subsequent decision of the council.
Decisions
of the Central Council, Division and or Committee concerning
administrative matters shall require a simple majority
of those
Representatives present.
The
Central Council shall determine from time to time which matters are
substantive and which are administrative in terms of
the process as
is set out in clause 16.1.’
[84] Clause 17 lastly provides for the
procedures to be adopted for the negotiation of collective
agreements. This clause reads
as follows:
‘
16.
Procedure for the Negotiation of Collective Agreements
A
procedure, forum and level for negotiations shall be determined by
the Parties to the Central Council.
Any
Party to the Council may introduce proposals for the conclusion of
a Collective Agreement on appropriate subject matter
and at the
appropriate level.
At
least two-thirds of the Employer Representatives on the one hand
and two-third of the Trade Union Representatives on the
other hand
must vote in favour of a Collective Agreement for it to be binding
on the Parties.
15
In
the event of a dispute arising from proposal for the conclusion of
a Collective Agreement the parties shall have the rights
prescribed
in the Act.’
[85] SALGA, apart from the fact that they disput some of the facts,
raised three main defences in their statement of response.
85.1 The first defence is that, upon signing the agreement, the 21
April Agreement became binding on the parties to the SALGBC
by
operation of its Constitution. As a result, the duly adopted
resolution of a corporate entity cannot be treated as void on the

grounds of an operative error. In other words, if a party wants to
attack such a resolution, the ordinary contractual principles

relating to mistake, or as it is referred to ‘an operative
error’, does not apply. In the alternative, if the ordinary

contractual principles do indeed apply, only members of the
Bargaining Committee have the
locus standi
to attack that
resolution and therefore they have to be joined as parties to the
proceedings. It then follows that the union will
have to show that at
least two thirds of the trade union members laboured under the
mistake that we have pleaded.
85.2 In terms of the second defence, it is argued that there exists
no basis for the rectification of the agreement of 21 April
2010 in
that a duly adopted resolution of a corporate entity (especially a
resolution adopting a collective agreement by a Bargaining
Council
established under its constitution) cannot be rectified on the
grounds of operative error.
85.3 In terms of the third defence, it is submitted that by the end
of the Bargaining Committee’s deliberations on 20 April
2010
consensus had been attained but two outstanding issues still had to
be dealt with. The first was the extent to which the increases

consequent on the new wage scales would be made retrospective and
secondly pay progression. It was therefore argued that the written

draft of 20 April 2010 was therefore not an agreement. It is also
argued that the draft of 20 April was in any event not adopted
by
virtue of the fact that it was not signed as was customary to do.
The defences raised on behalf of SALGA were disputed by the
applicants.
[86] Detailed heads of arguments were filed on behalf of SALGA
attacking the validity of the 20 April 2010 collective bargaining

agreement on the basis that it did not comply with the Constitution
of the SALBC. It was argued that the delegates had casually
entrusted
the finalisation of the agreement to their mandated representatives
which they could not do. It was further argued that
the agreement
upon which the applicants rely emerged from the Drafting Committee
that had no power to finalise issues of substance.
The Drafting
Committee could not change the position regarding the implementation
date without the input of the Bargaining Committee.
Without the input
of the Bargaining Committee the default position therefore remained
in place. (See in this regard clause 17 of
the Constitution).
16
[87] Forbes testified that, once parties have agreed on the contents
of a collective agreement, the practice was that the agreement
would
not go back to the Bargaining Committee or the General Council for
adoption. The parties will regard the agreement as final.
Koen also
gave detailed evidence in respect of the process that was followed in
reaching an agreement over collective agreements.
He testified that
it often happened that the Bargaining Committee would complete their
deliberations and that the collective agreement
would then be
referred to a Drafting Committee. Should issues arise during the
deliberations of the Drafting Committee the issues
will be discussed
with the parties’ respective principals and the issues would be
resolved. Where a mandate was required
to settle an issue during the
deliberations of the Drafting Committee, the parties would seek a
mandate from their respective principals.
Once that is completed, the
parties would have an agreement irrespective of whether the
collective agreement had been referred
back to the Bargaining
Committee. Koen confirmed this practice with reference to the wage
negotiations that took place the previous
year. A Drafting Committee
was also appointed to refine the collective agreement. The principals
accepted that agreement. Minutes
before signing this agreement SALGA
had approached IMATU and informed them that the agreement was too
expensive and that the parties
had to affect changes to the
agreement. At that time the Bargaining Committee had likewise long
completed their deliberations.
A mandate was solicited from the
principals and once the parties had reached an agreement, the (wage)
collective agreement was
thereafter signed. Koen therefore confirmed
the practice that exists namely that not all the negotiations take
place on a formal
basis in a plenary session of the Bargaining
Committee. This, he pointed out, was also what had happened during
the deliberations
of the Drafting Committee in respect of the Wage
Curve Agreement. An issue arose about the period over which the nine
month back
pay would be paid. The respective parties obtained a
mandate from their principals to settle the issue. Forbes deliberated
with
Malope (the president of SAMWU) and the secretary general of
SAMWU. SALGA was consulted by Yawa. Once the parties have reached an

agreement, the matter was settled. It is common cause that this issue
was never referred back to the Bargaining Committee.
[88] I am, on the evidence, persuaded that the parties are able (and
were able) to reach agreements within the context of the Drafting

Committee provided that the principals of the respective parties
agree to any changes in respect of the collective agreements on
the
table or agree to the settlement of any disputes that arise during
the deliberations of the Drafting Committee. I am therefore
satisfied
that by the end of 20 April 2010, the parties had reached an
agreement in respect of
both
collective agreements and in
particular the contents of the Wage Curve Collective Agreement which
reflected the implementation
date as 1 July 2010.
Conclusion on the facts
[89] It was common cause that Yawa
changed the implementation date from 1 July 2010 to 1 July 2011. The
question that must be considered
is whether that change was concealed
from his bargaining colleagues. The version of SALGA was that Yawa
made the change because
it was a mistake - a typing error. It was put
to Molope that Yawa did not draw anyone’s attention to this
typing error because
he took it for granted that that was not a
matter to be drawn to the attention of anybody particularly. Molope
refused to accept
that any mistake was made. According to Molope,
Yawa intentionally made the changes and then tried to hide it from
them.
[90] I am of the view that the
evidence supports a conclusion that after Yawa had amended the
agreement, he deliberately concealed
that not only from his own
principals but also from his bargaining counterparts. Yawa’s
e-mails confirm this conclusion.
I am further of the view that it is
inconceivable that Yawa could not have known that the date of the
implementation of the wage
curve is a crucial issue. I also cannot
accept that Yawa could have accepted that his counterparts would have
read the attachments
to his e-mail particularly if regard is had to
his e-mails in which he failed to draw the other parties’
attention to the
amendments. Yawa’s deception deepened when he
deliberately did not inform Koen that he had sent him an e-mail which
referred
to certain changes to the agreement. When Koen deliberated
on clause 7.2.3 during the discussions prior to the signing ceremony,

Yawa must have realised that Koen did not receive the e-mail. At the
very least, Yawa should have asked Koen whether he had seen
the
e-mail and whether he was aware of the changes. Yawa’s final
deception was when he was specifically asked whether he
had changed
anything else in the agreement and replied ‘no’. I do not
accept that he could have assumed that the others
had the amended
collective agreements. At the very least, Yawa should have raised the
issue with his bargaining parties prior to
the signing of the
agreements. After all, the relationship between bargaining parties
should be based on good faith. I also do
not accept Yawa’s
evidence that Malope had read through the entire Wage Curve Agreement
before signing it. I can find no
reason to doubt Molope and Koen’s
evidence about what had happened prior to the signing of the
agreement. In my view, Yawa
had interrupted Molope from reading the
entire Wage Curve Agreement because he did not want Molope to realise
that he (Yawa) had
amended clause 8.3 fundamentally.
The reasons why Mr Yawa's evidence
must be rejected
[91]
Mr Van der Riet
17
also persuasively
argued that the evidence of Yawa must be rejected on the basis that
it is an established principle that a witness
whose evidence has been
shown to be deliberately false on one point is liable to be regarded
with suspicion and distrust overall.
18
The
Court was referred to at least six instances during the trail where
Yawa deliberately gave false, namely:
91.1 Firstly, Yawa’s claim that,
at the signing ceremony, he told Molope and Koen of Forbes'
counter-proposal in relation
to the re-formulation of clause 7.2.3 of
the Wage Curve Agreement. This is patently false if regard it had to
the pleadings: Both
IMATU and SAMWU pleaded that Yawa did not
disclose to the parties at the signing ceremony Forbes’s
proposal in relation to
the re-formulation of clause 7.2.3 of the
wage curve collective agreement. SAMWU also pleaded that Yawa did not
disclose that Forbes
had responded to his e-mail. In both its pleas,
SALGA
admitted that Yawa did not inform
Koen or Molope that he had sent the above e­mail to Forbes.
Moreover, the allegation that
Yawa told Molope and Koen of Forbes'
counter proposal was never put to Molope or Koen for them to answer
to.
91.2 The second deliberate falsehood
is Yawa's claim that Forbes' response to his e-mail of 12h48 (on 21
April 2010) to the effect
that ‘we have to retain the old 8.1
to indicate what the starting minimum is’ was a reference not
to the agreement
that was the subject of the e-mail, but to an old
version of clause 8.1 in a previous Bargaining Committee draft of the
Wage Curve
Collective Agreement. Mr Van der Riet submitted that this
was a patently dishonest attempt by Yawa to justify his unilateral
deletion
of clause 8.2 of the Wage Curve Collective Agreement despite
Forbes's objection. This allegation was also never put to Forbes for

his comment.
The third deliberate falsehood is
Yawa's claim that he did not receive hard copies of the collective
agreements on the evening
of 20 April 2010 after they had been
finalised by the Drafting Committee. Mr van der Riet submitted that
this falsehood is
revealed by the discrepancies in Yawa's version
on this aspect. It was put to Forbes that Yawa could not remember
whether or
not he had received hard copies of the agreement.
However, when Yawa gave evidence he was adamant that he had not
received
hard copies. This falsehood was further confirmed by
Adam's detailed evidence on this aspect which was left entirely
unchallenged.
The fourth deliberate falsehood is
Yawa's claim that he thought the agreements that Molope had with
him at the signing ceremony
were the agreements that he had
e-mailed to Theledi at 12H49. That claim flies in the face of
Yawa's admission in an agreement
concluded between the parties and
read into the record that he was unaware of whether Theledi had
received his e-mail of 12H49.
The fifth deliberate falsehood is
Yawa's claim that he sent what he asserted to be the final
collective agreements for signature
to Theledi and Koen
after
he received Forbes's response to his e-mail of 12h48. The recorded
times at which these e-mails were sent revealed this claim
to be
incorrect yet Yawa refused to admit that he had made a mistake and
maintained his claim in the face of evidence which
plainly revealed
it to be false.
The sixth deliberate falsehood is
Yawa's evidence regarding the seating arrangements in the drafting
team. His evidence in this
regard was farfetched and was not put to
Koen despite the fact that it differed dramatically from Koen's
version as to how
the members of the drafting team were seated.
Moreover, SALGA'S own witness (Van Zyl) corroborated Koen's version
in respect
of the seating arrangements, thereby confirming the
falsity of Yawa's evidence on this score.
[92] I have considered these
submissions and I am in agreement that little weight can be attached
to the evidence of Yawa. Apart
from the fact that Yawa gave
deliberate false evidence, his evidence on other aspects also casts
serious doubt on his version.
Yawa testified that he did not look at
the screen during the deliberations of the drafting team but that he
was looking at the
hard copy of the agreement reached in the
Bargaining Committee. It was, however, the uncontested evidence of
Koen that nobody in
the Drafting Committee had seen a hard copy of
the deliberations of the Drafting Committee. I have also referred to
the evidence
of Yawa that he had phoned George during the
deliberations of the Drafting Committee and informed him that the
parties were not
going to sign that night. George did not confirm
this evidence when he gave evidence. In fact, if the evidence of Yawa
is properly
considered, it confirms the Unions’ evidence that
all the parties were in fact prepared to sign the collective
agreement
that was finalised that night and that it was only when it
was realised that not all the parties were there that it was decided

to defer the signing ceremony to the next day. Put differently, Yawa
could not have known at that stage that the agreement’s
would
not be signed that evening.
[93] I am further also persuaded that
Yawa clearly attempted to mislead Theledi with his email of 12h49 on
21 April 2010. In fact,
if regard is had to the e-mail it is clear
that he sent the e-mail to Theledi’s secretary. When asked
during the proceedings
on 19 November 2010 whether there were any
other documents that he wished to place before the court Yawa could
not have forgotten
about the e-mail since it is apparent that he had
e-mailed it to Mr Lebelo's secretary. I am in agreement that the only
plausible
inference to be drawn from these facts is that Yawa sought
to hide the e-mail at that stage.
[94] I am further in agreement that
Yawa's version of what had happened in the drafting team as far as
the agreed date for the adjustment
of the wage curve scales
concerned, should be rejected. It was Yawa’s evidence that the
Unions took the position that the
wage curve scales ought to be
adjusted on 1 July 2010 and that they formulated clauses 8.2 and 8.3
only when they had established
that they could not physically adjust
the scales because the percentage for the impending salary increase
had not yet been determined
by SALGBC. I am in agreement that it is
improbable that SALGA would have convinced the Unions to alter their
position and agree
to an adjustment of the wage curve scales a year
later in circumstances where the Unions' view was that if the scales
were not
adjusted when the salaries were increased on 1 July 2010,
they would no longer reflect the market position the parties chose to

base their salary scales on. Moreover, I cannot ignore the fact that
George went on national television and declared to the nation
that
ALL parties have reached an agreement and was ready to sign the
agreement. Yawa's evidence was that if they had agreed to
an
adjustment of the date to 1 July 2010 that would have amounted to the
impermissible amendment of the Bargaining Committee agreement.
If
this was his view, one would have expected that Yawa would have
communicated this to the other bargaining partners in his e-mails.
I
am further in agreement that Yawa’s version is implausible
particularly in light of Yawa’s actions after he had discovered

the inclusion of the date of 1 July 2010 as opposed to 1 July 2010.
It is also, in my view, clear from the extensive evidence led
during
this fairly lengthy trial that the date of the adjustment of the wage
curve scales was a crucial aspect of the agreement.
It was so crucial
that the evidence on behalf of the Unions was that they would not
have signed the agreement had they known that
the adjustment date was
a year later (1 July 2011). There is no proper explanation for the
fact that Yawa did not expressly deal
with this issue in his e-mails
that followed the deliberations on 20 of April. This was a crucial
aspect, why was it not dealt
with in Yawa’s e-mails. Moreover,
there is not a proper explanation before this Court as to why both
Yawa and Lebelo did
not notice what Forbes were typing into paragraph
8.3 when the Drafting Committee deliberated. The only conclusion that
this Court
can come to is that the parties have agreed that the
implementation date was 1 July 2010.
[95] What makes matters worse for Yawa
is the fact that he conceded in his own evidence that he did not tell
the Unions that he
had changed the date in clause 8.3 of the Wage
Curve Agreement from 1 July 2010 to 1 July 2011. Furthermore, he
conceded that he
did not even tell his own principals, George,
Mashilo and Somyo that there was, according to him a drafting error.
[96] Mr. Brassey submitted that, on
the probabilities, Yawa could not have anticipated that three union
representatives namely Koen,
Forbes and Theledi would be so sloppy to
overlook the change to clause 8 particularly as clause 8 was under
review and could have
been picked up by means of a file comparison. I
am not persuaded by this submission. Firstly, Koen’s evidence
was that he
already was on his way to the venue when the e-mail was
sent. He therefore did not see the e-mail until after the signing
ceremony.
Secondly, Koen pertinently asked Yawa whether he (Yawa) had
affected any amendments (other than that to the non-contentious
clause)
to the Wage Curve Agreement. Yawa said ‘no’. Both
Molope and Koen testified that they did not doubt Yawa’s word

and that is why they did not read the agreement. As already pointed
out, Koen stated that this was the biggest mistake he has ever
made
since he has started to work for IMATU. Thirdly, Forbes was in Cape
Town and his evidence was that he merely looked at the
e-mail and
responded to the e-mail. Fourthly, Molope’s evidence was that
Yawa interrupted him when he went through the Wage
Curve Agreement
and that he therefore did not continue to read through the agreement.
He also testified that he had no reason to
doubt Yawa assurances.
[97] The timing of Yawa’s e-mail
containing the new amended version of the Wage Curve Agreement to
Koen and Forbes confirms,
in my view, the impression that Yawa wanted
to conceal the fact that he had changed the implementation date. I am
further in agreement
that this was a poorly disguised attempt by Yawa
to put himself in a position where he could claim that the Unions
must have seen
his final draft before they signed the agreement. I
have already referred to the fact that this e-mail was sent a little
more than
an hour before the signing ceremony in circumstances where
Yawa and Van Zyl conceded that they must have realised hours before
that the implementation date reflected in the agreement was 1 July
2010. At that stage, Koen had already left for the signing ceremony.

I am further in agreement that Yawa’s failure at the signing
ceremony to inform Koen and Molope of the e-mails finally
demonstrates
his lack of good faith in his dealings with the Unions
on this issue. At the very least, it was expected of Yawa to have
expressly
raised the issue of the adjustment date, if not in the
e-emails, but during the final discussions before the signing
ceremony.
What makes matters worse for Yawa is the fact that he was
representing SALGA as the chief negotiator in the negotiations with
the
Unions. Parties engaged in a bargaining relationship are entitled
to accept that their adversaries will bargain and behave in good

faith. I am not persuaded that Yawa bargained in good faith. The
facts in my view confirm the opposite.
[98] Van Zyl and Lebelo also did not
support the evidence of Yawa. Van Zyl, for example, contradicted
Yawa’s evidence on the
seating arrangements. Lebello confirmed
that the Unions wanted to adjust the wage curve scales on 1 July
2010. He could, however,
not explain how they persuaded the Unions to
abandon this view. He also could not explain why he did not notice
that Forbes typed
in clause 8.3. Lebelo also confirmed that when he
left the deliberations on the 20 April 2010 he was of the view that
the parties
would sign the agreements as prepared by the Drafting
Committee. George’s evidence also did not support Yawa. He did
not
confirm in his evidence that he had received a call from Yawa to
inform him that he need not rush back to sign the agreements. In

fact, George went on national television to confirm that
all
the parties have reached an agreement and that they would sign it
later that evening (on 20 April 2010). Mashilo also confirmed
a
crucial aspect of the Unions’ case and that is that he
(Mashilo) had told Forbes that SALGA was prepared to sign the
agreement
on the evening of 20 April 2010.
[99] I am therefore in agreement that
little reliance can be placed on the evidence of Yawa. Apart from
serious defects in his evidence,
Yawa was an evasive and
argumentative witness and persistently refused to make simple
concession to simple propositions put to
him in circumstances where
he ought to have made concessions.
[100] On the evidence, I am therefore
persuaded of the following:
100.1When the parties left the hotel
in Kempton Park on the evening of 20 April 2010, they were in
agreement that they have reached
a final agreement and that that
agreement included clause 8.3 which reflected the implementation date
of the wage curves as 1 July
2010. I do not accept that the parties
left the hotel under the assumption that Yawa will still do a
‘quality assurance exercise’.
George certainly did not
hesitate to tell the country on national television that
all
parties have reached an agreement. It is common cause that when the
parties dispersed on the evening of 20 April 2010 no further
meetings
were contemplated between the parties. The only meeting contemplated
between the parties was the signing ceremony at 14H00
the next day.
Moreover, if it was so that Yawa would still do a ‘quality
assurance exercise’ at the very least it was
expected that he
would have drawn the parties’ attention to the fact that he had
fundamentally altered a crucial clause to
the Wage Curve Agreement.
Yawa attempted to conceal the fact
that he had made amendments to a crucial clause of the agreement
not only to the trade union
parties but to his own principals. I am
persuaded that none of the SALGA decision makers (George, Sonyo or
Mashilo) were aware
of the fact that Yawa had effected changes to
clause 8.3 of the agreement. George was prepared to sign the
agreement as it
was on the evening of 20 April 2010.
When Yawa e-mailed the amended
agreement to Forbes, he (Forbes) did not read the whole document
and merely dealt with the issues
specifically drawn to his
attention by Yawa.
Molope did not review the whole
agreement when it was handed to him immediately prior to the
signing of the Wage Curve Agreement.
Molope did not read the whole
agreement because he was assured by Yawa that he (Yawa) did not
affect any other changes to the
agreement. The fact that Yawa did
not mention to Molope that he had fundamentally altered clause 8.3
of the agreement must
have been a deliberate attempt to induce the
parties to sign the amended agreement.
The Unions and SALGA signed the
agreement on the basis that the only change to the said agreement
was the formulation of clause
7.2.3.
[102]
I am therefore persuaded on the evidence is that the Trade Union
parties and SALGA signed the document referred to as the
21 April
agreement
19
on the basis that
this was the agreement reached on 20 April 2010 subject to the
amendment to clause 7.2.3 agreed to minutes before
the signing of the
Wage Curve Agreement (and the Disciplinary Agreement).
The relief sought
[103] The primary relief sought by the applicants is for an order
that the agreement concluded on 20 April 2010 constitutes a binding

collective agreement between IMATU, SAMWU and SALGA. If this order is
granted the applicants further seeks an order declaring that
the Wage
Curve Agreement signed on 21 April 2010 does not constitute a valid
agreement. In the alternative, an order is sought
that the signed
Wage Curve Agreement of 21 April 2010 be rectified by substituting
(the current) clause 8.2 with clauses 8.2 and
8.3 (of the 20 April
Agreement).
[104] I am of the view that rectification is the appropriate order in
the present circumstances. The parties’ intention is
embodied
in the 20 April 2010 agreement subject to the one clause that was
amended immediately prior to the signing of the 21 April
Agreement.
Submissions on behalf of SALGA in respect of rectification
[105] It was submitted on behalf of SALGA that there is no basis on
which a resolution of a corporate organ can be rectified especially

in the case of a statutory Bargaining Council governed by a
Constitution. It was further submitted that the proper way to correct

a mistake is to re-open the issue and resolve the issue afresh. I do
not agree. As already pointed out, I am persuaded that the
Unions
have made out a case that, on the evening of 20 April 2010, all the
negotiating parties were willing to sign the agreement
that was
refined by the Drafting Committee. I am further persuaded that the
agreement that was accepted by all the principals that
were present
at the proceedings was the one that Adams distributed. I am therefore
not persuaded on the evidence that the principals
did not know what
was contained in the agreements – especially in clause 8.3
thereof. I am further persuaded that the evidence
overwhelmingly
point to the fact that the Unions did not know that Yawa had amended
the Wage Curve Agreement to provide for a completely
different date
of implementation. The Unions were adamant: They would not have
signed the agreement had they known about the change.
I am
furthermore satisfied that the evidence supports the conclusion that
Yawa was not honest in his dealings with his bargaining
counterparts.
[106] I am further persuaded that the parties intended to affix their
signatures to the collective agreements. This much is clear
from the
evidence. However, what is clear from the evidence is that the
parties intended to affix their signatures to the 20 April
Agreement
subject to the agreement reached in respect of the amendment to
clause 7.2.3 just prior to signing the agreement.
[107] I accept that the practice of
the parties was that collective bargaining agreements could be
concluded even after the Bargaining
Committee had concluded its
deliberations. I accept Koen’s evidence that this practice has
been followed previously when
a wage agreement was concluded and
amended immediately before the signing session after the bargaining
parties have obtained a
mandate from their respective principals.
[108] SALGA contends that there is no
basis on which a resolution of corporate organ (errors
in verbis
aside) can be rectified especially in light of the fact that the
Bargaining Council is governed by a Constitution. SALGA further

submitted that
the agreement signed on 21 April
2010 amounted to a resolution ‘which the members of the
Bargaining Committee duly voted in
favour of or otherwise expressed
their endorsement of and
‘
in law, a
duly adopted resolution of a corporate entity... cannot be treated as
void on the grounds of operative error’. SALGA
further contends
that such a resolution can also not be rectified on the grounds of
operative error and that the
proper way to correct a mistake
is to re-open the issue and resolve the issue afresh.
[109] I am in agreement with Mr. Van
der Riet that SALGA misconceives the nature of the agreement that was
signed on 21 April 2010.
The agreement that was signed on 21 April
2010 was not a resolution of the Bargaining Council. It is clear from
the evidence that
what was signed was a collective agreement
concluded by the parties under the auspices of the Bargaining
Council. Although the
Constitution requires a formal vote by the
parties to the Bargaining Committee, the evidence supports the
conclusion that this
practice was not followed. The fact that the
parties have reached an agreement in respect of the back-pay issue
during the deliberations
of the Drafting Committee after a mandate
was obtained from the principals confirms this conclusion. If it was
required that this
issue had to be subjected to a voting process by
the Bargaining Committee surely the parties would have required that
the Bargaining
Committee meet before the signing ceremony. It is
common cause that that did not happen.
The
Bargaining Committee is used as a mechanism to facilitate
negotiations to achieve collective agreements. Those who participate

in the activities of the Bargaining Committee are merely agents of
the parties they represent. Collective agreements concluded
in these
circumstances constitute an agreement between the organisations
themselves acting through their principal decision makers
and not
through the individual members of the Bargaining Committee and it is
the principal decision makers that must be satisfied
that the
agreement is acceptable. Once the agreement is concluded by signing
the agreement, the signatories sign on behalf of their
respective
organisations and not on behalf of the members of the caucuses of the
Bargaining Committee. Similarly, where the parties
conclude an
agreement outside of the activities of the Bargaining Committee, the
parties to the agreement will likewise bind the
respective parties.
Nothing in the Constitution of the Bargaining Council prohibits the
conclusion of agreements under the auspices
of Bargaining Council in
these circumstances albeit outside of the activities of the
Bargaining Committee.
[110] In the event, the signed
agreement is rectified to reflect the intention and agreement of the
parties on the evening of 20
April 2010 subject to the amendment to
clause 7.2.3. As far as costs are concerned, I am of the view that
costs should follow the
result and should include the costs of two
Council.
Order
1. The Categorisation and Job
Evaluation Wage Curves Collective Agreement signed on 21 April 2010
by the First Applicant and the
First and Second Respondents is
rectified by deleting clause 8.2 thereof and inserting clauses 8.2
and 8.3 of the Categorisation
and Job Evaluation Wage Curves
Collective Agreement on pages 42 – 53 of Bundle C, subject to
the amendment to clause 7.2.3
agreed to just before the signing
ceremony.
2. The First Respondent is ordered to
pay the costs of the Applicants and the Second Respondent including
the costs of two Council.
_______________________
AC BASSON, J
Judge of the Labour Court
Appearances:
For the Applicants: Advocate H Van der Riet SC with Advocate Barnes
Instructed by: Cheadle Thompson & Haysom Inc Attorneys
For the Respondents: Advocate MSM Brassey SC with Advocate A Cook
Instructed by: Tshiqi Zebedelia
Attorneys
1
Appearing
on pages
42 to 53 of Bundle C.
2
Annexure
‘BJK3’ to the Founding Affidavit in the Urgent
Application. At pages 61 -89 of Bundle B.
3
Referred
to in footnote 1
supra
.
4
After
1994 municipalities were dramatically restructured in line with the
new political dispensation. The SALCBC came into existence
in the
late 1990’s as a merger of all the Industrial Councils under
the previous LRA.
5
The
strike was called off on 21 April 2010 after the signing of the two
collective agreements.
6
Clause
7.2 of the constitution provides for the establishment of a
Bargaining Committee that will have the power to conclude Collective

Agreements relating to terms and conditions of service and any other
matter referred to it
7
Yawa
testified as follows: ‘
I
did not have a concern as in my ordinary understanding of concern,
but I had a desire that what would be contained in the ultimate

final document should be reflective of what we had discussed and
refined the agreement by. To that end and when it was clear
that
signing was not to happen as I initially said M'Lady, that earlier
on Mr Koen did indicate that his president was not around
and nobody
else can sign in terms of their own protocols and whatever they were
going through. I then, because I was concerned
and I was desirous
that what would be in that document, should be free of defect. I
then together with Mr Lebelo asked
Mr
Forbes where this computer and the 3G, to then email that document
to us so that then in the carrying of this desire of mine
and ours,
that it was must be reflective of what we know ourselves as what was
agreed to, I can then have an opportunity to know
that whatever he
typed in as our resolution so to speak, were in fact as we know
them. Before then you know, would ask our principals
to endorse and
then sign when the time is appropriate.’
8
The
interview was shown to the Court in full.
9
Court’s
emphasis.
10
Court’s
emphasis.
11
Ibid.
12
Ibid
13
Clause
8.3 of the 20 April 2010 agreement states that the salary scales
will be adjusted with effect from 1 July 2010.
14
‘
In
other words, it has the effect of denying the workers a salary
increase on 1 July this year. We consider those changes to be
of
suspension, a serious irregularity and we called upon the
General-Secretary not to append his signature to the agreement.
We
believe that dishonesty and fraud had taken place on behalf of the
employer organisation and prior to the agreement being
signed by the
General-Secretary and circulated, we’d like the changes to be
reversed and the original agreement we had
concluded on Tuesday be
the agreement that was to be signed. So, I think that’s what
brought the matter to this point,
that we believe that- that’s
the basis of why we believe that no proper agreement has been signed
and that the changes
effected by SALGA needs to be removed and the
original wording needs to be replaced prior to us concluding that
agreement.’
15
Court’s
emphasis.
16
Supra
.
17
I
have relied liberally on the heads of argument submitted on behalf
of the applicants in setting out the evidence on which the
unions
relied in support of their argument that this Court should reject
the evidence of Yawa.
18
S
v
Oosthuizen
1982
(3) SA 571
(T) at 577A-B.
19
Pages
61 – 89 of Bundle B.