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[2013] ZALCJHB 341
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Concor Projects (Pty) Ltd T/A Concor Opencast Mining v Commission for Conciliation, Mediation And Arbitration and Others (J 2773/12) [2013] ZALCJHB 341 (22 March 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
DATE:
22 MARCH 2013
Case
no: J 2773/12
Of
interest to other judges
In the matter
between:
CONCOR PROJECTS
(PTY) LTD
T/A
................................................................
Applicant
CONCOR OPENCAST
MINING
And
THE COMMISSION
FOR CONCILIATION,
..........................................
First
Respondent
MEDIATION AND
ARBITRATION
COMMISSIONER C
MOKABANE (N.O.)
..........................................
Second
Respondent
ASSOCIATION OF
MINEWORKERS AND
...........................................
Third
Respondent
CONSTRUCTION
UNION (“AMCU’)
N TITANA AND
FURTHER
......................................................................
Fourth
to further
RESPONDENTS (AS
PER ANNEXURE respondents
“
A”
TO THE FOUNDING AFFIDAVIT)
Summary: (Leave
to appeal - failure to refer a matter to oral evidence - leave
refused - Costs - even though another court might
have made a
different award - exercise of discretion not improper - leave
refused)
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE. J
Introduction
[1] The applicant in
this matter, Concor projects (Pty) Ltd, has applied for leave to
appeal against the judgement in this matter
handed down on 4 January
2013. The applicant requested that the matter be set down for an oral
hearing, but on perusal of the application
and the parties
submissions,
I am satisfied that
the application for leave to appeal can be determined on the papers.
Moreover, as the matter relates to pending
industrial action, I
believe it would be undesirable to delay the determination of the
application longer than necessary. By 19
March 2013, the parties had
filed their submissions on the application for leave to appeal.
[2] In my judgement,
I found that the third and further respondents could not embark on
protected strike action against the applicant
because the
Commissioner conciliating the dispute had not issued an advisory
award in terms of section 64 (2) of the Labour Relations
Act 66 of
1995 (‘the LRA’) and issued an interdict prohibiting
strike action until such an award had been issued. I
also ordered
that the applicant should pay half the respondents costs.
[3] The applicant
now seeks leave to appeal, not against the order granted, but on the
basis that the Court ought to have found
that there was a dispute of
fact which could not be resolved on the papers over whether or not a
settlement agreement had been
concluded when the dispute giving rise
to the strike action had first been referred to the CCMA for
conciliation. It has also appealed
against the order of costs.
Appeal against
court's failure to refer disputes of fact to oral evidence
[4] In my judgement,
I found that the settlement agreement, in terms of which the dispute
was withdrawn, was concluded on the basis
of a common misapprehension
on the part of both parties that they were bound by a sectoral
determination, which supposedly had
the effect of preventing
workplace level bargaining. Consequently, I held that the respondents
were entitled to disregard that
settlement agreement.
[5] The applicant
contends that I ought to have referred factual disputes about the
events leading to the settlement agreement to
oral evidence as they
could not be determined on the papers. It contends that the
respondents alleged that there was no settlement
of the dispute, but
merely a withdrawal of the dispute, whereas it had alleged that the
dispute was finally settled and not merely
withdrawn. The settlement
agreement read:
“
WITHDRAWAL
OF DISPUTE
The applicant
voluntarily withdraws the referral and abandons the dispute against
the respondent in settlement of his/her case at
the CCMA with the
full knowledge that he/she will not be able to proceed with this
dispute at a later stage."
[6] The applicant
does not dispute the finding that the agreement was concluded on the
basis of a common mistake, but contends that
the Court ought to have
determined, only after hearing oral evidence, whether or not the
agreement was merely an agreement to withdraw
the dispute, though
reserving the right to refer it again, or if it also entailed a final
settlement of the dispute. Given my finding
that the respondents were
entitled to resile from the agreement on the basis that it was
concluded under a common misapprehension
about the legal effect of
the sectoral determination, I do not see how a determination of the
factual dispute mentioned by the
applicant would have affected the
outcome I arrived at, and it was not necessary to determine that
dispute in order to reach the
conclusion which I did.
[7] On that basis, I
cannot see any reason why another court might find it necessary to
refer the dispute over the finality of the
withdrawal to oral
evidence. Accordingly, the application for leave to appeal on the
question whether or not the Court should have
referred matters to
oral evidence is dismissed.
Appeal against
the order of costs
[8] The applicant
contends that I erred in ordering it to pay half the respondents'
costs, whereas I ought to have either made no
cost award at all. I
ordered the applicant to pay half the respondents’ costs on the
basis that it only succeeded in obtaining
an interdict on one narrow
ground out of a number of grounds.
[9] An order of
costs is a discretionary matter on which leave to appeal is not
readily granted.
1
Further, section 162(1) of the LRA, which requires an order of costs
to accord with the requirements of the law and fairness, entails
a
value judgment on which views may legitimately differ.
2
I do not believe that even though another Court might come to a
different conclusion in making an order of costs, that my decision
entailed an improper exercise of my discretion.
Order
[10] In the light of
the above, the application for leave to appeal against the judgment
in this matter handed down on 4 January
2013 is refused.
R LAGRANGE, J
Judge of the
Labour Court of South Africa
22 March 2013
(In chambers)
1
See
Ex Parte Neethling and Others
1951 (4) SA 331
(A),
at
335A-E followed in
Shoprite
Checkers
(Pty) Ltd v CCMA and others
2009
(3) SA 493
(SCA)
at
502,[32],
2
See
Bookworks (Pty) Ltd v Greater
Johannesburg Transitional Metropolitan Council and
another
1999 (4)
SA 799
(W)
at
805G-H.