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[2013] ZALCJHB 62
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Nkuna v Ba Phalaborwa Local Municipality (J 816/12) [2013] ZALCJHB 62 (2 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: J 816/12
In
the matter between:
T
NKUNA
.........................................................................................................
Applicant
and
BA
PALABORWA LOCAL MUNICIPALITY
...............................................
Respondent
Heard:
31 August 2012
Delivered:
2 May 2013
Summary:
The purpose of section 158(1) (c) of the LRA is to make settlement
agreements orders of this Court in order to facilitate
their
enforcement and not to determine
ab
initio
the merits of
the agreement.
___________________________________________________________________
JUDGMENT
__________________________________________________________________
LALLIE,
J
Introduction
This is an application in terms of section 158 (1) (c) of the LRA
1
to make a settlement agreement an order of court.
Background
The applicant was a chief financial officer of the respondent. In
February 2011 she was suspended and charges of misconduct were
proffered against her. At a disciplinary enquiry which ensued she
was found guilty and dismissed in September 2011. She referred
an
unfair dismissal dispute to private arbitration in February 2012.
The council of the respondent (council) resolved on 1 March
2012 to
settle the dispute between the parties outside the private
arbitration process and mandated the municipal manager to
settle the
dispute and present the settlement to the council for ratification.
Mr Mokoape, (Mokoape), an official of the respondent and the
applicant’s attorneys negotiated a settlement. The
negotiations
culminated in the applicant’s attorneys signing a
document it referred to as a settlement agreement (the document) on
her
behalf and the applicant tendering her resignation on 19 March
2012. The respondent did not sign the document and advised the
applicant on 20 March 2012 that it would not comply therewith. It is
that document which the applicant seeks this court to make
an order
of court on the basis that it is a settlement agreement, clause 11
of which provides that the parties agree to the document
being made
an arbitration award alternatively an order of court in terms of
section 142A (1) of the LRA.
Points in
limine
The respondent raised four points
in limine
. The first is
that, there is no agreement which can be made an order of court as
envisaged in section 158(1) (c) of the LRA as
the purported
agreement was not signed by or on behalf of the respondent. The
second is that, this application has been brought
against the spirit
of section 158(1)(c) which was not intended to be used as a vehicle
to bypass other more directly available
causes of action
contemplated in the LRA and common law, and to provide what is
tantamount to final relief through motion proceedings.
The third is
that, it would not be prudent for this court to exercise its
discretion in favour of the applicant, particularly
in the absence
of an agreement. The last point is that, Mokoape who negotiated the
purported settlement agreement lacked the
mandate to sign it as the
municipal manager was entrusted with such responsibility.
The other ground on which this application is opposed, is that the
merits of this matter may not be considered for purposes of
the
present application. The respondent submitted that the applicant
resigned out of her free will without any duress. It will
be prudent
to consider the points in
limine
with the merits of this
matter.
The purpose of section 158(1) (c) is to provide an aid for the
practical enforcement of arbitration awards. In this regard see
Librapac CC v Fedcraw and others.
2
In
Kolobe v Proxenos (Sophia’s Restaurant )
3
it was held that an order made in terms of section 158 (1) ( c) of
the LRA does not involve an
ab initio
determination of the
merits of the dispute between the parties as that has been done
through the arbitration process. The court
further confirmed that
section 158(1) (c) applications are about non-compliance by the
respondent party with the terms of an
award. These principles are
equally applicable to applications for making settlement agreements
orders of this court.
The applicant submitted arguments on the validity of unsigned
agreements. It is clear from the facts that are common cause that
the determination of the existence of a valid and binding settlement
agreement between the parties needs to proceed making the
agreement
an order of court. A settlement agreement is an out of court process
by which parties decide how to resolve their dispute.
All the terms
of the agreement are determined by the parties and the role of
section 158(1)(c) is very limited, it is to assist
the parties
enforce their agreement
In the present application the applicant requires far more. It
expects this court to deal with the merits of the purported
agreement and make a finding on its validity first. The exercise
requires a determination of a number of material issues including
whether Mokoape had the necessary authority to enter into the
agreement on behalf of the respondent and whether the applicant
resigned on her free will.
The applicant should have proved the existence of a settlement
agreement and default on the part of the respondent to comply
with
it. I am not satisfied that the applicant has proved the necessary
requirements. Instead, she requires an
ab initio
determination
of the dispute between the parties which I have to steer clear from.
For these reasons, it will not be prudent to
exercise the power
vested in this court in section 158(1) (c) of the LRA.
The respondent sought
de bonis propriis
or attorneys and own
client costs against the applicant. Having considered the
submissions on the issue of costs, I cannot turn
a blind eye to the
role played by Mokoape in this dispute which might have influenced
the applicant to reasonably believe that
a settlement agreement was
reached between the parties. In the circumstances it will not be
appropriate to grant a costs order.
In the premises the following order is made:
The application is dismissed.
____________________
pp.
Lallie, J
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: Mr Moshoana GN of
Mohlaba & Moshoana Inc [JHB]
FOR THE FIRST RESPONDENT: Mr Golberg AL of Golberg Attorneys
1
Labour
Relations Act 66 of 1995
.
2
[1999]
6 BLLR 540
(LAC) at
542 F.
3
[200]
11 BLLR 1291
(CC) at 1296 J- 1297A.