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[2015] ZALCJHB 79
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Nchabeleng and others v Lapace Construction (Pty) Ltd (J580/2013) [2015] ZALCJHB 79 (5 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no:
J580/2013
DATE: 05 MARCH
2015
Not
Reportable
EDWIN NCHABELENG
& 2
OTHERS
...............................................................................
Applicants
And
LAPACE
CONSTRUCTION (PTY)
LTD
...........................................................................
Respondent
Heard:
26 February 2015
Delivered:
5 March 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an opposed application brought in
terms of
section 158
(1) (c) of the
Labour Relations Act 66 of 1995
as amended (The LRA). The applicants seek an order that the
arbitration award under case number GATW696-13 dated 18 March 2013
be
made an order of court.
Background:
[2]
The facts of this case are fairly common
cause. The applicants had referred a dispute to the Commission for
Conciliation, Mediation
and Arbitration following the termination of
their contracts by the respondent on 11 January 2013. The parties
resolved the dispute
under the auspices of the CCMA, resulting in a
settlement agreement dated 21 February 2013. The relevant terms of
the settlement
agreement are as follows;
a)
The respondent agreed to re-employ
the applicants with effect from 25 February 2013.
b)
The applicants were to report for
duty on 25 February 2013 at 07h00 at “Eskom Site”.
c)
The re-employment will be on the
same terms and conditions of employment which governed the employment
relationship prior to the
dismissal unless specifically set in the
agreement.
d)
The workplace will change to a new
site at Eskom.
[3]
On 18 March 2013, a Senior Commissioner of
the CCMA had in terms of
section 142A
(1) of the LRA made the
settlement agreement an arbitration award. There is a dispute as to
whether there was compliance with the
terms and conditions of the
settlement agreement or not. However, as Ms. Van Vuuren on behalf of
the first applicant had indicated,
the issue of compliance is not
before the court for determination, as the applicants only seek an
order that the award be made
an order of court.
The
arguments and evaluation:
[4]
In its answering affidavit, the respondent
raised a preliminary point to the effect that the order sought could
not be granted as
the applicants’ application was defective to
the extent that a copy of the settlement agreement was not attached
to the founding
affidavit. This omission was addressed by the first
applicant in his replying affidavit as attributable to a
bona
fide
oversight.
[5]
Despite raising this issue in the answering
affidavit, no reference was made to it in the respondent’s
heads of argument.
The settlement agreement or the subsequent award
was not placed in dispute by the respondent. I am therefore satisfied
that the
defect was properly corrected in the replying affidavit by
the subsequent attachment of a copy to that affidavit. There is
therefore
no merit in the respondent’s preliminary point.
[6]
The
respondent further opposed the application on the basis that even
though the court has a judicial discretion to grant the order,
such
discretion should only be exercised in favour of the applicants if
there is sufficient evidence of non-compliance with the
settlement
agreement by the respondent. Reliance in this regard was placed on
Mathosi
& others v Kintetsu World Express (Pty) Ltd & another
[1]
.
[7]
This
Court may make any arbitration award or settlement agreement an order
of Court in terms of
Section 158
(1) (c) of the LRA.
The
Labour Appeal Court in
Greef
v Consol Glass (Pty) Ltd
[2]
in dealing with applications to make settlement agreements an order
of court reiterated that whether an order in terms of
section 158
(1)
(c) of the LRA will be granted or not is at the discretion of the
court, which discretion must be exercised in a judicial manner,
taking into account all the relevant facts and circumstances
.
[8]
Section 158
(1) (c) provides a mechanism
through which a successful party may enforce any award in the same
manner as a judgment or order of
Court. It provides a mechanism
through which the execution of the award may be enforced and
expedited. Without this enforcement
mechanism, any settlement
agreement or award issued by the CCMA would not be worth the paper it
is written on.
[9]
It
is further trite that the purpose of making an award an order of the
Labour Court is to compel its enforcement, or enable its
execution
and not for some other purpose
[3]
.
In
considering whether to make an arbitration award an order of Court,
and in further exercising its discretion, the court should
ascertain
whether there is either a real ground for doubting the validity of
the award or the award is not in a form in which it
can be enforced
as a judgment.
[4]
[10]
In
Mathosi
as relied upon by the respondent, this court held that it would be
superfluous for the court to make an arbitration award or a
settlement agreement an order of this court when it cannot be
executed and no evidence exist that a party has refused to comply
[5]
.
[11]
The
Labour Appeal Court in
South
African Post Office Limited
[6]
also held that the Labour Court will grant an order sought in terms
of
Section 158(1)(c)
of the LRA if at the
very
least
satisfied that:
(a)
the agreement, is one which meets
the criteria set in
s 158
(1)(c) read with
section 158(1A)
of the
LRA, and if it is an award, that it satisfies the criteria set in
section142A of the LRA;
(b)
that the agreement or award is
sufficiently clear to have enabled the defaulting party to know
exactly what it is required to do
in order to comply with the
agreement or award; and,
(c)
There has not been compliance by the
defaulting party with the terms of the agreement or the award
.
[12]
In this case, I did not understand the respondent’s contentions
to be that there was anything in particular that made
the award not
to be in compliance with the criteria set out in
section 142A
of the
LRA. I further did not understand the respondent’s case to be
that the award was not sufficiently clear for the purposes
of
compliance. More significantly, I did not understand the respondent’s
case to be that the arbitration award could not
be executed for some
reason, and in this regard, the conclusion reached by the court in
Mathosi
should be read in context.
[13]
The only issue raised in opposing the application was that there was
no proof that the respondent had not complied with the
award. As
already indicated, whether there was compliance or not is an issue in
dispute. However, the resolution of that dispute
is a matter which it
was contended on behalf of the applicant was not for the court to
determine for the purposes of this application.
[14]
Having taken the above factors into account, and since the applicants
seek that the award should be made an order of court
to enable them
to execute it, is my view that it would not satisfy the demands of
law and fairness
[7]
, to simply
dismiss the application on the grounds of disputed facts as to
whether there was compliance or not, especially where
the court has
not been asked to determine those disputed facts.
[15]
I am satisfied that the award which the applicants seek to make an
order of court complies with the provisions of
section 142A
(1) of
the LRA, and as far as the respondent is concerned, its obligations
in respect of that award are not in dispute nor unclear.
It would
therefore be equitable to exercise a discretion in favour of the
applicants.
Order:
(i)
The arbitration award dated 18 March 2013
under case number GATW696-13 is made an order of court.
(ii)
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the 1
st
Applicant: Ms. Yolandi van Vuuren of
Jarvis Jacobs Raubenheimer Inc
On
behalf of 2
nd
and 3
rd
Applicants: Self represented
On
behalf of the Respondent: Mr. RCJ Orton of Snyman Attorneys
[1]
(2008)
29 ILJ 2785 (LC) at para 9 - 13
[2]
(2013)
34 ILJ 2385 (LAC) at para 19. See also
South
African Post Office Ltd v CWU obo Permanent Part-Time Employees
(2014) 35 ILJ 455 (LAC) where the LAC, per Wagley JP held at para 21
that
;
“
Section
158(1)(c)
of the LRA provides that the Labour Court has the
jurisdiction to make any settlement agreement, concluded in respect
of a matter
arising within the scope of the LRA, an order of court.
This does not mean that the order is there for the taking. The
Labour
Court has a discretion to make it an order of court even if
it otherwise meets the criteria provided in
section 158(1A)
, read
with
section 158(1)(c)
of the LRA”
[3]
SAPO
at
para 22
[4]
See
Mzulwini
v Fidelity Cleaning
2000 (21) ILJ 1382 (LC), and as also referred to in
T
L Sejake v Naledi Local Municipality
(2014) 35 ILJ 500 (LC) at para 7
[5]
At
para 12
[6]
At
para 21
[7]
See
SAPO
at para 22