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[2015] ZALCJHB 116
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Maye Serobe (Pty) Ltd v LEWUSA obo Members and Others (J2377/12) [2015] ZALCJHB 116 (9 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 2377/12
DATE:
09 APRIL 2015
Reportable
MAYE SEROBE (PTY)
LTD
...................................................................................................
Applicant
And
LEWUSA
obo
MEMBERS
..........................................................................................
First
Respondent
COMMISSIONER
S.
MAKHUBELA
....................................................................
Second
Respondent
THE
COMMISSION FOR CONCILATION
MEDIATION
AND ARBITRATION
(CCMA)
........................................................
Third
Respondent
Heard:
10 July 2014
Delivered:
9 April 2015
Summary: review
and set aside a Settlement Agreement that was not made an award; the
agent lacked the mandate to conclude the Settlement
Agreement; the
actions of the agent bind the principal; no duty on the Commissioner
to save-guard against exceeding of mandate;
the application
dismissed.
JUDGEMENT
RALEFATANE
AJ
Introduction
[1]
This application seeks to review and set aside the conciliation
proceedings and a Settlement Agreement (“Agreement”)
issued by the Second Respondent under the auspices of the Commission
for Conciliation, Mediation and Arbitration (“CCMA”)
in
the course of conciliation proceedings under reference number
GAEK4250-12.
Background
[2]
The Applicant conducts business in the poultry industry. The
Applicant submitted that on the 21 July 2012 it became aware of
the
CCMA dispute when a request was received for 2 employees to be
released for the hearing which was to be held on the 23 July
2012 at
12h00.
[3]
The Applicant was not aware of the dispute as it did not receive the
referral form and notice of set down which was revealed
after the
investigation that they were sent to the fax number unknown to the
Applicant.
[4]
The Applicant arranged for its farm manager, Mr Titus Ramaphakela
(“Ramaphakela”) to attend the hearing to establish
the
nature of the dispute. At the hearing he found that the First
Respondent was complaining about wage increase and bonuses.
Ramaphakela advised the Second Respondent that all employees received
8% increase and management employees received 6% performance
bonus.
The Second Respondent directed the parties to sign an agreement.
[5]
Further that the Third Respondent lacked jurisdiction as there was no
compliance with its rules in terms of the referral and
notice of set
down not being received by the Applicant.
Grounds
for review
The
Applicant submitted the grounds for review as follows:
[6]
The dispute itself which was referred, and was settled in terms of
the Agreement in issue does not fall under the jurisdiction
of the
Third Respondent as a dispute that could be arbitrated. It was a
dispute of mutual interest. In particular, the remedy available
to
the First Respondent was to engage in strike activity if the dispute
could not be settled.
[7]
In performing the functions of an arbitrator in terms of the LRA
[1]
,
the Second Respondent exceeded his power in his conduct of the
conciliation proceedings.
[8]
That the Second Respondent placed undue pressure and duress on the
Applicant’s farm manager (Ramaphakela) to enter into
an
Agreement (with Ramaphakela acting on behalf of the Applicant) for
the purposes of settling a mutual interest dispute raised
by the
First Respondent against the Applicant at the Third Respondent., in
particular the Second Respondent.
[9]
That he induced fear in Ramaphakela that the Applicant had a duty in
law to settle the dispute in terms of the processes of
the Third
Respondent. The Second Respondent consequently directed Ramaphakela
to sign the Agreement. In doing so the Second Respondent
failed to
inform Ramaphakela that he had any choice in the matter, and in fact
misrepresented the very apposite contention to Ramaphakela.
He did
not sketch out (to Ramaphakela) the consequences of falling to sign
the Agreement, and in particular he did not indicate
that the First
Respondent would simply have the option of engaging in a strike.
[10]
That Ramaphakela genuinely held the fear that his conduct and the
conduct of the Applicant (if the agreement was not signed)
would be
unlawful. This apprehension of fear was reasonable as the directions
and representations were made by a commissioner employed
by the Third
Respondent, which Ramaphakela viewed as a forum similar to a court.
[11]
The Second Respondent did not enquire whether Ramaphakela had
authority and mandate to enter into an Agreement on matter of
mutual
interest. This is indicative of the partiality and haste of the
Second Respondent to settle the dispute.
[12]
The Second Respondent’s conduct is indicative of not being
impartial, and did not handle the conciliation process in
an unbiased
manner as is required in terms of the LRA and the Third Respondent’s
rules.
[13]
In doing so, the Second Respondent’s misrepresentation was
ultra vires
the LRA, the Third Respondent’s rules, and
contra bone mores
.
[14]
In the circumstance, the agreement is void and the entire process
before the Third Respondent, including the conciliation process
and
Agreement should be reviewed and set aside.
Evaluation
[15]
The issue in this matter is that the Applicant sent its employee
(Ramaphakela) to the CCMA on the day of conciliation proceedings
merely to find out as to what the dispute was all about. Ramaphakela
participated in the conciliation proceedings which culminated
into an
Agreement being concluded which he subsequently signed.
[16]
The applicant seeks an order reviewing and setting aside the
Agreement based on the lack of mandate.
[17]
Generally, no formalities are required for an agent’s
authorisation; an oral appointment is sufficient. Written appointment
usually happens in ‘power of attorney’ in which case it
will be a legal instrument setting out the powers conferred
on the
agent.
[18]
An Agency can be defined as a consensual relationship created by
contract or by law where one party, the principal, grants
authority
to another party, the agent, to act on his or her behalf with either
curtailed or open mandate and under the control
of the principal to
deal with a third party. An agency relationship is fiduciary in
nature resulting in the actions performed by
the agent binding the
principal. The agent may be authorised to act on behalf of another
person, company, or government, known
as the principal. An "Agency"
may arise when an employer (principal) and employee (agent), agree
that the agent will
perform certain tasks on behalf of the principal.
The basic principle is that the principal becomes liable for the acts
of the
agent, and the agent's acts are like those of the principal.
In issues like these, the question is often asked whether the
principal
acted in such a manner as to make others believe that the
person was his or her agent (apparent or ostensible authority).
[19]
It was held in the case of
Joel
Melamed and Hurwitz v Cleveland Estates (Pty) Ltd
[2]
that: ‘an act of representative needs to be authorized by the
principal. Such authorization is usually contained in a contract.
The
authorisation of the representative is a distinct unilateral act. It
is sometimes closely associated with an agreement between
the
parties, but may also arise by operation of law. Although some
representatives (such as public officials, company directors,
guardians and curators) are often referred to loosely as agents, the
current tendency is to reserve the term "agent"
to denote a
representative who is bound by contract with a principal to carry out
a mandate and also authorised to create, alter
or discharge legal
relations for the principal’.
[20]
It appears that the Applicant does not seek to review and set aside
the certificate of outcome, if it was issued. If the certificate
indicative of ‘resolved’ has been issued, which is not
within the papers submitted, it will follow that it required
review
and set aside. In
Kasipersad
v Commission for Conciliation, Mediation and Arbitration and
Other
s
[3]
the Court set aside an Agreement and the certificate of outcome which
emanated from a conciliation process in which the commissioner
had
exercised improper influence in persuading the applicant to withdraw
his case.
[21]
From the records, it appears that the Agreement was not made an award
therefore it will be dealt with as an ordinary agreement.
In
Goddard
v Metcash Trading Africa (Pty) Ltd
[4]
the Court accepted that an Agreement constitutes a contract for
purposes of application of classic contractual law principles.
In
the case of
Lebogang
Malebo
v CCMA and Others
[5]
it was said that:
‘
Until
the agreement is made an award it remains simply a settlement
agreement. Any legal force it carries is derived from the ordinary
binding power of a contractual arrangement between the parties. Even
though the agreement may have come into being through the
facilitation of the commissioner, his role in the conclusion of the
agreement does not entail the exercise of any statutory decision
making powers on his part to make an award or ruling which is binding
on the parties. The document embodying the settlement simply
records
what the parties to the dispute have agreed. The arbitrator’ s
signature on it confirming that he conciliated it
adds no more legal
force to the document, in my view, except insofar as it affords some
evidence of a third party witnessing the
conclusion of the
agreement’.
[22]
The information discussed in conciliation proceedings is confidential
and without prejudice, it involves separate private discussions
which
means that no party can refer to it in any other proceedings or use
such information against each other in a subsequent proceedings
unlike in arbitration proceedings, the Commissioner or arbitrator is
required to keep a record of the proceedings, which is not
the case
with conciliation proceedings. The conciliation proceedings are
governed by rules 7(3) and 7(4) of the CCMA
[6]
,
which provide as thus:
‘
7(3)
Conciliation proceedings are private and confidential and are
conducted on a without prejudice basis so that no party may make
reference to statements made at conciliation proceedings during any
subsequent proceedings unless the parties have so agreed in
writing.
7(4) Neither the
Commissioner dealing with the conciliation nor anybody else attending
the conciliation hearing may be called as
a witness during any
subsequent proceedings to give evidence about what transpired during
the conciliation process.’
[23]
In the present case, the issue relates to conciliation proceedings
whereby this Court is unable to refer to the record in order
to
establish what transpired therein as there is none. The only record
that can be referred to, is the information captured in
the agreement
as a reflection of the discussions between the parties. The contents
of that agreement will be referred to later
in this judgment. It is
not the duty of the commissioner to authenticate the authority and
mandate of the representatives. It suffices
that a party is
represented at the proceedings and further than that it will be the
responsibility of the said representative to
always stick to mandate.
The commissioner or the other party would not know if the
representative is exceeding the principal’s
mandate. There are
no strict rules prescribed for commissioners in conciliation
proceedings however, it is important to note that
impartiality is
highly required from a commissioner, while his or her advice is also
welcome. The commissioner shall not take a
decision for or coerce any
party to enter into an agreement. In the case of
Kasipersad
v CCMA and Others
[7]
,
the Court described the functions of a commissioner in a conciliation
process as follows:
‘
The
function of a Commissioner is to steer the parties towards a mutually
agreed outcome… However, no hard and fast rules
can be
prescribed for conciliation. The process of conciliation is such that
Commissioners need to have flexibility to apply appropriate
techniques to guide the parties to consensus. Different techniques
have been developed for different disputes and personalities
involved
in the conciliation. To attempt to compile a complete list of do's
and don'ts during conciliation is neither feasible
nor desirable.
Instead, jurisprudence should be developed incrementally, case by
case, to guide conciliators as to what is acceptable
and unacceptable
conduct during conciliation’.
[24] Where a
representative has acted without authority or has acted
ultra
vires
and the actions are prejudicial, the party standing to
suffer prejudice will be the one who raises issues of defence. The
principal
who raises a defence that the person purported to be a
representative was not so authorised or that the person was
authorised but
with mandate scope which was exceeded, is protected
provided that the said principal can prove that the person lacked the
authority
or that he or she exceeded the powers. Consideration is
also given to the other party who concluded the agreement in good
faith
believing that the person who presented himself or herself as
the representative is so authorised and that party may invoke the
doctrine of estoppel. Agency by estoppel is where an agent did not
have actual authority and the third party may invoke estoppel
to
prevent the principal in law, or to estop the principal, from denying
that the agent has authority. Estoppel by representation
is a
flexible doctrine capable of application in different situations
including to be used as a bar in contractual liability surroundings.
The agent’s
ability, as the representative, to affect the principal’s legal
relationship with third party is primarily
resulting from, and its
scope determined by, the authority to do so.
In
Hely-Hutchinson
v Brayhead Ltd and Another
[8]
,
the Court said the following:
‘
Ostensible
or apparent authority is the authority of an agent as it appears to
others. It often coincides with actual authority.
Thus, when the
board appoints one of their members to be managing director, they
invest him not only with implied authority, but
also with ostensible
authority to do all such things as fall within the usual scope of
that office. Other people who see him acting
as managing director are
entitled to assume that he has the usual authority of a managing
director. But sometimes ostensible authority
exceeds actual
authority.’
[25] A
representation by authority and the powers conferred to that
representative are to be differentiated. A person may be authorised
to represent his or her principal but not being accorded with certain
mandate. To reiterate it is the responsibility of the representative
to act within the scope of his or her mandate as much as it is the
responsibility of the principal to clearly articulate the mandate
of
the representative.
[26] Mandate
(
mandatum
) is an agreement between two or more persons whereby
one or more persons, undertake(s) to represent and perform some
lawful task
for another (principal and agent relationship). When an
agreement is struck by an agent outside his or her authority, the
principal
usually raises the agent’s lack of authority as a
defence so not to be bound to the agreement. The accepted grounds for
holding
a principal contractually liable to the acts performed by
agent in South African law provide a departure point.
[27] In
casu
,
it is a settled issue that Ramaphakela was authorised to represent
the Applicant, the principal, but the crispy issue is whether
he
exceeded his powers and whether the other party ought to have known
that Ramaphakela was exceeding his mandate by concluding
the
agreement.
In
the case of
Monzali
v Smith
[9]
,
the following principle was established: ‘Where any person, by
words or conduct, represents or permits it to be represented
that
another person has authority to act on his behalf, he is bound by the
acts of such other person with respect to anyone dealing
with him as
an agent on the face of any such representation, to the same extent
as if such other person had the authority which
he was so represented
to have’.
In
Mavundla
and Others v Vulpine Investments Ltd t/a Keg and Thistle and
Others
[10]
the Court dealt with an issue where applicants concluded an Agreement
on behalf of all other co- applicants during conciliation
proceedings. The court found that the commissioner had not considered
if the Agreement had the consent of all other co- applicants,
and
therefore the commissioner was expected to have satisfied himself
that the dispute had been resolved in respect of all the
individual
applicants in the claim. In this case the principals were also the
co-applicants therefore it was of cardinal importance
that the
commissioner should have satisfied himself that the dispute was
resolved in respect of all the applicants.
See
also the case of
Southern
Life Association Limited v Beyleveld N.O
[11]
In this case the fleet manager was designated to represent
applicant's predecessor at the CCMA proceedings. The question that
was asked is whether a reasonable man in the position of the
Respondent would have not believed that the fleet manager had the
authority to sign and enter into the Agreement.
In
Hely-Hutchinson
[12]
the Court said the following: ‘Ostensible or apparent authority
is the authority of an agent as it appears to others...’
In
the case of
George
v Fairmead (Pty) Ltd
[13]
,
in answering the question whether the type of a mistake pleaded by
the Respondent is the mistake that can entitle a party to repudiate
the contractual liability, it said that the proper approach to the
question is to take into account the fact that there is another
party
involved and to consider his position. ‘Has the first party -
the one who is trying to resile - been to blame in the
sense that by
his conduct he has led the other party, as a reasonable man to
believe he was binding himself, If the question is
so posed in the
present case it is clear that respondent cannot resile from the
settlement. An exception noted in the authorities
(upon which the
court a quo seems to have focused its attention), namely, that a
party in the position of the respondent will not
be bound if “his
mistake is due to a misrepresentation, whether innocent or
fraudulent, by the other party’.
[28] In the current
case, Ramaphakela had the authority to represent the Applicant
therefore there was no reason for the First Respondent
and the Second
Respondent not to believe that he had mandate to conclude the
Agreement. It will be burdensome for the commissioner
should he or
she be expected to interrogate the contract between the principal and
the agent where she or he will be enquiring
if the agent has the
mandate to say certain things or whether the agent is acting
ultra
vires
. The inherent risk coupled with agency, is that the terms
and conditions of the private contract (between the principal and
agent),
are not obvious to third parties and the mandate has the
consequences of residual authority too. If a builder is granted the
authority
to build a house, it is implied that the builder is
authorised to secure the necessary materials to complete the building
and taking
certain related decisions to get the building done. It is
the discretion of a principal to expressly curtail the implied
authority
of his or her agent.
In
Lawyers’ Professional Liability by J R Midgley
[14]
has importantly stated that if a litigant limits the implied
authority of his attorney to compromise a case (if it is accepted
that generally such an authority exists and even more so in the case
of the state attorney), unless the limitation of authority
is
communicated to the opposing litigant or legal representative, or is
implicit from the principal’s conduct or the surrounding
circumstances, he may be estopped from relying on the lack of
authority.
See
also
Hlobo
v Multilateral Motor Vehicle Accidents Fund
[15]
;
Glofinco
v ABSA Bank Ltd (t/a United Bank)
[16]
;
Sonnekus
Akojee v Sibanyoni and Another
[17]
;
A principal cannot by way of private instructions to his or her
representative curtail the latter's authority as far as third
parties
are concerned.
[29] The
commissioner’s function is to assist the parties to reach
mutual and amicable solution where the parties will have
the option
to entering or not to enter into agreement. The commissioner must not
impose his or her will on the parties. Besides,
one is thinking of a
situation where the conciliating commissioner, in attempt to resolve
the dispute, go to an extent of advising
the parties hence in certain
matters advisory award is issued which is not binding to the parties
simply because commissioners
are not decision-makers in conciliation
proceedings. The parties will still exercise the discretion whether
to accept or reject
the commissioner’s advice.
The
Court in
Mavundla
and Others v Vulpine Investments Ltd t/a Keg & Thistle and
Others
[18]
said:
‘
The
concluding of the Agreement was not an administrative act of the
commissioner…. The commissioner's role was to try and
procure
a meeting of the minds of the parties so that by agreement between
themselves their dispute could be settled. The Agreement
is not her
decision it is a recording of the parties' consensus over the manner
in which they agree to settle their differences.
The role of the
commissioner in that Agreement was through conciliation to procure an
offer from the company that would ultimately
be acceptable to the
applicants. The final decision to conclude the agreement lay solely
in the respective party's hands. They
had to decide of their own
volition whether to accept or reject the offers …’
In
Shortridge
v Metal & Engineering Industries Bargaining Council and
Others
[19]
,
the Court dismissed an application to review and set aside an
Agreement, which also had not been made a CCMA award where the
applicant sought to set aside the Agreement on the basis that the
union which concluded it had no mandate to do so.
The question that
follows is whether the principal can escape contractual liability on
the basis that its agent did not have mandate
to conclude the
agreement? From the
Shortridge
judgment, it shows that the
principal cannot automatically be exonerated from contractual
liability unless the reviewing Court
is satisfied that the principal,
under the circumstances, should not be liable for the actions of his
or her agent.
[30]
The submission by the Applicant is that Ramaphakela was not given the
mandate to conclude the Agreement but merely to establish
the nature
of the dispute. As already indicated above that it is not always a
simple matter for the other party to depict that
the agent’s
mandate does not extent to entering into an agreement, therefore the
reviewing Court must be cautious in exonerating
the principal from
liability before carefully interrogating the grounds upon which the
applicant relies upon. In
Northern
Metropolitan Local Council v Company Unique Finance
[20]
,
the Court stated the circumstances under which a liability may
sustain. In order to hold the appellant liable on the basis of
ostensible authority the respondents had to prove the following:
(a) A representation
by words or conduct; (b) Made by the appellant and not merely by the
agents that they had authority to act
as they did; (c) A
representation in a form such that the appellant should reasonably
have expected that outsiders would act on
the strength of it; (d)
Reliance by the respondents on the representation; (e) The
reasonableness of such reliance; (f) Consequent
prejudice to the
respondents.
[31] In
casu
,
the Applicant alleges that the commissioner exerted duress, undue
influence, and misrepresented to Ramaphakela that the Applicant
was
under a duty to conclude an agreement therefore created fear unto
him.
In
Ulster
v the Standard Bank of South Africa Ltd
[21]
this decision confirms the common law position in concluding
agreements. The allegations of undue influence and duress were in
issue and it was held that: ‘the ordinary laws of contract will
apply. Therefore an Agreement can only be set aside if it
is
successfully shown that the employee was placed under the type of
duress required in common law’.
[32]
In essence there are types of duress that can render the agreement
not to sustain the rod of review process. However, In this
case of
Ulster
[22]
the Court concerned itself with the agent’s profile in terms of
her position as bank manager, educated and well-informed
to
understand the nature of the proceedings and contracts and in the
position fully to appreciate the consequences thereof.
[33] I suppose,
there will be no clear line of categories to tell, at the face value,
if the circumstances of a particular matter
falls within the category
of reviewable processes. Where the principal appoints an agent being
aware that the agent might not be
capable of understanding his
function owing to the fact that he or she is not conversant with the
kind of the field in which he
or she is expected to function, the
principal cannot escape the consequences resulting thereof. When a
principal appoints an agent,
that principal must know that his or her
legal position will change and the acts of the agent will be regarded
as his or hers.
In this case, the Applicant’s defense is that
Ramaphakela was a farm worker who believed that the Applicant was
under a duty
to conclude agreement. It is apparent that the Applicant
is praying for relief based on its wrong choice of representative. If
Ramaphakela could not be aware that he had a choice of not concluding
the Agreement, then it means he could not understand and appreciate
the conciliation proceedings including the functions of a
commissioner. Further that he failed to operate within his mandate
which
was to establishing the nature of the dispute but allegedly he
exceeded the mandate by even concluding the agreement. Therefore,
the
Applicant should have been honest with itself to acknowledge that its
agent exceeded the mandate and that cannot be attributed
to the
commissioner or the other party.
The
principal cannot appoint anybody as an agent in any matter
irrespective of whether the person is capable of fulfilling the
mandate, and when things go unexpected way, resort to a claim seeking
to escape contractual liability. (
See
Midgley’s Lawyers Professional Liability
)
[23]
[34] In this Court’s
view, it is not a defence that a principal has willingly with open
eyes and well knowing that the agent
is not capable and without
training him, appoints such a person as its agent. If the principal
does that, it does on its own risk.
The agent’s profile such as
the rank, the qualifications, experience in such matters, that he or
she did not understand the
legal significance of signing such an
agreement, and that was not well informed, cannot work in favour of
the principal. The principal
must do enquiry on the person he or she
intends to appoint as agent before entrusting such a person with the
authority to represent
him or her. In any event, in the present case,
the Applicant knew Ramaphakela because he is its employee, therefore
it is safe
to presume that the Applicant was confident that he
(Ramaphakela) was capable and equipped to discharge the duties
appointed for.
[35]
The Court in
Ulster
[24]
was required to answer whether an employee who enters into a written
agreement under the auspices of the CCMA
[25]
,
on the advice of her representative, can she subsequently escape the
agreement on the basis that she was duped into doing so by
her
representative? Can she do so if she entered into the agreement under
duress or as a result of the undue influence of her representative?
In answering the questions the Court held that the agreement can only
be set aside if it is successfully shown that the employee
was placed
under the type of duress required in common law. In scrutinizing the
issue the Court took into account the profile of
the employee
concerned that she was a bank manager with 30 years’
experience, she was educated and well-informed. It was
clear she
understood the nature of contracts. She understood the nature of the
proceedings and agreed to sign the Agreement. In
the circumstances
she entered into the agreement with open eyes, fully aware of its
consequences, and should be bound by the terms
thereof. Therefore the
Court declined to set aside the agreement. The principle in this case
confirms that a principal will be
bound by the actions of his or her
representative. (See also
Roshni
Lutchman v Pep Score and Others
)
[26]
[36] The applicant
in this case argued that she did not read the contents of the
agreement nor was she informed of what was contained
in the
agreement. It was only after she was home that her son informed her
of the contents. The Court could not rely upon the applicant’s
version for several reasons such as that, when considering what
transpired subsequently, that is, a) it took the applicant eight
days
to contact her attorney and complain about the agreement, b) the
applicant’s son had not filed a confirmatory affidavit,
nor was
it clear whether he was of age, and a) it took eight months for the
applicant’s attorney to refer the matter to the
Court without a
condonation application. The applicant could not prove that there was
a mistake on her side when she signed the
agreement. There was also
no evidence to show that the commissioner was biased in the manner
that he conducted the conciliation
processes. The application was
dismissed.
[37]
Quoted from the
Law
of Contract in South Africa
[27]
,
by Christie, she articulates the following:
‘
However
material the mistake, the mistaken party will not be able to escape
from the contract if his mistake was due to his own
fault. ….
in any circumstances in which the mistake is due to his own
carelessness or inattention, for he cannot claim that
his error is
iustus. It is not sufficient simply to avoid the condemnation as
careless orinattentive, for the mistaken party must
go further and
discharge the onus of proving that his mistake was, in the eyes of
the law, reasonable.’
[38] The Applicant
avers that the Agreement concluded on its behalf by Ramaphakela falls
to be void. In law, void means of no legal
effect and absolute
nullity.
The term void
ab
initio
, which means "to be treated as invalid from the
inception,
(ab initio
) like it never existed. A void contract
is unlawful in its essence and form, short of the elements of a
contract and void contract
shall be of no effect and shall not be
capable of being rectified by consent or in any manner whatsoever. A
contract is void if
the contract is against the public policies; the
contract involves illegal matters (like crime); any of the parties to
the contract
is not ‘competent’ (minor, mentally
challenged person etc.) to enter into a legal agreement; the contract
is impossible
to perform; the contract restricts certain rights or
actions (such as the right to work); a person concluded a contract
under duress.
[39] Turning to the
present case, there is no evidence of duress that was exerted on
Ramaphakela. It would be interesting to note
that Ramaphakela
informed the commissioner and the First Respondent that the Applicant
has agreed to grant wage increase and even
stated the percentages
thereof. The Applicant admits that indeed there were discussions with
the workers regarding wage increase.
Quoting from the Applicant’s
submissions: ‘Ramaphakela advised the Second Respondent that
all employees received 8%
increase and management employees received
6% performance bonus. The Second Respondent directed the parties to
sign an agreement’.
The Applicant does not deny that it has
given all employee 8% wage increase, whereas management received 6%
performance bonus.
Ramaphakela advised the Second Respondent of the
facts within his knowledge where after the Second Respondent directed
the parties
to conclude Agreement based on the advice of Ramaphakela.
The allegations of undue influence, duress, misrepresentation lack
the
facts to support such inference.
[40]
The Applicant further submitted that the Second Respondent lacked the
jurisdiction to conciliate the dispute as it involves
mutual interest
matter which the First Respondent could have embarked on a strike.
Section 64 (1) (a) (i) of the LRA
[28]
provides that:
(1) every employee
has the right to strike and every employer has the recourse to
lock-out if –
(a) the issue in
dispute has been referred to council or to the commission as required
by this Act, and –
(i) a certificate
stating that the dispute remains unresolved has been issued’.
Any strike must comply with the provisions
of the Act. Mutual
interest matters are conciliated upon and depending on the outcome of
the conciliation, the party who referred
the dispute may comply with
the requirements of a protected strike before embarking on such. A
further jurisdictional issue is
that the Applicant never received a
referral and set down notice. Nowhere in the submission where the
Applicant is mentioning that
Ramaphakela, was instructed to raise
this issue at conciliation. This issue will not take the discussion
to any other option but
to rejection.
[41] Under the
circumstances, the Applicant’s defence falls to be rejected.
The following order
is made:
Order
i.
The application to review and set aside the
Settlement Agreement is hereby dismissed;
ii.
The Applicant is to pay costs.
Ralefatane AJ
Acting Judge of
the Labour Court of South Africa.
APPEARANCES:
For the
applicant: Advocate S Bernjardt
Instructed by: Y
Nagdee Attorneys
For
the respondent: Mr A Goldberg of Goldberg Attorneys
[1]
Labour
Relations Act 66 of 1995 (As amended)
[2]
1984
(3) 155 (A) 164G-165G
[3]
(2003)
24
ILJ
178 (LC)
4
(2010) 31
ILJ
104 (LAC); [2010] 2 BLLR 186 (LAC)
[5]
JR
1508/2009 at para 12.
[6]
Commission
for Conciliation, Mediation, and Arbitration
[7]
(2003)
24
ILJ
178 (LC) at paras 18-19.
[8]
[1968]
1 QB 549
[9]
[1929]
AD 382
at 385.
[10]
[2000]
21
ILJ
2280
(LC) .
[11]
[1989]
1 All SA 390 (A)
;
[1989] (1) SA 496 (A) at 10
[12]
See
footnote 6
supra
[13]
[1958]
2 SA 465 (A)
[14]
[1992]
Juta 10 and 16 LAWSA vil. 14 2ed
[15]
2001
(2) SA 59
(SCA) at 65D;
[16]
2002
(6) SA 470
(SCA) at 482B
[17]
1976
(3) 440 (W).
[18]
[2000]
9 BLLR 1060 (LC)
[19]
(2009) 30
ILJ
389 (LC); see
Samancor
(Pty) Ltd
Metal
and Engineering Industrie Bargaining Council and Others
(2007)
28
ILJ
2328
(LC)
[20]
2012
(5) SA 323 (SCA); [2012] 3 All SA 498 (SCA)
[21]
(2013)
34 ILJ 2343 (LC).
[22]
Supra
[23]
Supra
[24]
See
footnote in
Ulster
[25]
Commission
for Conciliation, Mediation, and Arbitration
[26]
D
967/02
[2004] ZALC 6
[27]
3rd
Edition, [1996], at 354
[28]
Labour
Relations Act, 66 of 1995
.