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[2016] ZALCJHB 67
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Shongwe and Others v City of Johannesburg Metropolitan Municipality (JR483/14) [2016] ZALCJHB 67 (25 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR483/14
In
the matter between:
KHANYISILE.
P. SHONGWE & 25 OTHERS
Applicants
and
THE CITY OF
JOHANNESBURG METROPOLITAN MUNICIPALITY
Respondent
Heard:
22 February 2016
Delivered:
25 February 2016
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The
applicants approached this Court on 28 August 2014 by way of a
statement of claim to seek an order of payment in the sum of
R22 224
371.69 by the respondent. The applicants alleged that this payment
was due to them collectively, arising from a collective
agreement
entered into between SAMWU and the respondent in June 2008. Other
than resisting the claim, the respondent also raised
a variety of
preliminary points which were the subject of the hearing of this
matter.
Background:
[2]
The
applicants are all employed by the respondent in various capacities.
They are also members of South African Municipal Workers
Union
(SAMWU), which they had oddly cited as the twenty-sixth applicant in
these proceedings. During June 2008, members of SAMWU
in the
Johannesburg Metro Police Department had embarked on industrial
action in furtherance of their demands pertaining to wages
and other
terms and conditions of employment. That industrial action was
resolved in terms of a ‘Memorandum of Agreement’
(‘The
Agreement’) concluded on 27 June 2008. For the sake of
completeness, the agreement and the relevant provisions
read as
follows;
“
Whereas
the City of Johannesburg Metropolitan Municipality is an employer,
and whereas the members of SAMWU raised a number of concerns
on
behalf of their members employed at the Johannesburg Metro Police
Department (JMPD), in order to resolve the current impasse,
parties
record their agreement herein.
1.
In
relation to the payment of minimum salaries to Metro Police Officers
(MPOs), the parties agree that;
1.1.1
Newly
appointed Trainees will attend a course at the Academy for the period
of 6 months in order to conclude theoretical aspects
and will receive
a stipend of R2 000.00 per month.
1.1.2
Upon
completion of the 6 months theoretical training, a Trainee MPO will
be placed as a trainee for a further period of 6 months,
during which
period he/she will be paid an amount of R4 200.00 per month.
1.1.3
Upon
a successful completion of both theoretical and practical training,
the MPO will be appointed on the permanent structure of
JMPD and be
paid the applicable minimum salary.
1.2
In
principle, the employer commits that none of its employees will be
paid below the minimum salary of the grade applicable to the
position.
1.3
In
relation to employees who have been in the service of the employer
for long, parties agree that these will be treated as follows:
1.3.1
Employees
who have been in in the service of the employer at JMPD for a period
of six years to twelve years, shall be placed on
the median range of
the salary scale;
1.3.2
Employees
who have been in the service of the employer at JMPD for more than
twelve years, shall be paid at the maximum salary of
the salary
scale.
2.
The
parties agree that the provisions of clauses 1.3.1 and 1.3.2 of this
agreement shall apply once off only to permanent members
of staff
employed by JMPD, and shall not serve as a precedent nor can it be
used against any other parties in any future disputes,
engagements
and or negotiations.
3.
The
parties agree that this agreement shall supersede any other
agreements relating to the issues contained therein.
4.
…………………………
.
5.
…………………………
.
6.
…………………………
.
7.
…………………………
..
8.
…………………………
..”
[3]
The
applicants contend that they are also covered by that agreement, and
that the respondent has refused or failed to remunerate
them in
accordance with the provisions of that agreement. A number of
disputes were raised in the statement of claim and as further
recorded in the pre-trial minutes. Effectively, the issues are;
a)
Whether
the provisions of settlement agreement are applicable to the
applicants;
b)
Whether
the applicants stand to benefit from the provisions of the settlement
agreement;
c)
Whether
the applicants are entitled to the amounts claimed as recorded in the
statement of claim;
d)
Whether
the settlement agreement was a once off arrangement applicable only
to employees who were employed by the JMPD and who had
participated
in the strike in relation to wages and salaries in 2008;
e)
Whether
none of the applicants were employed at the JMPD at the time of the
conclusion of the settlement agreement and therefore
the agreement is
not applicable to them;
f)
Whether
in July 2006 the applicants were transferred from JMPD to a
centralised Human Resources department known as Group Corporate
and
Shared Services and were therefore no longer part of the JMPD;
g)
Whether
the settlement agreement was a result of the strike action embarked
upon by JMPD employees on or about May 2008 and that
none of the
other employees of the respondent including the applicants were to
benefit from the settlement agreement.
[4]
In
the light of the dispute pertaining to whether the individual
applicants were entitled to payment or not in terms of the agreement,
they had then on their own referred a dispute to the CCMA under case
number GAJB18002-13 on 17 July 2013. In that referral, they
had cited
SAMWU as the second respondent. The dispute was referred in terms of
section 24 (2)
[1]
of the Labour
Relations Act.
[5]
Following
the failure of conciliation proceedings on 2 August 2013, the matter
came before an arbitrator on 1 October 2013. At the
arbitration
proceedings, the individual applicants sought to join SAMWU as the
co-applicant. The respondent had opposed the application
for a
joinder, and further raised a preliminary point to the effect that
the CCMA lacked jurisdiction to determine the dispute
on the basis
that the applicants lacked
locus
standi
to refer it. The preliminary issue raised was premised on the
contention that the individual applicants on their own were not party
to the collective agreement which was the subject matter of the
dispute, and could thus not refer that dispute.
[6]
In
the award issued on 11 October 2013, Commissioner Duduzile Madubanya
had found that the individual applicants, even though bound
by the
terms of the agreement, were however not parties to it in their
individual capacities for the purposes of a referral. The
Commissioner had accordingly refused to join SAMWU as a co-applicant
in the matter and further found that the CCMA lacked jurisdiction
to
determine the dispute before it on account of lack of
locus
standi.
[7]
SAMWU
then referred another dispute under case number GAJB27117-13
pertaining to the interpretation or application of a collective
agreement to the CCMA on behalf of the individual applicants. The
matter came before another arbitrator on 4 February 2014. At
those
proceedings, the respondent raised yet another preliminary point,
contending that the individual applicants’ claim
had
prescribed. In terms of a ruling issued on 6 February 2014,
Commissioner Lucky Moloi had found that the individual applicants’
claim had prescribed, and that the CCMA lacked jurisdiction to
determine the dispute.
[8]
On
26 March 2014, SAMWU on behalf of the individual applicants filed an
application to review and set aside the ruling issued by
Commissioner
Moloi. The respondent opposed that application and has also since
filed an application in terms of Rule 11 of the
Rules of this court,
to have that review application dismissed on account of lack of
diligent prosecution. These two matters are
pending before this court
under case number JR483-14, which curiously is also the same case
number under which the statement of
claim was filed.
Preliminary points and
evaluation:
[9]
The
respondent raised the following preliminary points, viz;
res
judicata
,
lis
alibi pendens
,
prescription,
locus
standi
and non-compliance with the provisions of the LRA. These points are
to some extent interlinked, and where one is upheld, it might
be
academic to deal with all the others.
[10]
The
applicants’ general approach to these preliminary points was
that to the extent that the claim before the court was by
way of
action proceedings, short of admissions, the allegations made in the
statement of case and responses thereto had to be proven
by way of
oral evidence. Essentially, the argument was that the respondent had
not made out a case for all of these preliminary
points to be upheld.
[11]
A
few comments need to be made in regards to the applicants’
general proposition that the preliminary points raised need to
be
supported by oral evidence, and further that the court cannot make a
determination on those points solely on the basis of the
documentation before it. In this regard, and as I understood the
argument advanced by Adv. Mkhize on behalf of the applicants,
a court
is precluded from making a determination on such issues by mere
reliance on documentation before it.
[12]
Preliminary
points arising from a statement of case or a response thereto are
dealt with in terms of Item 10.3 of the Practice Manual
of this
Court
[2]
. In order to expedite
the hearing of such points
[3]
,
they are ordinarily separated from the merits of the main claim and
heard on an interlocutory basis. These points, depending on
their
nature, only require oral argument to be presented before the court.
In this case, this matter was set down for trial, and
once it became
apparent that preliminary points were to be raised, the court was
duty bound to deal with them on their own without
the necessity of
determining the merits of the main claim. These preliminary issues
were raised in both the respondent’s
response to the
applicants’ statement of case and in the parties’ signed
pre-trial minutes. The applicants did not
nevertheless deem it
necessary to respond to the preliminary points as raised, and to the
extent that they were of the view that
they needed to present
evidence in rebuttal to these points, nothing prevented them from
doing so when they were heard in court.
[13]
Despite
Adv. Mkhize’s assertions that these points were to be
determined by way of oral evidence, the respondent did not,
and
correctly so, adduce such evidence, as there was no need to do so.
Contrary to the applicants’ submissions, there is
nothing in
practice or law that obliges a party to adduce oral evidence in
support of preliminary points to be raised. This is
even moreso in
circumstances where there is no basis to contest the documentary
evidence relied upon.
[14]
In
support of the preliminary points raised, the respondent relied on
the applicants’ referrals to the CCMA, the certificate
of
outcome issued, the two awards issued by different commissioners, the
review application, the response thereto, and the Rule
11
application. These documents exist and are part of the pleadings
before the court. I therefore fail to appreciate what possible
oral
evidence could have been necessary to prove the existence of these
documents. They formed part of the parties’ bundles
and were
facts well known to the applicants. As correctly pointed out by Adv.
Matyolo on behalf of the respondent, the very premise
of the
applicants’ argument, i.e to the effect that oral evidence was
needed in order to establish these preliminary points,
is clearly
absurd and not sustainable in law.
Res Judicata and lis
alibi pendens:
[15]
The
basic proposition of
res
judicata
is that a party should not be allowed to re-litigate a matter that it
has already litigated. The fundamental reason for the
res
judicata
principle is to avoid conflicting decisions on the same issues and
same parties, and to bring about finality
[4]
.
The defence is generally available where another court (or tribunal)
of competent jurisdiction has already pronounced finally
on the same
issue based on the same cause of action between the same parties.
[16]
The
principle was summarised in
Nehawu
obo Kgekwane v Department of Development Planning and Local
Government
[5]
,
where
the Labour Appeal Court held that;
“
Allied to
the rule against collateral challenges is the
exceptio
res judicata
,
which is available where another court (or tribunal) of competent
jurisdiction has already pronounced finally on the same issue
between
the same parties. The previous judgment must have been given by a
competent court, the matter must have involved the same
parties (or
their successors-in-title) and must have been based on the same cause
of action with respect to the same subject matter
or thing. These
elements were all present in the dispute before the Commissioner in
this matter. Importantly, in this regard, the
exceptio
res judicata
is applicable also to arbitration awards whether obtained in private
arbitration proceedings or in proceedings under the LRA”
(Citations
omitted)
[17]
The principles surrounding the plea of
lis
alibi pendens
and its relation to that of
res
judicata
were aptly summarised as follows in
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
[6]
:
“
As
its name indicates, a plea of lis alibi pendens is based on the
proposition that the dispute (lis) between the parties is being
litigated elsewhere and therefore it is inappropriate for it to be
litigated in the court in which the plea is raised. The policy
underpinning it is that there should be a limit to the extent to
which the same issue is litigated between the same parties and
that
it is desirable that there be finality in litigation. The courts are
also concerned to avoid a situation where different courts
pronounce
on the same issue with the risk that they may reach differing
conclusions. It is a plea that has been recognised by our
courts for
over 100 years”
[7]
And,
“
The
plea bears an affinity to the plea of res judicata, which is directed
at achieving the same policy goals. Their close relationship
is
evident from the following passage fromVoet44.2.7:2
'Exception
of lis pendens also requires same persons, thing and cause.-The
exception that a suit is already pending is quite akin
to the
exception of res judicata, inasmuch as, when a suit is pending before
another judge, this exception is granted just so often
as, and in all
those cases in which after a suit has been ended there is room for
the exception of res judicata in terms of what
has already been said.
Thus the suit must already have started to be mooted before another
judge between the same persons, about
the same matter and on the same
cause, since the place where a judicial proceeding has once been
taken up is also the place where
it ought to be given its
ending.'”
[8]
[18] In contending that
the dispute before the court is
res judicata
, it was submitted
on behalf of the respondent that the dispute was referred by the
applicants pursuant to the provisions of the
settlement agreement,
and was already decided by the CCMA as evident from the arbitration
award issued in that regard. It was further
contended that to the
extent that the arbitration award had not been set aside, it remained
valid, and to this end, the court accordingly
lacked jurisdiction to
determine the dispute before it.
[19] It was not in
dispute that the parties in this matter were the same as those that
were before the CCMA in respect of both case
numbers GAJB18002-13 and
GAJB27117-13. Not much though should be attached to the ruling under
case number GAJB18002-13 in that
a ruling to the effect that a party
does not have
locus standi
does not technically dispose of the
substance of the claim.
[20]
In regards to the applicants’ cause of action and the relief
that they seek, central to this dispute is whether the ruling
issued
by the CCMA under case number GAJB27117-13 makes the matter before
the Court
res
judicata
.
This requires a comparison of the relevant facts of the two cases
upon which reliance is placed for the contention that the cause
of
action (in the extended sense of an essential element) is the same in
both
[9]
. Furthermore, it needs
to be emphasised that it is the duty of this Court to determine the
true nature of the issue in dispute
between the parties before Court,
no matter how the applicants may have chosen to label or describe the
dispute in their statement
of claim
[10]
.
[21]
The nature of the claim and what the applicants sought at the CCMA
can be gleaned from the referral
[11]
.
They had referred the dispute as pertaining to the
interpretation/application of a collective agreement as contemplated
in section
24 of the LRA. They had further summarised the facts of
the dispute as “
Failure
by the employer to interpret the collective agreement of 28 June 2008
in a manner that covers the applicants”,
and
the outcome that they sought is summarised as “
Proper
interpretation”
[22] In their statement
of claim, the applicants made reference to the clauses of the
collective agreement in contending that they
were covered by that
agreement, and also alluded to the fact that the respondent had with
effect from July 2008, given partial
effect to and/or partially
implemented the agreement as it had remunerated certain employees.
Their main contention was that the
respondent, wrongfully and
unlawfully failed to give effect to and/or implement the agreement.
[23] As already indicated
before, the second referral was effectively dismissed on the basis
that the applicants’ claim had
prescribed. It was argued on
behalf of the applicants that the cause of action that is before the
court is different from the one
that was before the CCMA in the
second referral. The basis of this contention is that in the matter
before the Court, the applicants
contend that they are entitled to a
payment based on the collective agreement, whilst the referral before
the CCMA dealt with interpretation
and application of a collective
agreement, and further that the review of the second ruling had
nothing to do with a monetary claim.
As I further understood the
argument, and in the same vein, the cause of action before the Court
was not on in terms of the collective
agreement.
[24]
The submissions made on behalf of the applicants are not only
confusing and contradictory, but also flawed in a number of respects.
As correctly pointed out on behalf of the respondent, the genesis of
the applicants’ claim cannot be anything else but the
collective agreement. The basis of any entitlement to a monetary
payment is indeed the collective agreement. As can also be gleaned
from the statement of claim, no other basis was laid for that claim
other than the agreement itself. The claim could not have been
based
on the provisions of the Basic Conditions of Employment Act
[12]
.
As things stand, a determination has not been made by way of a
section 24 of the LRA determination that the agreement is applicable
to them, for the purposes of a conclusion to be made that the
agreement formed part of their conditions of service.
[25] The dispute that was
dismissed by the CCMA on account of prescription pertained to the
interpretation and application of the
collective agreement upon which
they had relied upon in claiming payment. To the extent that any
interpretation of the agreement
in favour of the applicants would
have entitled them to any payment, such an interpretation was not
even arrived at, and effectively,
any claim sounding in money
emanating from that agreement had been declared as having prescribed.
That ruling has not as yet been
set aside and thus remains valid and
binding.
[26]
In
Dumisani
and Another v Mintroad Saw Mills (Pty) Ltd
[13]
,
the Labour Appeal Court held that it was against public policy that
litigants should be able to consistently demand the
same relief and
on the same grounds from the same adversary. Furthermore, the primary
purpose of the LRA is the effective and speedy
resolution of
disputes, and in line with that purpose, this court and other
tribunals are duty bound to a measure of both finality
and certainty
in dealing with disputes between parties.
[27]
In the light of the above, it is therefore untenable for the
applicants to approach this Court with essentially the same claim
under a different guise and effectively seek the same relief that was
determined by the CCMA. A dispute pertaining to interpretation
and/or
application of collective agreement falls within the exclusive
jurisdiction of the CCMA as contemplated within the meaning
of
section 24 of the LRA. This Court lacks the requisite jurisdiction to
determine disputes pertaining to interpretation and/or
application of
collective agreements
[14]
. In
my view the statement of claim before the Court is nothing but a
feeble attempt by the applicants to get the agreement in dispute
to
be interpreted and applied in their favour, in clear circumvention of
the provisions of section 24 of the LRA. This is untenable,
and the
Court cannot countenance such an approach.
[28]
In
Kommissaris
Van Binnelandse Inkomste v Absa Bank Bpk
[15]
,
the then Appellate Division held that the plea of
res
judicata
was available not only when the cause of action was the same but also
where, even if it appears that the cause of action was different,
the
earlier proceedings involved a judicial determination of a matter on
the same facts or issues or for that matter the same relief.
In this
case, the applicants had an insurmountable task of distinguishing
between the dispute determined by the CCMA and that as
encapsulated
in the statement of claim. The best they could muster was a contrived
argument that the claim before the court is
merely of a monetary
nature. To repeat then, the genesis of their claim is the settlement
agreement, and it is only through a determination
by way of a section
24 of the LRA referral that it can be determined whether they are
entitled to any payment or not. That determination
can only be made
by the CCMA.
[29] The essence of the
applicants’ claim at both the CCMA and in this court is the
payment of money emanating from the provisions
of the agreement. That
claim has been declared as having prescribed, which matter is still
pending before this court. To that end,
it should be concluded that
the applicants’ claim before the court is
res judicata
,
as a determination that a claim had prescribed effectively brings a
matter to finality. Furthermore, to the extent that the applicants
seek to pursue the review application in respect of Commissioner
Moloi’s ruling that the claim had prescribed, this effectively
implies that the matter is equally
lis pendens.
The applicants
cannot in my view be permitted to circumvent the ruling of
Commissioner Moloi on prescription, by revisiting the
issues under
the auspices of a monetary claim, which in any event is baseless.
Locus
standi and Prescription:
[30] These preliminary
issues in my view should be disposed of swiftly. In regards to the
issue of
locus standi
, and for the purposes of the claim
before the court, it was accepted by the respondent that SAMWU was a
party to these proceedings
albeit
was cited as the
twenty-sixth applicant. It is strange that SAMWU is cited as one of
the applicants when ordinarily, it would have
been expected of it to
have brought this claim on behalf of its members. Nevertheless,
nothing turns on this issue in the light
of the conclusions in
regards to other preliminary points raised.
[31] The preliminary
point relating to whether the claim has prescribed also needs to be
disposed of swiftly. Prescription was raised
and upheld at the CCMA
under case number GAJB27117-13 by Commissioner Moloi. Since the
ruling in this regard is a matter subject
to review proceedings, it
is not for this court to pronounce on that matter.
Costs:
[32] The respondent
sought a punitive cost order against the applicants on the basis that
the claim had prescribed in 2013 and further
that their claim was
dismissed at the CCMA and yet they had approached the Court with a
similar claim. It was further contended
that the applicants despite
having instituted review proceedings had still approached the Court,
and it was impermissible for them
to do so in the light of the
applicable provisions of section 24 of the LRA.
[33] The submissions made
on behalf of the applicants were to the effect that costs should
follow the result, and to the extent
that the Court was inclined to
order costs in favour of the respondent, such a cost order should not
be punitive.
[34] Section 162 of the
LRA provides that this Court may make an order of payment of costs
according to the requirements of law
and fairness. It is my view
having taken account of these considerations that the respondent
should be entitled to its costs. The
applicants had no reason
whatsoever in the light of the disputes referred to the CCMA and the
subsequent rulings in that regard
to again approach this Court with
their contrived statement of case. Given the nature of their cause of
action and the relief that
they seek, and further in the light of
their review application, there was clearly no reason to approach
this Court whilst that
application was still pending. The applicants’
conduct in my view constitutes an abuse of the court’s process.
Furthermore,
the respondent was forced to defend a claim that was
clearly ill-conceived and misguided. In the light of these and other
conclusions
reached, the following order is made;
Order:
i.
The
preliminary points raised by the respondent, and in particular, the
pleas of
res
judicata
and
lis
alibi pendens
are upheld.
ii.
The
applicants’ main claim as per their statement of case is
dismissed with costs.
__________________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants:
Adv. LP Mkhize with Adv. M
Mafisa
Instructed
by:
Maenetje Attorneys
On
behalf of the Respondent:
Adv. XD Matyolo
Instructed
by:
Werkmans Attorneys
[1]
24.
Disputes about collective agreements.
(2)
If there is a dispute about the interpretation or application of a
collective agreement,
any party to the dispute may refer the dispute
in writing to the Commission if -
(a)
the collective agreement does not provide for a procedure as
required by subsection
(1);
(b)
the procedure provided for in the collective agreement is not
operative; or
(c)
any party to the collective agreement has frustrated the resolution
of the dispute
in terms of the collective agreement
.
[2]
“
Interlocutory
applications: points
in
limine
,
exceptions and special pleas that do not require the hearing of oral
evidence.
10.3.1 Except for those matters that
are the subject of case management (where the judge concerned will
issue directions on how
interlocutory matters are to be dealt with),
all preliminary points raised in a statement of claim and any
response to a statement
of claim (including but not limited to
applications for condonation of the late referral of a statement of
claim or the late
filing of any statement of response, special pleas
and exceptions) will be set down for hearing on an interlocutory
basis.”
“
10.3.2
Once the preliminary point is ripe for determination, any of the
parties may index and paginate the court file and request
that the
matter be enrolled for hearing without delay. Filing of heads of
argument is not a prerequisite for making this request,
though the
registrar may, if directed to do so by a judge, call upon the
parties to file their heads of argument before allocating
the matter
for hearing.”
[3]
Rule 11 provides
that;
‘
(3) If a situation
for which these rules do not provide arises in proceedings or
contemplated proceedings, the court may adopt
any procedure that it
deems appropriate in the circumstances.
(4) In the exercise of its powers and
in the performance of its functions, or in any incidental matter,
the court may act in a
manner that it considers expedient in the
circumstances to achieve the objects of the Act.’
[4]
See
Mpofu
v Minister for Justice and Constitutional Development and Others
2013 (9) BCLR 1072
(CC) at para 16
[5]
(2015) 36 ILJ 1247
(LAC) at para [26]. See also
Prinsloo
NO and Others V Goldex 15 (Pty) Ltd and Another
2014 (5) SA 297
(SCA) at para [23] where the Court held that;
“
In
our common law the requirements for res iudicata are threefold: (a)
same parties, (b) same cause of action, (c) same relief.
The
recognition of what has become known as issue estoppel did not
dispense with this threefold requirement. But our courts have
come
to realise that rigid adherence to the requirements referred to in
(b) and (c) may result in defeating the whole purpose
of res
iudicata. That purpose, so it has been stated, is to prevent the
repetition of lawsuits between the same parties, the
harassment of a
defendant by a multiplicity of actions and the possibility of
conflicting decisions by different courts on the
same issue (see eg
Evins v Shield Insurance Co Ltd1980 (2) SA 814 (A) at 835G). Issue
estoppel therefore allows a court to dispense
with the two
requirements of same cause of action and same relief, where the same
issue has been finally decided in previous
litigation between the
same parties”
[6]
2013 (6) SA 499
(SCA)
[7]
At para [2]
[8]
At para [3]
[9]
See
Janse
van Rensburg & others NNO v Steenkamp & Another v Myburgh &
Others
2010 (1) SA 649
(SCA)
2010 (1) SA 649
at paragraph 25
[10]
National Union
of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another
(2003)
24 ILJ 305 (CC) at para 52, where the Constitutional Court held
that;
‘
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a
court must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by
a party is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected
in the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration
(CCMA),
before and after referral of such dispute. These would include
referral documents, the certificate of outcome and all
relevant
communications. It is also important to bear in mind that parties
may modify their demands in the course of discussing
the dispute or
during the conciliation process. All of this must be taken into
consideration in ascertaining the true nature
of the dispute.’
[11]
Pages 1-5 (LRA
Form 7.11) and pages 9-14 (LRA Form 7.13) of the Supplementary Index
[12]
Act 75 of 1997
[13]
(2000) 2 BLLR
(LAC) at 136 par 9
[14]
Denel
Informatics Staff Association and Another v Denel Informatics (Pty)
Ltd
(1999) 20 ILJ 137 (LC) at para 14
[15]
1995 (1) SA 653(A)