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[2017] ZALCJHB 283
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A C and C South Africa (Pty) Ltd t/a African Camp and Catering v Nkadimeng NO and Others (JR249/2015) [2017] ZALCJHB 283 (8 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no JR 249/2015
The
matter between:
A
C AND C SOUTH AFRICA (PTY) LTD
t/a
AFRICAN CAMP AND
CATERING
Applicant
and
COMMISSIONER
DONALD KGALAKE NKADIMENG
N.O
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
SATAWU
obo MOKETLO AND 13
OTHERS
Third
Respondent
Heard:
20 July 2017
Delivered:
08 August 2017
JUDGMENT
NTSOANE,
AJ
Introduction:
[1]
This is an opposed review application in terms of Section 158(1)(g)
of the Labour Relations Act
[1]
(LRA) to set
aside a decision of the first respondent for refusing the applicant’s
application for postponement. The review
application further sought
to review and set aside the arbitration award in terms of Section 145
of the LRA, the default arbitration
award handed down by the first
respondent under case number LP 7307/2014 dated 18 December 2014.
[2]
In terms of the practice note filed by the applicant’s
attorneys on the 12
th
July 2017, the matter seems to have been settled and the relief
sought was for the settlement agreement to be made an order of
Court
and the review application to be discharged. The matter was however
anticipated to proceed but not on merits.
[3]
I must admit that the practice note really confused me as far as the
continuation of the matter is concerned however it then
became
apparent during the argument that the settlement agreement was in
fact disputed for the reasons to be mentioned and determined
herein
below. This Court has enduring powers to set aside settlement
agreements in terms of Section 158(1)(j) of the LRA on such
grounds
as are permissible in common law. The case of
Eugiene
Ulster v The Standard Bank of South Africa Ltd and another
[2]
is relevant
.
Background
:
[4]
The individual third respondents were employed and dismissed by the
applicant. Pursuant to the termination of their employment
with the
applicant, they, through the union SATAWU, referred an unfair
dismissal dispute to the Commission for Conciliation, Mediation
and
Arbitration (CCMA). The matter was ultimately set down for
arbitration and was heard in the absence of the applicant subsequent
to which a default arbitration award, forming the subject matter of
this review application, was rendered.
[5]
Interestingly enough, the applicant submits in its founding affidavit
under the heading
pending
application for rescission
that “
the applicant
has however, also launched an application for the rescission of the
default award which has been set down for hearing
on Friday 20
February 2015 in Lephalale before the Commissioner himself.
Obviously, if that application for rescission is successful
then this
review application will be withdrawn as the matter will then proceed
to arbitration de novo and this application will
be superfluous”
.
As the review application was ultimately not argued, this piece of
evidence was also not argued before me. It is however interesting
to
note that the applicant had simultaneously referred this matter to
two forums. The applicant clearly contravened the principle
of
lis
alibi pendes
in this
regard.
[6]
In any event, during the subsistence of the review application, the
parties reached a settlement agreement which Mr Baloyi sought
to
challenge hence the matter proceeding but not on merits.
[7]
On or about 7 March 2017, MM Baloyi Attorneys filed notice of
appointment as attorneys of record following the withdrawal of
Mabaso
Attorneys as the third respondent’s attorneys. The notice filed
by MM Baloyi Attorneys reflects “
KINDLY
TAKE NOTICE that the Third Respondent (SATAWU obo MOKETLA AND 13
OTHERS -
emphasis
)
hereby appoints MM Baloyi Attorneys as their attorneys of record in
the above matter
”. On
the same day MM Baloyi Attorneys dispatched a letter to the
applicant’s attorneys requesting copies of the index
and heads
of argument to which a response of 10 March 2017 indicated that a
settlement was imminent and that the applicant’s
instructions
was to hold the matter in abeyance. MM Baloyi Attorneys responded on
24 March 2017 indicating that they were not contacted
on the
settlement negotiations and such letter remained unanswered. On the
same day, DETAWU also dispatched a letter seeking to
inform the
applicant that the individual third respondents were their members
and that they have appointed MM Baloyi Attorneys
to act on their
behalf. The applicant’s attorneys responded on the 6 April 2017
advising that the matter had already been
settled between the
applicant and SATAWU on behalf of the members.
[8]
At the end, it appears that the parties settled the matter without
the assistance of their respective legal representatives.
In terms of
the applicant’s letter of 6 April 2017, SATAWU had prepared the
settlement agreement which agreement was signed
by the parties on 22
March 2017.
[9]
The issues before me were:
9.1 Whether SATAWU had
the necessary mandate to settle the matter on behalf of the
individual third respondents (14 employees);
and
9.2
Whether
the settlement agreement concluded between the applicant and the
third respondent on 22 March 2017 complied with the statutory
requirements of the LRA and, therefore, valid and binding on the
parties;
9.3 Whether the Court has
the powers to declare the settlement agreement partly valid and
partly invalid in so far as the members
of SATAWU and members of
DETAWU respectively.
The
Parties’ arguments and submissions
:
[10]
The validity of the settlement agreement is attacked on the ground
that SATAWU had no mandate to settle on behalf of the individual
third respondent, at least six of them namely F Seanego, MP Mojela,
RJ Tabane, MG Mathokoa and PC Mathatho. Mr Baloyi argued that
in so
far as the settlement agreement may be valid then it is invalid as
far as the six are concerned. Mr Baloyi submitted that
as far as 7
March 2017, the applicant was aware that the third respondent is
being represented by MM Baloyi Attorneys thus it was
irregular for
the applicant to settle the matter without the third respondent’s
attorneys’ involvement.
[11]
Mr van der Riet on behalf of the applicant submitted that the parties
are at liberty to enter into settlement negotiations
and even settle
the matter without their respective legal representatives. The
applicant further submitted that the notice appointed
MM Baloyi
Attorneys as the third respondent (SATAWU obo Moketla and others)’s
attorneys and not DETAWU’s.
The
issue of SATAWU vs DETAWU
[12]
Firstly, there is no question that DETAWU is not a party to these
proceedings and no notice was filed by the third respondent
seeking
to amend the citation of the third respondent. In terms of MM Baloyi
Attorneys’ notice of appointment as attorneys
of record, they
were being appointed to act as such on behalf of the third respondent
– SATAWU obo Moketla and others. This
is, in any event,
immaterial as I will determine herein below. In so far as the
withdrawal of membership is concerned from SATAWU
to DETAWU, this is
a union internal administrative issue and in line of SATAWU’s
constitution, and unless there is evidence
to show that the six
employees are now DETAWU members, then the matter would proceed as
initially cited.
[13]
Section 200 of the LRA specifically deals with the representation of
employees by trade unions:
“
200.
Representation of employees or employers.
—(1) A registered
trade union
or registered
employers’ organisation
may
act in any one or more of the following capacities in any
dispute
to which any of its members is a party—
(a)
in its own interest;
(
b
)
on behalf of any of its members;
(
c
)
in the interest of any of its members.
(2) A registered
trade
union
or a registered
employers’ organisation
is
entitled to be a party to any proceedings in terms of
this Act
if
one or more of its members is a party to those proceedings.”
[14]
There is no dispute that SATAWU is a registered trade union and at
the time of referring the matter to the CCMA and ultimately
the
Labour Court, the employees were represented by SATAWU and the
employer recognised SATAWU as the bargaining agent for its employees.
Indeed, SATAWU is still the third respondent on behalf of its members
before this Court and before the CCMA. Section 200(1)(b)
therefore
grants the union an unfettered right to act on behalf of and
represent the individual third respondents in the Labour
Court. At no
point was there any withdrawal of membership by the individual third
respondents from SATAWU, at least no such evidence
was presented to
the Court.
[15]
This then brings me to the next issue whether the parties may enter
into a valid settlement agreement outside the assistance
of their
representatives.
[16]
It is settled in law that litigants are the owners of the litigation
and the role of the representative is to assist and represent
the
litigants in so far as the latter may require the assistance. It is
common knowledge that when parties are legally represented
then their
representatives would deal with issues on their behalf. This however
does not preclude the parties from contacting each
other outside
their representatives in order to discuss and pursue settlement. This
is what has happened in this regard. Once a
settlement is reached,
such settlement is valid and binding on the parties provided that
such settlement agreement complies with
the common law requirements
of a valid agreement. In the case of
Universal
Church of the Kingdom of God v Myeni and Others
[3]
;
,
the Court
determined that:
‘
It is settled law
that the intention of the parties in any agreement - express or tacit
- is determined from the language used by
the parties in the
agreement or from their conduct in relation thereto. Further, that
not every agreement constitutes a contract.
For a valid contract to
exist, each party needs to have a serious and deliberate intention to
contract or to be legally bound by
the agreement, the
animus
contrahendi
. The parties
must also be ad idem (or have the meeting of the minds) as to the
terms of the agreement. Obviously, absent the
animus
contrahendi
between the
parties or from either of them, no contractual obligations can be
said to exist and be capable of legal enforcement.’
[17]
Section 158(1A) of the Labour Relations Act reads as follows:
‘
For the purposes
of subsection of (1)(c), a settlement agreement is a written
agreement in settlement of a dispute that a party
has the right to
refer to arbitration or to the Labour Court, excluding a dispute that
a party is only entitled to refer to arbitration
in terms of section
22(4), 74(4) or 75(7).’.
[18]
The third respondent has not demonstrated any basis for the agreement
to be declared void or invalid. I am satisfied on the
arguments that
the parties entered into and signed the settlement agreement and were
fully aware of the nature of settlement agreement,
had fully
understood the terms and conditions of the agreement they had entered
into, and the consequences thereof. The third respondent
has thus
failed to discharge the onus placed on it to show cause why the
agreement should be declared invalid or void or be set
aside. The
settlement agreement was the product of a long and protracted
consultation and negotiation between the applicant and
the third
respondent. There was a long outstanding litigation issue in respect
of which the applicant decided to engage the third
respondent in an
attempt to resolve the dispute once and for all. The parties are thus
bound by its terms.
[19]
In the event that the individual third respondents (DETAWU members)
are distressed by the conclusion of the settlement agreement,
then
this becomes a separate issue and cause of action between the
individual third respondents and SATAWU. As it stands, the valid
and
binding settlement agreement rested the pending dispute at the CCMA
and/or the Labour Court. Therefore, and once again, MM
Baloyi
Attorneys’ representation is immaterial at this juncture.
[20]
In the premise, I make the following order:
Order
1.
The settlement agreement
entered into between the applicant and third respondent is valid and
binding;
2.
The applicant’s
application for review is accordingly withdrawn;
3.
There is no order as to costs.
_______________________
M.M
Ntsoane
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate H van der Riet
Instructed
by : Cuzen Randeree Attorneys
For
the Respondent: Mr Moses Baloyi
Instructed
by: MM Baloyi Attorneys
[1]
Act
66 of 1995
[2]
(2013)
34 ILJ 2343 (LC). See also:
Department
of Health v Jones and another
[2009]
3 BLLR 195
(LC)
and
Eckhard
v Filpro Industrial Filters (Pty) Ltd
(1999)
20
ILJ
2043
(LC) para [8]
[3]
(2015)
36 ILJ 2832 (LAC);
[2015] 9 BLLR 918
(LAC);
[2015] JOL 33521
(LAC);
at para 44