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[2017] ZALCJHB 311
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Dziruni v South African Maritime Safety Authority (SAMSA) (J1818/17) [2017] ZALCJHB 311 (31 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J1818/17
In
the matter between:
MURORO
DZIRUNI
Applicant
and
SOUTH
AFRICAN MARITIME SAFETY
AUTHORITY
(“SAMSA”)
Respondent
Heard:
16 August 2017
Delivered:
31 August 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The applicant approached the Court on urgent basis to seek an order
in the following terms:
1. “…
2.
Ordering and directing that the settlement agreement concluded
between the Applicant and the Respondent on
2 August 2017
under the auspices of the Commission for Conciliation Mediation and
Arbitration be and is hereby made an
Order of Court in terms of
section 158(1)(c) of the Labour Relations Act, 1995 (Act No. 66 of
1995);
3.
Ordering and directing the Respondent to permit and allow the
Applicant to resume his duties and responsibilities
as the Manager:
Project Management of South African Maritime Safety Authority with
immediate effect;
4.
Ordering and directing the Respondent to pay to the Applicant all his
lost salaries for months of April 2017,
May 2017, June 2017 and July
2017 on or before 15 August 2017 as it was agreed in accordance with
the terms of the settlement agreement
reached between the parties.”
[2]
The respondent opposed this application. This matter initially came
before me on 15 August 2017. In view of the congested
urgent roll and the fact that the respondent’s answering
affidavit came to my attention belatedly, it was agreed between
the
parties that the matter would be heard the following day on
16 August 2017.
Background:
[3]
The
applicant commenced his employment with the respondent in terms of a
three (3) years fixed term contract of employment with
effect from
17 March 2014. He was appointed as Manager: Project
Management. The respondent is a public owned entity established
in
terms of the provisions of section 2(1)
[1]
of the South African Maritime Safety Act.
[2]
[4]
The
applicant’s contract was terminated on 31 March 2017
upon its expiry. He thereafter referred a dispute referred
to the
Commission for Conciliation Mediation and Arbitration (CCMA),
contending that he was dismissed within the meaning of the
provisions
of section 186(1)(b)(i)
[3]
of
the
Labour Relations Act (LRA
).
[4]
The respondent failed to attend the conciliation proceedings, and a
certificate of outcome was issued. The applicant then referred
the
matter for arbitration, which was subsequently set down for
2 August 2017.
[5]
It is
common cause that before the arbitration proceedings could commence,
the Commissioner asked the parties whether he could revert
to
conciliation, taking into account that the respondent had not
attended the previous conciliation meeting. The parties acceded
to
that request and in that regard, the Commissioner in terms of the
provisions of
section 138(3)
[5]
of the LRA reverted to the conciliation process.
[6]
The respondent at the CCMA proceedings was represented by its
Executive Manager: Human Resources, Mr Pule Mashilwane (Mashilwane),
who had indicated that he did not have the necessary mandate to enter
into a settlement agreement at that time. The applicant avers
that
Mashilwane was then given an opportunity to contact the respondent in
order to obtain the necessary mandate to enter into
settlement
discussions. According to the applicant, Mashilwane came back and
indicated to the Commissioner that he had obtained
the necessary
mandate.
[7]
Further discussions between the parties as facilitated by the
Commissioner culminated in a signed settlement agreement, in terms
of
which the parties agreed that:
“…
1.
The applicant[‘s] contract of employment is
extended for a year (31 March 2017 to 31 March 2017)
on the
same terms and condition[s] that prevailed before the
termination;
2.
The respondent will pay back-pay to the applicant from
31 March 2017 [u]till 31 July 2017 on or before
15 August 2017;
3.
The applicant will report for duty on 7 August 2017
[on] the respondent’s premises;
4.
The period [from] 1 August 2017 [to] 6 August 2017
will be treated as vocational leave.”
[8]
The applicant as per the settlement agreement reported for duty on
7 August 2017. He averred that upon his arrival,
Mashilwane
had instructed the respondent’s security officers to remove him
from its premises. This was despite the fact that
the applicant’s
immediate superior had already addressed a letter to the Respondent’s
HR indicating that preparations
should be made for his reinstatement.
This application was then launched on 10 August 2017,
having been served on the
respondent on 7 August 2017.
[9]
In bringing this application, the applicant contended that he sought
specific performance in view of the terms and conditions
of the
settlement agreement. The basis for the urgency was that he was out
of employment for over four months and would suffer
financial
prejudice if he were to obtain relief in the normal course. I will
deal with the other requirements of the relief sought
at a later
stage to the extent that it is found that the matter is indeed
urgent.
[10]
The respondent, in an answering affidavit deposed to by its Chief
Operating Officer, Sobantu Tilayi, opposed the application
on the
grounds that;
a)
It was not urgent, particularly since financial
inconvenience or
hardship could not constitute a ground for urgency;
b)
There was nothing urgent about the applicant’s
return to work,
which was not only illegitimate, but since he had not been in the
respondent’s employ for about five months;
c)
The relief that the applicant sought was not
competent as an
application for the rescission of the award was made in respect of
the agreement concluded on 2 August 2017,
as the “award”
was erroneously sought and granted;
d)
During the CCMA proceedings and prior to the
conclusion of the
settlement agreement, Mashilwane had raised concerns with the
Commissioner in respect of his lack of mandate
to enter into any
agreement. Notwithstanding his reservations, Mashilwane made attempts
to obtain the necessary mandate from Tilayi’s
office, but was
however unsuccessful;
e)
The Commissioner at the arbitration proceedings
had ‘instructed’
the parties to enter into settlement discussions, and insisted on the
matter being conciliated despite
the fact that previous attempts at
conciliation had failed;
f)
The authority to institute and/or
defend legal proceedings, and
to enter into settlement agreements with any party in labour disputes
rested with the CEO of the
respondent, which function was delegated
to Tilayi, and at no point did he or the office of the CEO
sub-delegate the authority
to settle the dispute to Mashilwane. The
latter’s actions were therefore
ultra vires
;
g)
The terms of the settlement agreement are
prejudicial to the
respondent as the applicant’s contract of employment had lapsed
and was not to be renewed.
[11]
In his
replying affidavit, the applicant contended that the respondent’s
rescission application before the CCMA was ill-conceived
as it was
premised on an incorrect provision of the LRA, being section 144
[6]
and further that the subject matter of this application and that
before the CCMA was not an arbitration award, but rather a settlement
agreement. The provisions of
section 144
read with
Rule 32
[7]
of the Rules of CCMA did not therefore find application in the
current matter.
[12]
When this matter resumed on 16 August 2017, Mr Khoza for
the respondent submitted that in view of the averments made
in the
replying affidavit, a proper application to review and set aside the
conduct of Mashilwane in concluding the settlement
agreement was
accordingly filed and served.
Evaluation:
[13]
It
is trite that an applicant who approaches this Court on an urgent
basis is obliged to make out a case for urgent relief in the
founding
affidavit with sufficient particularity as required by the provisions
of
Rule 8
[8]
of the Rules of
this Court. The urgent application must further comply with the
requirements set out in
Rules 7(1)
;
7
(2);
7
(3) and where applicable,
7(7).
[14]
Significant
with
Rule 8(2)
is the requirement that the affidavit in support of
the application (a), the reasons for urgency and why urgent relief is
necessary; (b)
the reasons why the requirements of the rules
were not complied with, if that is the case; and (c) if a party
brings an application
in a shorter period than that provided for in
terms of
section 68(2)
[9]
of the
Act, the party must provide reasons why a shorter period of notice
should be permitted.
[15]
A further consideration in determining
whether a matter is urgent is the haste with which an applicant
approached the Court. In
this case, I am satisfied that upon the
applicant being refused permission to resume his duties in accordance
with the terms and
conditions of the settlement agreement, he did not
waste any time in launching this application. The issue that remains
to be determined
is whether the reasons the applicant advanced for
urgency are sufficient and persuasive.
[16]
Central to the respondent’s opposition to the application was
that it was not urgent, particularly since financial inconvenience
or
hardship as claimed by the applicant cannot constitute a ground for
urgency.
The question whether financial
inconvenience and hardship can ever be a basis for a matter to be
treated as urgent has been answered
by this and other courts on
various occasions.
[17]
This
Court in
Democratic
Nursing Organisation of SA and Another v Director-General, Department
of Health and Others
[10]
held that;
‘…
as
a general principle, financial hardship or loss of income cannot be
regarded as grounds for urgent relief. For the applicant
to succeed
when relying on financial hardship or loss of income he or she must
show the existence of exceptional circumstances
justifying the
granting of an order on an urgent basis and on the ground of
financial hardship..…’
[18]
A
similar approach was also adopted by this Court in
Harley
v Bacarac Trading 39 (Pty) Ltd
[11]
,
where it was held that;
‘
If
an applicant is able to demonstrate detrimental consequences that may
not be capable of being addressed in due course and if
an applicant
is able to demonstrate that he or she will suffer undue hardship if
the court were to refuse to come to his or her
assistance on an
urgent basis, I fail to appreciate why this court should not be
entitled to exercise a discretion and grant urgent
relief in
appropriate circumstances. Each case must of course be assessed on
its own merits.’
[19]
A
not so dissimilar approach was also followed in
Ledimo
and Others v Minister of Safety and Security and Another
[12]
,
where
it was held that;
‘
In
the three cases I have quoted above the courts have held that the
mere fact that irreparable financial losses have been suffered
or
would be suffered by the applicant was not, by itself, sufficient
ground to ground the requisite urgency necessary to justify
a
departure from the ordinary court rules. In applying this principle,
a judge will do well to keep the words of wisdom which were
expressed
through the lips of Kroon J on p 15 in CALEDON STREET RESTAURANTS CC
(supra). I find it apposite to echo those sentiments
here by quoting
him
verbatim
:
‘’
However,
the following comments fall to be made. First, to the extent that
these cases may be interpreted as laying down that financial
exigencies cannot be invoked to lay a basis for urgency, I consider
that no general rule to that effect can be laid down. Much
would
depend on the nature of such exigencies and the extent to which they
weigh up against other considerations such as the interests
of the
other party and its lawyers and any inconvenience occasioned to the
court by having to entertain an application on an urgent
basis.
Second, whatever the extent of the indulgence, the sanction of the
court thereof that an application be heard as a matter
of urgency,
would not in general, in this Division, accord the matter precedence
over other matters and result in the disposal
of the latter being
prejudiced by being delayed.”
[20]
Emanating from the above authorities, it
can be accepted that there is no immutable principle that a Court
cannot accord a matter
urgency on the basis of financial hardship or
loss of income. Thus, each case must be dealt with on its merits, and
a determination
should be made by the Court as to whether compelling
or exceptional circumstances exist for it to intervene based on that
ground.
[21]
The issue in this case is whether the applicant has advanced
exceptional or compelling circumstances in this case. It cannot be
doubted that a loss of a job has the invariable consequences of
causing hardship not only to the employee concerned but also to
his
or her immediate dependents, and in other cases, to his or her
extended dependents.
[22]
In this case, the applicant averred that he had been out of
work for four months, had no income to support and sustain his family
(including 14 years old triplets), is unable to meet his financial
obligations, and that the financial prejudice he was placed
under
should it endure would be so severe as to render him and his family
destitute.
[23]
In
considering the matter, guidance is also sought from an important
dictum
in
South
African Informal Traders Forum and Others v City of Johannesburg and
Others; South African National Traders Retail Association
v City of
Johannesburg and Others
[13]
,
where the Constitutional Court stated that;
“…
..The
ability of people to earn money and support themselves and their
families is an important component of the right to human
dignity.
Without it they faced “humiliation and degradation…..”
[24]
It
is acknowledged that it is not common in this court for section 158
(1) (c)
[14]
of the LRA
applications to be brought on an urgent basis, and to be dealt as
such. The reasoning behind this acknowledgement is
that multitudes of
cases get settled either at the CCMA or Bargaining Councils daily,
and it is not uncommon for parties not to
meet their end of the
settlement agreement. To therefore allow each of these cases to be
treated as urgent without consideration
of other factors will
invariably open the floodgates to the Court’s urgent roll. This
will clearly be untenable for the Court.
[25]
It however needs to be emphasised that not every case brought
in terms of section 158 (1) (c) of the LRA will meet the requirement
of exceptional circumstances. In regards to the facts and
circumstances of this case, I am of the view that exceptional
circumstances exists, necessitating the Court’s urgent
intervention. My conclusions in this regard are fortified by the
following
considerations;
25.1
Following upon what the applicant deemed to be an unfair dismissal,
he had
exercised his rights to refer the dispute to the CCMA, with
the expectation that the dispute would expeditiously be resolved.
25.2
When the dispute came before the Commissioner for determination, and
as further
averred by the applicant, he was ready to proceed with the
matter having engaged the services of counsel.
25.3
An agreement to enter into settlement discussions is voluntary, and
it is highly
implausible that a Commissioner would ‘instruct’
or ‘force’ parties to enter into settlement discussions,
let alone coerce them into signing a settlement agreement. A
Commissioner’s role, to the extent that at arbitration
proceedings
the provisions of section 138(3) of the LRA are invoked,
can only be to facilitate a settlement of the dispute, without
dictating
to the parties how they should settle. In this case
therefore, there can be no merit, at least on a
prima facie
basis, to conclude that Mashilwane, given his senior position could
have been coerced into settling the dispute.
25.4
As a result of the settlement agreement, there can be no doubt that
the applicant’s
expectation was that the respondent would
comply with its terms and conditions. That expectation was even more
justifiable in circumstances
where the respondent had not raised any
objections between the date that the agreement was entered into, and
the date when the
applicant reported back for duty. The effect of the
respondent’s failure to abide by the terms and conditions of
the settlement
agreement was clearly to adversely prejudice the
applicant, and to prolong his financial hardship, in circumstances
which were
not of his own making.
25.5
The consequences of concluding a settlement agreement at the CCMA or
the Bargaining
Council is that the dispute is for all intents and
purposes deemed to be resolved and thus finalised. The applicant in
the face
of the respondent’s refusal to comply with the terms
and conditions of the agreement is essentially left with no
alternative
remedy, as he cannot go back to the CCMA to have the
matter arbitrated, until at least, such time that the respondent was
successful
in setting aside that agreement.
25.6
To the extent that the respondent now sought to be extricated from
the agreement
in the light of the applicant’s expectations as
indicated above, the latter was equally deprived of an opportunity to
have
his dispute fully ventilated and finally resolved at the
arbitration proceedings as set down on 2 August 2017. The
implications
thereof are that the applicant will now have to wait for
the final determination of a review application as launched by the
respondent,
and it cannot be doubted that the wait will indeed be a
long one.
25.7
It further needs to be borne in mind that the applicant seeks
specific performance,
on his understanding and firm belief that the
dispute between the parties was resolved. In
Ngubeni
v The National Youth Development Agency and Another
[15]
,
it was held that;
“
In
Santos Professional Football Club (Pty)
Ltd v Igesund & another
2003
(5) SA 73
(C), the court noted that courts in general should be ‘slow
and cautious’ in not enforcing contracts, and that performance
should be refused only where a recognised hardship to the defaulting
party is proved.”
25.8
In this case, the basis for opposing the granting of specific
performance was
that the applicant’s contract of employment had
expired; that he had no basis for a reasonable expectation of a
renewal;
and further that the settlement agreement had no binding
effect as it was concluded by an individual without the necessary
authority
or mandate. It was further argued on behalf of the
respondent that it would suffer prejudice as it had restructured its
operations;
did not require the services of the applicant any longer,
and that since the rescission application was filed, the relief
sought
could not be granted.
25.9
It is my view that the grounds upon which the application is opposed
cannot
qualify as ‘recognised hardship’ in view of the
fact that the applicant was entitled to exercise his rights to refer
a dispute with an expectation that same would be expeditiously
resolved. Another consideration is that the filing of a rescission
application before the CCMA and the subsequent filing of a review
application (on the date of the hearing of this application),
and
after the applicant had launched this application is further evidence
of bungling on the part of the respondent which consequences
cannot
be visited upon the applicant. The filing of a rescission application
was clearly an irregular step, and the subsequent
filing of a review
application on the date of the hearing of this application is clearly
belated. Mr Khoza’s submissions
in court to the effect that the
respondent wanted an opportunity to research the issues and to decide
what to do in the light of
the impugned settlement agreement can
hardly be an excuse not to deal with the matter diligently and
promptly from 02 August 2017.
Furthermore, and to
reiterate, there is no basis, at least on a
prima facie
basis
to conclude that the agreement was not voluntarily entered into.
25.10
Any hardship claimed by the respondent is clearly self-inflicted, and
to the extent that
Mashilwane had acted outside of his powers, and
further in view of my conclusions regarding his allegations that he
was ‘instructed’
or ‘coerced’ by the
Commissioner, that is a matter which the respondent should in my
view, deal with internally.
[26]
In
South
African Post Office Ltd v CWU obo Permanent Part-Time Employees
[16]
,
it
was confirmed that t
he
provisions of
section
158(1)(c) of the LRA empowers this Court to make any settlement
agreement, concluded in respect of a matter arising within
the scope
of the LRA, an order of court. The LAC however added that this did
not mean that the order was there for the taking,
as the Court has a
discretion whether to grant such an order even if it otherwise met
the criteria provided in section 158(1A)
[17]
,
read with section 158(1)(c) of the LRA
[18]
.
In
Greef
v Consol Glass
[19]
,
it was
further held that;
‘
So
properly interpreted, in terms of s 158(1)(c), read with s 158(1A),
the Labour Court may make any arbitration award an order
of court and
may only make settlement agreements, which comply with the criteria
stated in s158(1A), orders of court. A settlement
agreement that may
be made an order of court by the Labour Court in terms of s 158
(1)(c), must (i) be an order of court by the
Labour Court in terms of
s 158 (1)(c), must (i) be in writing, (ii) be in settlement of a
dispute (i.e it must have as its genesis
a dispute; (ii) the dispute
must be one that the party has a right to refer to arbitration, or to
the Labour Court for adjudication,
in terms of the LRA; and (iv) the
dispute must be of the kind that a party is only entitled to refer to
arbitration in terms of
s 22(4), or s 74(40 or s 75(7)’
[27]
In this case, I am satisfied that the
settlement agreement in question met the requirements set out in
section 158 (1A) of the LRA
as it is in writing; was a settlement of
an alleged unfair dismissal dispute, which dispute the applicant had
a right to refer
to, and was indeed referred to arbitration in terms
of the provisions LRA.
[28]
It
is trite that
the
effect of any settlement agreement is to dispose of a matter if it
resolves all aspects of the dispute between parties, and
also has the
effect of compromising a claim
[20]
.
Such agreements essentially precludes parties from taking any further
legal action in respect of the dispute resolved, and it
would
therefore be undesirable or untenable for such disputes to continue.
[29]
As
it was further held in
Greef
[21]
that lingering, unsettled disputes are not conducive to stability in
the workplace and militate against the principle aims of the
LRA in
that respect. The LAC added that
making
settlement agreements orders of court may be regarded as important
for the protection of the rights of the parties to the
settlement. It
not only facilitates and enables execution through court processes,
but would enable an aggrieved party to institute
contempt proceedings
if the order of court is not complied with
[22]
.
[30]
In the light of the conclusions reached
regarding urgency, and the exceptional circumstances prevalent in
this matter as discussed
in this judgment, I am further not convinced
that any facts were placed before the Court that can be said to
militate against making
the settlement agreement entered into between
the parties, an order of court. It is further my view that it would
be untenable,
let alone iniquitous for this court not to grant the
relief sought in view of the fact that essentially, the applicant has
no alternative
remedy as the doors for his claim at the CCMA have
been closed as a result of the settlement agreement. The argument
advanced on
behalf of the respondent that the applicant will obtain
substantial redress in due course is clearly misplaced, as through
the
agreement signed on its behalf, the applicant cannot seek
substantial redress anywhere other than in this Court. To not grant
the
order would further prejudice the applicant under the
circumstances which are clearly not of his own making. Accordingly, I
see
no reason why I should not exercise my discretion, and grant the
order sought by the applicant.
Costs:
[31]
This court
in accordance with the provisions of section 162
[23]
of the LRA must take into account, the requirements of law and
fairness when making an award of costs. The circumstances of this
case are such that there is nothing in law or fairness that militates
against an order of costs, and there is further no reason
why the
applicant should be burdened with costs resulting from the
respondent’s conduct in dealing with this matter. I however
do
not deem it necessary to make any cost order in respect of the
postponement of the matter on 15 August 2017.
Order:
[32]
In the premises, the following order is made;
1.
The applicant’s application is dealt with as one of urgency,
and the normal Rules of this Court relating to time limits and the
manner of service are dispensed with.
2.
The settlement agreement entered into between the applicant
and the
respondent on 2 August 2017 under the auspices of the CCMA,
and under case number GATW6373-17 is hereby made
an order of Court in
terms of the provisions of
section 158
(1) (c) of the
Labour
Relations Act.
3.
The
respondent is ordered to pay the costs of this application.
4.
No order as to costs is made in respect of the postponement
of this
matter on 15 August 2017
_____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. B
Ford
Instructed
by:
Ndumiso Voyi Inc. Attorneys
For
the Respondent:
Mr B Khoza of Khoza & Associates
Inc. Attorneys
[1]
Section 2:
Establishment
and transfer of certain
f
unctions
.
—
(1) The South African
Maritime Safety Authority is hereby established as a juristic
person.
(2) The
administration of the laws mentioned in the first column of the
Schedule is transferred to the Authority subject
to the amendments
(if any) contained in the third column of the Schedule, with effect
from a date fixed by the Minister by notice
in the Gazette which
must not be a date before 1 April 1998.
[2]
Act 5 of 1998
[3]
Section 186:
Meaning
of dismissal and unfair labour practice
:―
(1)
Dismissal means that –
(a) ………….
(b)
an employee employed in terms of a fixed term contract of employment
reasonably expected the employer-
i.
to renew a fixed term contract of employment on the same or similar
terms but the
employer offered to renew it on less favourable terms,
or did not renew it; or
ii.
…………
[4]
Act 66 of 1995
[5]
Section 138:
General
provisions for arbitration proceedings:
:―
(1)
The commissioner may conduct the arbitration in a manner that the
commissioner
considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.
(2)
Subject to the discretion of the commissioner as to the appropriate
form
of the proceedings, a party to the dispute may give evidence,
call witnesses, question the witnesses of any other party, and
address concluding arguments to the commissioner.
(3)
If all the parties consent, the commissioner may suspend the
arbitration
proceedings and attempt to resolve the dispute through
conciliation.
[6]
Section
144:
Variation
and rescission of arbitration awards and rulings
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may
on that commissioner‘s own accord or, on the application of
any affected party, vary or rescind an arbitration award
or ruling-
(
a)
erroneously
sought or erroneously made in the absence of any party affected by
that award;
(
b)
in which
there is an ambiguity, or an obvious error or omission, but only to
the extent of that ambiguity, error or omission;
(
c)
granted
as a result of a mistake common to the parties to the proceedings;
or
(d) made in the
absence of any party, on good cause shown.
[7]
Rule
32:
How
to apply to vary or rescind arbitration awards or rulings
1)
An application for the variation or
rescission of an arbitration award or ruling must be made within
fourteen days of the date
on which the applicant became aware of-
a)
the arbitration award or ruling; or
b)
a mistake common to the parties to the
proceedings.
2)
A ruling made by a commissioner which has
the effect of a final order, will be regarded as a ruling for the
purposes of this rule.
[8]
Rule 8:
Urgent
relief
(1) A party that applies
for urgent relief must file an application that complies with the
requirements of rules 7(1), 7(2), 7(3)
and, if applicable, 7(7).
(2) The affidavit in
support of the application must also contain-
(a)
the reasons
for urgency and why urgent relief is necessary;
(b)
the reasons
why the requirements of the rules were not complied with, if that is
the case; and
(c)
if a party
brings an application in a shorter period than that provided for in
terms of section 68(2) of the Act, the party must
provide reasons
why a shorter period of notice should be permitted.
[9]
Section 68:
Strike
or lock-out not in compliance with this Act
(1)…
(2) The Labour Court may
not grant any order in terms of subsection (1)(a) unless 48 hours‘
notice of the application has
been given to the respondent: However,
the Court may permit a shorter period of notice if -
(a) the applicant has
given written notice to the respondent of the applicant‘s
intention to apply for the granting of an
order;
(b) the respondent has
been given a reasonably opportunity to be head before a decision
concerning that application is taken;
and
(c) the applicant has
shown good cause why a period shorter than 48 hours should be
permitted.
…
[10]
(2009)
30 ILJ 1845 (LC)
at
para 19.
[11]
(2009)
30 ILJ 2085 (LC)
at para 8.
[12]
(2242/2003)
[2003] ZAFSHC 16
(28 August 2003)
at
para 32, in reference to Trustees, BKA Besigheidstrust v Eco
Produkte en Dienste 1990(2) SA 102 (TPD) at 108D-E; Caledon Street
Restaurants CC v Monica D’aviera
[1998] JOL 1832
SE
(Unreported)
[13]
2014
(6) BCLR 726
(CC)
at para [31]; See also at para [36] where the Constitutional Court
held that:
“
We have already
said much that shows that the application for interim relief was
manifestly urgent. The City had evicted the applicants
from their
trading areas or stalls and refused to allow them back, even though
they had been verified and re registered at the
behest of the City.
Although the City admittedly failed to follow the processes in the
Businesses Act, it forcibly evicted
the applicant traders. Its
conduct spawned immediate and acute hardship that left the applicant
traders destitute.
It was never disputed that they were unable
to feed or house themselves or their families. The situation
would have only
worsened if it persisted”.
[14]
[15]
(J
2322/13) [2013] ZALCJHB 269 (21 October 2013)
[16]
(2014)
35 ILJ 455 (LAC)
[17]
Section
158:
Powers of Labour Court
(1) …
(1A) For the purposes of
subsection (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]
At para 2. See also
Greef
v Consol Glass (Pty) Ltd
(2013)
34 ILJ 2385 (LAC)
at para 20, where it was held that;
‘
I
t
is noteworthy that s158(1)(c)does not provide that the Labour Court
is obliged to make a settlement agreement an order of court.
So that
even if a settlement agreement complies with the criteria’s
stated in s158(1A), the court may, nevertheless, in
the exercise of
its overarching discretion decide not to make it an order of court.
Section 158(1)(c) provides that the Labour
Court ‘may’
make it an order of court. This means that the Labour Court has a
discretion in that regard, which it
would have to exercise in a
judicial manner, taking into account all the relevant facts and
circumstances.’
[19]
at
para 19
[20]
NUM
& Others v Crown Mines Limited
[2001]
7 BLLR 716
(LAC) at para 26.
[21]
Supra
para
26
[22]
At
para 21
[23]
Section 162:
Costs
(1) The Labour Court may
make an order for the payment of costs, according to the
requirements of the law and fairness.
(2) When deciding
whether or not to order the payment of costs, the Labour Court may
take into account -
(a)
whether the
matter referred to the Court ought to have been referred to
arbitration in terms of
this Act
and, if so, the extra costs
incurred in referring the matter to the Court; and
(b)
the conduct
of the parties -
(i) in proceeding with
or defending the matter before the Court; and
(ii) during the
proceedings before the Court.
(3) The Labour Court may
order costs against a party to the
dispute
or against any
person who represented that party in those proceedings before the
Court.