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[2018] ZALCJHB 234
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Masemola and Others v Department of Education Limpopo Province (J2333/15) [2018] ZALCJHB 234 (25 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: J2333/15
In the matter between:
MASEMOLA AND 21
OTHERS
Applicant
and
DEPARTMENT OF EDUCATION
LIMPOPO
PROVINCE
Respondent
Application heard: 19 June 2018
Judgment delivered: 25 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an application in which
the applicants seek to have a settlement agreement made an order of
court in terms of s 158
(1) (c) of the Labour Relations Act. There is
certain ancillary relief sought in prayers 2 and 3 of the notice of
motion, all of
which relates to the implementation of the agreement.
The court’s powers in the present instance extend only to
making the
agreement an order of court – it is not open to the
court in these proceedings to grant the substantive relief of
promotion
and compensation sought by the applicants that flows from
their interpretation of the terms of the agreement.
[2] Be that as it may, the settlement
agreement was concluded on 16 March 2016, between the respondent and
some 107 of its employees,
22 of whom are cited as applicants in the
present proceedings.
[3] Clauses 1 to 3 of the settlement
agreement reads as follows:
1.
The
parties agree that the Applicant employees [as per Annexure A to this
Agreement] who are appointed as Administration Clerks:
NSNP and also
meet all the requirements contemplated in Regulation Part V C.6 of
the Public Service Regulations will be absorbed
into the higher
(upgraded) posts with effect from 01 April 2015.
2.
The
most recent performance assessment shall, for the purposes of this
Agreement, be the 2013/14 PMDS cycle.
3.
It
is further agreed that the Applicant employees who do not meet the
requirements contemplated in Regulation V C.6 shall be transferred
on
account of operational requirements.
[4] It is not in dispute that the
reference to ‘Administration Clerks’ in clause 1 should
read ‘accounting clerks’.
[5] The applicants contend that they
are entitled to benefit from the agreement. The respondent disputes
this, and avers that the
settlement affects only accounting clerks
responsible for NSNP at circuit level. Certain of the applicants do
not fall into that
category and accordingly do not qualify to be
upgraded. Secondly, the balance of the applicants (but for one) do
not qualify for
upgrading because they do not meet the requirements
of clause 2 of the agreement, i.e. that they should have been rated
as ‘satisfactory’
or above in their work performance for
the h2013/14 performance management and development (PMDS) cycle.
Finally, the respondent
avers that one of the applicants is not part
of the settlement agreement at all.
[6] In
South African Post Office v
CWU
[2013] 12 BLLR 1203
(LAC), the Labour Appeal Court declined
to make a settlement agreement an order of court where there was a
dispute about the meaning
of the agreement. Similarly, in
PSA v
National Health Laboratory Service
[2007] 6 BLLR 559
(LC), this
court declined to make a settlement agreement an order in
circumstances where the validity of competing claims and quantum
were
the subject of a dispute and would have to be determined by
litigation.
[7] The court has a discretion to make
a settlement agreement an order of court – there is no absolute
right to such an order.
In the exercise of its discretion, the court
must necessarily take all of the relevant facts and circumstances
into account including,
as required by the above authority, the
existence of any dispute about the terms of the settlement agreement
or its implementation.
Further, as the court pointed out in
PSA
,
there is little point in making a disputed settlement agreement an
order of court where this would simply result in one party
claiming
the other to be contempt of that order, in proceedings that would
inevitably bring the competing merits of the parties’
claims
back into play. If the court were to grant the order sought by the
applicant, I have no doubt that the next stage of these
proceedings
would be an application to hold the respondent in contempt on account
of what would be alleged to be a willful default
of any order
granted. It seems to me that little purpose would be served by
granting the order sought. The fundamental issue to
be determined is
whether the respondent has complied with the agreement or, put
another way, whether the applicants are entitled
to benefit from it.
That is a matter best determined by the parties themselves, or by
some form of third party intervention. It
does not appear that the
settlement agreement is a collective agreement, with the result that
the provisions of s 24 of the LRA
are not available to the parties.
They may however wish to consider a referral to private arbitration
or some other suitable mechanism
to resolve their differences. But
for the reasons that I have recorded above, making the agreement an
order of court creates more
difficulties that it resolves, and the
court must exercise its discretion against granting the order sought.
[8] Finally, for the purposes of s
162, the interests of the law and fairness are best satisfied by each
party bearing its own costs.
I make the following order:
1.
The application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. G Phajane instructed by Rangoanasha Inc.
For
the respondent: Adv. M Mthombeni instructed by the state attorney