About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 99
|
|
Lekwa Local Municipality v South African Local Government Bargaining Council and Others; South African Municipal Workers Union v Lekwa Local Municipality (JR1729/15; J571/16) [2019] ZALCJHB 99 (15 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR1729/15 and J571/16
Case
Number: JR1729/15
In
the matter
between:
LEKWA
LOCAL MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First Respondent
L
DLAMINI
N.O
Second Respondent
TL
MOFOKENG
Third Respondent
R
JACKSON
Fourth Respondent
NJ
KOCK
Fifth Respondent
Case Number: J571/16
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
Applicant
and
LEKWA
LOCAL
MUNICIPALITY
Respondent
Heard:
07 February
2019
Delivered:
15 May 2019
Summary:
Declaratory order – arbitration award enforceable – An
order in terms of section 158(1)(c)
of the LRA competent.
JUDGMENT
NKUTHA–NKONTWANA.
J
Introduction
[1]
The two applications were consolidated for the hearing. For
convenience
sake, parties shall be referred to as cited in the first
application.
[2]
In the first application under case number JR1729/15, the applicant,
Lekwa
Local Municipality (the Municipality), seeks an order declaring
that the arbitration award issued by the second respondent under
case
number MPD031510 dated 11 August 2015 (the award) is not capable of
practical implementation and should, accordingly, be set
aside.
[3]
In the
second application under case number J571/16, the applicant, the
South African Municipal Workers Union (SAMWU), seeks an
order making
the award an order of Court in terms of section 158(1)(c) of the
Labour Relations Act
[1]
(LRA).
Background
facts
[4]
SAMWU referred an unfair labour practice dispute in terms of section
186(1)(a)
of the LRA on behalf of its members, the third to the fifth
respondents in the first application (respondent employees). The crux
of its dispute was that the employees were treated unfairly in terms
of placement. It was their assertion that all Divisional Managers
were placed at level 2. Even though they were appointed at level 3,
their roles were those of Divisional Managers and two of their
colleagues with the same functions and responsibilities were placed
at level 2 whilst they remained at level 3.
[5]
The second respondent (the arbitrator) found that the Municipality
acted
unfairly when it failed to place the employees at level salary
level 2 and accordingly issued the following award:
5.1.
The first respondent [the Municipality] is ordered to place the
applicants
[respondent employees] with immediate effect;
5.2.
The applicants’ remuneration be adjusted to post level 2 with
effect
from the date in which the Divisional Managers for
Environmental, Sport and Recreation and Environment Health salaries
were adjusted.
[6]
The Municipality did challenge the award by instituting review
proceedings.
In fact, it is adamant in these proceedings that it is
not challenging the findings arrived at by the arbitrator but that,
the
award is unenforceable and should for this reason, be set aside.
It was submitted on behalf of the Municipality that the award directs
for the adjustment of the respondent employees’ salaries with
effect from the date that is prior to the date of their employment
with the Municipality.
[7]
On the other hand, SAMWU seeks to make the award an order of this
Court.
Although SAMWU is not cited as a party in the first
application, it is acting on behalf of its members, the respondent
employees,
in terms of section 200 of the LRA.
The
enforceability of the award
[8]
The essence of the Municipality’s case is that the award is not
capable of practical implementation in that it requires it to adjust
the salaries of the respondent employees with effect from the
date on
which they had not been in its employ. However, it does not give a
specific date on which a decision to adjust salaries
of the
Divisional Managers for Environmental Sport and Recreation and
Environment Health was taken. Mr J Mtsweni, the Municipality’s
Human Resources Manager, testified that the Municipal Council took a
resolution in 2008 to adjust the salaries of the employees
who had
been placed at salary level 2 but were still remunerated at salary
level 3. Two of the respondent employees’ colleagues
benefited
hence their claim.
[9]
Accordingly, it is easily discernible from the award that 2008 is the
year in which a decision to adjust salaries of the Divisional
Managers for Environmental Sport and Recreation and Environment
Health
from salary level 3 to salary level 2 was made. Since the
Municipality does not challenge the enquiry undertaken by the
arbitrator
and the outcome he arrived at as unreasonable, it should
not be difficult to ascertain the exact details of the 2008
Resolution
from its records.
[10]
It is not correct that all the respondent employees were employed
post 2008. Mr Jackson,
the forth respondent, commenced his employment
with the Municipality in March 2007. As such, there is no impediment
to the adjustment
of his salary as per the award. In the case of the
third respondent, Mr Mofokeng, he commenced his employment with the
Municipality
in July 2012. His salary adjustment would accordingly be
retrospective to that date. The same would apply to the fifth
respondent,
Mr Kock, who commenced his employment with the
Municipality in 2010 and his salary adjustment would be retrospective
to that date.
[11]
The Municipality’s submission that the order that the
respondent employees should
be placed at salary level 2 with
‘immediate effect’ meant that the placement had no
retrospective effect has no merit.
Given the context of the award,
the words ‘immediate effect’ could only mean instantly or
without any delay. In any
event, the Municipality contends in its
answering affidavit in the second application that it has complied
with the award as the
respondent employees have since been placed at
salary level 2 consequent to a job evaluation process.
[12]
To a large
extent, the fate of the Municipality’s case is hinged on the
interpretation of the award. In
Eke
v Parsons
,
[2]
referred to by the Municipality, the Constitutional Court said the
following:
‘
The
starting point is to determine the manifest purpose of the order.
In interpreting a judgment or order, the court’s
intention is
to be ascertained primarily from the language of the judgment or
order in accordance with the usual well-known rules
relating to the
interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons
for giving it must be
read as a whole in order to ascertain its intention.’
[13]
In
Department
of Transport v Tasima (Pty) Ltd; Tasima (Pty) Ltd v Road Traffic
Management Corporation
[3]
the
Constitutional Court, referring with approval to
Firestone
South Africa (Pty) Ltd v Genticuro AG,
[4]
said that:
‘
In
Firestone,
the
Appellate Division (now known as the Supreme Court of Appeal) said
that the basic principles applicable to the construction
of documents
also apply to the construction of a court’s judgment or order.
The court’s intention is to be ascertained
primarily from the
language of the judgment or order as construed according to the usual
well-known rules. As in the case
of any document, the judgment
or order and the court’s reasons for giving it must be read as
a whole in order to ascertain
its intention. If on such a
reading, the meaning of the judgment or order is clear and
unambiguous, no extrinsic fact or
evidence is admissible to
contradict, vary or qualify, or supplement it.’
[5]
[14]
As alluded to above, it is clear from the arbitrator’s reasons
that in 2008 the Municipality
took a decision to adjust salaries of
the respondent employees’ colleagues who are Divisional
Managers for Environmental
Sport and Recreation and Environment
Health and had been placed at salary level 2 but still remunerated at
salary level 3. Given
the fact that the respondent employees have
since been placed at the salary level 2, the only issue outstanding
is the retrospective
adjustment of their salaries in accordance with
the award.
[15]
Having perused the award and, particularly, the reasons provided by
the arbitrator for
his findings, I am of the view that the arbitrator
could not have intended that Messrs Mofokeng and Kock be unduly
enriched by
having their salaries adjusted retrospective to a date
prior to their employment with the Municipality. SAMWU and the
respondent
employees conceded that the salary adjustment in respect
of Messrs Mofokeng and Kock would be retrospective to the respective
dates
that they commenced employment with the Municipality. That
should not be difficult to quantify and enforce.
[16]
It follows in my view, that the award is capable of enforcement and
as such the application
for a declaratory order must fail.
Alternative
remedies
[17] I
have also considered the fact that the Municipality has alternative
remedies within
the comprehensive machinery of the LRA as correctly
submitted by SAMWU. The Municipality failed to approach the
arbitrator for
a variation order in terms section 144 of the LRA
which provides that:
‘
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; or
(c)
granted as a result of a mistake common to the parties to the
proceedings.’
[18]
To the
extent that the Municipality alleges that the award is ambiguous and
therefore, unenforceable, it ought to have availed itself
to the
provisions of section 144(b) of the LRA. Alternatively, since the
Municipality seeks an order not only declaring the award
unenforceable but also an order setting it aside, it ought to have
availed itself to the review procedure in terms of section 145
of the
LRA.
[6]
[19]
In
Steenkamp
and Others v Edcon Limited,
[7]
the Constitutional Court reinforced the principle that the LRA
remedy must be pursued for the LRA breach and stated the following:
‘
The principle is
that, if a litigant’s cause of action is a breach of an
obligation provided for in the LRA, the litigant
as a general rule,
should seek a remedy in the LRA. It cannot go outside of the
LRA and invoke the common law for a remedy.
A cause of action
based on a breach of an LRA obligation obliges the litigant to
utilise the dispute resolution mechanisms of the
LRA to obtain a
remedy provided for in the LRA.’
[20]
In this instance, stripped of all the verbiage, the essence of the
Municipality’s
case is that the order is ambiguous and
unenforceable. It is therefore, impermissible for the Municipality to
resort to the common
law remedy of a declaratory order when there is
an adequate remedy provided for in terms of section 144 of the LRA.
[21]
Furthermore, despite the Municipality’s disavowal that it is
challenging
the reasonableness of the award, it ultimately seeks an
order setting the award aside. Section 145 provides for the mechanism
for
the review and setting aside of the award.
[22]
I am in agreement with SAMWU that, in bringing this application, the
Municipality sought
to circumvent the provisions of the LRA and this
Court cannot countenance that. Accordingly, on this ground, too, the
application
stands to be dismissed.
Condonation
[23]
SAMWU raised several points
in limine
in its answering
affidavit. However, it abandoned the rest and only pursued the issue
of condonation. The impugned arbitration
award was issued on 11
August 2015 and the Municipality launched this application on 11
April 2016, eight months later.
[24]
According to SAMWU, the Municipality ought to have applied for
condonation as it had launched
this application outside of a
reasonable time, which could be more than six weeks or 180 days, so
it was submitted. The Municipality
rejected SAMWU’s contention.
It was adamant that the issue of condonation does not arise in the
context of a declaratory
order as it does not seek an order reviewing
the arbitration award in terms of section 145.
[25]
In Minister
of
Public
Service and Administration and Others v Solidarity
[8]
and Others, the Labour Appeal Court (LAC) stated the following:
‘
A
further factor which the court a quo ought to have considered was the
time lapse between the adoption of Resolution 1 of 1998
and the
launch of the present proceedings. That period was five (5) years. In
Naptosa and Others v Minister of Education, Western Cape
, and
others
2001 (2) SA 112
(C) at 126 E to G Conradie J stated;-
“
I consider that
the substantial delay in bringing these proceedings is another reason
for exercising our discretion against the
grant of a declaratory
order.
It is well established law that undue delay may be taken
into account in exercising discretion as to whether to grant an
interdict
or a mandamus, or to grant relief in review proceedings
.
The declaratory order, being as flexible as it is, can be used to
obtain much the same relief as would be vouchsafed by an interdict
or
a mandamus. Where it is not necessary that a record of proceedings be
put before the Court, the order could serve as a review.
A Court, in
exercising its discretion whether to grant a declaratory order
should, accordingly, in an appropriate case weigh the
same
consideration of “justice or convenience” as it might do
in the case of an interdict or a review.’ [Emphasis
added]
[26]
The
assessment of a challenge of undue delay entails ‘…examining:
(1) whether the delay is unreasonable or undue (a
factual enquiry
upon which a value judgment is made in the light of “all the
relevant circumstances”); and if so (2)
whether the court’s
discretion should be exercised to overlook the delay and nevertheless
entertain the application.’
[9]
In this instance, the Municipality failed to provide an explanation
for the delay of about eight months. Therefore, in refusing
to grant
the declaratory order, I also considered the delay which is not
inconsequential.
Conclusion
[27]
In all the circumstances, the application for a declaratory order
stands
to be dismissed. Having found that the award is capable of
enforcement, there is no reason why it cannot be made an order of
this
Court in terms of section 158(1)(c).
Costs
[28]
As a rule of practice, costs do not follow the result in this Court,
particularly in case where parties have a persisting collective
bargaining relationship typified in this matter.
[29]
In the premises, I make the following order:
Order
1.
The application for a declaratory order is dismissed.
2.
The arbitration award issued by the second respondent under case
number MPD031510
dated 11 August 2015 is made the order of this
Court.
3.
There is no order as to costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate: K Tsatsawane
Instructed
by:
Gildenhuiys Malatji Attorneys
For
the first respondent:
Advocate: N.S. Mteto
Instructed
by:
Maenetja Attorneys
[1]
Act
66 of 1995 as amended.
[2]
2016 (3) SA 37
at para 29.
[3]
[2018] ZACC 21
at paras 42 and 43.
[4]
1977 (4) SA 298
(A) at para 13.
[5]
Tasima
supra n 3 at para 43.
[6]
‘145.
Review
of arbitration awards
(1)
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices
of the Commission may apply to the
Labour Court for an order setting aside the arbitration award-
(a)
within six weeks of the date that the award was served on the
applicant, unless the alleged
defect involves corruption; or
(b)
if the alleged defect involves corruption, within six weeks of the
date that the applicant
discovers the corruption.
(1A) The Labour
Court may on good cause shown condone the late filing of an
application in terms of subsection (1)
(2)
A defect referred to in subsection (1), means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner
as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner's powers; or
(b)
that an award has been improperly obtained.’
[7]
(2016) 37 ILJ 564 (CC);
2016 (3) BCLR 311
(CC);
[2016] 4 BLLR 335
(CC);
2016 (3) SA 251
(CC) at para 137.
[8]
(2007) 28 ILJ 1747 (LAC) at para 19.
[9]
Gqwetha
and Transkei Development Corporation Ltd and Others
2006 (2) SA 603
(SCA) at para 24.