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[2019] ZALCJHB 335
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Transnet Group Capital v Khwela and Others (JR113/18) [2019] ZALCJHB 335 (14 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
113/18
In
the matter between:
TRANSNET GROUP
CAPITAL
Applicant
and
REFILOE
KHWELA
1
St
Respondent
TRANSNET
BARGAINING COUNCIL
2
nd
Respondent
SEELE
MOKWENA
3
rd
Respondent
Heard
:
12 November 2019
Delivered
:
14 November 2019
Summary:
Jurisdictional review – On the objective facts –
Arbitrator correct that there is jurisdictional power. Held (1) the
condonation application is granted. Held (2) the application for
review is dismissed. Held (3) there is no order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1]
Before me is a jurisdictional review. The applicant effectively
contends
that the claim alleging unfair labour practice was
compromised by the first respondent.
Background
facts
[2]
Since the present application turns on a narrow
point of law – was the unfair labour practice claim compromised
– it
is unnecessary to recount all the facts of this case in
this judgment. The relevant facts are: On or about 12 December 2016,
the
first respondent was demoted. Following that, the first
respondent referred a dispute alleging unfair labour practice. Whilst
the
dispute was pending before the bargaining council, the first
respondent was offered and accepted a voluntary severance package
(VSP). The first respondent upon receipt of a written offer, she
proposed an amendment as she held a view that certain clauses in
the
offer were aimed at destroying her pending litigation dispute. The
proposal was rejected in writing by the applicant. Consequentially,
the first respondent inserted what she proposed and signed the
agreement with amendments effected on it. Upon receipt of the
document
as signed by the first respondent, the applicant’s
representative, Mr Mohammedys appended his signature but did not
initial
the handwritten inscriptions made by the first respondent.
The signed voluntary severance agreement has in place handwritten
inscriptions
where the first respondent clearly indicated that she is
not compromising the pending unfair labour practice dispute.
[3]
The first respondent left the applicant’s
employ on the strength of the VSA (Voluntary Severance Agreement). On
6 November
2017, the unfair labour practice dispute was enrolled for
arbitration. At the commencement of the arbitration process, the
applicant
objected to the jurisdiction of the bargaining council on
the basis that the claim had become compromised. After hearing
submissions,
the appointed arbitrator assumed jurisdiction and
concluded that the claim was not compromised. Aggrieved thereby, the
applicant
launched the present application. The application was 9
days out of the prescribed time period and condonation was sought.
The
application stands opposed.
Evaluation
[4]
The first respondent objected to the hearing of
this application on the basis of the provisions section of section
158(1B) of the
LRA. Since the review application was enrolled before
me, I decided to hear the application. This section only prohibits
the Labour
Court to review, as in setting aside a ruling, and not
hearing an application enrolled before it. In other words, a
Court
of review may still hear the application but refuse an
application on the strength of the provisions of the section.
However, given
the view I take at the end, this point is academic.
As a point of departure, it is important to define this defence
of
compromise
.
The reason being that it shares commonalities with the contractual
defence of
waiver
.
Waiver
relates to a contractual right and or acquired right, whilst
compromise
relates to a litigation dispute.
[5]
Miller
J.A in
Gollach
& Gomperts v Universal Mills & Produce Co
[1]
had the following to say about the defence:
“…
was a
transactio
in the sense of the word as used in the Roman Dutch
law and applied in South Africa. In
Cachalia v Harberer & Co.,
1905 TS 457
at p. 462
, SOLOMON J., accepted the definition of
transactio
given by Grotius,
Introduction
, 3.4.2., as
“
an agreement
between litigants for the settlement of a matter in
dispute
”
…
The purpose of
transactio
is not only to put an end to
existing dispute
but also to prevent or avoid litigation…
[6]
In
casu
,
there is no relationship between the VSA and the litigation dispute –
alleged unfair labour practice. The VSA was ignited
by the
operational requirements of the applicant. The offer for VSP was
offered to a number of employees. The VSP was aimed at
mutual
termination, which may be followed by a forced termination based on
operational requirements, if not accepted. What actually
happened in
this matter is that the draft VSA was more like an offer that the
applicant made to the first respondent. The handwritten
inscriptions
was more a counter-offer. Once, Mohammedys signed the VSA with the
handwritten inscriptions, the applicant accepted
the first
respondent’s counter offer.
[7]
Watermeyer
CJ in
Collen
v Rietfontein Engineering Works
[2]
stated the following:
“
It must also be
remembered that a counter-offer is in general equivalent to refusal
of an offer and that thereafter
the original offer is dead and
cannot be accepted until revived
. (See
Watermeyer v Murray
1911 AD 61
) “
[8]
To
the extent that the applicant argues that the original draft VSA had
in it a clause that compromised
[3]
the litigation dispute, that offer was not accepted by the first
respondent. Since the draft VSA was not accepted by the first
respondent, then there is no agreement of compromise. It is clear
that the applicant vaguely wished to reach a compromise. Like
any
other agreement,
consensus
is a requirement for a compromise agreement. The first respondent
made it abundantly clear that she had no intention to compromise
her
claim that was pending at the bargaining council. She counter-offered
as follows: “
Except
for case no BC Khwela TCP/GR 13552 and 13586 pending finalization at
the Transnet Bargaining Council
”.
This handwritten inscription was made alongside clauses 116.1 and
116.2, which as prepared by the applicant sought to introduce
a
compromise.
[9]
Mr
Ford for the applicant placed reliance on the decision of
Blue
IQ Investment Holdings (Pty) Ltd v Southgate
[4]
.
This decision is not helpful to the applicant. It dealt with a
non-variation clause. In
casu
,
at the time of the handwritten inscription by the first respondent,
the parties had not reached an agreement yet. They were still
at the
point of offers. The applicant made an offer, which was not accepted
by the first respondent. At the initial stages of the
negotiations,
the first respondent counter-offered and the counter-offer was
rejected. However, the first respondent insisted with
the counter
offer and the second time around, Mohammedys, by appending his
signature, he assented to the counter-offer. The first
party to sign
an agreement
[5]
makes an offer
and the other by his signature accepts.
[6]
The fact that Mohammedys chose not to initial alongside the
counter-offer is of no consequences. Further, Mr Ford placed reliance
on the decision of
Ulster
v Standard Bank Ltd & another
[7]
.
This
decision too is unhelpful to the applicant. In it an employee
attempted to resile from an already reached agreement. Finally,
he
placed reliance on
Maetisa
v Pernod Ricard SA Ltd
[8]
.
Similarly,
this decision does not advance the applicant’s case. In it, the
employee attempted to bring into a settlement agreement
an issue
raised during a consultation process, which did not make its way into
the settlement agreement. As pointed out earlier,
in this matter,
when the first respondent made the handwritten inscription (which I
had termed a counter-offer), no agreement was
reached as yet. I asked
Mr Ford to demonstrate to the Court that an agreement was already
reached, but he could not.
[10]
The arbitrator was spot on when he concluded that
a settlement agreement has as its genesis a dispute and must resolve
that dispute.
Correctly, and on the objective facts, the VSA did not
resolve the unfair labour practice between the parties. The dispute
remained
live for resolution through arbitration. Therefore, a
conclusion that the bargaining council has the requisite jurisdiction
to
arbitrate the dispute was correct. Accordingly,
the application is bound to fail. The delay to launch the review
application is minimal and condonable, regard being had to the
explanation offered.
[11]
Accordingly, I make the following order:
Order
1
The application for condonation is granted.
2
The review application is dismissed.
3
There is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
Advocate B Ford
Instructed
by:
Mkhabela Huntley Attorneys Inc.
For
the Respondent:
Mr Biggs of Snyman Attorneys
[1]
1978 (1) SA 914 (AD)
[2]
1948 1 SA 413
(A) at 420
[3]
In my view, clauses 116.1 and 116.2 cannot be interpreted to include
the litigation dispute. At the time of making the original
offer,
the litigation dispute was easily describable. To simply classify it
under
all
claims
was unnecessary. In crafting the offer, the applicant had an
opportunity to describe the dispute with ease. On application of
the
contra
proferentem
rule the offer must be interpreted against the applicant given the
vagueness as to what
all
claims
includes, when the applicant could have made the meaning clearer and
plain.
[4]
[2014] 35 ILJ 3326 (LAC)
[5]
Mr Ford resisted the submission made by Biggs that the first
respondent was the first party to sign. This resistance is not
supported by the facts as pleaded in this case. The Founding
Affidavit is vague and contradictory on this issue. The Answering
Affidavit makes it plain in that the first respondent testifies that
she signed first and Mohammedys signed after with the handwritten
inscription already made. This evidence was not sufficiently denied
in the Replying Affidavit. On application of the Plascon-Evans
rule,
I must conclude that first respondent signed first.
[6]
Indrieri
v Du Preez
1989 2 SA 721
(C). See also Christie’s The Law of Contract in
South Africa 6
th
ED 2010
[7]
[2013] 34 ILJ 2343 (LC)
[8]
[2013] 34 ILJ 2044 (LC)