IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No. CA 20/24
In the matter between:
SUGAR BERRY CC T/A HORISON STAFF
SOLUTIONS Appellant
and
THE MOTOR INDUSTRY BARGAINING
COUNCIL First Respondent
MR GORDON EDWARDS N. O. Second Respondent
MIBCO DISPUTE RESOLUTION CENTRE Third Respondent
EMISSIONS CONTROL TECHNOLOGIES (PTY) LTD Fourth Respondent
Heard: 26 August 2025
Delivered:
Coram: Basson AJA, Djaje AJA et Tokota AJA
This judgment was handed down electronically by circulation to the parties’
representatives by email, published on the Labour Appeal Court website, and
released to SAFLII. The date and time for hand- down is deemed to be 10h00 on
2 October 2025.
2
__________________________________________________________________
JUDGMENT
___________________________________________________________________
TOKOTA, AJA
Introduction
[1] This appeal concerns the interpretation of the Provident Fund Collective
Agreement for the Motor Industry (the Fund A greement). The dispute about
the interpretation arose when the first respondent sought to enforce
compliance of the order it obtained in terms of the Fund Agreement, in terms
of whereof it was obliged to receive and pay over the pension contributions by
its employees to the Provident Fund, the custodian of which is the first
respondent.
[2] The contentions of the parties in this C ourt, as in the Court below (the Labour
Court), as to the meaning to be ascribed to the relevant clause of the said
agreement, are diametrically opposed. “The same words often mean different
things to different people. This helps to keep the forensic pot boiling” , so said
Schutz JA in Langston Clothing (Properties) CC v Danco Clothing (Pty) Ltd
1
What is at issue in this appeal affords a classic example of the truism in that
statement.
[3] The issue was referred to the first respondent for conciliation and arbitration.
The second respondent was appointed to arbitrate. The issue for
determination was the interpretation of clause 3(13) of the Fund Agreement
relating to the meaning and calculation of the phrase ‘pensionable
remuneration’. The appellant refused to pay over pension contributions of its
employees to t he Provident Fund based on a 45 hour per week basis as
prescribed by the Fund A greement, read with the Main Collective Agreement ,
(the main agreement) contending that this can only be paid according to the
1 [1998] ZASCA 66; 1998 (4) SA 885 (SCA) at 887B.
3
actual hours worked by each one of the employees. The arbitrator ruled that
the calculation of pensionable remuneration contributions in terms of the Fund
Agreement should be based on a 45- hour basis as contended for by the first
respondent. Dissatisfied with this ruling, the appellant took t he matter on
review before the Labour Court . The Labour Court dismissed the application
with no order as to costs. This appeal is with leave of that Court.
Factual Background
[4] In order to elucidate the nature of the issue at the heart of the dispute
between the parties, it is necessary to set out the relevant facts which are, to
a large extent, common cause. The appellant employs a large number of
employees in its capacity as a temporary employment service that provides
labour to employers in the motor industry. These employees are entitled to the
benefits of the Provident Fund run by the first respondent. The Provident Fund
was established by means of a collective agreement between the parties ,
which was extended to apply to non-parties to the agreement in terms of s. 32
of the Labour Relations Act
2 (LRA).
[5] Clause 5(1) of the Fund A greement provides that membership of the fund
shall be compulsory for every employee, within the scope of the registered
Council and falling below the threshold as defined in the Main A greement,
who is employed in the motor industry in grades 1 to 6 and who has not
reached a retirement age. 3 Clause 6 (1) provides that every employee for
whom membership of the Fund is compulsory in terms of clause 5(1) shall
contribute 7,5% of his pensionable remuneration to the Fund in respect of
each week of his employment in the industry , provided that where an
employee receives or is entitled to receive wages for less than 23 hours in
any week, no contribution shall be paid by him in respect of such week.
Clause 4 of the Main Agreement regulates ordinary working hours for grades
1 to 6 employees for whom membership of the Provident Fund is mandatory.
1 to 6 employees for whom membership of the Provident Fund is mandatory.
2 Act 66 of 1995, as amended.
3 The definition of grades 1 to 6 is contained in chapter 2 Division A of the main agreement.
4
[6] The appellant’s employees’ working hours amounted to 37,5 hours per week ,
which is less than 45 hours but more than 23 hours per week. Clause 6(2) of
the Fund Agreement provides that contributions specified in clause 6(1) shall
(subject to employees who work less than 23 hours) be deducted by the
employer from each employee’s wages on each pay -day. In terms of clause
6(3) thereof, each employer is obliged to add a contribution of 8% of each
employee’s pensionable remuneration to that deducted from the employee
and pay such contributions to the Secretary of t he appropriate Regional
Council of the first respondent.
[7] The appellant, as the employer, is responsible for payment of the wages of its
employees and payment of pension contributions to the first respondent . It
deducts employees’ contributions and, after paying its 8% contributions , pays
to the first respondent such pension contributions. The officials of the first
respondent followed this practice of calculating contributions in respect of the
period April 2018 to November 2019 (the disputed period) . It considered the
contributions as if employees had worked for 45 hours per week, even though
they had worked less than such hours but more than 23 hours.
[8] As t he appellant employs a large number of employees and places their
services to clients who do business in the motor industry, i t makes use of a
business model requiring the employees to work on a flexi -time basis and that
requires employees to work according to the operational requirements of
clients as dictated by the availability of work. Its employees work less than 45
hours per week . E ven if a member works a full week , that amounts to only
37,5 hours per week or 7,5 per day. Based on its own interpretation of the
Fund A greement, the appellant bas is its employees’ remuneration on the
actual number of hours w orked by each employee and the Provident Fund
contributions are calculated and paid over to the first respondent on the same
basis.
contributions are calculated and paid over to the first respondent on the same
basis.
[9] The first respondent maintained that the basis upon which the pension
contributions are to be calculated by the appellant is wrong. It maintains that a
proper interpretation of the Fund Agreement is that pension deductions should
be interpreted with ref erence to clause 4 of the Main A greement, which
5
regulates ordinary working hours for grades 1 to 6 employees for whom
membership of the Provident Fund is mandatory. It is this difference in
interpretation which triggered a referral to the Bargaining Council and which
was ultimately resolved in favour of the first respondent by the arbitrator and
the Labour Court.
[10] Clause 4.1 B(a) of the Main Agreement provides, inter alia, that:
‘any employee other than a journeyman or brake drum skimmer or machine
skimmer employed in an establishment that is registered under chapter V of
division C of the agreement works for less than 45 hours in any one week
owing to… the employer being unable to regulate the shift of such employee
to 45 hours… such employee’s week shall be deemed to be 45 hours.’
[11] Pensionable remuneration is defined in the Fund Agreement as follows:
‘pensionable remuneration means the amount which an employer would
normally and/or regularly pay to an employee, either weekly or monthly, in
respect of the ordinary hours required to complete either a full normal week or
month, as the case may be, and does not i nclude remuneration which an
employee who is employed on a piece work basis receives over and above
the amount which he would have received if he had not been employed on
such basis, but includes commission received on the sale of goods; provided,
however, that all commission received in excess of R9000 per month shall be
calculated unless the employer [and] employee jointly agree that contributions
shall be paid on commission earnings in excess of the aforementioned
limitation’4.
Issues
[12] As will have become clear from what has already been stated above, the
central issue in this appeal pivots on the proper interpretation of the Fund
Agreements concluded between the parties. As to how the agreement falls to
be interpreted, in the light of the words used, read in their context, the
contentions of the parties are diametrically opposed.
Interpretation of documents
4 Clause 3(13).
6
[13] The principles to be applied in interpreting written documents are now well
established, but it would be useful for present purposes to rehearse some of
the cases in this regard. The approach to the interpretation of documents,
broadly stated, is to give consideration:
'... to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its
production. Where more than one meaning is possible each possibility must
be weighed in the light of these facts. The process is objective and not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusiness -like results, or undermines the apparent purpose of
the document. Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or business-like for the
words actually used. To do so in regard to statute or statutory instrument is to
cross the divide between interpretation and legislation; in a contractual
context it is to make a contract for the parties other than the one they in fact
made. The " inevitable point of departure in the language of the document
itself", read in context and having regard to the purpose of the provision and
the background to the preparation and production of the document.' 5
(Emphasis added)
[14] That was said by Wallis JA more than a decade ago in Endumeni.6 Endumeni
has consistently been followed by the Supreme Court of Appeal 7 this court 8
ever since, and endorsed by the Constitutional Court.9
[15] Hot on the heels of Endumeni , in Bothma-Batho Transport,10 Wallis JA made
plain that his statement in Endumeni quoted in para 13 above 'reflected
5 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA) (Endumeni) at para 18.
6 Ibid fn 5 above at para 18.
(SCA) (Endumeni) at para 18.
6 Ibid fn 5 above at para 18.
7 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176;
[2014] 1 All SA 517 (SCA) ( Bothma-Batho Transport); North East Finance (Pty) Ltd v Standard Bank
of South Africa Ltd [2013] ZASCA 76; 2013 (5) SA 1 (SCA) at paras 24-28; Auction Alliance (Pty) Ltd
v Wade Park [2018] ZASCA 28; 2018 (4) SA 358 (SCA) at para 19.
6. Jones v Compendium Group Investment Holdings (Pty) Ltd (DA20/2023; DA11/2024) [2024]
ZALAC 49 (11 October 2024) at para.15; Herbert v Head Education - Western Cape Education and
Others [2022] ZALAC 9; (2022) 43 ILJ 1618 (LAC) at para.15.
9 Democratic Alliance v African National Congress and Another [2015] ZACC 1; 2015 (2) SA 232 (CC)
at para 136; Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited
[2017] ZACC 32; 2017 (12) BCLR 1562 (CC); Road Traffic Management Corporation v Waymark
Infotech (Pty) Ltd [2019] ZACC 12; 2019 (6) BCLR 749 (CC) at paras 30-32.
7
developments in regard to contractual interpretation espoused in Masstores
(Pty) Ltd v Murray & Roberts Construction Ltd. (Pty) Ltd and Another. 11 He
went on to emphasise that “ the process of interpretation does not stop at a
perceived literal meaning of those words [employed in the document being
interpreted], but considers them in the light of all relevant and admissible
context, including the circumstances in which the document came into being” .
And, with reference to foreign authority,
12 Wallis JA went on to say that
“Interpretation is no longer a process that occurs in stages but is ‘ essentially
one unitary exercise’”.13
[16] Two years earlier, and in the course of construing a pension fund rule, Lewis
JA noted that:
'The principle that a provision in a contract must be interpreted not only in the
context of the contract as a whole, but also to give it a commercially sensible
meaning, is now clear. It is the principle upon which Bekker NO [Bekker NO v
Total South Africa (Pty) Ltd 1990(3) SA 159 (T) at 170G0H] was decided,
and, more recently, Masstores (Pty) Ltd v Murray and Roberts Construction
(Pty) Ltd [Masstores (Pty) Ltd v Murray & Roberts (Pty) Ltd 2008 (6) SA 654
(SCA)] was based on the same logic. The principle requires a court to
construe a contract in context – within the factual matrix in which the parties
operated. In this regard, see KPMG Chartered Accountants v Securefin
[KPMG Chartered Accountants v Securefin [2009] ZASCA 7; 2009 (4) SA 399
(SCA) ([2009] All SA 523) para 39].'14 (Footnotes omitted)
10 Bothma-Batho Transport at paras 11-12.
11 Masstores (Pty) Ltd v Murray & Roberts Construction Ltd. (Pty) Ltd and Another [2008] ZASCA 94;
2008 (6) SA 654 (SCA) at para 23.
12 Rainy Sky SA and others v Kookmin Bank [2011] UKSC 50; [2012] Lloyds Rep 34 (SC) (Rainy Sky
SA) at para 21 and the authorities therein cited especially Society of Lloyd's v Robinson [1999] 1 All
E.R. (Comm) 545, 551 in which the following was stated:
E.R. (Comm) 545, 551 in which the following was stated:
'Loyalty to the text of a commercial contract, instrument, or document read in its contextual
setting is the paramount principle of interpretation. But in the process of interpreting the
meaning of the language of a commercial document the court ought generally to favour a
commercially sensible construction. The reason for this approach is that a commercial
construction is likely to give effect to the intention of the parties. Words ought therefore to be
interpreted in the way in which a reasonable commercial person would construe them. And
the reasonable commercial person can safely be assumed to be unimpressed with technical
interpretations and undue emphasis on niceties of language.'
13 Bothma-Batho Transport at para 12.
14 See Ekurhuleni Metropolitan Municipality v Germiston Municipality Retirement Fund [2009] ZASCA
154; 2010 (2) SA 498 (SCA) at para 13.
8
[17] I am astute, of course, to the consideration that those remarks do not afford a
court authority to construe an agreement at odds with its language so as to
improve it or make it fairer. They do, however, convey that where the
language is ambiguous or unclear , context and commercial sense play an
important part in divining the intended import of the text.
[18] In addition, it is apposite to make reference to a passage in Hillas Co Ltd v
Arcos Ltd
15 referred to with approval by Hoexter JA in Murray & Roberts
Construction Ltd (Pty) Ltd v Finat Properties (Pty) Ltd 16 in which Lord Wright
pertinently observed:
'Business men often record the most important agreements in crude and
summary fashion; modes of expression sufficient and clear to them in the
course of their business may appear to those unfamiliar with the business far
from complete or precise. It is accordingly the duty of the Court to construe
such documents fairly and broadly, without being too astute or subtle in
finding defects.'17
[19] Whilst those observations were made as cautionary remarks against any
inclination by the courts to render business agreements ineffectual by
subjecting them to a too nice or exacting linguistic analysis, they tacitly also
carried the more general import that the interpretation of commercial
agreements should be undertaken mindful of the evident business intentions
of the contracting parties. It has been stated that:
‘The proper approach to the construction of a legal instrument requires a
consideration of the document taken as a whole. 18 Effect must be given to
every clause in the instrument and, if two clauses appear to be contradictory,
the proper approach is to reconcile them so as to do justice to the intention of
the framers of the document. It is not necessary to resort to extrinsic evidence
15 Hillas Co Ltd v Arcos Ltd 147 LRT 503 (Hillas & Co).
16 Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A); [1991] 1 All SA
382 (A).
17 Ibid at 514C.
382 (A).
17 Ibid at 514C.
18 Tao Ying Metal Industry (Pty) Ltd v Pooe NO and Others [2007] 3 All SA 329 (SCA); [2007] 7 BLLR
583 (SCA) at para.86; CUSA v Tao Ying Metal Industries and Others (CUSA) [2008] ZACC 15; 2009
(2) SA 204 (CC) at para.90.
9
if the meaning of the document can be gathered from the contents of the
document.’19
[20] I wish to add that if two or more documents deal with the same subject matter
such documents must be reconciled in order to obtain a sensible
interpretation thereof. If the meaning of one document cannot be found, it
should be found in the next document dealing with the same subject matter.
[21] In the context of the facts of this case, one must bear in mind that in
interpreting the collective agreement the arbitrator is required to have regard
to the aim and purpose of the collective agreement, the words and language
used in it, having regard to ordinary rules of grammar and syntax, and the
context in which the disputed terms appear in the agreement as well as the
objects of the LRA.
20
[22] It is now timely to turn to the agreement itself , the main thrust being the
interpretation of the phrase ‘pensionable remuneration’. To begin with I refer
to the parties’ submissions in this regard.
Parties’ Contentions
Appellant’s contentions
[23] The appellant contends that Provident Fund contributions to be paid to the
first respondent must be calculated, deducted and paid over on the basis of
the actual hours worked by each employee. The same applies to the
contributions of the employer, so the argument goes. It must be immediately
pointed out that although this contention seems to be based on the
interpretation of clause 6 of the agreement it does not take into account the
provisions of clause 4.1 B ( 8) (a-e) of the main agreement and is interpreted
in isolation to clause 5(1) of the Fund Agreement . The content ion in that
regard is that the Main A greement is not applicable to the interpretation of the
Fund Agreement.
19 CUSA note 18 above.
20 Western Cape Department of Health v Van Wyk & others 2014 (35) ILJ 3078 (LAC); [2014] 11
BLLR 1122 (LAC) at para 22; Capitec (supra) at para 50.
10
[24] The appellant submits that ‘ pensionable remuneration’ is the amount that the
employer normally or regularly pays to an employee weekly or monthly. The
appellant contends that t he key to the interpretation is the word ‘ would’ as
contained in the definition. It is contended further that had it been the purpose
to impose a legal obligation, the definition would have used the word ‘ should’.
It is contended further that the phrase ‘ would normally and/or regularly pay’
relates to an amount paid weekly or monthly and does not relate to an hourly
rate or anything similar. It relates to an amount of wages actually paid to an
employee per week or month.
[25] The appellant contends further that the word ‘ ordinary’ hours refers to a
number of hours the employee ordinarily works in order to complete a normal
week. It is contended that the arbitrator was bound to give commercial or
business efficacy to the interpretation of the phrase pensionable remuneration
in order to avoid absurd results. It is contended that the intention of the
obligation to match contributions to the number of hours actually worked is to
provide a retirement benefit to the employee that is affordable and
proportional, regard being had to the remuneration actually paid to and
received by the employee. It was conceded in oral argument that calculations
according to the first respondent’s interpretation are beneficial to the
employee at the retirement stage.
First respondent’s contentions
[26] The first respondent contends that the interpretation ascribed by the appellant
is wrong. The first respondent contends that in interpreting the phrase
‘pensionable remuneration’ there are four collective agreements which govern
conditions of employment which must be read together to resolve the
problem. It contends that pensionable remuneration must be read in
conjunction with clause 4.1 B (8) (a -e) of the Main A greement, in terms of
which there is a deeming provision of 45 hours.
which there is a deeming provision of 45 hours.
[27] It is submitted further that the appellant is supposed to pay its employees who
fall within the ambit of the deeming provision as if they worked for 45 hours in
any one week, failing which it must apply for exemption in terms of clause 10
11
of the Fund A greement. It was submitted fu rther that the business of the
appellant must fit the law and not the law to fit it. The agreement was meant to
apply across the board and was not made for an individual employer.
Analysis
[28] In my view , the argument advanced on behalf of the appellant seems
attractive at first , but it loses sight of the fact that in interpreting the
‘pensionable remuneration’ as envisaged in the Fund A greement, one must
have regard to the Main A greement; otherwise, it will not make business
sense and will not be in accordance with the objects of the LRA.
Consequently, it is my view that one cannot interpret the agreement in
isolation. I elaborate on this below.
[29] Clause 4.1 A (1) of the main agreement provides that ordinary hours of work
of any employee shall not exceed 45 hours in any one week and 8 hours in
any one day. It provides further that whenever any employee works for less
than 45 hours in any one week owing to, inter alia, any reason other than his
absenting himself without the employer’s permission, such employee’s week
shall be deemed to be 45 hours. Clause 10 of the agreement provides:
“Subject to the provisions of the Act and the PFA, exemption from any of the
provisions of the agreement may be granted by the Council or Regional
council, to any party on application”.
[30] In my view , an interpretation of the phrase ‘pensionable remuneration’ is
inextricably linked to hours worked in any one week. The definition thereof
makes it plain that the amount on which payment must be based is the
amount that an employee “ would normally and/or regularly’’ receive as
payment either weekly or monthly “ in respect of the ordinary hours required
either to complete either a full normal week or month... ” The word ‘would’
connotes an amount linked to the prescribed hours per week or month and
not ‘ actual’ hours worked. Read with clause 4.1B(8)(a- e) of the agreement,
the deeming provision kicks in.
the deeming provision kicks in.
[31] In my view, a purposeful interpretation which simplifies the problem is the one
which takes into account all the relevant documents dealing with the subject
12
matter. Reading of one collective agreement in this regard will not make
business sense. Regard being had to syntax, context and grammatical
meanings of words and phrases , it is clear to m e that the aim was to simplify
the process of calculating the pensionable remuneration by providing for a
deeming clause. This makes it easy for those employees that work less than
45 hours per week or month but more than 23 hours. This interpretation is in
line with the objects of the LRA in that it provides a simplified method which
results in speedy resolution of the dispute.
[32] I have outlined above the principles relating to the interpretation of
documents. Although these principles are equally applicable to the
interpretation of a collective agreement , one must have regard to the unique
purpose of a collective agreement , which is to promote a sound working
relationship between the employer and its employees. Furthermore, these
collective agreements are the result of long negotiations , which involve a give
and take principle. The collective agreement is not meant to cater for a
specific individual employer but is meant for all the employers to which it
applies in the motor industry. Fairness is not fairness only when directed to
one employer with a unique situation. Where an employer is aggrieved by
virtue of its unique situation, clause 10 thereof caters for the situation.
21 The
inclusion of clause 10 was aimed at resolving a situation which is unique.
[33] More than a decade ago this Court has held that a collective agreement
concluded in terms of the LRA is not an ordinary contract. Therefore, the
context within which such an agreement operates is different from that of a
commercial contract. Collective agreements operate within the framework
established by the LRA and the interpretation thereof ought to be approached
with the objects and purpose of the LRA in mind.
22
[34] In North East Cape Forests v SA Agricultural Plantation & Allied Workers
22
[34] In North East Cape Forests v SA Agricultural Plantation & Allied Workers
Union & others,23 Froneman DJP stated:
21 Clause 10 provides “subject to the provisions of the Act and the PFA, exemption from any of the
provisions of this agreement may be granted by the Council or Regional Councils, to any party on
application”.
22 Du Toit Labour Relations Law – A Comprehensive Guide 7th ed. at 366.
23 (1997) 18 ILJ 971 (LAC) at 980H-I.
13
‘It is, in my view, quite clear that these primary objects of the Act are better
served by the practical approach to the interpretation and application of the
collective agreement as set out in the judgment of Myburgh JP, rather than by
reference to purely contractual principles. On the particular facts of this case
the object of orderly collective bargaining and effective expression of the
fundamental right to strike will be frustrated by the latter approach.’
[35] By the same token the interpretation which takes into account the provisions
of the Main A greement, makes it practical and easy to calculate the
pensionable remuneration and therefore affords with the speedy resolution of
disputes as envisaged in the LRA.
[36] Clause 5(1) of the F und Agreement makes it plain that the Main A greement
must be read together with the Fund A greement where it provides that
membership of the fund shall be compulsory for every employee, within the
scope of the registered Council and falling below the threshold as defined in
the Main Agreement, who is employed in the motor industry in grades 1 to 6
and who has not reached a retirement age.
24 The employees in these grades
are defined in the Main A greement and not in the Fund Agreement . Without
reference to the Main Agreement, one would not be able to trace the grades 1
to 6 employees. Therefore, in order to make sense, this clause must also be
reconciled with clause 6 , which specifically refers to employees who are
working less than 23 hours in any week , which ties up with the deeming
clause in clause 4.1 of the Main Agreement.
[37] In eThekwini Municipality (Health Department) v Independent Municipal &
Allied Trade Union on behalf of Foster & others ,25 this Court held that a
collective agreement must be interpreted “ in such a manner as to ensure
effective and sound industrial relations ”.26 Further, in Western Cape
Department of Health v Van Wyk and others,27 this Court held:
Department of Health v Van Wyk and others,27 this Court held:
‘In interpreting the collective agreement the arbitrator is required to consider
the aim, purpose and all the terms of the collective agreement. Furthermore,
24 The definition of grades 1 to 6 is contained in Chapter 2 Division A of the main agreement.
25 (2012) 33 ILJ 152 (LAC).
26 Ibid at para 27.
27 [2014] 11 BLLR 1122 (LAC); (2014) 35 ILJ 3078 at para 22.
14
the arbitrator is enjoined to bear in mind that a collective agreement is not like
an ordinary contract. Since the arbitrator derives his/her powers from the Act
he/she must at all times take into account the primary objects of the Act. The
primary objects of the Act are better served by an approach that is practical to
the interpretation and application of such agreements, namely, to promote the
effective, fair and speedy resolution of labour disputes. In addition, it is
expected of the arbitrator to adopt an interpretation and application that is fair
to all the parties.’
[38] It must be emphasised that when interpreting a collective agreement , one
must bear in mind that it is not like a commercial contract where a degree of
primacy is placed on contractual autonomy, in the form particularly of the
intention of the parties. When a collective agreement is interpreted, values
based on the social character of the agreement are relevant. To this end, the
emphasis is always on the objects and purposes of the LRA.
[39] In light of the above analysis , I agree with Counsel for the first respondent
that, notwithstanding the fact that the appellant’s employees work f or hours
less than 45 hours per week, they fall within the category envisaged by clause
4.1 B (8) (a -e). Consequently, I am unable to find fault with the judgment of
the Labour Court, and in my opinion, the appeal cannot succeed.
Costs
[40] It is trite that in l abour matters costs do not necessarily follow the result. An
order of costs is determined by taking into account whether it will be fair to
award such costs in accordance with law and fairness. Both Counsel agreed
that this is an important case for all the parties in the motor industry and does
not warrant an award of costs. I agree. It was in the interests of all the parties
to get clarity on the interpretation of clause 3(13) of the Fund Agreement.
[41] In the result the following order will issue:
Order
1. The appeal is dismissed
[41] In the result the following order will issue:
Order
1. The appeal is dismissed
2. There is no order as to costs
15
____________________
B.R. Tokota
Acting Judge of the Labour Appeal Court
Basson AJA et Djaje AJA concur.
APPEARANCES:
FOR THE APPELLANT: F Rautenbach
Instructed by: CK Attorneys Inc.
FOR THE RESPONDENT: H A van der Merwe
Instructed by Senekal Simmonds Inc.