IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR2527/22
In the matter between:
PRIMESERV DENVERDRAFT (PTY) LTD Applicant
and
E. WEHNCKE N.O. First
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
STEVEN EARLE WILKINSON Third Respondent
Heard: 21 August 2024
Delivered: 02 October 2025
JUDGMENT
KUMALO, AJ
Introduction
[1] In this matter, there are two applications for review before the C ourt. The first
is an application to review a rescission ruling made on 1 November 2022,
under case number GAJB22818-21. The second is a review application of an
arbitration award made under section 142A of the Labour Relations Act
1
(LRA) by Commissioner Wehncke N.O., which made a settlement agreement
concluded by the parties an arbitration award under case number
GAJB22818-21.
1 Act 66 of 1995.
2
Background
[2] The applicant, Primeserv Denverdraft (Pty) Ltd (Primeserv) is a Temporary
Employment Service providing employment to their clients through various
contracts as envisaged in section 198 of the LRA. The third respondent,
Steven Earle Wilkinson (the employee), was employed by the applicant in the
position of a Technical Illustrator, on a fixed-term contractual basis for a period
of 12 months.
[3] The employee was employed on a fixed-term contract and assigned to a client
of Primeserv, Babcock International Group (Babcock) for the duration of the
said employment contract. On the expiry of the contract, the employee
referred a dismissal dispute to the Commission for Conciliation, Mediation and
Arbitration (CCMA), alleging that his dismissal was substantively unfair as he
had a reasonable expectation of the renewal of his contract due to the
consecutive renewals of the same for a period of almost a decade.
[4] At conciliation, the parties entered into a settlement agreement, the salient
terms of which read:
‘2.1 The respondent agrees to re-employ the applicant with effect from
13 June 2022
2.2 The applicant must report for duty on 16 May 2022 at 9:00 am at
Illovo.
2.3 The re-employment will be on the same terms and conditions of
employment which governed the employment relationship prior to the
dismissal unless specifically set out hereunder.
…
6 Other
Both parties agree that in the event of the Applicant’s fixed term
contract (12 months) being terminated prematurely, the respondent
shall be provided with a period of 30 days to seek alternative
employment on the same or similar terms of conditions for the
3
applicant. Should the Respondent be unable to secure such
alternative employment, it shall make payment to the applicant insofar
as the balance of the agreement is concerned. The applicant will be
remunerated for the set grace period, same as the notice period.’
[5] This settlement agreement was later made an arbitration award in terms of
section 142A of the LRA, which arbitration award is the subject of the review
application and the review application to set aside the rescission ruling.
What is before this Court?
[6] The notice of motion is divided into two parts. Part A of the notice of motion is
dependent on the outcome of Part B of the notice of motion, which reads in
part as follows:
‘1. The arbitration award dated 17 October 2022, issued by the
Commissioner Wehncke N.O. under case number GAJB228-21 is
reviewed, corrected and/or set aside.
2. The document dated 1 November 2022 issued under case number
GAJB 22818-21, which represents a rescission ruling, is reviewed,
corrected and or set aside …’
[7] There are, therefore, two review applications before this court, the first being a
review application against the arbitration award that made the settlement
agreement entered into between the parties an arbitration award in terms of
section 142A of the LRA. The second review application is against the
recission ruling of the CCMA , wherein it held that, in essence, the respondent
sought a review of the decision, which is outside the purview of section 144 of
the LRA and therefore the recission application was effectively dismissed and
referred the applicant to this C ourt to apply for a review of the said arbitration
award.
[8] In light of the above, this judgment will first deal with the review of the
rescission ruling, even though the same does not affect the review of the
arbitration award itself, as it is not dispositive of the matter.
Review application regarding the rescission ruling
4
Grounds for review
[9] The applicant submits that the commissioner failed to apply her mind to the
rescission application as is borne by the ‘ruling’, in that the commissioner
‘basically refused to entertain the rescission application’ . The applicant
further advances the argument that the commissioner failed to appreciate that
they fall within the scope of section 144 of the LRA, which is quoted in the
ruling, in that they fall at least under subsection (a), which states that:
‘144. Variation and rescission of arbitration awards and rulings. –
Any commissioner who has issued an arbitration award or ruling …
may … rescind an arbitration award or ruling —
(a) erroneously sought or erroneously made in the absence of any party
affected by that award…’
[10] The applicant is quite persistent that the failure by the commissioner to
consider their submissions in the section 142A application is grounds for a
rescission application in that an award was made in their absence, and
therefore the commissioner was incorrect in its decision, effectively dismissing
the rescission application.
Legal principles
[11] The Labour Appeal Court in the matter of Johnson Uniform Solutions v Brown
and others
2 confirmed that in an application for review , there are effectively
two standards of review, i.e. reasonableness and correctness, and the facts of
the matter will determine which test is applicable. Where the dispute regards
the CCMA or Bargaining Council’s jurisdiction to adjudicate such a dispute,
the test that should be applied is the correctness test.
[12] In the matter of Department of Health v Jones and another
3 this Court held
that an arbitration award granted in terms of section 142A of the LRA is final
2 (DA10/2012) [2014] ZALCJHB 32 (13 February 2014) at paras 33 and 34.
3 [2009] 3 BLLR 195 (LC)
5
and binding on the parties as any other arbitration award. The only avenues
available to the applicant were either to have the arbitration award rescinded
or set aside on review, both of which the applicant herein undertook to do.
[13] In the matter of Pheme v S 4 the Court held that when a settlement agreement
is made, an arbitration award in terms of section 142A , after considering the
requirements relevant to such application, it has then been made with the
necessary jurisdictional powers, and the CCMA or Bargaining Council will not
have the jurisdiction to rescind the award.
[14] Therefore, a rescission should only be granted if the requirements of section
142A were not met.
[15] In the matter of CT International Financiers (Pty) Ltd v van Rooyen and
others
5
‘All that section 142A(1) requires is that the dispute has been referred to the
CCMA or bargaining council. Whether or not it has been timeously referred or
is indeed capable of determination is not relevant.’
[16] As set out in Lekwa Local Municipality v SALGBC and others 6 The
requirements of a section 142A application that a commissioner had to
consider are the following:
14.1 The settlement agreement must relate directly or indirectly to the
issues arising out of the employment relationship between the parties
or to the subject matter of the lis between them;
14.2 The settlement agreement must not be objectionable, i.e. its terms
must be capable both from a legal and practical point of view of being
included in an arbitration award;
14.3 The award must hold some practical and legitimate advantage;
4 (A11/2022) ZALMPPHC 1 (16 January 2023)
5 (C595/18) [2019] ZALCCT 42 (12 December 2019) at para 23.
6 (2017) 38 ILJ 190 (LC).
6
14.4 The settlement agreement may not be framed in a manner that affords
the person on whom it applies the discretion to comply or disregard it.
Analysis
[17] As stated above, the review test is now trite. The question before this Court is
whether the commissioner was correct in his decision to dismiss the
rescission application. As correctly argued by the respondent herein, the
commissioner was not enjoined to, in an application in terms of section 142A ,
revisit and enquire into the merits of the settlement agreement.
[18] Looking to the requirements for an application such as this, the commissioner
was to enquire into whether there was a valid and binding settlement
agreement between the parties, which, on the face of it, there was.
Thereafter, the commissioner was to establish whether the settlement
agreement was one that disposed of a dispute that was currently pending
between the parties, a dispute which was either referred or had the right to be
referred. As can be seen in this matter, the settlement agreement was a
product of settling a referral that was referred to the CCMA regarding a
dispute that arose from the employment relationship between the parties.
[19] Once the same has been established, the commissioner was to consider
whether the same protected a legitimate advantage and whether the terms of
the same were capable of being incorporated into an arbitration award, as the
same was not reliant on the discretion of the party that needed to perform
under the same. When looking at the wording of the settlement agreement,
the same can be said to be compliant with the wording that would be used in
an arbitration award.
[20] In light of the above, any commissioner faced with a rescission application
such as this would be correct in their finding that the same falls to be
dismissed, and therefore the review application regarding the same falls to be
dismissed.
Review application regarding the Section 142A arbitration award
7
Grounds for review
[21] The applicant argues that the commissioner committed a material irregularity
in failing to consider the response of Primeserv to the section 142A
application as they were faced with a material ‘controversy’ which they failed
to deal with. Primeserv submits that the commissioner made a material error
in fact and law as it placed before the Commissioner its defence as to why the
settlement agreement should not be made an arbitration award, which is that
same had been complied with. They further submitted that the commissioner
approached the application mechanically and did not delve into the merits of
the section 142A application before making the settlement agreement an
arbitration award.
[22] The applicant further argues that the LRA does not provide for different types
of arbitration awards and therefore it can be assumed that a section 142A
arbitration award must comply with the provisions of section 138 of the LRA.
In relying on this argument, the applicant has premised their grounds of
review on the reasonableness of the award and submitted that they were
denied a fair hearing in that their submissions were not taken into account in
circumstances where the applicant had not abandoned nor waived its right to
attend at arbitration.
Legal principles
[23] In the matter of Pheme v S,
7 the Court held that when a settlement agreement
is made an arbitration award in terms of section 142A, after considerations of
the requirements of such application, the award does not morph into one as
contemplated in section 138 (7) of the LRA. Further in the matter of
Department of Education v Shilowa 8 the court held that one must not mix
procedures as set out in section 138 of the LRA and conflate it with section
142A:
‘Put differently, as allowed by the LRA, all the commissioner did was to, in the
exercise of his discretion, paint the settlement agreement and adorn it with
7 (A11/2022) [2023] ZALMPPHC 1 (16 January 2023).
7 (A11/2022) [2023] ZALMPPHC 1 (16 January 2023).
8 (JR1217/2022) [2023] ZALCMPP 1 (19 July 2023) at para 11.
8
arbitration award colours. This arbitration award is not the same as the one
contemplated in section 138(7) of the LRA.’ (Own emphasis)
[24] As stated above in Johnson Uniform Solutions there are effectively two review
tests. While a review of an arbitration award attracts the test of
reasonableness, an arbitration award made in terms of section 142A is not
made through the discretion of the commissioner , and therefore, the review
test would be of correctness as opposed to reasonableness.
[25] When determining a review of a section 142A arbitration award, the Court
must ask whether the commissioner was correct in making the settlement
agreement an arbitration award. In the matter of Consol Glass (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and others
9 the Court
held that the prerequisites of making a settlement agreement an arbitration
award in terms of section 142A are that it should be a settlement agreement
that settled a dispute that was referred to the CCMA or Bargaining Council.
[26] As stated above, the requirements that an applicant in a section 142A
application has to establish is whether; the settlement agreement settled a
dispute that arose from the employment relationship between the parties and
has been referred or had the right to refer; the terms of the settlement
agreement is not objectionable both legally and practically and the terms of
the settlement agreement are not based on the discretion of the parties.
[27] Another hurdle that the applicant faces is that they consented to the
settlement agreement being made an arbitration award in terms of section
142A of the LRA . As can be seen from the above, the respondent who bore
the onus to show to the commissioner the requirements of a section 142A
application has fulfilled the requirements as set out above. The requirements
in a section 142A application should not be conflated with the requirements of
a section 158(1)(c) application, which has as an element of compliance with
a section 158(1)(c) application, which has as an element of compliance with
the settlement agreement or a dispute on the interpretation of the said
settlement agreement. That is a different application with a different enquiry.
9 [2012] 1 BLLR 42 (LC).
9
[28] Even if it could be argued, despite the fact there was an agreement to make
the settlement agreement an arbitration award, that the applicant had the right
as in section 138 to be present at the ‘arbitration’ (which it did not because it
was not actual arbitration proceedings) t here was nothing that could have
been placed before the commissioner, even had the applicant appeared
before him that would warrant the application not being granted. There was no
argument from the applicant regarding the actual requirements of a section
142A application, in that they did not raise that the settlement agreement was
invalid, the terms of which were objectionable and that it was based on the
discretion of the parties. In light of the above, the decision of the
commissioner was a correct one. Consequently, the application must also be
dismissed.
[29] The applicant must also be ordered to pay the costs of the applications. This
is because the applications were clearly stillborn, and from the outset , the
applicant, being legally represented, ought to have been aware of the
meritless nature of both applications. The requirements of law dictate that
labour disputes must be cheaply and expeditiously resolved, and the
processes contemplated under section 142A of the LRA seek to achieve that
end. Thus, applications such as these defeat that very objective and must be
soberly discouraged. Equally, the requirements of fairness dictate that the
third respondent ought not be further impoverished by defending a favourable
award.
[30] In the premises, the following order is made:
Order
1. The applicant’s application to review and set aside the rescission ruling
dated 1 November 2022, under case number GAJB22818- 21, is
dismissed.
2. The applicant’s application to review and set aside the arbitration
award in terms of section 142A of LRA issued by the first respondent is
dismissed.
10
3. The applicant is to pay the costs of the applications.
_______________
M. Kumalo
Acting Judge of the Labour Court of South Africa
11
APPEARANCES:
For the applicant: F. Venter, instructed by Beech Veltman Incorporated
For the third respondent: F. Darby, instructed by Viljoen Attorneys