IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J 36/98
In the matter between:
Applicant
and
INSAM MINING & FINANCIAL CLOSE CORPORATION Respondent
JUDGMENT
LYSTER A J :
1.1 This is an application in terms of section 158(1)(c) in terms of which Applicant seeks to
have a settlement agreement made an order of court.
1.2 Respondent filed papers opposing the matter and it was set down as an opposed
application, but Respondent did not appear at the hearing of the application.
1.3 It is trite to say that when called on to exercise its powers in terms of section 158(1)(c) to
make an arbitration award or a settlement agreement an order of Court, the Court must
exercise its discretion judicially. (See Kgaditse v Pep Stores Ltd 1999 (20) ILJ at 618),
and will not act as a rubber stamp.
2.1 The settlement agreement which Applicant seeks to make an order of Court inthis matter
comprises the following:
2.1.1 It appears as a handwritten note on the face of an LRA 7.12 form (certificate of outcome of
dispute referred for conciliation)
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2.1.2 The agreement such as it is, reads as follows: “The company acknowledges that errors
were made i.r.o. (sic) Mr Bhopela’s salary during 1997. The company undertook to correct
the matter and to pay him what is due to him by 6/1/98.
2.1.3 The document is signed by Applicant and one D.Maruso, although there is no clarification
as to who this is.
3.It is apparent from Respondents answering documents, that Respondent paid Applicant an amount of R 1 19700
on the same day as the settlement agreement referred to above was entered into that is 19/12/97, and this is
conceded by Applicant in his reply.
4.Applicant however, in his reply claims that he is due a further amount, although there is no attempt to set out
what this amount is. He merely states that he was to be paid R 45 per shift and not R35 per shift.
5.Respondent’s view, ex facie the answering documents, is that the amount of R 119700 paid to Applicant on
19/12/97, was in fact the disputed amount, and regards the matter as finalized.
6.1 The “settlement agreement”, in so far as it purports to be an agreement to facilitate the payment of monies,
is not an agreement that this Court is able to make an order of Court. It is regrettable that the Commissioner
who attended to the conciliation and the drafting of the agreement, saw fit to record such an agreement, and
did not quantify the amount payable to Applicant.
6.2 The Applicant, who believes he is entitled to more money, clearly seeks to enforce this settlement
agreement. Respondent’s view is that it has been settled. In these circumstances, Applicant’s remedy
would be to cause a writ to be issued, and to attach a property to the value of his claim.
6.3 Clearly, a writ cannot be issued on the basis of this agreement, even if this court does make it an order of
Court. It is merely an undertaking by one party to act in a certain manner. No amount is specified, and this
Court can certainly not, on the basis of evidence from the bar from the Applicant’s attorney, conclude that
Applicant should have been paid more per shift, vary the agreement, and make an order to this effect. Such
a course of action would be grossly untenable, although this is what Mr Mbatha, for Applicant, suggested I
do.
6.4 I am of the view that the agreement is void on account of its vagueness, and is not capable of enforcement.
In coming to his decision I have had regard to the decision of the AD in the matter of Nambian Minerals
Corporation v Benguella Concession Ltd 1997 (2) SALR 548 AD, in which the Court held that an
agreement could not be enforced where it was not capable of any effective meaning, and as such was void
for vagueness.
6.5 The application is dismissed.
LYSTER A J
Date of hearing : 19 May 2000
25 May 2000
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