Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2789/99
2001-10-02
In the matter between:
JOHANNES MOLEKO SEJANE Applicant
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 1ST Respondent
2ND Respondent
GRINAKER WHYLIE (BOTHSWANA PTY LTD) 3RD Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.The applicant was dismissed for alleged insubordination in January 1999.
He referred a dispute to the Commission for Conciliation Mediation and
Arbitration (the ΑCCMA≅).
2.The applicant had been working for the third respondent in Botswana for the
last two years of his employment. After he had been transferred to
subsidiary company, according to the third respondent, to avoid
retrenchment.
3.The question as to the jurisdiction of the CCMA arose. The commissioner
who heard the matter, after conducting a thorough study of the
applicable law, came to the conclusion that the CCMA had the necessary
jurisdiction to hear the matter. The third respondent felt that the
CCMA did not have the necessary jurisdiction, decided not to take the
ruling regarding jurisdiction on review, but to wait for further
developments.
4.Instead of having the dispute arbitrated, the parties submitted themselves
to a further conciliation phase. The parties signed a settlement
agreement in terms of which the third respondent was to pay the
applicant approximately fourth months' remuneration. There were also
undertakings made by the third respondent in the agreement regarding
pension benefits which the applicant's representative informed me from
the bar, were not complied with.
5.Almost a year after the agreement had been entered into, the applicant has
brought a review application, or what purports to be a review
application coupled with a condonation application. The applicant seeks
to set aside the agreement as null and void since he claims that the
second respondent, (the commissioner), who presided over the
conciliation proceedings, forced him to sign the agreement.
6.The second respondent has deposed an affidavit which is before me, that she
did no such thing but that the applicant elected or consented to sign
the agreement freely and voluntarily.
7.According to the second respondent and the third respondent, the applicant
also did not raise any objection to the third respondent, a large
company, being represented by it's human resources manager and an
attorney. The applicant did not have a representative and it appears
that he is not a literate person.
8.The applicant's representative attacked the agreement on two grounds.
9.Firstly it was argued that there was no consensus since the party who
entered into the agreement on behalf of the third respon dent, was not
the employer of the applicant.
the employer of the applicant.
10.Secondly the applicant was prejudiced in that he was not legally
represented.
11.On the facts of this case I am not sure it was explained properly to the
applicant what the consequences could be if he consented to the third
respondent being legally represented and he would proceed in person.
Clearly the playing fields were unequal.
12.I have expressed my concerns about the agreement being set aside and the
applicant's prospects of success. I advised the parties to attempt to
reach a settlement agreement which they were unable to do.
13.In my view, the second respondent was dere lict in her duties for not
properly considering the interests of the applicant in respect of
representation. Consequently the agreement is set aside.
14.The applicant has asked for a costs order on an attorney and client scale
against the third respondent. There is no basis for such an order. In
fact, I decline to make a cost order against the third respondent. The
applicant's papers were in disarray. Pages were upside down. The
notice of motion did not set out with any clarity what relief was
sought.
15.In the circumstances I decline to make a cost order.
16.I make the following order:
1.The agreement dated 13 January 1999 is set aside and the matter may proceed
to arbitration.
________________
E. Revelas