IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
REPORTABLE CASE NO. P302/03
In the matter between:-
VENTURE OTTO S.A. (PTY) LIMITED Applicant
and
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL First Respondent
LOUIS VERMAAK N.O. Second Respondent
T.D. STEVENSON Third Respondent
J U D G M E N T
CORAM FARBER AJ:
On 17 November 2004, I dismissed the application of the
applicant to review and set aside an award of the second
respondent.
I at the time indicated that I would provide reasons for having
done so in due course. These are they:-
15.At all material times during the course of the events giving rise
to the dispute between them, the third respondent was
employed by the applicant as a maintenance foreman in East
London.
15.During March 2002 the applicant, in respect of its employees,
introduced what has been described as a "new grading
system". The grades ranged from A to C.
15.The merits of the system do not require elaboration. I need
merely record that the third respondent was accorded a "C"
grade. This grade was allocated to those employees who
were considered by the applicant as "bottom performers".
15.The consequences to the third respondent of the grading in
issue were severe - he, unlike the situation which had
previously obtained, no longer qualified for the payment of
incremental increases in salary. Moreover, he fell outside the
category of employees who were from time to time rewarded
through the payment to them of discretionary bonuses. To
boot, his performance was now "managed".
15.Consequent thereon, the third respondent did not receive the
bonus and increase in salary which would, but for his
regraded status, have accrued for payment to him from
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March 2002 onwards.
15.Aggrieved thereby, the third respondent referred the matter to
the first respondent for conciliation.
15.Attempts to resolve the dispute were unsuccessful and it was
referred to the second respondent for resolution by way of
arbitration under the auspices of the first respondent.
15.On 29 May 2003 the second respondent issued an award in the
matter. Paragraph 6 thereof reads as follows:-
"6.ORDER
6.1The demotion of the Applicant was unfair.
6.2The Respondent is ordered to pay the Applicant as compensation an
amount of R41 396.00.
6.3The above money must be paid to the Applicant within fourteen
days of the date of this award.
6.4No order is made as to costs."
15.The applicant was furnished with a copy of the award on 13
June 2003 by Mr Longhurst, the applicant's human resources
manager.
15.On that occasion, Longhurst congratulated the third
respondent on his success.
15.After the expiry of the period referred to in paragraph 6.3 of
the award, the third respondent telephoned Longhurst to
enquire why payment had as yet not been made thereunder.
15.Longhurst undertook to raise the matter with Mr Hilliard-
Lomas, the applicant's local director in East London.
15.Some two to three days later, Longhurst advised the third
respondent that he had spoken to Hilliard-Lomas, who had
indicated that the applicant would comply with the provisions
of the award, but that it sought an indulgence in regard
thereto. In this respect, the applicant wished to make
payment to the third respondent on 25 July 2003, being the
date of "the pay-run of the following month".
15.The third respondent was agreeable thereto and on 3 July
2003 he concluded a written agreement with the applicant in
the following terms:-
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"RE: ARBITRATION AWARD - CASE Ment 2710
The Arbitration Award dated 20 May 2003 and received by me on 13
June 2003 refers. The order is for the Company to pay you the
amount of R41396.00, being bonuses not paid to you from March
2002 to December 2002.
As agreed with yourself, this amount will be paid to you on the 25th July
2003 in the normal monthly salaried payrun."
15.On 9 July 2003 Longhurst advised the third respondent that
the applicant had resolved not to comply with the terms of
the agreement. According to him, the matter was no longer
in his hands but in those of "senior management".
Reliant on the provisions of the agreement, the third respondent
contended that the applicant has acquiesced in the award of the
second respondent and that in consequence the remedy of a
review as a mechanism to impugn its terms was no longer
available to it.
In Dabner v S A Railways and Harbours 1920 AD 583, I NNES CJ,
writing on behalf of an unanimous Court, said the following in
regard to the principle of peremption at 594:-
"The rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of an
unsuccessful litigant is such as to point indubitably and necessarily to
the conclusion that he does not intend to attack the judgment, then he
is held to have acquiesced in it.
But the conduct relied upon must be unequivocal and must be
inconsistent with any intention to appeal. And the onus of establishing
that position is upon the party alleging it. In doubtful cases
acquiescence, like waiver, must be held non-proven." 1
1The point, and the principle which underpins it, were raised in the context of
an appeal. There is no reason why it should not be applied to review
proceedings.
[See also Natal Rugby Union v Gould 1999(1) SA 432 (SCA) at
443E-G.]
The threshold required to be satisfied before the principle of
peremption might be successfully invoked is high. The matter, as
in all cases, must be approached on the basis of a conspectus of
all the facts, for it is only in the light thereof that a determination
of what may often be a vexing question falls to be made.
In casu, and given the applicant's undertaking to comply with the
second respondent's award, the indulgence which it subsequently
sought, the third respondent's positive response thereto and the
coalescence of it all by way of the conclusion of the written
agreement, proclaims in my judgment that the threshold has
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been satisfied. The circumstances which I have outlined point
"indubitably and necessarily" to the conclusion that the applicant
wholly accepted the second respondent's award. In short, the
facts unequivocally proclaim that the applicant had fully
acquiesced in the award without the slightest intention of
impeaching it. What it thereafter did was to repudiate an
agreement which was seriously and deliberately entered into.
And it only did so when the applicant's managing director had
some misgivings and thereafter sought legal advice. By then, it
was all too late.
I pause to observe that the applicant does not suggest that the
agreement is open to impeachment on some cognisable basis in
law, such as absence of authority, duress, misrepresentation and
the like.
In my view, the point taken by the third respondent was quite
unassailable, and on this ground alone the application fell to be
dismissed with costs.
For convenience, the order which I originally made in the matter is
restated.
The application is dismissed with costs.
G FARBER
ACTING JUDGE OF THE
LABOUR COURT
DATE OF HEARING:
17 NOVEMBER 2004
DATE OF ORDER:
20 NOVEMBER 2004
DATE REASONS HANDED DOWN:
01 FEBRUARY 2005
ADV J G GROGANMR F LE ROUX
Applicant's Counsel Third Respondent's Attorney
Instructed by:Instructed by:
KIRCHMANNS INCFRANCOIS LE ROUX ATTORNEYS
Global House3 Mill Park Road
3 Pearce StreetMill Park
BereaPORT ELIZABETH
EAST LONDON
Tel: (043)721 0963Tel: (041)374 8296
Fax: (043)721 0958Fax: (041)373 4323
(Refer Mr M C Kirchmann/CS
/W00835)