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[2026] ZALCCT 141
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A1 Financial Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2025/107435) [2026] ZALCCT 141 (27 August 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
2026-107435
(1)
Reportable: No
(2)
Of interest to other Judges: No
(3)
Revised
27/08/2026
In the matter between:
A1
FINANCIAL SERVICES (PTY) LTD
APPLICANT
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
FIRST RESPONDENT
COMMISSIONER
JOSHUA AUGUST N.O
SECOND RESPONDENT
COMMISSIONER
N.E.SAMUEL
THIRD RESPONDENT
JASON
LEE SOULES
FOURTH RESPONDENT
Heard:
18 August 2026
Delivered
:
27 August 2026
Review
of a section 142A award making settlement agreement an arbitration
award -review standard is correctness, not reasonableness
-
jurisdictional requirements satisfied – section 142A power
correctly exercised - application dismissed.
JUDGMENT
HARVEY,
J
[1]
This is an unopposed application to review
and set aside an arbitration award issued by the third respondent
commissioner on 13
June 2025. The award was made in terms of section
142A of the Labour Relations Act: it made a settlement agreement
concluded between
the applicant (the employer) and the fourth
respondent (the employee) an arbitration award.
Background
[2]
The employee referred an unfair labour
practice dispute to the CCMA. The matter was enrolled for
conciliation on 10 April 2025.
At the conciliation facilitated by the
second respondent commissioner, the employer was represented by an
official of the AHI Employers’
Organisation, who was authorised
to represent it.
[3]
During the conciliation proceedings the
parties concluded a settlement agreement. The AHI representative
signed the settlement agreement
on behalf of the employer. She
did so after obtaining a mandate to do so from the employer’s
designated internal representative,
Ms Boer, from whom the AHI
representative was authorised to obtain instructions.
[4]
In terms of the settlement agreement, the
employer agreed to pay the employee R47,000 and the employment
relationship was terminated
by mutual consent. The settlement
agreement also expressly records the parties’ consent to its
being made an arbitration
award under section 142A of the LRA.
[5]
The employer says that Ms Boer did not in
fact have the authority to authorise the AHI representative to agree
to the terms of the
settlement agreement. It disputed the
validity of the settlement agreement and sought to rescind it, a step
that it now accepts
was misconceived, because the settlement
agreement had not yet been made an arbitration award.
[6]
The employee applied to have the settlement
agreement made an arbitration award in terms of section 142A of the
LRA. Section 142A
provides that ‘
the
Commission may, by agreement between the parties or on application by
a party, make any settlement agreement in respect of any
dispute that
has been referred to the Commission, an arbitration award
.’
[7]
The employer opposed the section 142A
application on the basis that the settlement agreement had been
concluded without proper authority.
The third respondent commissioner
rejected that contention and made the settlement agreement an
arbitration award. That is the
decision under review.
Section 142A of the LRA
[8]
Section
142A permits the Commission to make a settlement agreement an
arbitration award where the requirements of the section are
met. In
Molaba
v Emfuleni Local Municipality
[1]
the Court identified the requirements which must be satisfied before
the Commission may exercise the power to make a settlement
agreement
an arbitration award under section 142A: the dispute which is settled
must be a dispute which a party has the right to
refer to arbitration
or to the Labour Court; it must have been referred to the CCMA for
conciliation; and the settlement agreement
must be in writing.
[9]
Once
the jurisdictional requirements of section 142A are satisfied, and
the agreement has been made an arbitration award, it acquires
the
full status of an arbitration award: it is final and binding and may
be enforced as though it were an order of the Labour Court.
[2]
Accordingly, unless and until it is rescinded or set aside on review,
a Court cannot interfere with the terms of the settlement
agreement
which underlies it.
[10]
In
Hadio
v CCMA
[3]
Molahlehi J, as he then was, considered whether the Labour Court can
review a settlement agreement concluded under the auspices
of the
CCMA which has not been made an arbitration award. With
reference to earlier authority, he confirmed that, as the
commissioner facilitating the agreement has no decision-making power,
such agreements cannot be reviewed under section 145 of the
LRA. A
settlement agreement is merely a contract and any challenge to it
lies under the common law principles of contract.
The learned
judge added that even if a section 142A award were to be reviewed and
set aside, that would not affect the settlement
agreement: ‘
The
settlement would still stand, and, until set aside on
[contractual
grounds],
would
serve as a bar against any proceedings which may be instituted
relating to the merit of the dispute which is its subject matter.
[4]
Test on review
[11]
Counsel for the employer submitted that the
applicable review test is reasonableness.
[12]
However,
the Court in
Primeserve
Devendraft (Pty) Ltd v Wehncke N.O and Others
[5]
held that the standard applicable when a decision to exercise the
section 142A power is taken on review is correctness, not
reasonableness.
This is because a section 142A award does not involve
a determination of the merits of the dispute referred. The
enquiry
is only whether the statutory requirements for exercising the
section 142A power were satisfied.
[13]
The employer's submission that the award in
this matter is reviewable simply because the third respondent
commissioner's decision
was unreasonable therefore proceeds from the
wrong test. The question for this Court is whether the commissioner
was correct in
making this settlement agreement an arbitration award.
Was the decision correct?
[14]
The jurisdictional requirements of section
142A were satisfied. It is common cause that the employee had
referred an unfair labour
practice dispute to the CCMA, that the
dispute was capable of referral to arbitration, and that the parties
concluded a written
settlement agreement during conciliation.
The parties had consented to the agreement being made an arbitration
award, and
the applicant had requested that the section 142A power be
exercised.
[15]
The employer had opposed the section 142A
application on the basis that the agreement was not binding because
it had been concluded
without proper authority. The commissioner was
accordingly required to consider the argument concerning authority.
Whilst
I agree with the employer’s legal representative that a
commission ought not ordinarily to raise estoppel mero motu, in this
case the question of authority properly arose for consideration
because it was the basis upon which the employer opposed the
application.
[16]
In any event, that aspect of the
commissioner’s reasoning does not make her decision incorrect.
On the objective facts, the
jurisdictional requirements of section
142A were satisfied. The commissioner was therefore correct to make
the settlement agreement
an arbitration award.
[17]
The application must accordingly fail.
Additional relief
[18]
The employer also asked this Court to set
aside the underlying settlement agreement. That relief was not sought
in the notice of
motion and, in any event, for the reasons set out
above, the settlement agreement and the section 142A award are
distinct. A challenge
to the agreement itself lies in contract. It
cannot be set aside as consequential relief in this review
application.
Order
[1]
The application is dismissed.
[2]
There is no order as to costs.
SJ
Harvey
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
Adv O’Connor
instructed by Carlo Swanepoel Attorneys
For the
Respondents:
no appearance
[1]
Molaba
v Emfuleni Local Municipality
[2009]
7 BLLR 679
(LC) at par 6.
[2]
Department
of Health v Jones
[2009] 3 BLLR 195 (LC).
[3]
Hadio v
CCMA
[2015] 12 BLLR 1207 (LC).
[4]
Hadio v
CCMA
(supra) at par 20.
[5]
Primeserve
Devendraft (Pty ) Ltd v Wehncke N.O and Others
(JR2527/22) [2025] ZALCJHB 459 (2 October 2025) at [26]