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[2026] ZALCCT 148
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Mene and Others v Kerry Ingredients (Pty) Limited (C528/2022) [2026] ZALCCT 148 (4 September 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no:
C528/2022
(1)
Reportable: No
(2)
Of interest to other Judges: No
(3)
Revised: No
4 September 2026
In the matter between:
LIHLELI
ALFRED MENE & EIGHT OTHERS
Applicants
and
KERRY
INGREDIENTS (PTY) LTD
Respondent
Heard
:
1 September 2026
Delivered
:
4 September 2026
JUDGMENT
DE
KOCK, AJ
Introduction
[1]
This
is an application in terms of s 158(1)(c) of the Labour Relations
Act
[1]
(the LRA) for an order
that a settlement agreement dated 27 January 2022 (the First
Agreement) be made an order of Court. The applicants
are former
general workers at the respondent’s Cape Town site in
Milnerton. They appeared in person, Mr Gontsana and Mr Sithole
addressing the Court on their behalf. The respondent, Kerry
Ingredients (Pty) Ltd, was represented by Mr Whitaker.
[2]
The respondent’s answer is that the
First Agreement was overtaken by a second agreement concluded on 25
May 2022 (the Second
Agreement), under which the applicants’
employment was terminated and severance packages were paid, and that
in any event
it sold the business unit in March 2023 and could not
comply with an order in the terms sought.
Background
[3]
The matter has a long history. It was
postponed on 28 June 2023 so that the applicants could seek
assistance from Legal Aid or SASLAW,
and again on 2 November 2023, on
their undertaking not to seek a further postponement, with leave to
file an affidavit within 20
court days. Nothing was filed within that
period. What the applicants filed, in September 2025, is a short
sworn letter explaining
that they could not afford attorneys and
asking to be allowed to speak for themselves. The respondent answered
it in December 2025
and points out, correctly, that it is out of time
and that no condonation has been sought. The Court has read it for
what it is,
which is an explanation rather than evidence on the
merits, and has given the applicants the hearing it asks for.
[4]
The following is common cause or appears
from documents whose authenticity is not in issue.
[5]
During 2021 a dispute under s 198B of the LRA
between the applicants, represented by the National Insourced Workers
Union (NIWU),
and the respondent was referred to the Commission for
Conciliation, Mediation and Arbitration (the CCMA) under case number
WECT13956-21.
On 27 January 2022 the First
Agreement was concluded under the auspices of the CCMA between NIWU,
on behalf of its members, and
the respondent. Its operative terms are
handwritten on the CCMA’s printed form:
‘
1.
All
the employees on the attached list will remain in the employment of
the Respondent for the period it takes for the restructuring
process
to complete.
2. The same employees are
put in the intermittent permanent pool for the purpose that they will
be given first preference to permanent
employment should a suitable
vacant (sic) arise.
3. Batch two is in line
for placement in terms of the operational needs’.
[6]
Twelve employees signed the list annexed to the
agreement. On 5 October 2022 the First Agreement was made an
arbitration award in
terms of s 142A(1) of the LRA.
[7]
Between 10 and 14 March 2022 the respondent issued
a notice in terms of s 189 read with s 189A of the LRA to the
employees of the
Cape Town Site. A facilitation followed, and on 25
May 2022 the Second Agreement was concluded between the respondent,
FEDCRAW,
SACCAWU and a non-union representative. It is headed
‘Process Agreement – Resulted from the Section 189A
Facilitation
process’. Clause 4 records a mutual termination of
employment and a waiver of claims arising from the employment or its
termination;
clause 5 fixes 31 May 2022 as the termination date;
clause 6 provides for severance pay of two weeks per completed year
of service
and four weeks’ notice pay; clause 11 provides that
the respondent will consider the employees for recall within twelve
months;
and clause 12 tabulates 54 affected employees by name.
Beneath the table the agreement records that it ‘binds
all the
parties, their members and constituencies’.
[8]
All twelve of the names on the list annexed to the
First Agreement appear in the clause 12 table. The applicants’
employment
terminated on 31 May 2022. At the hearing Mr Gontsana
confirmed, in answer to the Court, that he participated in the s 189A
facilitation,
that he saw the Second Agreement, that the applicants
received the severance monies it provided, which were paid into their
accounts
together with their final salaries, and that none of them
worked for the respondent after May 2022. The respondent’s
answering
affidavit states, at paragraph 15, that the applicants were
represented in the facilitation by FEDCRAW and SACCAWU. No replying
affidavit was filed.
[9]
On 12 March 2023 the respondent sold the Cape Town
site to South Bakels (Pty) Ltd as a going concern in terms of s 197
of the LRA.
The
issue
[10]
A
court asked to make an agreement an order of court must be satisfied
that the agreement relates to a
lis
between the parties, that its terms are unobjectionable and capable,
both legally and practically, of being included in an order,
and that
the order will hold some practical and legitimate advantage (
Eke
v Parsons) (Eke)
[2]
.
The power under s 158(1)(c) is discretionary.
[11]
The question is whether the First Agreement still
governed the applicants’ position when this application was
brought, or
whether it had been overtaken by the Second. If it had,
there is nothing left in the First Agreement to be made an order of
Court.
The two agreements
[12]
The two agreements deal with the same
subject-matter: the future of the employees on the First Agreement’s
list in the respondent’s
restructuring. The First Agreement
kept them in employment for the duration of the restructuring and
placed them in a pool for
preference in future permanent vacancies.
The Second Agreement, concluded four months later at the end of the s
189A facilitation,
terminated the employment of the 54 affected
employees, including every one of the twelve, on 31 May 2022, paid
them severance,
and replaced the pool with an undertaking to consider
them for recall within twelve months. The Second Agreement is, on its
face,
the conclusion of the very restructuring that the First
Agreement contemplated. Where a later agreement between the parties
or
their representatives deals with the same subject-matter and is
inconsistent with the earlier, the later governs. The respondent
characterises this as a novation or compromise; the Court finds it
unnecessary to decide whether the requirements for novation,
strictly
so called, are met, because on any view the First Agreement no longer
governed the applicants’ position.
[13]
On the evidence before the Court the applicants
formed part of the Second Agreement. They are named in it. Their
employment ended
on the date it fixed. They were paid the severance
it provided, and no applicant tendered repayment or repudiated the
termination
before bringing this application. A person who is named
in an agreement, whose employment is terminated in terms of it, and
who
takes the severance it provides, has been dealt with under that
agreement, whatever his views about how it came to be signed. The
respondent’s affidavit says, at paragraph 15, that the
applicants were represented in the facilitation by FEDCRAW and
SACCAWU;
that is not answered on affidavit, and the Court does not
need to go behind it, because the conclusion rests on what the
applicants
themselves confirmed at the hearing.
[14]
The applicants’ answer, given from the bar
and not on affidavit, is that they were told the retrenchment would
not affect
them because their case was still pending at the CCMA;
that they had resigned from the unions that signed the Second
Agreement
and were represented by nobody at the facilitation; that
they were not party to the meetings at which it was negotiated; and
that
they were escorted from the premises by security. The Court
allowed them latitude to say all of this, as unrepresented litigants,
and has considered it. It does not assist them, for two reasons.
[15]
The first is that it is not the question before
the Court. Whether the applicants were properly represented at the
facilitation,
and whether their retrenchment was fair, are complaints
about the Second Agreement and about their dismissal; the applicants
have
not sought to set the Second Agreement aside and have not
referred a dismissal dispute, and this application, which seeks only
to make the First Agreement an order, is not the vehicle for either.
The second is that the point, even if good, would not revive
the
First Agreement. A retrenchment carried out under an agreement the
employee says he did not authorise may be unfair; it does
not become
a retrenchment under an earlier agreement. The applicants were
retrenched, and were paid, under one agreement, and it
was the
Second. The Court makes no finding on whether they were represented,
and none on the fairness of their dismissal.
[16]
There
is a further and independent reason why the order cannot be made. The
operative terms of the First Agreement presuppose a
subsisting
employment relationship: the employees are to remain in employment
for the duration of the restructuring and to be placed
in a pool for
preference in permanent vacancies. That relationship ended on 31 May
2022, and the site itself was sold in March
2023. An order in those
terms would be incapable of practical compliance, which is a
difficulty under the second of the requirements
in
Eke
[3]
whatever
view is taken of the Second Agreement. On this conclusion the
question whether South Bakels (Pty) Ltd would have to be
joined,
which the respondent raised in the event of substantive relief being
granted, does not arise.
Costs
[17]
Section 162 of the LRA requires the Court to have
regard to the requirements of the law and of fairness. The applicants
are unrepresented
former general workers, and Mr Whitaker, properly,
did not ask for costs. There will be no order as to costs.
[18]
In the result, the following order is made:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
C de Kock
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicants:
In person
For
the Respondent: J
Whitaker
Instructed
by:
Werksmans Attorneys
[1]
Act
66 of 1995, as amended.
[2]
[2015]
ZACC 30
;
2016 (3) SA 37
(CC);
2015 (11) BCLR 1319
(CC) at paras 25
to 26 and 31.
[3]
Ibid
at
para 26
.