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Kgaditse v Pep Stores (Pty) Limited (J1527/98) [1998] ZALC 84 (23 October 1998)

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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

J1527/98

In the matter between:

MARY KGADITSE APPLICANT

and

PEP STORES (PTY) LIMITED RESPONDENT

_______________________________________________________________

JUDGEMENT

_______________________________________________________________

SEADY A J

[1] This is an application in terms of section 158(1)(c) of the Act to have a

settlement agreement made an order of court. The settlement agreement

was made on 27 November 1997, under the auspices of the CCMA. The

applicant had referred a dispute about her alleged unfair dismissal to the

CCMA and the agreement reached was in full and final settlement

of that dispute.

[2] In terms of the settlement agreement the respondent was required to pay

R3000,00 to the applicant on 1 December 1997. In addition, clause 3

provided as follows:

“ the employer party shall re-employ the said Mary Kgaditse on a

casual basis at a store near to her place of residence. The said Mr

Spencer shall advise her on 1 December 1997 at which store she

will be re-employed”

[3] When the applicant launched these proceedings in terms of section

158(1)(c) she personally signed the Notice of Motion and attached in

support of it a pro forma affidavit ( presumably made available to her by

the offices of this court or the CCMA). The settlement agreement is

annexed to the affidavit which contains the following bald allegations :

“ 6. The respondent has failed and or refuses to comply with the

agreement of settlement .”

No further details concerning the nature and extent of the alleged non-

compliance are contained in the affidavit. The standard affidavit

completed by the applicant does not call for such details.

[4] The respondent opposed the application and delivered an answering

affidavit in which it admits to reaching the settlement agreement annexed

to the applicant’s founding affidavit. However, the respondent denies

that it has failed or refused to comply with the settlement agreement. In

particular, the respondent alleged that it had paid the amount of

R3000,00 to the applicant on 1 December 1997 and attached a copy of

the cheque in proof of this allegation.

[5] The bulk of the respondent’s answering affidavit deals with what is

meant by employment on a casual basis as required by clause 3 of the

settlement agreement and what steps it has taken in this regard. It

demonstrates that it has complied with the agreement to date. The

applicant has not filed a reply, even though she is now represented by

a legal practitioner. In the circumstances , the evidence contained in the

answering affidavit is uncontested.

[6] This court has a discretion to make a settlement agreement an order of

court. It must exercise this discretion judicially [See DEUTSCH v

PINTO AND ANOTHER (1997) 18 ILJ 1008 (LC) and

NTSHANGANE v SPECIALITY METALS CC. (1998) 19 ILJ 584

(LC)]. The question arises whether the Labour Court must be satisfied

that there has been non- compliance with an arbitration award or

settlement agreement before it will exercise it’s discretion to make the

award or agreement an order of court. The Act does not explicitly require

the applicant to show that there has been non-compliance, neither do the

rules. In NACTWUSA v GLENCAROL INDUSTRIES [1997] 11

BLLR 1473 (LC) it was held that this question should be dealt with at

another stage. However in a recent, as yet unreported judgement, Judge

Zondo held that the applicant must show that the respondent has failed to

comply with the award and that the respondent knew of the award and its

terms. In the absence of these allegations, Judge Zondo was of the view

that an application in terms of section 158(1)(c) would not disclose a

cause of action.

[See LAITY VINCENT GEORGE v B & D MINES (PTY) LTD

J2305/98, unreported]

[7] With the greatest respect, I do not agree with Judge Zondo when he says

that an applicant fails to make out a cause of action in terms of section

158(1)(c) if it does not show that the respondent failed and or refused to

comply with the award, despite knowledge of the award and its terms.

Section 143(1) provides that an award issued by a Commissioner may be

made an order of this ocurt, in terms of section 158(1)(c), “ unless it is an

advisory arbitration award”. No other conditions are required to be met

by the provision. Section 158(1)(c) likewise provides that the Labour

Court “may make any arbitration award or settlement agreement an order

of the court.” The only prescribed exception relates to collective

agreements. These may not be made orders of court. [See CERAMIC

INDUSTRIES t/a BETTA SANITARYWARE v NACBAWU,

OOSTHUIZEN A J , unreported, Case No. J780/98, 8 September 1998]

[8] This court has on previous occasions indicated that an award or

agreement should not be made an order of court if no purpose would be

served by doing so, in the sense that the award or agreement had

already been complied with and the matter is a fait accompli.. [See

FOOD AND ALLIED WORKERS UNION v BUTHELEZI AND

OTHERS (1998) 19 ILJ 829(LC) ]

However, if the provisions of an award or settlement agreement have not

been fully complied with, the court sees a purpose in making the award

or agreement an order of court. [PHEFO AND ANOTHER v

CONSTEEN BRICKWORKS (PTY) LTD (1998) 19 ILJ 874 (LC) ]

I am in respectful agreement with the views expressed in these decisions.

[9] The settlement agreement that forms the subject matter of this

application is a good example of a situation where a party has an ongoing

obligation in terms of a settlement agreement or arbitration award. It is

not a fait accompli. In these circumstances, the party to whom the

obligation is owed may find it of use for that obligation to be in the form

of a court order. This would not only render it enforceable, but ensure

that it is given sufficient weight by the parties. I agree with Judge Zondo

that this court’s time, constrained as it is by the large volume of cases

enrolled for hearing, should not be wasted by unnecessary applications to

have awards made orders of court. However, to require the applicant,

who in matters of this kind is often an unrepresented individual, to

ensure that the respondent has knowledge of the award and its terms

prior to launching the application, may be requiring too much of such a

litigant. Obviously the applicant must attach a copy of the award to its

founding papers which must be properly served on the respondent. From

this moment the respondent has knowledge of the award whatever the

situation may have been until then.

[10] It cannot be said of this application that it would serve no purpose if the

award is made an order of court. Even on the respondent’s version, it has

not finally discharged its obligations in terms of clause 3 of the

settlement agreement. Its obligations in this regard are on-going. Neither

do I think it necessary, as submitted by the respondent’s counsel, for

applicant to show a reasonable apprehension that there will be non-

compliance with the award in the future.

[11] In the circumstances the application is granted. No order is made for the

payment of costs. In this regard, I have taken into account that applicant

brought the proceedings personally and was represented at the hearing of

this application by a legal practitioner who acted pro amico.

_______________________________

SEADY A J

Date of hearing : 20 October 1998

Date of judgement : 23 October 1998

On behalf of the applicant : Advocate R. G. Beaton, instructed by Rooth & Wessels

On behalf of the respondent: Advocate J. S. Mphahlani, duly instructed and appearing on a pro amico basis.