IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN PORT ELIZABETH)

                                                                 CASE NO:  P115/08              

In the matter between:

NEHAWU obo V N TUMANA                                                    Applicant 

and

COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION						   First Respondent

ZOLA MADOTYENI N.O.  				       Second Respondent          

NEW HAVEN PROVINCIALLY AIDED
HOSPITAL FOR THE CHRONIC SICK			 Third Respondent

JUDGMENT
_________________________________________________________

LALLIE AJ:

 [1]	The applicant was employed by the third respondent until she was 	dismissed for misconduct.  She referred an unfair dismissal 	dispute to the first respondent.  The dispute was arbitrated by the 	second respondent who found the applicant’s dismissal 	substantively unfair but procedurally fair and ordered the third 	respondent to pay the applicant compensation in the amount of 	R95401.00, the equivalent of her 4 months’ remuneration. 

[2]	The applicant approached the Labour Court to have the arbitration award of the second respondent reviewed and set aside.  In addition it sought an 	order reinstating her retrospectively from the date of her dismissal, alternatively an order for the rehearing of the arbitration by an 	arbitrator of the first respondent other than the second respondent.

[3]	The third respondent lodged a cross-review application.

[4]	Because of the applicant’s delay in prosecuting its review 	application it was directed to file an affidavit giving full reasons for 	the delay.  He complied and the third respondent responded by 	moving an application for the dismissal of the applicant’s review 	application.

[5]	The dismissal application was argued on 3 March 2011 	and the  applicant’s application was dismissed with costs. On 7 March 2011 the applicant’s attorney, Mr Maseti (Maseti) addressed the following letter to Mr Kirchmann (Kirchmann), the third respondent’s attorney.

	“We confirm that this matter was finalised by the Labour Court on 3 	March 2011.  We attach hereto the last page of the CCMA 	Arbitration Award which needs to be carried out by your client.

	We therefore call upon yourgoodselves to instruct your client to 	process the payment of R95 401.00 to our client.

	Kindly keep us posted with the processing of the payment”.

[6]	On 28 July and 1 August 2011, the applicant filed its notice of 	application for leave to appeal.   The application is opposed by the 	third respondent on the grounds that by asking for payment in 	terms of the arbitration award, the applicant acquiesced in the 	judgement and the doctrine of peremption therefore applies.

[7]	The doctrine of peremption was enunciated in Hlatshwayo v Mare
	& Deas 1912 AD 242 as follows:

	“...the doctrine is based upon the application of the principle 	that no person can be allowed to take up two positions inconsistent 	with one another, or as it is commonly expressed to blow hot and 	cold, to approbate and reprobate.”

[8]	Applying the Hlatshwayo decision the Labour Appeal Court found 	as follows in National Union of Metalworkers of SA & others v Fast 	Freeze (1992) 13 ILJ 963 (LAC).

“If a party to a judgement acquiesces therein, either expressly or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be pre-empted, i.e. he cannot thereafter change his mind and note an appeal.  Peremption is an example of the well known principle that one may not approbate and reprobate, or to use colloquial expressions, blow hot and cold, or have one’s cake and eat it”. 

[9]	in Jusayo v Mudau NO and 2 others [2008] 7 BLLR 668 (LC) the 	court confirmed the relevance of the doctrine of peremption by 	finding that a party who offers to comply with an award 	unconditionally and unreservedly is precluded from seeking to 	review the award.

[10]	In this case the applicant expressed its intention to challenge the arbitration award by launching a review application. However, 3 days 	after an order dismissing the applicant’s claim owing to the delay in its prosecution was granted, Maseti addressed a letter to Kirchman telling him to instruct his client to comply with the arbitration award by paying the applicant the amount of R95401.00 the third respondent was ordered to pay by the second respondent.  In the letter it is unequivocally stated that the matter was finalised by the Labour 	Court on 3 March 2011.  By accepting that the matter was finalised 	on 3 March 2011 the applicant expressly communicated an 	intention not to contest the decision of 3 March 2011.  Having accepted that the matter was finalised the applicant is precluded 	from changing its mind and seek to note an appeal.  When a 	matter is finalised it comes to an end and many therefore not be 	pursued.

[11]	The applicant’s decision to inform the third respondent that the matter was finalised was voluntary.  It is inconsistent with the intention to contest the court’s decision. The applicant made its decision and communicated it to the third respondent. It is therefore precluded by the doctrine of peremption from applying for leave to appeal. 

[12]	The application for leave to appeal is therefore dismissed with 		costs.

_______________
LALLIE AJ

			

Date of judgment:		29 September 2011		

For Applicant:			Mr Maseti of Maseti Incorporated

For the Respondents:		Mr Kirchmann of Kirchmanns Inc