Pheme v S (A11/2022) [2023] ZALMPPHC 1 (16 January 2023)

Pheme v S (A11/2022) [2023] ZALMPPHC 1 (16 January 2023)

The court held that the arbitration award made by agreement under section 142A of the LRA is not equivalent to an award issued after arbitration proceedings under section 138(7). The commissioner correctly declined jurisdiction to rescind the award, as the award was a consensual product of the parties and not the result of arbitration proceedings. The jurisdictional facts required by section 142A were present, and the ELRC lacked jurisdiction to entertain a rescission application in these circumstances. The application for review was dismissed, and no order as to costs was made, in line with Constitutional Court guidance that costs should not be awarded solely on the basis of success.

Citation
[2023] ZALMPPHC 1
Parties
Applicant: Department of Education; Respondent: M J Shilowa
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
16 January 2023
Case Number
A11/2022
Procedural Posture
Review Application / Application for Review and Setting Aside of a Rescission Ruling Issued by a Commissioner Under the Auspices of the Education Labour Relations Council.
Outcome
Application for review dismissed; no order as to costs.
Judges
Graham Nasious Moshoana
Legal Topics
Settlement Agreement, Arbitration Award, Jurisdiction of Commissioner, Rescission Application, Section 142a Lra, Costs Order
Labour Law Civil Procedure Settlement Agreement Arbitration Award Jurisdiction of Commissioner Rescission Application Section 142a Lra Costs Order

Case Brief

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Parties

Department of Education

Applicant

M J Shilowa

Respondent

Procedural Posture

Review Application / Application for Review and Setting Aside of a Rescission Ruling Issued by a Commissioner Under the Auspices of the Education Labour Relations Council.

Legal Issues

  1. 1 Whether an arbitration award made by agreement under section 142A of the LRA is subject to rescission by the Education Labour Relations Council.
  2. 2 Whether the commissioner had jurisdiction to rescind the arbitration award made from a settlement agreement.
  3. 3 Whether the arbitration award in question is equivalent to one issued under section 138(7) of the LRA.

Ratio Decidendi

The court held that the arbitration award made by agreement under section 142A of the LRA is not equivalent to an award issued after arbitration proceedings under section 138(7). The commissioner correctly declined jurisdiction to rescind the award, as the award was a consensual product of the parties and not the result of arbitration proceedings. The jurisdictional facts required by section 142A were present, and the ELRC lacked jurisdiction to entertain a rescission application in these circumstances. The application for review was dismissed, and no order as to costs was made, in line with Constitutional Court guidance that costs should not be awarded solely on the basis of success.

Court Disposition

Application for review dismissed; no order as to costs.

Orders

  • The application for review is dismissed.
  • No order as to costs is made.