South African Maritime Safety Authority (SAMSA) v Dzurini (JR 2658/18) [2022] ZALCJHB 16 (15 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2658/18

In the matter between:

SOUTH AFRICAN MARITIME SAFETY

AUTHORITY (‘SAMSA”)

Applicant

and

MURORO DZURINI

Respondent

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be 15 February 2022.

JUDGMENT

MAHOSI, J

Introduction

[1] The applicant brought an application for an order in the following terms:

‘1. Declaring that the respondent abandoned the award made in its favour by the Commission for Conciliation Mediation and Arbitration (“CCMA”)

on or about 02 August 2017;

2. Declaring that the respondent abandoned the CCMA award as well as the subsequent order that was made by the Labour Court under case number J1818/2017;

3. Declaring that the terms of the settlement agreement between the Applicant and the Respondent were abandoned when the parties proceeded with the new dispute on the same facts at the CCMA under case number GATW 5845-18;

4. That the Respondent be ordered to pay the costs of this application on the scale of attorney and client.

5. That the Applicant be granted such further and/or alternative relief as the Honourable Court deems appropriate.’

[2] The respondent opposed this application.

Background

[3] The respondent commenced employment with the applicant on 17 March 2014. He was appointed on a three years fixed-term contract, which was to end on 31 March 2017.

[4] At the end of the contract, same was not extended and/or renewed. The respondent regarded the applicant’s failure to renew his contract as a dismissal within the meaning of section 186(1)(b)(i) of Labour Relations Act[1] (LRA), as he had a reasonable expectation that his contract would be renewed. As a result, he referred his unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (the CCMA) for conciliation. However, the dispute could not be resolved through conciliation. This prompted the respondent to refer his dispute to arbitration which was set down for 2 August 2017.

[5] Prior to the commencement of the arbitration, the commissioner invoked the provision of section 138(3) of the LRA and attempted to resolve the dispute through conciliation. This resulted in the parties entering into a settlement agreement in terms of which the respondent employment contract was extended/renewed for an additional period of one year.

[6] Accordingly, the respondent reported for work on 7 August 2017, but he was not allowed to resume his duties. This was despite the fact that his supervisor, Mr Collin Makhado, had already addressed a letter to the Human Resource Department for the preparations to be made ahead for his reinstatement.

[7] The respondent produced the settlement agreement and insisted on resuming his duties, but the security guards were instructed to remove him from the applicant’s premises. This prompted the respondent to launch an urgent application to make the settlement agreement concluded between the

parties on 2 August 2017 an order of the Court, direct the applicant to allow him to resume his duties and responsibilities as the applicant’s Manager: Project Management with immediate effect, and direct the applicant to pay his lost salaries for the months of April 2017, May 2017, June 2017 and July 2017 on or before 15 August 2017. The order was granted by Thlothlalemaje J on 31 August 2017.

[8] Dissatisfied with the Court order, the applicant filed an application for leave to appeal which was dismissed on 3 July 2018. The applicant petitioned the Judge President of the Labour Appeal Court for leave to appeal, which was also dismissed on 6 September 2018.

[9] It is the applicant’s case that while the parties were awaiting the outcome of the application for leave to appeal, the respondent abandoned the CCMA settlement agreement as well as the order that was made subsequent to his application.

The applicant’s submissions

[10] The basis of the applicant’s submission that the respondent abandoned the settlement agreement was that on 01 April 2018 the latter referred a dispute to the CCMA under case number GATW 5845-18, which has identical facts to the referral of 25 April 2017.

[11] The reason the applicant alleges that the two referrals were identical was that in the referral dated 25 April 2017, the respondent stated that the nature of the dispute was non-renewal of a fixed-term contract, that he was dismissed on 01 April 2018 and that he seeks compensation as the desired outcome.

[12] The applicant submitted that this is a matter wherein the doctrine of peremption is applicable as the respondent elected to abandon the award and the subsequent order in relation to the dispute referred on 25 April 2017.

[13] The applicant further submitted that the abandonment came following a discussion between its attorney, Mr. Bongani Khoza, and the respondent’s attorney, Mr. Ndumiso Voyi. The applicant alleges that Mr. Khosa had suggested to Mr. Voyi that the parties remit the matter to the CCMA so as to have the issues ventilated and to avoid the litigation in the Labour Court. Further that Mr. Voyi had indicated that he would revert to Mr. Khoza in relation to his client abandoning the CCMA award so as to avoid what was to be protracted litigation.

[14] Furthermore, the applicant submitted that when it was served with the new referral on 01 April 2018, it took it as an indication of the fact that the respondent had agreed with the suggestion made by Mr Khoza. It was for this reason the applicant started to participate in the CCMA process.

[15] On or about 07 June 2018, the parties attended the conciliation of the matter after which the dispute remained unresolved and the CCMA issued a certificate to that effect. On or about 19 June 2018, the respondent referred the dispute to arbitration.

[16] On or about 03 July 2018, Thlothlalemaje J dismissed the leave to appeal. In the meantime the arbitration at the CCMA was set for 04 September 2018. The applicant submitted that the respondent’s attorneys indicated that they were proceeding to enforce the award and execute the order. This according to the applicant, is despite the fact that the respondent had abandoned the award and the order and had remitted the matter to the CCMA.

[17] The applicant submitted that it had no recourse but to approach the Court for an order declaring that the respondent had abandoned the award and the subsequent order of the Court when he referred the matter anew to the CCMA on the same facts. The applicant argued that the respondent was acting in a manner that was mala fide.

[18] The applicant further argued that it was prejudiced by the conduct of the respondent and bemoaned incurring unnecessary legal costs in applying for the stay of execution. The applicant also argued that it did not know which matter to challenge further as it had two matters that it must deal with in relation to the same facts. It is the applicant’s submission that should the respondent be successful at the CCMA in relation to the new referral, he might end up with two awards in relation to the same dispute.

[19] It is the applicant’s further submission that granting the order will not prejudice the respondent, but would ensure that justice was served and that the matter was dealt with in a fair manner.

The respondent’ submissions

[20] The respondent denied that he abandoned the CCMA settlement agreement as well as the Court order that was made subsequent to his application when he referred the second dispute to the CCMA. He admitted that the two disputes were identical, but averred that they were not the same.

[21] The reason the respondent referred another unfair dismissal dispute as envisaged by section 186(1)(b)(i) of the LRA was because he had a reasonable expectation of the renewal of his extended contract of employment, which was a new dispute.

[22] The respondent argued that the two referrals relate to two separate disputes that are based on distinct causes of action as the first dispute arose on 13 March 2017, whereas the second dispute arose on 1 April 2018.

[23] Although the respondent admitted that there were discussions between his attorney and the applicant’s attorney, he submitted that his attorney made it clear that he would not agree to the suggestion that the matter be remitted to the CCMA and further that if there was such an agreement, it would have been reduced to writing.

[24] The respondent submitted that the doctrine of peremption has no objective basis in this matter as he has at all times shown his intention to give effect to the settlement agreement. This he did by making attempts to comply with the settlement agreement, but was prevented from doing so by the applicant when being it denied him access to his place of work.

Analysis

[25] The applicant contends that on 01 April 2018, the respondent referred the same dispute he had referred previously to the CCMA on 25 April 2017 and that by so doing, he abandoned the settlement agreement that was made the order of the court on 31 August 2017. The respondent denies that his two referral were the same and denies that he abandoned the settlement agreement and the Court order.

[26] Although in both instances the respondent referred unfair dismissal disputes as envisaged by section 186(1)(b)(i) of the LRA on the basis that his reasonable expectation of the renewal of his contract, in the first referral form he stated that the dispute arose on 31 March 2017 and on the second referral he stated that the dispute arose on 01 April 2018. This supports the respondent’ submission that the second dispute was referred shortly after expiry date of the extended fixed-term contract, which was 31 March 2018. Thus, there is no merit to the applicant’s submission that the two referrals were for the same dispute.

[27] In light of the finding made above, the applicant’s reliance on the discussions between its attorney and the respondent’s attorneys is not legally permitted. The mere fact that the applicant was served with a new referral of the new dispute, after there were discussions between the parties’ legal representatives, could not have been an indication that the respondent agreed to the suggestion for him to abandon the court order and for the dismissal dispute to revert to the CCMA. In addition, there is no evidence that there was such an agreement, either oral or written.

[28] Besides, the law is very clear. For any party in whose favour any decision or judgment has been given to abandon such decision or judgment either in whole or in part, he/she is required to deliver a notice thereof to the other party.[2] In the absence of such a notice, the applicant’s case lacks any merit.

[29] The applicant further submitted that the doctrine of peremption finds application in this matter. In Dabner v S A Railways and Harbours,[3] Innes J settled the position of peremption as follows:

‘The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it.

But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.’

[30] In casu, I agree with the respondent that the applicant’s submission that the launching of new proceedings on similar facts leads to peremption is disjointed from the facts of the case. The respondent has at all times shown his intention to give effect to the settlement agreement in that he made attempts to comply with it, but was prevented from doing so by the applicant when it denied him access to his place of work. In addition, he approached this Court on an urgent basis for the settlement agreement to be made an order of the Court and for the applicant to be directed to allow him to resume his duties. Thus, the applicant has failed to meet the required onus to be successful in a claim based on peremption.

Costs

[31] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[32] In the circumstances, the following order is made:

Order

1. The application is dismissed.

2. There is no order as to costs.

______________________

D. Mahosi

Judge of the Labour Court of South Africa

Representatives

For the applicant: Mr Bongani Khoza of Khoza Geffen Incorporated Attorneys

For the respondent: Mr Ndumiso Voyi of Ndumiso Voyi Attorneys

[1] No. 66 of 1995, as amended.

[2] Rule 41(2) of the Uniform Rules

[3] 1920 AD 583 at 594.