South African Transport And Allied Workers Union obo Mbatha and Others v Transnet Ltd t/a Transnet Capital Projects and Others (JR2608/09) [2014] ZALCJHB 443 (5 August 2014)

REPUBLIC OF SOUTH AFRICA

INTHE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

CASE NO: JR2608/09

In the matter between –

SOUTH AFRICAN TRANSPORT AND ALLIED

WORKERS UNION OBO T B MBATHA AND 52 OTHERS

Applicant

And

TRANSNET LIMITED t/a TRANSNET

CAPITAL PROJECTS

First Respondent

SIPHO DLAMINI

Second Respondent

TRANSNET BARGAINING COUNCIL

Third Respondent

Heard: 22 May 2014

Delivered: 05 August 2014.

Summary: Application to clarify the judgment and order of the Court. . Principles to apply in interpreting a judgment or order not different to that applicable when interpreting a document or legislation.

MOLAHLEHI J

Introduction

[1] The issue in this matter arises from the judgment and order made by Lallie J under case number JR 2608/09 dated 14 January 2013. The judgment was consequent the review of the arbitration award which had been issued under the auspices of the third respondent. In terms of the arbitration award the arbitrator had found the dismissal of the employees to have been unfair and ordered that they should be reinstated with compensation only from the date of the award.

[2] The complaint of the employees concern the extent of the compensation awarded to them by the arbitrator. In determining the review

application Lallie J made the following order:

“[21] In the premises the following order is made:

21.1 The arbitration award issued by the second respondent under case number TOKISO/T9/ 028 is reviewed and set aside.

[22] The matter is remitted to the third respondent to be arbitrated de novo by an arbitrator other than the second respondent.”

The case of the applicants

[3] The applicants seek clarification and interpretation of the judgment of Lallie J. They further seek to change the order in as far as the remittal of the matter to the bargaining council for rehearing is concerned. They interpret the judgement to be saying that the only issue remitted for consideration to the bargaining council is the remedy and does not include the merits of the fairness or otherwise of the dismissal. According to them the Court had made a clear pronouncement in relation to the fairness of the dismissal and therefore it could never have been its intention in remitting the matter to the bargaining council to have included that issue.

[4] The applicants contend that the interpretation to be given to the judgment is that:

a. The dismissal of the employees was confirmed as being both procedurally and substantively unfair and;

b. In reviewing and remitting the matter to the bargaining council the intention was as stated earlier to have the relief and not the whole matter considered afresh.

[5] The alternative submission of the applicants is that in ordering that the whole dispute should be heard afresh the Court made an error and accordingly the judgement and order should be varied in terms of section 165 of the Labour Relations Act of 1995 (the LRA) read with rule 16A of the Rules of the Labour Court. The applicants base their interpretation on the provisions of paragraph [14] of the judgment which reads as follows:

“[14] It is common cause that a number of the individual first respondents have worked for the applicant for years on consecutive fixed term contracts. It is further common cause that some clauses which influenced the individual first respondents not to sign the contracts for the period commencing in January 2009 are related to probation and pass/fail. Their common feature is that they threatened job security of employees who have worked for the applicant for years. The definition of the employee in the LRA is instructive. It does not distinguish between employees who have signed a contract of employment and those whose contracts are only verbal. It also does not differentiate between employees employed in terms of fixed term contracts and those whose contracts are of unlimited duration. Other than the inherent differences in their contracts, employees on limited duration contracts should enjoy equal protection by the LRA and their rights should not be diminished because of the regime of their contracts. Employers cannot be allowed to use fixed term contracts to get rid of their employees easily and with impunity. Had the individual first respondents not been on fixed term contracts, the applicant could not have instructed them to accept new terms and condition of employment or face dismissal. I therefore conclude that the arbitrator’s finding that the individual first respondents were unfairly dismissed is reasonable as no fair reason exist for their dismissal which was not preceded by a fair procedure.”

The case of the first respondent

[6] The first respondent disputes that the judgment lacks clarity and that the review and the remittal of the matter to the bargaining council mean that the matter must be determined afresh in its entirety. In other words in determining the matter afresh the bargaining council has to determine both the merits of the dismissal including the relief if it finds that the dismissal was unfair.

The principles- interpretation of a judgment

[7] The approach to adopt when interpreting a judgment or an order of the Court is the same as that applicable when interpreting a document or legislation. In other words the well-known rules of interpretation are applicable even when dealing with the interpretation of a judgment or and order of the Court. The approach to adopt when dealing with the issue of interpretation of a document is dealt with in Natal Joint Municipality Fund Endumeni Municipality,[1] in the following terms:

[18] . . . The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between

interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

[8] In Plaslike Oorgansraad van Bronkerspruit v Senekal[2], the Supreme Court of Appeal in dealing with issue of interpreting a judgment quoted with approval from what was said in Administrator,

Cape and Another v Mtshwagela and Others,[3] where it was said that:

“The Court’s intension is to be ascertained primarily from the language of the judgment or order as construed according to the usual well-known rules. As in the case of any document, the judgment or order and the Court’s reasoning for giving it must be read as a whole order to ascertain its intention. If on such reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, in such a case even the Court that gave the judgment or order can be asked to state what its subjective intention was in giving it. But if any uncertainty in meaning does emerge, the extrinsic circumstances surrounding or leading to the Court’s granting the judgment or order may be investigated and regarded in order to clarify it.”

[9] In Firestone South Africa (Pty) Ltd v Genticuro,[4] the Court held that in dealing with ambiguities in an order of Court, the order and the Court’s reasoning must be read as a whole, without reference to extrinsic evidence. It is only if the uncertainty persists after reading the whole of the judgment that regard may be had to extrinsic circumstances in seeking to determine the intension of the Court.[5]

Application to vary the order

[10] As indicated somewhere in this judgment the alternative prayer of the applicants is to have the order made by the Court varied and to essentially say that only the remedy and not merits of the unfair dismissal was remitted to the bargain council.

[11] The application to vary the order is made in terms of section 165 of the LRA read with rule 16A of the Rules of the Court. Section 165 of the LRA reads as follows:

“The Labour Court, acting of its own accord or on the application of any affected party may vary or rescind a decision, judgment or order -

(a) erroneously sought or erroneously granted in the absence of any party affected by that judgment or order;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; or

(c) granted as a result of a mistake common to the parties to the proceedings.”

Rule 16A of the Rules reads as follows:

“(1) The court may, in addition to any other powers it may have-

(a) of its own motion or on application of any party affected, rescind or vary any order or judgment-

(i) erroneously sought or erroneously granted in the absence of any party affected by it;

(ii) in which there is an ambiguity or a patent error or omission, but only

to the extent of such ambiguity, error or omission; (iii) granted as the result of a mistake common to the parties.”

[12] It is apparent from the notice of motion that the applicants seek the variation specifically in terms of the provisions of section 165 (1) (b) of the LRA, namely that the order made by the Court is inter alia ambiguous. It is ambiguous according to the applicants in that it was not the intention of the Court in remitting the matter to the third respondent to include therein the dispute concerning the substantive fairness of the dismissal. The only issue for determination once the matter was remitted to the third respondent according to the applicants concerned the compensation relief.

[13] The general principle of our law, based on the principle of finality of disputes is that once a decision has been made the Court becomes funtus officio. The essence of this concept is that the Court does not have general powers to vary its judgments. The limited grounds upon which the Court may vary its judgments or orders set out in section 165 of the LRA and rule 16A of the Rules are exceptions to the general rule. The general principle and the exceptions applicable are set out in Firestone South Africa (Pty) Ltd v Genticuro AG, [6]in the following terms:

“The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject-matter has ceased.”

[14] The Court in Firestone South Africa, gave following as some of the examples of instances where the Court may vary it judgment or order:

“(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the Court overlooked or inadvertently omitted to grant. . .

(ii) The Court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter "the sense and substance" of the judgment or order. . .

(iii) The Court may correct a clerical, arithmetical or other error in it judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance. . .”

[15] In exercising its discretion to vary a judgment the Court will do so sparingly and in exceptional circumstances. The onus to show that there is a need to vary a judgment or an order of the Court rests with the applicant to show that the judgment or order was erroneously granted.

[16] In Bakoven Limited v JG Howse,the Court held[7] that:

"An order or judgment is 'erroneously granted' when the Court commits an 'error' in the sense of 'a mistake in a matter of law appearing on the proceedings of a Court of record' (The Shorter Oxford Dictionary). It follows that a Court in deciding whether a judgment was 'erroneously granted' is, like a Court of Appeal, confined to the record of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or under the common law, the applicant need not show 'good cause' in the sense of an explanation for his default and a bona fide defence. . . Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission."

Evaluation

[17] It is apparent from the reading of the judgment that the Court in making the order as it did, reviewed and set aside the arbitration award in its entirety. This means in reviewing and setting aside the arbitration award the Court did not separate the portion dealing with the substantive fairness of the dismissal from compensation relief.

[18] In my view, the contention that the intention of the Court was to remit only the determination of the relief to the third respondent for reconsideration to the exclusion of the fairness of the dismissal, would be sustainable if paragraph [14] of the judgment was to be read in isolation and to the exclusion all other paragraphs in particular paragraph [19] which reads as follows:

“The arbitrator did not apply his mind when drafting paragraph 2 of his award. He refers to the ‘original contract/agreement’. It is common cause that the individual first respondents and applicant had entered into a number of fixed term contracts of varying

duration. There was a duty on the arbitrator to state unequivocally contract/agreement he is referring to in paragraph 2 of his award and to give reasons for basing his finding in it. The power of the arbitration award is in its implementation. The award forms an important part of the arbitrator’s finding. It also gives direction to the parties as it tells them what needs to be done, by when and by which party subsequent to an unfair dismissal finding. The arbitration award falls short as it is not drafted in clear language. An arbitration award which lacks clarity because of the manner in which it has been drafted cannot be implemented and is unreasonable.”

[19] It is apparent that the Court is critical of clause 2 of the award and in fact, it would appear it is on the basis of that criticism that the award was reviewed and set aside. In this respect the Court says that the arbitrator failed to provide clarity as to what he meant by “original contract/ agreement” The clarity which the Court says the arbitrator failed to provide has, in my view, to do with the merits of the fairness of the dismissal which is to be determined afresh on remittal of the dispute to the third respondent. It is common cause that the key issue which the arbitrator had to determine relates to the termination of the fixed term employment contracts of each individual applicant which expired at different periods.

[20] In light of the above discussion, I find that in reading the judgment in its totality, it is apparent that the intension of the Court was to set aside the arbitration award in its entirety and not only the portion dealing with the compensation of the applicants. It follows therefore that in directing that the matter should be remitted to the third respondent the Court had intended that the entire dispute should be heard afresh including both the procedural and substantive fairness of the dismissal.

[21] As concerning the application to vary the order, I am of the view that the applicants have failed to make out a case that the order was ambiguous to justify varying it. This is based on the conclusion made earlier in this judgment where I found that the order is clear and it is set out in unequivocal terms.

[22] In light of the above, the applicants’ application stands to fail. I do not however belief it would be interest of building a better relationship between the parties to allow costs to follow the results.

[23] In the premises the following order is made:

1. The intention of the Court in the judgment which is subject of this application is clear and provides a decisive order as to what should happen in relation to remittal of the matter to the Third Respondent.

2. The terms of the order are clear and unambiguous.

3. The applicants’ application to give a different interpretation to the ordinary grammatical reading of the judgment made on 14 June 2013, by Lallie J, is dismissed with no order as to costs.

MOLAHLEHI, J

Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Adv FA Boda

Instructed by: Cheadle Thompson and Haysom Attorneys.

For the Respondent: Adv F J Nalane

Instructed by: Bowman Gilfillan Attorneys

[1] 2012 (4) SA 593 (SCA).

[2] (2001) 22 ILJ 602 (SCA).

[3] 1990 (1) SA 705 (A) at 715 F-I.

[4] 1977 (4) SA 298(A).

[5] See also ABSA Bank Ltd t/a Volkskas Bank v Page and another (2002) 2 All SA 241 (A).

[6] 1977 (4) SA 298 (A) at page 306 f.

[7] 1992(2) SA 466 (E).