UCIMESHAWU obo Madodekhaya and Others v South Deep Gold Mine, a subsidiary of Gold Fields Limited and Another (JR258/2019) [2021] ZALCJHB 139 (7 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 258/2019

In the matter between:

UCIMESHAWU obo MADODEKHAYA & 5 OTHERS

Applicants

and

SOUTH DEEP GOLD MINE, A SUBSIDIARY

OF GOLD FIELDS LIMITED

First Respondent

NATIONAL UNION OF MINEWORKERS

Second Respondent

Heard:

10 February 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 07 July 2021 at 20:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] The Applicants’ application is riddled with various defects, primary of which is its non-compliance with the provisions of Rule 7(2) of the Rules of this Court, as it is not accompanied by a Notice of Motion. Only a founding affidavit was filed, and as correctly pointed out on behalf of the First Respondent, the nature and purpose of the application is not immediately apparent.

[2] Following a directive issued by the Court, the parties had filed a Joint Practice Note, and it appears that what the Applicants seek is an order setting aside a Settlement Agreement concluded between the First Respondent and the Second Respondent (NUM) on 13 August 2018. The basis of seeking the order was that NUM did not have the required authority and/or mandate to conclude the agreement on behalf of the individual applicants. NUM despite being cited has not participated in these proceedings.

[3] The background to this application is not seriously contested, and may be summarised as follows;

3.1 The individual applicants were part of a group of 30 employees who were dismissed on 30 and 31 May 2018 based on allegations of misconduct related to sick note fraud. At the time of the dismissal, all the 30 employees, including the individual applicants in this case, were members of NUM.

3.2 NUM subsequently referred an alleged unfair dismissal dispute on behalf of the dismissed employees to the Commission for Conciliation Mediation and Arbitration (CCMA) on 5 June 2018. Following settlement discussions between the First Respondent and NUM, the parties concluded a Settlement Agreement in respect of the dispute related to the dismissal of the 30 individuals dismissed.

3.3 The terms and conditions of the Settlement Agreement were inter alia that it would constitute a collective agreement as contemplated in the Labour Relations Act (LRA)[1]; that there would be no challenges to the dismissals; that the First Respondent would pay to each of the dismissed employees, an ex gratia settlement of two months’ pay; that acceptance of the offer would constitute a full and final settlement of the dispute and claims arising from the dismissals; and that the acceptance of the offer by NUM on behalf of its members resolved all disputes related to the matter.

3.4 In July 2018, and at the time that the alleged unfair dismissal dispute as referred by NUM was before the CCMA, and whilst settlement discussions were continuing between NUM and the First Respondent, the individual applicants subsequently joined UCHEMISHAWU.

3.5 UCHEMISHAWU then referred various alleged unfair dismissal disputes to the CCMA on behalf of the individual applicants and under different case numbers. Those referrals were subsequently consolidated on 5 December 2018, and the CCMA had upon consideration of the disputes, also concluded that it lacked jurisdiction to determine them in the light of the Settlement Agreement concluded on 13 August 2018, which was binding on the individual applicants. Commissioner Van Staden also indicated in the ruling that he was bound by the agreement until such time that it was overturned by this Court.

[4] This application was lodged on 2 February 2019. Given the convoluted nature of the Applicants’ pleadings, the basis for seeking that the Settlement Agreement concluded on 13 August 2018 be set aside is hardly clear. The Applicants also seek condonation for the late filing of the application.

[5] The basis upon which condonation is sought is that following the ruling of the CCMA of 5 December 2018, the main application was lodged some 161 days after the ruling. The Applicants alleged that they only became aware of the Settlement Agreement on 23 November 2018 at the CCMA proceedings.

[6] Clearly the contentions in regards to when the individual applicants became aware of the Agreement are false. At the time of its conclusion on 13 August 2018, and for all intents and purposes as shall further be elaborated below, they were duly represented by NUM, and it is inconceivable that they could not have been aware of the Agreement at the time.

[7] Other than the delay the Applicants had referred to, there is no explanation in respect of the delay between 5 December 2018 when the CCMA issued its ruling on jurisdiction, and 2 February 2019 when the main application was lodged. The failure to explain that delay is in my view is fatal, and on these grounds alone, the application for condonation should be dismissed.

[8] However, to the extent that the prospects of success are interlinked with the merits of the main application, it is my view that other than to decline condonation, this matter further ought to be dismissed on the merits. In seeking condonation, the Applicants merely contended that the dismissals were substantively and procedurally unfair, more particularly since the First Respondent did not apply discipline in regards to the alleged misconduct consistently amongst employees.

[9] Again, the Applicants’ contentions in regards to their prospects of success do not address the primary issue in the main application, being the basis upon which the Settlement Agreement ought to be set aside. The First Respondent’s contentions in this regard was the Agreement remained binding on the individual applicants, and that they enjoyed no prospects of success particularly since they had not made out a case why the Agreement should be set aside.

[10] The basis upon which the setting aside of the agreement is sought is inter alia that NUM did nothing after the individual applicants were dismissed. This is however not true since the record and the pleadings demonstrates that the Settlement Agreement was entered into after NUM had referred a dispute on behalf of all the 30 employees and members after their dismissal. The referrals by UCHEMISHAWU were lodged at the time when NUM had already referred a dispute, and at the time when settlement discussions were ongoing between NUM and the First Respondent.

[11] Further arguments advanced on behalf of UCHEMISHAWU were that the individual applicants were at liberty to join it without the need to inform the First Respondent of their resignation from NUM following their dismissal. This argument does not however address the fact that following the dismissal, NUM had referred a dispute on behalf of the 30 employees on 5 June 2018. At the time that the individual applicants joined UCHEMISHAWU in July 2018, the discussions surrounding settlement were ongoing, and at no stage at the time or before 13 August 2018, had the individual applicants indicated a termination of NUM’s mandate

to represent them either at the CCMA or during the settlement discussions.

[12] UCHEMISHAWU misses the point by merely contending that the fact that the individual applicants had joined it before the settlement agreement was concluded was sufficient to terminate NUM’s mandate. The individual applicants were required to do more than merely joining UCHEMISHAWU, to the extent that their dispute was already before the CCMA as referred by NUM.

[13] At most, Commissioner Van Staden when considering the issue of jurisdiction at the CCMA had pointed out that the settlement agreement was binding on the individual applicants on the grounds that flowing from the principles set out in Mzeku v Volkswagen SA (Pty) Ltd[2] to the effect that in the absence of a resignation as a member of a trade union, the employee is entitled and obliged to regard the union as his/her representative. To this end, even if the individual applicants had joined UCHEMISHAWU subsequent to their dismissal, and further to the extent that despite having done so, they had not terminated NUM’s mandate in either pursuing their dispute at the CCMA or to discuss settlement on their behalf with the First Respondent, they therefore remained bound by the agreement.

[14] In the light of the Applicants’ principal grounds upon which they seek to have the settlement agreement set aside being merely that the individual applicants had joined UCHEMISHAWU after their dismissal and without more, or that the First Respondent had ‘no right’ to enter into the Settlement Agreement with NUM, it ought to be concluded as correctly submitted on behalf of the First Respondent that the Applicants have not established a legal, let alone a factual basis upon which the agreement should be set aside.

[15] The bringing of this application has clearly been prejudicial to the First Respondent, as it was compelled to oppose it in circumstances where UCHEMISHAWU ought to have known that it lacked merit. This is even more so where the individual applicants have also enjoyed the benefits of the agreement including the payment of the ex gratia amount in full and final settlement of their dispute. Other than the ill-conceived nature of the application, I agree with the submissions made on behalf of the First Respondent that the application before the Court was brought in a chaotic manner without regard to the provisions of Rule 7 and 11 of the Rules of the Court. The Applicants’ case was difficult to follow or comprehend, and other defects included that there was no specific relief was sought; and/or that the list of affected individual applicants was not attached to the application. Until the Joint Practice Note was filed, it was difficult for the Court to follow the essence of the application.

[16] The mere fact that Commissioner Van Staden had indicated in his ruling that only this Court could overturn the agreement does not imply that the Court should have been approached as a matter of course. UCHEMISHAWU in particular ought to have reflected on the course of action it sought to pursue, in the light of the basis upon which Commissioner Van Staden had indicated why the individual applicants remained bound by the Settlement Agreement. It hopelessly failed to do so.

[17] Based on the above considerations, the Court should demonstrate its displeasure at the abuse of its process, and accordingly, the requirements of law and fairness dictate that the application be dismissed with costs payable by UCHENISHAWU.

[18] Accordingly, the following order is made;

Order:

1. The Applicants’ application for condonation is dismissed.

2. The Applicants’ main application is dismissed.

3. UCHEMISHAWU is ordered to pay the First Respondent’s costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa.

APPEARANCES:

For the Applicants:

Mr E Ngubane (UCHEMISHAWU Official)

For the First Respondent:

Adv. J Withaar, instructed by Cowan-Harper-Madikizela Attorneys

[1] Act 66 of 1995, as amended

[2] [2001] 8 BLLR 857 (LAC)