PEP STORES (PTY) LIMITED JUDGEMENT. [1] This is an application in terms of section 158(1)(c) of the Act to have a

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1 IN THE LABOUR COURT OF SOUTH AFRICA HELD AT JOHANNESBURG In the matter between: MARY KGADITSE J1527/98 APPLICANT and PEP STORES (PTY) LIMITED RESPONDENT JUDGEMENT SEADY A J [1] This is an application in terms of section 158(1)(c) of the Act to have a settlement agreement made an order of court. The settlement agreement was made on 27 November 1997, under the auspices of the CCMA. The applicant had referred a dispute about her alleged unfair dismissal to the CCMA and the agreement reached was in full and final settlement of that dispute. [2] In terms of the settlement agreement the respondent was required to pay R3000,00 to the applicant on 1 December In addition, clause 3 provided as follows:

2 the employer party shall re employ the said Mary Kgaditse on a casual basis at a store near to her place of residence. The said Mr Spencer shall advise her on 1 December 1997 at which store she will be re employed [3] When the applicant launched these proceedings in terms of section 158(1)(c) she personally signed the Notice of Motion and attached in support of it a pro forma affidavit ( presumably made available to her by the offices of this court or the CCMA). The settlement agreement is annexed to the affidavit which contains the following bald allegations : 6. The respondent has failed and or refuses to comply with the agreement of settlement. No further details concerning the nature and extent of the alleged noncompliance are contained in the affidavit. The standard affidavit completed by the applicant does not call for such details. [4] The respondent opposed the application and delivered an answering affidavit in which it admits to reaching the settlement agreement annexed to the applicant s founding affidavit. However, the respondent denies

3 that it has failed or refused to comply with the settlement agreement. In particular, the respondent alleged that it had paid the amount of R3000,00 to the applicant on 1 December 1997 and attached a copy of the cheque in proof of this allegation. [5] The bulk of the respondent s answering affidavit deals with what is meant by employment on a casual basis as required by clause 3 of the settlement agreement and what steps it has taken in this regard. It demonstrates that it has complied with the agreement to date. The applicant has not filed a reply, even though she is now represented by a legal practitioner. In the circumstances, the evidence contained in the answering affidavit is uncontested. [6] This court has a discretion to make a settlement agreement an order of court. It must exercise this discretion judicially [See DEUTSCH v PINTO AND ANOTHER (1997) 18 ILJ 1008 (LC) and NTSHANGANE v SPECIALITY METALS CC. (1998) 19 ILJ 584 (LC)]. The question arises whether the Labour Court must be satisfied that there has been non compliance with an arbitration award or settlement agreement before it will exercise it s discretion to make the

4 award or agreement an order of court. The Act does not explicitly require the applicant to show that there has been non compliance, neither do the rules. In NACTWUSA v GLENCAROL INDUSTRIES [1997] 11 BLLR 1473 (LC) it was held that this question should be dealt with at another stage. However in a recent, as yet unreported judgement, Judge Zondo held that the applicant must show that the respondent has failed to comply with the award and that the respondent knew of the award and its terms. In the absence of these allegations, Judge Zondo was of the view that an application in terms of section 158(1)(c) would not disclose a cause of action. [See LAITY VINCENT GEORGE v B & D MINES (PTY) LTD J2305/98, unreported] [7] With the greatest respect, I do not agree with Judge Zondo when he says that an applicant fails to make out a cause of action in terms of section 158(1)(c) if it does not show that the respondent failed and or refused to comply with the award, despite knowledge of the award and its terms. Section 143(1) provides that an award issued by a Commissioner may be

5 made an order of this ocurt, in terms of section 158(1)(c), unless it is an advisory arbitration award. No other conditions are required to be met by the provision. Section 158(1)(c) likewise provides that the Labour Court may make any arbitration award or settlement agreement an order of the court. The only prescribed exception relates to collective agreements. These may not be made orders of court. [See CERAMIC INDUSTRIES t/a BETTA SANITARYWARE v NACBAWU, OOSTHUIZEN A J, unreported, Case No. J780/98, 8 September 1998] [8] This court has on previous occasions indicated that an award or agreement should not be made an order of court if no purpose would be served by doing so, in the sense that the award or agreement had already been complied with and the matter is a fait accompli.. [See FOOD AND ALLIED WORKERS UNION v BUTHELEZI AND OTHERS (1998) 19 ILJ 829(LC) ] However, if the provisions of an award or settlement agreement have not been fully complied with, the court sees a purpose in making the award or agreement an order of court. [PHEFO AND ANOTHER v CONSTEEN BRICKWORKS (PTY) LTD (1998) 19 ILJ 874 (LC) ]

6 I am in respectful agreement with the views expressed in these decisions. [9] The settlement agreement that forms the subject matter of this application is a good example of a situation where a party has an ongoing obligation in terms of a settlement agreement or arbitration award. It is not a fait accompli. In these circumstances, the party to whom the obligation is owed may find it of use for that obligation to be in the form of a court order. This would not only render it enforceable, but ensure that it is given sufficient weight by the parties. I agree with Judge Zondo that this court s time, constrained as it is by the large volume of cases enrolled for hearing, should not be wasted by unnecessary applications to have awards made orders of court. However, to require the applicant, who in matters of this kind is often an unrepresented individual, to ensure that the respondent has knowledge of the award and its terms prior to launching the application, may be requiring too much of such a litigant. Obviously the applicant must attach a copy of the award to its founding papers which must be properly served on the respondent. From this moment the respondent has knowledge of the award whatever the situation may have been until then.

7 [10] It cannot be said of this application that it would serve no purpose if the award is made an order of court. Even on the respondent s version, it has not finally discharged its obligations in terms of clause 3 of the settlement agreement. Its obligations in this regard are on going. Neither do I think it necessary, as submitted by the respondent s counsel, for applicant to show a reasonable apprehension that there will be noncompliance with the award in the future. [11] In the circumstances the application is granted. No order is made for the payment of costs. In this regard, I have taken into account that applicant brought the proceedings personally and was represented at the hearing of this application by a legal practitioner who acted pro amico. SEADY A J Date of hearing : 20 October 1998 Date of judgement : 23 October 1998

8 On behalf of the applicant : Advocate R. G. Beaton, instructed by Rooth & Wessels On behalf of the respondent: Advocate J. S. Mphahlani, duly instructed and appearing on a pro amico basis.