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IN THE INDUSTRIAL COURT OF SWAZILAND

HELD AT MBABANE CASE NO. 211/07

In the matter between:

ZANDILE NTSHANGASE APPLICANT

And

PASADAS RESTAURANT RESPONDENT

CORAM:

PETER DUNSEITH : PRESIDENT

JOSIAH YENDE : MEMBER

NICHOLAS MANANA : MEMBER

MR. MBUSO DUBE : FOR APPLICANT

MS. POPOSIAROVA : FOR RESPONDENT

JUDGEMENT – 01/06/2007

[1] The Applicant has applied to the court for a memorandum of agreement to be “registered as an order of court.”

[2] The agreement in question records a partial settlement of a dispute reported to the Conciliation, Mediation and Arbitration Commission by the Applicant. The agreement is signed by the Applicant and the Respondent, and the CMAC Commissioner signed as a witness.

[3] The agreement is recorded on a standard CMAC form, which includes the following clause:

“Both parties hereby agree to comply with their obligations in terms of this agreement and further consent to this agreement being lodged with the Industrial Court by the Commissioner in terms of section 84(1)(b) of the Industrial Relations Act, 2000 (as amended) and made an order of the court.”

[4] Section 84(1)(b) of the Act provides:

“(1) If a dispute has been determined or resolved, either before or after conciliation, the parties shall, with the assistant (sic) of the Commissioner –

1. Prepare a memorandum of agreement setting (sic) the

terms upon which the agreement was reached; and

2. Lodge the memorandum with –

1. The Commissioner and the Commissioner shall lodge it with the Court.”

[5] The Respondent opposes the registration of the agreement on the grounds that section 84(1)(b) and the terms of the agreement itself require the agreement to be lodged for registration by the Commissioner, and the Applicant has no locus standi to apply for registration.

[6] Ms. Poposiarova for the Respondent points out that section 84(1)(b) amends the previous provisions of the act regarding registration of agreements. Prior to the amendment, section 84(1) provided that an agreement “shall be lodged with the court for registration by any of the parties, or by the Commissioner of Labour at the request of the parties.”

Ms. Papasiarova submits that the legislature clearly intended, by removing the provision for lodging by the parties, to require agreements to be lodged only by the Commissioner, to the exclusion of the parties.

[7] It is important to appreciate the distinction between lodging an agreement with the court for “registration”, and lodging a settlement with the court to be made an order of court.

[8] It has been the practice of the Industrial Court for many years to grant judgement on settlement agreements recorded in writing after conciliation at the Commission, if such settlements have the effect of resolving a reported dispute, in whole or in part. The settlement thereby acquires the effect of an order of court, and may be executed upon if either party fails to comply with the agreement.

[9] Rule 9(1)(a) of the Industrial Court Rules, 1983 provides that the court may, “if the Applicant and the Respondent agree in writing upon the terms of a decision to be made by the court, give a decision accordingly without a formal hearing.”

[10] The old Section 84(1) of the Industrial Relations Act, prior to amendment, referred to a memorandum of agreement being “lodged with the court for registration.”

The new section 84(1)(b) merely refers to the memorandum being “lodged” with the court, and does not state the purpose of such lodging.

[11] Section 84(2) of the Act was not affected by the amendment. It provides that:

“Upon registration the memorandum shall have the same force and effect as a registered collective agreement.”

[12] In the light of section 84(2) the court concludes that section 84(1)(b), like its predecessor, was intended to refer to lodging for registration.

[13] Section 84(2) of the Act provides that upon registration, an agreement shall have the same force and effect as a “registered collective agreement.” The status and effect of a registered collective agreement is that:

13.1 It is binding on the parties;

13.2 Its terms and conditions are deemed to be terms of the individual contract of employment of employees covered by the agreement;

13.3 Registration is deemed to constitute usual notice to affected parties of the terms of the agreement.

• See section 57 of the Act.

[14] A registered collective agreement by no means has the status or effect of an order of court. Registration is an administrative act, not a judicial act.

[15] In our view, if a party or the Commission wishes to lodge a memorandum of agreement with the court for registration, then this must be done by the Commission in accordance with the procedures set out in section 84(1) of the act.

[16] However either or both of the parties to a settlement, viz an agreement which has the effect of resolving a reported dispute, in whole or in part, may apply to court for the settlement to be made an order of court in terms of Rule 9(1)(d).

[17] The memorandum of agreement signed by the parties at the Commission is a settlement. The parties consented to the agreement being lodged with the court by the Commission and made an order of court. This consent does not, in our view, preclude one of the parties from itself applying for the settlement to be made an order of court.

[18] The Applicant has rather confusedly applied for the memorandum of agreement to be “registered as an order of Court.” We agree with the Respondent that the Applicant has no locus standi to apply for registration of the agreement, but she is entitled to apply for the agreement to be made an order of court.

[19] The point in limine is accordingly dismissed, and the Respondent is called upon to show cause, on the merits, why the agreement should not be made an order of court.

The members agree.

PETER R. DUNSEITH

JUDGE PRESIDENT – INDUSTRIAL COURT