IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 232/08
In the matter between:
M P FOOD PROCESSORS (PTY) LTD Applicant
SWAZILAND MANUFACTURING AND
ALLIED WORKERS UNION 1st Respondent
THE EXECUTIVE DIRECTOR OF CMAC 2nd Respondent
P. R. DUNSEITH : PRESIDENT
JOSIAH YENDE : MEMBER
NICHOLAS MANANA : MEMBER
FOR APPLICANT : S. SIMELANE
This matter was argued before the Industrial Court together with the matter of M P Food Processors (Pty) Ltd v Nonhlanhla Zulu and others (I.C. Case No. 230/08) because the factual background and the relief sought are similar in both matters. There are however certain important differences in the two matters which warrant two separate judgements.
The 1st Respondent is a trade union active within the Applicantâ€™s undertaking. The 1st Respondent applied to the Applicant for recognition as the collective bargaining representive for the Applicantâ€™s unionisable employees. Recognition was not granted and the 1st Respondent reported a recognition dispute to CMAC in terms of section 42 of the Industrial Relations Act 2000 (as amended).
According to Arno Muller, the general manager of the Applicant, one Ephraim Dlamini was engaged by the Applicant in July 2007 to provide services in the form of Industrial Relations advice to the Applicant with regard to the 1st Respondentâ€™s application for recognition.
The recognition dispute was referred to conciliation. Ephraim Dlamini represented the Applicant during the conciliation process at CMAC Manzini. During a conciliation meeting the parties agreed to have a verification count to verify whether the 1st Respondent had the fifty per cent paid up membership which would oblige the Applicant to grant recognition in terms of section 42(5)(a) of the Act. This verification count was conducted at the Applicantâ€™s premises on the 3rd August 2007 under the supervision of CMAC.
When conciliation resumed on the 10th August 2007 at CMAC Manzini Ephraim Dlamini conceded on behalf of the Applicant that the 1st Respondent had the required fifty per cent membership. A memorandum of agreement was entered into on the same date in terms of which the parties agreed that the Applicant recognized the 1st Respondent with effect from the 10th August 2007. This agreement was signed by Ephraim Dlamini on behalf of the Applicant.
In terms of the agreement, both parties agreed to the agreement being lodged with the Industrial Court by CMAC and made an order of court. Nevertheless CMAC did not then lodge the agreement.
On 29th January 2008 the 1st Respondent applied to the Industrial Court under Case No. 20/2008 for the agreement to be made an order of court. After receiving notice of this application, the Applicant applied to CMAC to rescind the memorandum of agreement on the grounds that the Applicant had never authorized Ephraim Dlamini to contractually bind the Applicant or to create contractual obligations for the Applicant.
Ephraim Dlamini made an affidavit in support of this rescission application, in which he states: â€œI was neither expressly nor impliedly nor tacitly authorized to contractually bind the Applicant but only assumed that my actions would be ratified by management, which did not happen.â€
The Applicantâ€™s rescission application directed to CMAC was entirely misconceived. Neither CMAC nor the Commissioner who facilitated the conciliation has any power to â€œrescindâ€ or set aside a memorandum of agreement. The appropriate remedy for a party that believes for lawful reason that it is not bound by an agreement reached at CMAC is to simply inform the other party to the agreement and CMAC that it repudiates the agreement, or - if a more pro-active response is called for - to oppose any attempt to enforce the agreement and/or to apply to a court of appropriate jurisdiction for an order declaring the purported agreement to be null and void.
CMAC wrote to the Applicant rejecting the rescission application and correctly pointing out that the application was beyond its jurisdiction in that the Industrial Relations Act, 2000 (as amended) makes no provision for rescission of an agreement.
For some unfathomable reason the Applicant did not accept the rejection of its application, and insisted that the issue be addressed by the CMAC Commissioner. At the same time, the Applicant opposed the court application to have the agreement made an order of court, and the court application was postponed sine die.
The matter in Case No. 20/2008 was taken no further, but in early June 2008 CMAC forwarded a batch of agreements to the Industrial Court to be registered and made orders of court. Included in this batch was the agreement entered into on 10th August 2007 in terms of which the Applicant, represented by Ephraim Dlamini, granted recognition to the 1st Respondent.
CMAC did not give notice to either party that it was lodging the agreement to have it made an order of court. The terms of the agreement do not require it to give such notice, but in view of the fact that the Applicant had unequivocally informed CMAC (by way of the rescission application) that it repudiated the agreement, the interests of fairness and justice clearly required that notice be given to the Applicant.
On 6th June 2008 the Industrial Court made the agreement an order of court. In so doing the court was unaware that:
14.1 the Applicant had repudiated the agreement, and
14.2 there was an earlier application for the agreement to be made an order of the court still pending in the Industrial Court, and that such application was opposed by the Applicant.
We can say without hesitation that if the court had been made aware of the full circumstances of the matter we would not have made an order without giving the Applicant the opportunity to be heard in opposition, particularly as the Applicant had already unequivocally indicated its intention to oppose the agreement being made an order of court.
We do have reservations about the bona fides of the Applicantâ€™s allegation that Ephraim Dlamini was not authorized to sign the agreement, since the grant of recognition flowed automatically from Dlaminiâ€™s acknowledgement after the verification count that the 1st Respondent had the necessary fifty per cent membership. Nevertheless this is an issue upon which the Applicant was entitled to be heard before the agreement was made an order of court.
We are of the view that the Applicant is entitled to relief. The Applicant prays for rescission of the court order we granted on 6th June 2008, and leave to oppose the application to make the agreement an order of court. We shall couch our order in slightly different terms than those prayed for.
The court makes the following order:
The order of court granted on the 6th June 2008 under Case No. 232/2008 is hereby rescinded and set aside.
The application in Case No. 232/2008 is stayed pending determination of the application in Case No. 20/2008.
The Applicant states that it does not seek any costs order against CMAC or the 2nd Respondent, but asks for costs against the 1st Respondent. The 1st Respondent did not apply for the order that has now been rescinded. There is no basis to award costs against it. We make no order as to the costs of the application.
The members agree.
PETER R. DUNSEITH
PRESIDENT OF THE INDUSTRIAL COURT