Judge dismisses agric employees
Mpho Mokwape | Thursday February 11, 2016 16:20
The case of the 17 applicants was dismissed by Industrial Court judge, Isaac Bahuma, on contention that the ministry had failed to honour a settlement agreement that was entered into by the parties on July 26, 2012.
Dismissing the case, Justice Bahuma said it did not matter that there was an agreement signed by the parties because the agreement was not a court order and not enforceable in a court of law.
Justice Bahuma explained that if the other party did not meet their side of the bargain, the applicants should have approached the mediator.
“The applicants should have gone back to the mediator who could, if necessary, prepare documentation for proper referral of the matter to this court,” he said. “This was not done and for that reason the application must fail.”
Justice Bahuma said because the applicants did not have a referral certificate, their case was not properly before court. The only way they could have approached court directly was by a way of urgency.
He said the Commissioner of Labour, as a mediator, could have issued a referral letter if there was a need to approach court. “If litigants are allowed to approach court before the commissioner having declared his failure to settle the matter, there will be an influx of cases to this court and mediation will be reduced to an irritating formality, the consequences of such a situation will be disaster,” he added.
Justice Bahuma pointed out that according to the Trade Dispute Act, disputes may be referred to the court following unsuccessful mediation and that with the provision, the mediator shall issue a certificate to that effect.
Meanwhile, the applicants through their lawyer, Uyapo Ndadi had submitted that the application was for the settlement agreement, following the ministry’s failure to implement a directive that was used in 2005 for the employees to be fully paid.
Ndadi said the scheme of service was supposed to be in terms of Directive No. 13 of 2005 and was supposed to have been fully implemented and completed by April 1, 2006 but to date nothing has been done.
He explained that after the failure to implement, a dispute arose and was refereed to the commissioner for mediation in terms of the Trade Disputes Act.
In terms of the application being brought before court without referral certificate from the mediator, Ndadi said the matter had already been dealt with and that the applicants were entitled to approach court without any such certificate.
State lawyer, Neo Sharp, had argued that the matter should not be argued on merits because the applicants did not follow the right procedure in bringing the matter to court.
Sharp said that the manner in which the applicants had gone about the implementation of what they sought was unprocedural, noting that had the settlement certificate at least been a contract, the applicants would have to prove its terms were binding and enforcement would be effected.