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Article 83/2021

Labour Edge

In terms of s142A(2) of the LRA, the CCMA has the power to make a settlement agreement an arbitration award for the purpose of enforcement thereof, in terms of s143(1) of the LRA.  On the other hand, in terms of s158(1)(c) of the LRA, the labour court may make an arbitration award or any settlement agreement an order of court.  What are some of the differences between the approaches adopted in the aforesaid statutory provisions, recently identified by the labour court in National Union of Metalworkers of SA obo Kubane and Others v Kewberg Cables and Braids (Pty) Ltd (2019) 30 SALLR 218 (LC)?

In Kewberg Cables, the following was stated:

  1. the labour appeal court, in Fleet Africa (Pty) Ltd v Nijs (2017) 38 ILJ 1059 (LAC), however, sought to draw a clear distinction between s142A and s158(1)(c) in this proper context, where the court said the following:

‘[25]   The distinction between s158(1A) and s142A(1) is obvious. There is no way that these two amendment provisions can or should be read together as if they are mutually inclusive. Whilst, on the one hand, s158(1A) is concerned with the labour court making “any settlement agreement” an order of the court, on the other, s142A(1) pertains to the situation where the CCMA makes any “settlement agreement” an arbitration award. In other words, s142A(1) merely adds to the powers of the CCMA; whilst s158(1A) elaborates on the powers of the labour court in terms of s158(1)(c).’;

  1. the above dictum in Fleet Africa illustrated that proceedings before the CCMA under s142A are based upon a different cause of action to proceedings before the labour court under s158(1)(c) of the LRA. The one cannot operate to the exclusion of the other. In any event, it is all about enforcement. Section 142A leads to s143 and enforcement of the settlement agreement like it was an order of the labour court;
  2. s158(1)(c) leads to enforcement of the settlement agreement as an actual order of the labour court; and
  3. either way, enforcement of the payment of a monetary amount is done by way of execution through the sheriff, and enforcement of an obligation to act is done by way of contempt proceedings in the labour court. The only similarity between the two provisions is the enforcement aspect, but the basis giving rise to competent enforcement is different.

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We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

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