republic of south africa in the labour .in the labour appeal court of south africa, johannesburg)
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REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG)
Case no: JA46/2012
In the matter between:
SOUTH AFRICAN LOCAL Appellant
INDEPENDENT MUNICIPAL AND First Respondent
ALLIED TRADE UNION
SOUTH AFRICAN MUNICIPAL WORKERS Second Respondent
SOUTH AFRICAN LOCAL GOVERNMENT Third Respondent
Heard: 20 AUGUST 2013
Delivered: 04 March 2014
Summary: Collective agreement- dispute relating to its implementation date-
no requirement for signature by third respondent constitution- practice and
custom- principle that practice or custom is well-entrenched- practice that
agreement binding when signed by all parties- no agreement reached on 20
April 2010 without it being signed-
Rectification- principle that party seeking rectification must prove that contract
does not reflect the true intention of the parties restated- no rectification can
take place as there was no agreement reached by parties. Appeal upheld-
Court- a quos judgment set aside.
CORAM: WAGLAY JP, et C J MUSI et MOKGOATLHENG AJJA
C J MUSI AJA
 This appeal, which was brought with the leave of the court a quo, is against
the judgment of the Labour Court (Basson J).
 The South African Municipal Workers Union (SAMWU) and the Independent
Municipal and Allied Trade Union (IMATU) sought the following relief in the
court a quo:
i) An order declaring that the 20 April Wage Curve Agreement constitutes a
binding collective agreement between IMATU, SAMWU and SALGA.
ii) Alternatively to (i) above, rectification of the wage Curve Agreement signed
on 21 April 2010 by deleting clause 8.2 thereof and inserting clauses 8.2 and
8.3 of the 20 April Wage Curve Collective Agreement.
iii) If the order in (i) is granted, then an order is also sought declaring that the
Wage Curve Agreement signed on 21 April 2010 does not constitute a valid
 SAMWU approached the court a quo on an urgent basis for an order declaring
the purported agreement signed on 21 April 2010 as void ab initio. The order
was sought in order to prevent the third respondent (The South African Local
Government Bargaining Council (SALGBC) from implementing the purported
Wage Curve Collection Agreement signed on 21 April 2010, until the dispute
relating to the said agreement could be resolved. Due to irreconcilable
factual disputes, that could not be resolved on the papers, the matter was
referred to oral evidence. After a protracted trial, the court a quo made the
1. The categorisation and Job Evaluation Wage Curves (sic) Collective
Agreement signed on 21 April 2010 by the first applicant and the first and
second respondents is rectified by deleting clause 8.2 thereof and inserting
clauses 8.2 and 8.3 of the categorisation of Job Evaluation Wage Curves (sic)
Collective Agreement on pages 42 53 of Bundle C, subject to the
amendment to clause 7.2.3 agreed to just before the signing ceremony.
2. The first respondent is ordered to pay the costs of the applicants and
the second respondent including the costs of two council (sic)
 Mr Brassey, on behalf of the appellants, did not have any quarrel with the
court a quos analysis of the primary facts. The facts can therefore be
summarised as follows. In 2003, IMATU and SAMWU (the Unions) and the
South African Local Government Association (SALGA) concluded a Job
Evaluation Collective Agreement. The parties, thereafter, were engaged in
negotiations to conclude a Wage Curve Collective Agreement to give effect to
the Job Evaluation Collective Agreement. Agreement could not be reached.
On 27 January 2009, SAMWU referred a dispute to the third respondent for
conciliation. It demanded that a collective agreement be concluded to create a
wage curve for all the different job categories in municipalities.
 The dispute could not be resolved during the conciliation process. On 26
March 2010, SAMWU issued a strike notice. On 12 April 2010, its members
embarked on a strike in furtherance of its demand for a Wage Curve
Agreement and the conclusion of a new Disciplinary Code Agreement.
 During the strike, the parties resumed negotiations. During bilateral
engagements between SALGA and SAMWU, it was agreed that the wage
curves in the local government sector would be based on the 50th percentile
market position as determined by Delloite & Touche in its survey of
September 2009. Draft collective agreements relating to the wage curves and
disciplinary code were written.
 The parties met formally, under the auspices of the third respondent on 19
and 20 April 2010, in order to conclude collective agreements relating to the
wage curves and disciplinary code. They met as a Bargaining Committee of
the third respondent. In terms of clause 7.2.1 of the third respondents
constitution, a Bargaining Committee consists of 20 seats divided equally
between employer parties and trade union parties. SALGA therefore had 10
seats allocated to it. SAMWU, because of its superior membership was
allocated 6 seats, whilst IMATU had 4 seats allocated to it.1
 After members of the Bargaining Committee and others had considered the
draft collective agreements, and sufficient consensus achieved, the parties
decided that a team would refine the agreements reached in the Bargaining
Committee and draft the final agreements, for consideration by the principal
decision-makers of the parties. The Bargaining Committee adjourned when
the drafting team, consisting of Messrs. Koen (IMATU), Forbes (SAMWU),
Lebello (SALGA), Yawa (SALGA) and Van Zyl (SALGA), started its work.
Many of the members of the Bargaining Committee remained at the venue
whilst the drafting team were refining the draft agreements.
 The drafting team considered at least two issues on which the Bargaining
Committee did not reach consensus i.e. the period over which back pay
should be paid and the date on which the wage curve scales would be
increased. After some deliberations and consultation with their respective
principals, the parties agreed on nine months back pay over the ensuing nine
months. The date on which the wage curve scales would be increased is the
subject of a factual dispute that is at the heart of this case. According to the
appellant, no agreement was reached. According to the unions, it was agreed
that the implementation date for the increases would be 1 July 2010. The
agreement relative thereto reads as follows:
1 In terms of clause 5.4 of the SALBCs Constitution the allocation of representations amongst Trade
Union Parties shall be determined by the following formula: A C B x 1 Where A equals the membership of the Trade Union in question. B equals the total joint membership of the Trade Union Parties. C equals the number of seats allocated to the Trade Union Parties.
8.2 The initial minimum salary on TASK Grade 1 of R 4,000.00 (four
thousand rand) per month shall increase by the same percentage as agreed
to in the current Wage and Salary Collective Agreement.
8.3 The salary scales referred to in Annexures B1 to B8 will be
adjusted with effect from 1 July 2010 and then annually thereafter by the
same percentage as agreed to in the applicable Wage and Salary Collective
 SALGAs version was that the implementation date would be 1 July 2011.
The court a quo found that the unions version is the correct version and
rejected SALGAs version.
 The drafting committee concluded their deliberations and refining of the draft
agreements whereafter Adams (the Deputy General Secretary for Legal
Matters of IMATU) was requested to print hardcopies of the agreements.
Adams gave Yawa a copy of the two agreements. The unions indicated that
they and SALGA discussed the contents of the agreements with their
principals who were satisfied therewith and prepared to sign the agreements.
Some Johannesburg branch members of SAMWU were dissatisfied with the
agreement reached. According to Forbes, SAMWU would have signed the
agreement irrespective of the dissatisfied members protestations.
 On 20 April 2010, between 19H13 and 19H19, Mr George (SALGAs CEO)
was interviewed on national television by Jeremy Maggs. When asked
whether the matter was close to resolution he replied as follows:
We have resolved the matter now. We have a deal on the table that we have
worked on this afternoon as a culmination of what was worked off overnight,
last ..., I mean yesterday at the South African Bargaining Council, so now we
have a deal that as I leave the studio, I will be going back to the bargaining
council to formalise the signing of the deal ... there is a deal Jeremy, that has
been accepted by SAMWU, it has been accepted by IMATU remember there
is (sic) three parties in the Bargaining Council SAMWU, SALGA, IMATU, all
parties have now accepted the deal on the table.