- Title
- The enforcement of settlement of agreements and arbitration awards
- Creator
- Thathoba, Portia Chwayita
- Subject
- Law enforcement
- Subject
- Settlements (Law)
- Subject
- Arbitration and award -- Law and legislation
- Date Issued
- 2023-04
- Date
- 2023-04
- Type
- Master's theses
- Type
- Thesis
- Identifier
- http://hdl.handle.net/10948/60696
- Identifier
- vital:66366
- Description
- The Labour Relations Act (LRA) recognises settlement agreements and arbitration awards as mechanisms by which the rights of parties in troubled employment relationships can be asserted. Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body empowered to make and pronounce on such rights through settlement agreements and arbitration awards. The CCMA caters for those earning within the stipulated ministerial threshold falling outside the existing bargaining forums. However, not much empirical evidence is available to indicate the challenges experienced by parties when attempting to enforce those CCMA rulings to get defaulters to comply. South African law accepts settlement agreements as part of dispute resolution mechanism, but the experience of some who hold settlement agreements is such that they are exposed to prejudice when they are required to have the settlement agreement converted to arbitration awards which essentially requires alteration of the very settlement agreed upon. The broad objective of taking matters to the CCMA for resolution with the possibility of having them resolved at conciliation phase cannot be achieved if a settlement agreement is not worth the paper written on and must be made an arbitration award for enforceability. The two are not the same, nor should they be made to be and trying to give them a similar status for enforceability purposes brings about a myriad of unintended challenges. While it could be argued that there also exists section 158 (1) (c) of the LRA if the requirements of section 142A are challenging, it could also be said that such a provision is inaccessible to indigent individuals who may only be able to invoke that provision at the mercy of legal practitioners willing to take cases pro bono for those parties to even stand a chance at enforcing compliance with a settlement agreement that was entered into voluntarily. Such a system allows for employers to bail out on settlement agreements without consequence make a mockery of the CCMA. To a serious degree, this suggest lack of certainty on the part of CCMA and its ability to bring matters to finality which is an important element to realisation of justice. This study sought to examine the way settlement agreements and arbitration awards are enforced, with dedicated focus on the requirement that must be satisfied in order to have force and effect. With the above in mind, chapter one dealt with how settlement agreements and arbitration awards are given force and effect through the LRA as envisaged in section 142A. The chapter explored challenges brought by the enforcement process and what that may mean to the objectives intended by the legislation. Chapter two encapsulates the framework under which the CCMA operates and enforces its decisions, a framework envisaged to be less formal and non-legalistic for the expedient resolution of labour disputes. Chapter three touches on the challenges met with section 143 implementation and highlights some case law prior and after the LRA amendments. Lastly chapter four looked into the enforcement of international or foreign arbitration awards within the South African context given the affiliation with international organisations such as International Labour Organisation (ILO). While it may be good for South Africa to align herself with international practices, it is worth noting that South Africa is still developing in international arbitration as a mode of alternative dispute resolution, but its prevalence as a preferred dispute resolution mechanism is without a doubt increasing.
- Description
- Thesis (LLM) -- Faculty of Law, School of Mercantile Law, 2023
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (69 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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NMU Department of Mercantile Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Thathoba, PC.pdf | 729 KB | Adobe Acrobat PDF | View Details Download |