IN THE INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 384/2005
In the matter between:
PLANTATIONWORKERS UNION APPLICANT
USUTU PULP COMPANY LIMITED
N. NKONYANE : JUDGE
DAN MANGO : MEMBER
GILBERT NDZINISA : MEMBER
FOR APPLICANT : MR. N. MTHETHWA
FOR RESPONDENT : ADV. P. FLYNN
 The applicant is a Trade Union whose members are employees of the respondent. The respondent is a locally registered company carrying on business at Sappi Usutu at Bhunya in the Manzini District.
 The applicant has brought an application for determination of an unresolved dispute between the parties. The certificate of the unresolved dispute is attached to the applicant’s application and is marked “C”. The nature of the dispute is recorded as:
“1. Nature of Dispute:
Rectification of article 29.03 (a) of the Collective Agreement and payment of retrenched employees.
The applicant submitted that article 29.03 (a) of the Collective Agreement should be rectified and payment of the retrenched employees to be in terms of the rectified article.
The respondent submitted that there was no need of rectifying the article 29.03 (a) as there was no problem with it, hence the workers were paid accordingly.”
 In paragraphs 4 – 11 the applicant stated as follows:
“4. The applicant and respondent entered a collective agreement on 25th April 1995, which agreement was registered by the above Honourable Court.
A copy of the agreement is annexed hereto marked “A”.
5. On 26June 1997 the parties expressly agreed that the Collective Agreement Annexure “A” shall remain in force until a new Collective Agreement is concluded and registered with the Court.
A copy of this agreement is annexed hereto marked “B”.
6. Article 29 of the Collective Agreement deals with benefits payable to unionisable employees upon termination of their services by reason of death, retirement and redundancy.
7. Article 29.3(a) of the Collective Agreement was intended by the parties to set out the agreed benefits which would be paid to unionisable employees in the event of their compulsory redundancy / retrenchment.
8. Due to typing errors and omissions Article 29.3 (a) does not clearly express the agreement between the parties and requires rectification so as to express the common intention that the benefits set out therein shall be paid to unionisable employees in the event of their services being terminated by the respondent for reason of compulsory redundancy / retrenchment.
9. The parties intended the first paragraph of Article 29.03 (a) to read as follows:
“Compulsory Redundancy / Retrenchment (i.e. where the company is compelled by external forces / parties to reduce head court) the company will pay the following:”
10. On or about 31st July 2005 the respondent terminated the services of about eighty (80) unionisable employees, who are represented by the applicant and are members of the applicant’s bargaining union, for reason of compulsory redundancy / retrenchment.
11. Despite demand by the applicant the respondent refused to pay the special payment and retirement gratuity as provided in Article 29.03 (a) of the Collective Agreement.”
 The applicant is accordingly seeking the following prayers:
(a) Rectification of Article 29.03 (a) of the Collective Agreement so that the first paragraph is amended to read as follows:
“Compulsory redundancy / Retrenchment (i.e. where the company is compelled by external forces / parties to reduce head court) the company will pay the following:”
(b) Declaration that the retrenched employees are entitled to be paid all the benefits set out in article 29.03 (a), to wit “1 - 6”.
© An order directing the company to pay the balance of the benefits of the retrenched employees.
(d) Further and/or alternative relief.”
 The respondent in its reply opposed the applicant’s application and averred that there was no existing collective agreement between the parties as the one that was in place lapsed by effluxion of time on 31st March, 1997 after having run the maximum of the years allowed by the law and also in terms of clause 61.01 of that collective agreement. The respondent averred further that the collective agreement having lapsed by effluxion of time, it could not be rectified; The respondent also denied that the collective agreement did not record what was the intention of the parties – or that there were typing errors and omissions.
 Three witnesses testified on behalf of the applicant and two witnesses testified on behalf of the respondent. RW1 Joecking Dlamini told the court that he is presently the vice chairman of the applicant and that he was present in most of the negotiation meetings between the parties. He said the parties engaged in negotiations concerning a collective agreement. The parties agreed and signed the collective agreement on 26th May 1995 and was for a period of two years. It was therefore to remain in force until 31st March 1997.
 On 31st March 1997 when the duration of the collective agreement expired, no new collective agreement was put in place by the parties. Instead, the parties entered into an agreement three months later on 26th June 1997 in terms of which they stated:
It is hereby agreed between the two parties that the Collective Agreement is extended and shall remain in force until negotiations over its provisions are completed. The life of the Collective Agreement shall be until a new C.A. is registered with the Industrial Court. Negotiations on the Collective Agreement shall start on a date suitable for both parties.”
 No new collective agreement has been registered in court to date. AW1 told the court that the parties are still using the collective agreement that expired on 31st march 1997. This is the document that the applicant is asking for its rectification. AW1 said the negotiations that led to the signing of the disputed collective agreement that expired on 31st March 1997 started in 1993. AW1 said in one of the meetings held on 19th March 1993 (“SAPWU 3”) it was specifically agreed how clause 29.03 should be written. AW1 said indeed the wording of clause 29.03 appeared in the draft collective agreement as it was framed by the parties in the meeting of 19th March 1993. AW1 said it was only in the final document that the clause appeared to have been changed.
 AW1 said they realized the mistake after they had signed the document. AW1 said the union members did not read the document before they signed it. He said they did not do so because they trusted the management team. He said the final document was typed and put together by the management team and that it was possible therefore that the management team either intentionally changed the text or that it was a typographical mistake. He said on the signing day held at Mhlambanyatsi Club, the management of the respondent treated them to a party. He said the atmosphere was a nice one and that it did not occur to the union executive that they should browse through the document before signing it.
 During cross examination AW1 maintained that the intention of the parties as to how they wanted clause 29.03 to read is found in the draft collective agreement and the minutes of the meeting held on 19th March 1993. AW1 also said the parties never intended to make two clauses dealing with voluntary retrenchment in one document as it appeared in the disputed collective agreement.
 AW2 Andreas Nkambule told the court that he was an employee of the respondent during the period relevant to this case. He was at that time holding the position of Industrial Relations Manager. He said he was present in most of the negotiation meetings that led to the signing of the collective agreement between the parties. He said he was present in the meeting held on 19th March 1993 when the parties agreed how clause 29.03 should appear in the final document. He also did put his initials and signed the collective agreement on 26th May 1995. He said the agreement was for a period of two years and that thereafter the parties agreed to extend the life of the collective agreement until a new collective agreement was put in place. He said the parties could not have made two clauses for voluntary retrenchment. He said the parties agreed to introduce clause 29.03 so that it could be difficult for the employer to simply retrench employees. He said indeed the agreement of the parties during the meeting of 19th March 1992 was captured in the draft collective agreement. He said the union executive members did not sign the draft agreement because the negotiations were still ongoing.
 During cross examination AW2 denied that compulsory retrenchment was covered in clause 29.01. He maintained that there was a mistake in final document that was signed by both parties on 26th May 1995.
 AW3 Jan Sithole told the court that he was the current Secretary General of the applicant and that he has held this position since 1983. He gave similar evidence as that of AW1 and AW2 as to how the parties came to sign the final collective agreement. He said he was the chief negotiator for the applicant. He said although the collective agreement expired on 31st March 1997, the parties did not stop using the document and that it was agreed that it was going to cease to operate once a new collective agreement was registered in court.
 During cross examination AW3 again maintained similar evidence as that already given by AW1 and AW2 that the union executive did not bother to read the document before signing it because they trusted the management team which had put the document together. AW3 also said they did not read the document before it was brought to court for registration because they had no reason to be suspicious.
 On behalf of the respondent RW1 David Long told the court that he has since retired from the Sappi Group. He said he came to Swaziland to work for the respondent in January 1995 as a Managing Director. He stayed in the country for two years. He said he was aware of the disputed collective agreement between the parties. He said he did sign the document also initialed each and every page. He said at that time the Human Resources Manager was Mr. Anthony Klopper. He said on his arrival in the country there was a major expansion project going and that Mr. Anthony Klopper advised him that there was an unfinished business regarding the collective agreement. He said he felt that the exercise should be finalized soon and indeed four to five months later the parties did end the process and signed the collective agreement.
 RW1 said he did not participate in the negotiation meetings, but he would be briefed by Mr. Antony Klopper on a weekly basis. He said he was aware that clause 29 was contentious issue between the parties. He said the parties spent a lot of hours on this issue such that it would be surprising that someone could today come and say there was a mistake. He said there were retrenchments that followed because part of the plant was being made redundant because they wanted to install a new director. He said after the signing of the collective agreement he stayed for about seventeen months in the country and during that period nobody came to him to say there was anything wrong with the collective agreement. He also said prior to a retrenchment exercise there would be a consultation exercise between the parties.
 During cross examination RW1 agreed that he did not take part in the actual negotiations but he was briefed about what had happened in the meetings. He further said clause 29.01 of the dispute collective agreement was the one that covered compulsory retrenchment if the company was facing bad economic situations. He also told the court that he has learnt that Mr. Anthony Klopper is now late.
 RW2 Naphtal Gumbi told the court that during 2005 he was still in the employ of the respondent performing Industrial Relations duties. He said he participated in the retrenchment exercise that took place during that year. He said before the retrenchment, there were negotiations between the union and the company. He said there were about eighty five retrenched employees and not seventy two as reflected in the documents before the court marked “R1” and “R2”. He said the package given to the retrenched employees was negotiated.
 During cross examination RW2 told the court that he left the respondent’s employ on early retirement. He denied when it was put to him that there was no agreement between the parties before package was paid. He said he was involved in the discussions on the package. He said the outgoing employees were paid through the different heads of department and that he was helping with explanation on one of the tables where the payments were being made. He agreed that he did not see every single person being paid. He said he was assisting the engineering head of department a certain Jan Burgher. During re examination RW2 said the purpose of the explanation to the workers was meant to ensure that every employee got the same information about the package.
 ANALYSIS OF THE EVIDENCE
The main issue before the court for decision is rectification of article 29.03 (a) of the collective agreement between the parties. The second question that arises is whether there is in law any collective agreement between the parties since the collective agreement in issue before the court expired on 31st March 1997.
 The court will deal with the second question first. The evidence before the court was indeed clear that the collective agreement in issue the court expired on 31st march 1997. The collective agreement was registered in court in terms of the Industrial Relations Act of 1996 having been registered in court on 20th February 1996. The act provided that the maximum life span of a collective agreement would be twenty four months. Clearly therefore after twenty four months the collective agreement lapsed by effluxion of time.
 Three months later after the “death” of the collective agreement, the parties on 26th June 1997 the parties purported to perform a miracle and raise the collective agreement from the dead. The applicant’s attorney failed to direct the court to any provision in the 1996 act which provided for the extension of life of a collective agreement. In the heads of argument the applicant’s attorney rightly conceded that the purported extension of the lifespan of the collective agreement by the parties was illegal as it was not provided for in the act.
 The applicant’s attorney however asked the court to consider the collective agreement as alive and effective. He referred the court to the cases of
Kenneth Manyathi v Usutu Pulp Company (Pty)
Ltd case No. 245/02
Bezuidenhout v A.A. Mutual Insurance Association
Ltd 1973 S.A. 703 A.D.
These cases are however clearly distinguishable from the present case. The Kenneth Manyathi case was dealing with the question of recognition agreement and not a collective agreement. The Bezuidenhout case is clearly distinguishable on the facts.
 There was however evidence before the court that was not challenged by the respondent. The applicant’s witnesses told the court that the parties continued to apply or use the collective agreement from the stage when it was in draft from until it was signed and also continued to use it after its expiry date. In law the document was clearly not a collective agreement. It ceased to be one when it expired on 31st March 1997. The parties however, as a matter of fact, continued to use it to regulate their conduct when dealing with one another. The respondent cannot be allowed by the court to approbate and reprobate. By its conduct it allowed itself to be bound by the contents of the document. It cannot now be heard to be asking the court to consider this document as a nullity. It is, legally speaking, not a collective agreement having lapsed due to effluxion of time but the respondent did not deny that the document continued to guide the relationship between the parties.
 The court will therefore recognize the document as the official document regulating the relationship of the parties at the workplace. It is the duty of this court to make orders that will promote harmonious industrial relations at the workplace. There was no evidence before the court, and it was not prit to the applicant’s witnesses that the respondent never considered itself bound by this document. The court will therefore conclude that as this document was the product of the protracted negotiations between the parties, and was signed by both parties and it is the only currently negotiated documents regulating the relationship between the parties at the workplace, the court will and must consider the question of its rectification.
 Rectification of a written contract will be allowed by the court if the mistake consists in the failure of the written to record the true contract between the parties. The applicant must therefore prove on a balance of probabilities that the written contract records a version of the agreement that is not in accordance with what was actually agreed upon.
See: Christie R.H. “The law of contract” 4th
Edition pp. 382 386
 The learned author after analyzing the relevant case law especially the cases of
Meyer v. Merchants’ Trust Ltd 1942 AD 244
Weinerlein v Goch Buildings Ltd 1925 AD
282 stated on page 384 that;
“Our courts have not, however, taken over the English rules in toto, and especially have not followed those English authorities that hold it necessary that there be an actual concluded contract antecedent to the instrument sought to be rectified, and that such contract is inaccurately represented in the instrument.”
 In the present case not only did the applicant’s witnesses who were present during the negotiation meetings give evidence of what was agreed between the parties, they also relied on written records, that is, the minutes of the meeting held on 19th March 1993 and the draft collective agreement. De Wet CJ in the case of Meyer v. Merchants’ Trust Ltd (supra) at p. 253 stated inter alia that;
“… Proof of an antecedent agreement may be the best proof of the common intention which the parties intended to express in their written contract, and in many case would be the only proof available, but there is no reason in principle why that common intention should not be proved in some. Other manner provided such proof is clear and convincing.”
 The applicant’s witnesses having proved that it was the intention of the parties to have paragraph (a) of article 29.03 read as it appears in the minutes of the meeting held on 19th March 1993 and also as it appears in the draft, the evidentiary burden shifted to the respondent to prove that there were other meetings or other documents that the parties executed in which article 29.03 (a) was changed to appear as it does in the final document signed by the parties on 26th May 1995. Taking into account all the evidence before the court and also all the circumstances of this case, the court will come to the conclusion that the applicant has proved on a balance of probabilities that the final document does not correctly reflect the intention of the parties and the document must be rectified accordingly.
 The court having concluded above that the document must be rectified, it follows that the retrenched employees were entitled to be paid in terms of article 29.03 (a) 1 – 6. The evidence before the court however showed that some of the employees that were retrenched took the package that was paid to them and accepted it in full and final settlement. The applicant’s attorney argued that these employees did not understand the full import of what they were doing. The court does not agree with the applicant’s attorney. There was no evidence led before the court showing that these employees did not understand what they were doing or that they were tricked or signed under duress.
 In the respondent’s reply it was pleaded in paragraph 11.3 that forty nine employees accepted the package in full and final settlement and that twenty three employees signed and added the words “without prejudice”. The applicant did not replicate to these pleadings and they therefore remain unchallenged. It is therefore only the twenty three employees who signed without prejudice who would benefit from the order of the court.
 Taking into account all the evidence before the court and also all the circumstances of the case the following order is made:
Paragraph (a) of article 29.03 of the written document marked “SAPWU 1” is rectified to read as follows
“Compulsory Redundancy/Retrenchment (i.e. where the company is compelled by external forces/parties to reduce head count). The company will pay the following:-”
The respondent is to pay the twenty three employees all outstanding benefits in terms of article 29.03 (a) 1 – 6.
The respondent is to pay the costs of suit.
The members are in agreement.
JUDGE OF THE INDUSTRIAL COURT