April 12, 2021 by eklose
It may be a perfect solution, but transaction agreements are not without risks and costs. If employers are not careful, they may be in trouble. Therefore, as part of the design process, labour practitioners should consider including a specific language in the transaction contract and/or dismissal order, the jurisdiction of the presiding tribunal for alleged breaches of the terms of the transaction contract, taking into account the scope and duration of that power. In the case of proper implementation, the parties can avoid the costs, time and resources associated with the introduction of a new measure to enforce the terms of the transaction agreement. The frequent question is whether a transaction agreement can be turned into a court decision if the parties reach an agreement without a dispute. In Avnet South Africa (Pty) Limited v Lesira Manufacturing (Pty) Limited and Another (18/38649)  ZAGPJHC 72 (March 4, 2019), Budlender AJ asked the question. The facts were clear and simple: as part of an agreement between the parties, the applicant provided the opponent with the first remedy goods worth R23.59 million. The parties have signed a transaction agreement in which enz. b. the debts would be paid monthly and the transaction contract would be settled by court, and the respondent would not object. It is not surprising that situations occur in which a party does not meet its obligations, as defined in the transaction agreement. The non-intervening party is generally faced with two options: 1) to bring a civil action in relation to the infringement (often a tedious and costly procedure), or 2) to request the intervention of the court responsible for the initial litigation. However, in order to make use of the latter option, the parties must proceed with pre-billing planning and useful drafting and include in the transaction agreement a provision that the court remains competent for all disputes ahead with respect to the transaction contract.
If the original court is a federal court, the parties can at least give their consent to such a court for a reasonable period of time. A federal court may, of course, remain competent for the application of a transaction agreement according to the doctrine of ancillary jurisdiction12, 13 A federal court may, therefore: 1) retain jurisdiction to the extent that the parties require jurisdiction, 2) fully oppose the exercise of the ancillary jurisdiction or 3) change the scope of the subsidiary liability sought by the parties.13 Assuming that the Tribunal decides to retain jurisdiction for the performance of the settlement contract, it must decide how long it will last. The third arrondissement adopted a strict interpretation of Kokkonen in Phar-Mor, Inc. Securities Litigation,10 in which it considered that the inclusion of the term “in the terms of the transaction” in the termination decision was not sufficient to enforce the dispute settlement agreement.11 In such cases, the CTU must first decide whether one of the users has not complied with the settlement agreement. If the agreement has not been respected, the second question will be what kind of order the court should take to resolve this issue. The types of commands that the CTU can perform are described in sections 1.44 and 1.47 (6) of the Condominium Act, 1998 (“the law”). For example, the court may order a user to pay money, do something or do nothing.