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[2015] ZAGPJHC 18
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Roscher v Industrial Development Corporation and Another (2012/ 22538) [2015] ZAGPJHC 18 (13 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2012/ 22538
DATE:
13 FEBRUARY 2015
In
the matter between:
TRACY
LUCILLE
ROSCHER
..................................................................................................
Plaintiff
And
INDUSTRIAL
DEVELOPMENT
CORPORATION
......................................................
1st
Defendant
FINDEVCO
(PTY)
LTD
...................................................................................................
2nd
Defendant
JUDGMENT
SPILG,
J:
13
February 2015
THE
PLEADINGS
1.
The Plaintiff instituted action proceedings
against the Defendants by service of summons in June 2012 for payment
of an amount of
R403 950.00 together with
mora
interest reckoned from 1 July 2009. The
claim is a contractual claim for payment of a performance bonus under
an employment agreement
concluded between the Plaintiff and the
Defendants in May 2007.
2.
The
Plaintiff alleges that the Defendants were contractually obliged to
pay the amount claimed which was 60% of her annual remuneration
package covering the employment period from 1 April 2008 to 31 March
2009. The plaintiff avers that the amount became due and payable
on 1
July 2009.
3.
The Defendant disputed the claim both by
way of special pleas and a pleading over on the merits. When the
trial roll was called
the parties confirmed their agreement to
separate the special pleas for separate adjudication.
4.
The Defendants raised three special pleas;
one of prescription, the other of
res
judicata
and the last of
lis
alibi pendens
. The special pleas all
touch on the same broad concerns that the Defendants have with the
basis of the Plaintiff’s claim
and the fact that the Plaintiff
had brought a dispute effectively against the defendants based on an
unfair labour practice arising
from the same subject matter before
the Commission for Conciliation, Mediation and Arbitration (‘
CCMA’
).
The dispute had been heard before the Commissioner whose award was
the subject matter of a review brought before the Labour Court.
5.
The prescription plea relies on clause 4 of
the employment agreement which required the Plaintiff to undergo a
performance assessment
to determine whether she had achieved the
requisite standard to be eligible for the performance bonus. The
special plea alleges
that on 31 March 2009 a determination had been
made that she did not met the requisite performance standard. During
argument the
defendants relied on a subsequent date, being 22 May
2009, on the basis that by then the plaintiff was aware of the
unfavourable
outcome of her assessment.
It
is on this basis that the Defendants contends that Plaintiff‘s
cause of action arose by no later than the end of May 2009
and not on
the date when payment of any performance bonus was to be made (ie on
1 July 2009).
6.
The plea of
res
judicata
relies on the contention that
the same matter presently before this court was determined by the
CCMA pursuant to the Plaintiff having
brought the dispute before that
tribunal in June 2009 and in respect of which an adverse award had
been made against the plaintiff
in March 2011.
7.
The plea of
lis
pendens
also relies on the
averments made in respect of the
res
judicata
plea but adds that upon the
Plaintiff instituting proceedings in May 2012 in the Labour Court to
review and set aside the Commissioner’s
arbitration award such
proceedings that are presently before the Labour Court are
lis
pendens
on the grounds that they are
between the same parties in respect of the same subject matter and
based on the same cause of action.
SPECIAL
PLEA OF PRESCRIPTION
8.
The issue to be determined in respect of
the prescription plea is whether the date when the “
debt
is due
” for purposes of
section
12(1)
of the
Prescription Act, 68 of 1969
is the date when the
Plaintiff first became aware that the First Defendant had determined
her ineligibility for a performance bonus.
Mr
Franklin
on behalf of the Plaintiff
accepted that the Plaintiff would have known of this determination by
the end of May 2009.
Section
12(1)
provides
12
When prescription begins to
run
(1)
Subject to the provisions of
subsections (2), (3), and (4), prescription shall commence to run as
soon as the debt is due.
9.
Mr Mokoena
on
behalf the Defendants contends that the operative date from when the
debt would become due is when the creditor first acquired
knowledge
of the debtor’s identity and of the facts giving rise to the
debt.
10.
While that may answer the question of when
the material facts were known, it does not complete the enquiry as to
when the debt is
due for the purposes of
section 12(1).
There remains
the second requirement that there must be a completed cause of
action, as that term is understood for purposes of
prescription.
11.
I dealt with this in the recent unreported
decision in
Makhwelo v Minister of
Safety and Security
case no: 2013/26724
(GLD) on 3 February 2015. After referring to
Deloitte
Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman
Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A)
at 532H and
Truter and another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at paras 16 to 21 I attempted to
summarise the position as follows at para 53;
“
a.
a debt is due only when;
i.
the material facts from which the
debt arises are known, or when they ought reasonably to have been
known (see Truter); and provided
ii.
it is immediately claimable and the
debtor is obliged to perform immediately ( see Deloitte
Haskins);
b.
the material facts do not include
knowing that the actions were culpable …. “
12.
The second requirement of the debt being
immediately claimable and the debtor being obliged to perform
immediately was based
on the following clear statement of the
position in
Deloitte Haskins
at
532H ;
“‘
This
means that there has to be a debt immediately claimable by the
creditor or, stated in another way, that there has to be a debt
in
respect of which the debtor is under an obligation to perform
immediately. See The Master v I L Back & Co Ltd and Others1983
(1) SA 986 (A) at 1004 read with Benson and Others v Walters and
Others
1984 (1) SA 73
(A) at 82. It follows that prescription cannot
begin to run against a creditor before his cause of action is fully
accrued, ie
before he is able to pursue his claim (cf Van Vuuren v
Boshoff
1964 (1) SA 395
(T) at 401).’
13.
Mr Mokoena also submitted that the
Plaintiff knew by the 22
nd
of May 2009 that she would not receive a performance bonus.
Accordingly there was no need for her to wait until the date by when
payment would have been made if she had qualified.
14.
As indicated earlier the question of
knowledge of liability in the broad sense and whether a debt is
immediately claimable on the
other involves two discreet enquiries
and
Deloitte Haskins
is
binding authority on the application of the latter requirement. When
it was enquired of Defendants’ counsel whether the
Plaintiff
could have obtained a judgment prior to 1 July for payment of the
performance bonus on the basis that she was aware that
by May she
would not receive it the answer was that she could not. I agree. It
is for this very reason that the second fundamental
requirement of
when a debt becomes due could not have been satisfied prior to 1 July
2009.
15.
The Plaintiff could only “
enforce
”
payment on 1 July 2009, irrespective of whether or not payment would
be forthcoming if regard is had to the relevant provision
regarding
the payment of the performance bonus. This is to be found in the
terms of the Performance Bonus Scheme (‘
the
Scheme’
) which provides that the
amount is paid annually on 1 July if the employee achieves the
requisite performance standard.
16.
The Defendants may have been correct as to
the due date of the debt if the claim was based on reviewing and
setting aside the assessment
made. However if that was the case then
the Plaintiff had already taken the issue before the CCMA in good
time when she brought
the dispute based on unfair dismissal before
that tribunal in June 2009. The dispute was based on a contention
that her department
head, Mr Ford, was responsible for her assessment
despite her earlier having lodged a formal grievance against him. She
claimed
that this was the true reason for the alleged unfair
assessment of poor performance which, she averred, constituted an
unfair labour
practice in terms of the Labour Relations Act, 66 of
1995 (LRA).
Mr
Franklin
on behalf of the Plaintiff
emphasised that the claim presently before this court is one based on
contract in terms of which a performance
bonus would be paid in
certain circumstances governed by the provisions of the agreement and
the rules of the Scheme. He argued
that since the claim is
contractual the earliest date that the debt could have become due and
payable, and therefore enforceable,
was no sooner than the date the
Defendants were obliged to make the payment, which was on 1 July
2009. I agree.
17.
Accordingly I find that the summons was
served on the Defendants prior to the expiry of the prescription
period.
RES
JUDICATA
18.
In order for the plea of
res
judicata
to succeed the Defendants were
obliged to demonstrate that there was an adjudication in legal
proceedings between the same parties
in respect of a demand for the
same relief and on the same grounds. It is also clear that the
decision must relate to the merits
of a question in issue. See
generally
Prinsloo N.O v Goldex
2014 (5) SA 297
(SCA) at para 10:
National
Sorghum Breweries’ (Pty) Ltd t/a Vivo African Breweries v
International Liquor Distributors (Pty) Ltd
2001(2) SA 232 (SCA) at 239F-H and
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 562C-D.
In
my view the plea of
res judicata
falters
on the requirement of there being a final determination on the merits
in respect of a question in issue. I deal with this
in the following
paragraphs.
19.
Mr Mokoena relies on the terms of the
arbitration award of Commissioner Boyce of the CCMA which reads
“
5.1
the respondents failure to pay a performance bonus to the Applicant
during or about June/July 2009, does not relate to the “provisions
of benefits” contemplated in section 186(2) (a) of the Act
5.2
The Applicant, consequently failed to discharge the onus on her to
prove that the Respondent’s conduct amounted to an
unfair
labour practice.”
The
Plaintiff also drew attention to paragraph 2 of the award where the
Commissioner identified the primary issue which he was required
to
determine in the following terms:
“…
..
Whether the Respondent committed an unfair labour practice as
contemplated by section 186(2) (a)… by failing to pay the
Applicant a performance bonus.”
20.
In my view the mere fact that a party may
have defined an issue before a tribunal does not inform us as to
whether that indeed was
the issue actually determined. This must be
so because the opposing party may take jurisdictional or other
preliminary points (eg
in money claims where the debtor avers that
the jurisdictional prerequisites of notice under the National Credit
Act have not been
complied with). Although it may however assist
where there is ambiguity regarding the
ratio
decidendi
or order made, those
considerations do not arise in the present case
.
21.
While the award may at first blush suggest
that the Commissioner considered that there was an unfair labour
practice, in its terms
(and more particularly the introduction of the
word ‘
consequently’
)
the second part of the award appears to be a conclusion drawn from
what precedes it and is not necessarily a self-contained
determination.
22.
In order to determine whether there has
been a decision on the merits in respect of the question identified
as being the issue for
determination between the parties it is
necessary to establish if there was any
ratio
dealing with whether or not the agreement entitled the Plaintiff to
claim the performance bonus or whether or not there was some
unfair
labour practice which precluded her from receiving the amount.
23.
I
am satisfied that on an ordinary reading of the award the
Commissioner did no more than find that the performance bonus was not
a benefit but simply a remuneration under section 213
[1]
of the LRA and therefore fell outside the parameters of section
186(2)(a) of the Act since that section requires the alleged “
unfair
conduct
”
to relate to “
promotion,
demotion, probation, training or benefits
”
[2]
.
24.
After considering a number of Labour
Court decisions the Commissioner was satisfied that:
“
Even
on the Applicant’s own version, the payment of the performance
bonus was subject to her work performance being of a particular
standard, and I fail to see how the said performance bonus can be
construed as anything other than remuneration (see para 4.5)
…
..
Having
regard to the foregoing, and bearing in mind that the performance
bonus in question was , indeed a quid quo pro for services
rendered
by the Applicant, I cannot find that the dispute in casu relates to
“benefits”.” It follows that the
said dispute does
not fall into the parameters of section 186(2) (a) of the Act”(see
para 4.7)
25.
There is nothing in the award that refers
to a determination of whether the Applicant was rightly or wrongly
aggrieved by not receiving
the performance bonus. The decision was
concerned solely with whether the performance bonus was a benefit or
a remuneration and
that, being a remuneration, it did not fall under
section 186(2)(a). It was for this reason that the Commissioner
determined that
the issue was not cognisable under the Act as a
matter susceptible to being challenged on the grounds of an “
unfair
labour practice
” or “
unfair
conduct
.”
26.
The Commissioner went so far as to say at
para 4.3 that:
“
The
unfair labour practice provisions in the Act do not vest the CCMA
with jurisdiction to arbitrate a dispute relating to remuneration,
and such a dispute may be referred to the Department of Labour”
.
In
my view there is no doubt that the decision of the Commissioner was
limited to whether the plaintiff’s dispute fell within
the
provisions of section 186(2)(a); a purely jurisdictional question
which did not touch on the merits of her claim of unfair
conduct or
entitlement to payment of the performance bonus.
Accordingly
the second special plea fails.
LIS
PENDENS
27.
Mr Mokoena had already commenced arguing
this point when the court took the mid-morning adjournment. On
resuming Mr Franklin advised
that the plaintiff would be withdrawing
the review proceedings pending before the Labour Court. Quite clearly
this renders the
lis pendens
issue
moot.
COSTS
28.
The defendants however contended that they
were entitled to the costs of the third special plea. The plaintiff
argued that if the
court dismissed the other special pleas she would
be substantially successful and should be entitled to full costs. It
was also
contended that the plaintiff did not concede the merits of
the special plea but simply made an election not to proceed with the
review.
29.
I have already found that the other two
special pleas fall to be dismissed. By not conceding the point one of
the issues that requires
consideration when dealing with costs is
whether the
lis pendens
plea had merit.
30.
The issue comes back to whether the claim
as formulated is a contractual claim based exclusively on the terms
of the agreement and
not susceptible to the exercise of a discretion
by Mr Ford which must first be set aside. If the latter then it would
follow that
the review proceedings before the Labour Court were
directed to that end, albeit couched as an unfair labour practice
justiciable
under section 186(2)(a) of the LRA.
31.
The plaintiff pointed out that the claim as
formulated in the summons is not premised on setting aside the
decision of Mr Ford.
The defendant however contends that Mr Ford
exercised a discretion in determining whether the plaintiff was
entitled to a performance
bonus.
32.
At this stage the court is not required to
determine the merits of the case made out in the particulars of
claim. It is only concerned
with whether a claim has been pleaded
which is immune from an attack based on
lis
pendens
.
33.
The defendants rely on clause 5 of the
Scheme. At its highest the point would be that the plaintiff’s
claim cannot be based
simply on a contractual entitlement to receive
the performance bonus but requires first a successful challenge to
the discretion
Mr Ford was entitled to exercise under the agreement
when assessing the plaintiff’s eligibility for the bonus. The
consequence
is that in order to succeed it would be necessary for the
plaintiff to challenge the exercise of that discretion; a matter
which
was characterised before the CCMA as “
unfair
conduct”
but which in substance
amounts to the same challenge that would have to be mounted in this
court if Mr Mokoena’s submissions
are correct..
34.
The only parts of clause 5 that was
referred to on this aspect were the following;
·
Performance targets for individuals (all
bands) are finalised and filed by Divisional Heads before end of
March
·
The Divisional Merit Committee
consisting of the Divisional Executives (Chairperson), Team Heads, HR
representatives and outside
of the Division VP representative, have
the following responsibilities:
Ratify
all matters relating to the individual performance management system
(target setting and measurement)
35.
In my view these matters are concerned with
the setting of performance targets, which the plaintiff readily
accepts as appears from
her attorney’s letter dated 9 June 2009
complaining of an unfair labour practice.
36.
Mr Franklin candidly stated that the claim
is based strictly on the agreement and it is unnecessary to challenge
the regularity
of the assessment performed by Mr Ford since the
Scheme provides for the objective criteria that are to be applied.
37.
In
preparing this judgment I had the opportunity of considering the
balance of clause 5 which admittedly contains a lengthy set
of
provisions. It is possible to distil from the clause that any
qualitative issues should be limited
[3]
. But even measurements that are of a subjective or qualitative
nature appear to be determined against objectively established
criteria. In this regard there is a measuring scale which defines the
different levels of performance by reference to generally
ascertainable criteria and then allocates points for the level of
performance attained.
38.
Once again it is irrelevant for present
purposes to consider whether the plaintiff will convince a court in
due course that she
has produced sufficient objective evidence to
demonstrate that she would in any event have attained the required
overall percentage
score to be contractually entitled to payment of
the performance bonus without having to engage in setting aside what
appears to
be the limited subjective elements of the assessment. That
goes to the merits; not to the cause of action as pleaded.
39.
Similarly no point has been taken about
whether the plaintiff’s claim remains within the exclusive
jurisdiction of the Labour
Court. The CCMA award said it was not, and
this was pursuant to the defendants raising it as a preliminary
point. The claim as
presently framed does not rely on an unfair
labour practice.
40.
The point of departure between a plea of
res judicata
and
lis pendens
is
that in the latter a plaintiff pleads the same set of facts arising
from the same cause of action against the same party whereas
in the
former it is the breadth of the case pleaded that affords the
dilatory defence even if there is a decision only on one claim
which
leaves the other claims unaffected.
In
the present case while the review to the Labour Court was in place,
it was still possible for that court to effectively afford
substantive relief albeit based on different grounds. Whether
that has to be pleaded in the alternative, as with certain
contractual claims that may also raise a delictual liability, was not
argued as the review proceedings were withdrawn. I do not
propose
deciding on an issue that was not canvassed.
41.
That being so, and costs being a matter of
judicial discretion, the fairest order is for the defendants bear two
thirds of the plaintiff’s
costs.
ORDER
42.
I accordingly order that;
a.
The first and second special pleas are
dismissed;
b.
The third special plea of
lis
pendens
falls away;
c.
The defendants are to pay two thirds of the
plaintiff’s costs including the costs of engaging two counsel
and in preparing
the heads of argument. The costs are to be paid
jointly and severally by the defendants, the one paying the other to
be absolved.
SPILG
J
DATE
OF HEARING: 12 February 2015
DATE
OF JUDGMENT: 13 February 2015
LEGAL
REPRESENTATION:
FOR
PLAINTIFF: Adv A Franklin SC
Adv
L Hollander
Anthony
Hinds Attorneys
FOR
DEFENDANT: Adv P Mokoena
Adv
J Nalone
Maserumule
Inc Attorneys
[1]
Section
213 is the definition section which does not define a ‘
benefit’
but
defines
'remuneration
'
to mean:
“
any
payment in money or in kind, or both in money and in kind, made or
owing to any person in return for that person working for
any other
person, including the State, and 'remunerate' has a corresponding
meaning”
[2]
Section
186 deals with the meaning of dismissal and unfair labour practice
under the LRA. Section 186 (2) provides;
'Unfair
labour practice' means any unfair act or omission that arises
between an employer and an employee involving-
(a)
unfair conduct by the employer relating to the promotion, demotion,
probation (excluding disputes about dismissals for a reason
relating
to probation) or training of an employee or relating to the
provision of benefits to an employee;
[3]
The
relevant bullet point reads: ”Individual targets must reflect
the core business priorities and service levels of the
SBU/Department.
Soft,
qualitative issues should be limited
”
(emphasis added)