About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 56
|
|
NUM obo Majebe v Civil and General Contractors (PA6/19) [2020] ZALAC 56; [2021] 4 BLLR 374 (LAC); (2021) 42 ILJ 1027 (LAC) (17 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PA6/19
In the matter between:
NUM obo MAYIME DALTON
MAJEBE
Appellant
and
CIVIL
& GENERAL CONTRACTORS
Respondent
Heard
(via submissions):
17
November 2020
Delivered:
Deemed to be the date
on which the judgment is e-mailed to the parties.
Summary:
Prescription—Debt—Prescription
Act
68 of 1969
—Whether arbitration award constituting debt for
purposes of s 16(1)—Enforcement of arbitration award in the
form or
reinstatement and backpay fitting within definition of
debt.
Prescription—Interruption
of prescription—Section 15(6) of
Prescription
Act
68 of 1969
—Review application constituting any document
commencing legal proceedings—Prescription interrupted by review
application
to the Labour Court.
Coram: Phatshoane
ADJP, Coppin JA
et
Kathree-Setiloane AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against an order of the Labour Court (Lallie J),
with the leave
of that court, dismissing an application in terms of
section 158 (1)
(c)
of
the Labour Relations Act
[1]
(”the LRA”) to make an arbitration award of the
Commission for Conciliation Mediation and Arbitration (”the
CCMA”) an order of the court.
[2]
The Labour Court dismissed the application having found that the
award had prescribed.
In arriving at that conclusion, it relied on
this court’s decision in
Myathaza
(LAC),
[2]
which was subsequently overturned by the Constitutional Court in
Myathaza
(CC).
[3]
[3]
The significance of this appeal lies therein that in
Myathaza
(CC)
no binding ratio had been produced. Since then, following the less
than ideal approach adopted by the Constitutional Court regarding
the
prescription of arbitration awards in
Mogaila
[4]
,
and by this Court in
Van
Tonder
[5]
,
the Constitutional Court has since decided
Pieman’s.
[6]
The question is whether in light of all those developments the CCMA
award in this matter had indeed prescribed.
[4]
This judgment will deal, firstly, with the common cause background
facts, then with
the issue of condonation and the reinstatement of
the appeal, thirdly with the law on the prescription of arbitration
awards made
in terms of the LRA, fourthly, with the question whether
the appellant’s claim in terms of the arbitration award has
prescribed,
and lastly, with the relief, including the issue of
costs.
Common
Cause Facts
[5]
After the employee, Mr Majebe, was dismissed by the respondent on 8
December 2006
for alleged misconduct, the appellant union and the
employee (“the appellant”) referred an unfair dismissal
dispute
to the CCMA on 2 January 2007. Upon conclusion of the
arbitration, a commissioner of the CCMA issued an arbitration award
on 19
June 2007 in favour of Mr Majebe. The commissioner found that
Mr Majebe’s dismissal was substantively unfair and ordered the
respondent to (retrospectively) reinstate him, with back-pay.
[6]
In August 2007, the respondent brought an application to the review
and set aside
the CCMA award. There was a substantial delay in the
prosecution of the review application. After a period of almost seven
years
and on 14 January 2014 (while the review application was still
in limbo) the appellant brought an application in terms of section
158(1)
(c)
of the LRA to make the CCMA award an order of the
court.
[7]
The respondent opposed that application, alleging,
in limine
,
that the CCMA award had prescribed and could therefore not be made an
order of court. On that basis, it sought dismissal of the
application
with costs. When the application came before the Labour Court there
were conflicting decisions on the question of prescription
and this
court had just decided
Myathaza(LAC)
. The Labour Court
applying that decision, come to the conclusion that the CCMA award in
favour of Mr Majebe had prescribed.
[8]
The Labour Court found (a) that prescription of the award commenced
on the twenty-second
day from the day on which the award was issued;
(b) that the running of prescription was not interrupted by the
filing of the review
application brought by the respondent; (c) that
the award prescribed three years from the twenty-second day after 19
June 2007;
and (d) when the application to make the award an order of
court was filed on 14 January 2014 the award had already prescribed.
On the basis of those findings, the Labour Court dismissed the
appellant’s application on 20 November 2015.
[9]
The application to review the award, brought by the respondent, was
never withdrawn,
or further dealt with. The appellant brought an
application on 11 August 2017 for leave to appeal against the Labour
Court’s
dismissal of its application. The application was
accompanied by a condonation application of the same date. In the
founding affidavit
of the condonation application Mr Mandisile
Mzwana, an official of the appellant union, explained the delay in
bringing the application
for leave to appeal.
[10]
He averred that after the Labour Court had dismissed the appellant’s
application, on 20
November 2015, the matter was regarded as
finalised and was filed away because the union had no further
instructions for its attorneys
of record. On 12 June 2017, he was
contacted by the appellant’s attorney, Mr. Wesley Pretorius,
who requested that the union
and the employee, Mr Majebe, attend a
consultation with the attorneys. The consultation was held on the
earliest available date,
being 17 June 2017. The purpose of the
consultation was essentially to advise the union of the
Constitutional Court’s decision
in
Myathaza (CC)
and of
the approach followed by the Constitutional Court in
Mogaila
,
and by this Court in
Van Tonder
.
[11]
According to Mr Mzwana, they were advised, essentially, in light of
those decisions, that the
appellant had excellent prospects of
succeeding in an appeal because, either the
Prescription Act does
not
apply to arbitration awards issued in terms of the LRA,
alternatively, if it did, the review application brought by the
respondent
had interrupted the running of prescription.
[12]
Having found that the appellant had shown good cause and that there
were good prospects, the
Labour Court granted the requested
condonation and leave to appeal on 8 May 2018.
Condonation
in respect of the appeal
[13]
The appellant’s notice of appeal, which in terms of Rule 5(1)
of the LAC Rules had to be
filed within 15 days of the granting of
leave to appeal to this Court, was only filed later. In the
application for condonation
for the late filing of the notice, Mr
Mvimbeli of the appellant union avers that the failure to comply with
the Rule was due to
the negligent or deliberate conduct of an
attorney employed by its attorneys of record, who had since resigned.
On resigning in
December 2018, the attorney never disclosed (in his
report) that the notice of appeal had not been filed. When this was
discovered
after the attorney had left, the notice was filed post
haste.
[14]
In terms of LAC Rule 5(8) the record had to be delivered within 60
days of the date of granting
leave to appeal. In terms of LAC Rule
5(17) if the appellant fails to lodge the record within the
prescribed period, it is deemed
to have withdrawn the appeal. The
record in this matter was filed late.
[15]
In its application for condonation for the late filing of the record
and for reinstatement of
the appeal, Mr Mvimbeli, on behalf of the
appellant, furnishes the same explanation as for the late filing of
the notice of appeal.
In addition, he avers that the appellant has
excellent prospects of success; that the respondent had not been
prejudiced by the
delay and that the matter is of great importance.
[16]
In its opposing affidavit the respondent takes issue with the
adequacy of the explanation for
the delay and, essentially, contends
that in terms of the law as it stands the arbitration award has
prescribed. The respondent
argues that the appellant should not be
allowed to hide behind the negligence of the attorney, and that the
Union and Mr Majebe
did not do enough to avoid the delay. The
respondent denies that it is not prejudiced by the lateness,
complaining, in effect,
that it would have to deal with the dismissal
dispute again after 13 years had lapsed and that it would have to
expend time and
resources on it.
[16]
In the replying affidavit the appellant essentially denies that the
union and Mr Majebe did not
maintain an interest in the matter.
Beside submitting that the delay could not be blamed on them
personally, it contends that,
if appropriate, this Court “would
be at large to take that delay into account in moderating the extent
of the back-pay to
which Mr Majebe is entitled under the award (by,
for example, reducing the back-pay by the amount pertaining to the
delay in noting
the appeal)”.
[17]
It is trite that an applicant for condonation must show good cause
for the delay, and that in
respect of the grant of condonation, the
court has a discretion which it must exercise judicially, taking into
account all of the
relevant facts and circumstances. There is no
closed list of factors to be taken into account, but factors usually
included are:
the degree of lateness, the explanation for it, the
prospects of success, the importance of the matter, and the interests
of the
respondent in finalising the matter. It is also trite that,
generally, a slight delay might compensate for weak prospects of
success
and that, on the other hand, strong prospects of success may
make up for a long delay
[7]
.
[18]
The appellant has provided an explanation for the long delay in
respect of both the filing of
the notice of appeal and the record.
The question that remains is whether it is good enough. The
respondent submits that it is
not. Weighing against the appellant’s
explanation is also the principle that generally a party is not
absolved from blame
when its attorney has not complied with time
periods through negligence, or otherwise. Whether the general
principle applies depends
on the circumstances of the particular
case.
[8]
[19]
In circumstances where the party has furnished an explanation and it
is clear that it is blameless
regarding the non-compliance, for
example when the body had been in contact with the attorney and was
not aware of the non-compliance,
the principle would not apply.
However, where the party itself neglects following up on the matter
while being aware of the time
periods and the non-compliance, the
principle would apply.
[9]
[20]
In this instance, the appellant did follow-up on the matter and
justifiably assumed that all
that was necessary had been done to
bring the matter before this Court. The offending attorney, even upon
his resignation, seems
to have actively concealed his failure in that
regard. After the non-compliance was discovered, prompt action was
taken to rectify
matters. It is not an instance where the appellant
was aware of the non-compliance all along, or remained supine after
becoming
aware of the non-compliance.
[21]
In light of the absence of real prejudice, the excellent prospects of
success, and the interests
of justice, it is essential that this
appeal be heard to bring about certainty concerning the extinctive
prescription of awards
made in terms of the LRA. The late filing of
the notice of appeal and the late delivery of the record are
accordingly condoned,
and the appeal is reinstated.
The
law
[22]
As pointed out earlier, the Constitutional Court overturned this
Court’s decision in
Myathaza (LAC)
. The facts there, in
brief, are the following: M was employed by Metrobus as a bus driver.
He was dismissed and his dismissal was
referred to the Bargaining
Council where an arbitrator ultimately found that his dismissal was
unfair and ordered Metrobus to reinstate
him with immediate effect,
with back-pay. Metrobus did not comply with the order but brought an
application to review the award.
M opposed the review and brought an
application to make the award an order of court. Metrobus contended
in response that the award
had prescribed.
[23]
The Labour Court held that the award was a “debt” for the
purposes of the
Prescription Act, that
the review did not interrupt
prescription, that the prescriptive period (3-years) had elapsed and
that, accordingly, the award
had prescribed. Consequently, it
dismissed the application to make the award an order of court. On the
appeal, this Court confirmed
the Labour Court’s decision in
Myathaza(LAC).
[24]
The employee (M) appealed to the Constitutional Court, where three
judgments in the matter were
produced. The first by Jaftha J
(Nkabinde ADCJ, Khampepe J and Zondo J, as he then was, concurring)
held that as the provisions
of the
Prescription Act were
incompatible
with the provisions of the LRA it did not apply, and, accordingly,
the award had not prescribed. In addition, Jaftha
J stated, inter
alia, that the award (even though it was for reinstatement and
back-pay) could not prescribe because it was not
a “debt”
for the purposes of the
Prescription Act – because
the order of
reinstatement was “not an obligation to pay money or deliver
goods or render services”.
[10]
[25]
In a concurring judgment (the third judgment
[11]
)
Zondo J held that the Labour Court and this Court had erred in their
approach; that the
Prescription Act did
not apply to labour matters,
and also, inter alia, disagreed with the view that a referral to the
CCMA interrupted prescription
(i.e. that it was “process”
as contemplated in
section 15(1)
of the
Prescription Act).
[12]
Zondo J also concluded that an arbitration award did not constitute a
“debt” as contemplated in the
Prescription Act.
[13
]
[26]
In the second judgment Froneman J ( Madlanga J, Mbha AJ and Mhlantla
J concurring) held that:
(a) the
Prescription Act was
not
inconsistent with the LRA, but complimented it,
[14]
(b) the referral to the CCMA interrupted prescription as envisaged in
section 15(1)
of the
Prescription Act; (c
) an unfair dismissal claim
sought to enforce three possible kinds of legal obligation, namely,
reinstatement, re–employment
and compensation and that it was a
“debt” as contemplated in the
Prescription Act because
each of those obligations “enjoins the employer to do something
positive”; (d) in the case of reinstatement it meant
that the
resuscitation of the employment agreement, with all the attendant
reciprocal rights and obligations, was required. The
employer must
provide employment and remunerate in accordance with the award or
order of re-instatement. Both of which fell within
the meaning of
“debt” as contemplated in the
Prescription Act, however
narrowly interpreted.
[15]
[27]
The second judgment also held that the referral of the dispute to the
bargaining council interrupted
prescription and that prescription
remained interrupted until the finalisation of the review
proceedings. On that basis, the second
judgment held that M’s
arbitration award had not prescribed, i.e. essentially, because the
review proceedings had not been
finalised.
[28]
Thus, the appeal against this Court’s judgment in the
Myathaza
(LAC)
succeeded but for different, and largely contradictory,
reasons. There was no majority view.
[29]
In
Mogaila,
the Constitutional Court acknowledged that “because none of the
judgments in [
Myathaza(CC)
]
secured a majority, no binding basis of decision (ratio) emerges from
[there].” With reference to the facts before it, instead
of
deciding the matter afresh, the Constitutional Court opted to apply
“an either/or” approach, effectively, with respect,
treating the judgments in
Myathaza(CC)
as if they had each produced a ratio. Applying this less than ideal
approach it found that on either of the judgments in that matter
the
appellant in
Mogaila
was entitled to an order declaring that the arbitration award,
ordering reinstatement, had not prescribed and that she was entitled
to certification in terms of
section 143(3)
of the LRA and its
enforcement under
section 143(1)
of that Act.
[16]
[30]
This court adopted “the
Mogaila
approach” in
Van
Tonder
. It was considered not to be ideal, but to be practicable
at the time. With hindsight, that approach did not assist to
elucidate
the uncertainty that prevailed in this area of the law. It
is trite that certainty is an essential aspect of the rule of law.
Those
who are required to comply with the law, and those charged with
enforcing it, should have reasonable certainty about what it is.
[31]
Even though it dealt with a slightly different scenario, the
Constitutional Court’s decision
in
Pieman’s
has
since clarified the position. There is no scope for the continued
application of the
Mogaila
approach, because the
Constitutional Court has now decided in
Pieman’s
that
the
Prescription Act is
not inconsistent with the provisions of the
LRA and that claims under the LRA do prescribe.
[32]
While the minority of the Constitutional Court in
Pieman’s
held, in essence, that the
Prescription Act did
not apply to unfair
dismissal claims in terms of the LRA and that the provisions of the
Prescription Act were
inconsistent with those of the LRA, the
majority held that the two Acts were not inconsistent or
incompatible. While the
Prescription Act deals
with periods that
would result in the extinction of a claim, the LRA does not
necessarily deal with such periods. The majority,
essentially,
thereby confirmed the views expressed in the second judgment in
Myathaza (CC).
[33]
Pieman’s
has produced a ratio and essentially
establishes the following: (a) the
Prescription Act is
applicable to
claims in terms of the LRA ; (b) a claim for reinstatement (with
or without back-pay), re-employment, or compensation,
is a “debt”
as envisaged in the
Prescription Act; (c
) the applicable prescriptive
period is 3-years; (d) the referral of an unfair dismissal claim to
the CCMA interrupts prescription
and prescription remains interrupted
until any review proceedings in relation to that process, are
finalised.
This
matter
[34]
In this matter, the appellant contended for the adoption of the
Mogalia
(
Van Tonder
) approach on the basis that the
facts in
Pieman’s
are distinguishable in that there the
court was dealing with the prescription of claims for unlawful
dismissal, whereas this matter
concerns the prescription of an
arbitration award.
[35]
The respondent, on the other hand, submitted essentially the
following: in
Pieman’s
the applicability of the
Prescription Act to
claims in terms of the
LRA was finally determined;
Myathaza(CC)
did not yield any ratio; that, instead, this Court should apply the
decision of the Supreme Court of Appeal in
Brompton
Court
[17]
(which established that
an arbitration award prescribed after 3-years) and this Court’s
decision in
Motsoaledi
[18]
(which
established that an alleged unfair labour practice constitutes a
“debt” as envisaged in the
Prescription Act, and
that an
application to a bargaining council to certify an award was not
“process” as envisaged in
section 15(1)
of the
Prescription Act and
does not interrupt prescription).
[36]
According to the respondent, since the appellant had taken the view
that the award was due and
payable on 13 May 2013, or within seven
days of that date, and since the last step in the review application
was taken on 7 February
2008, the 3-year period had prescribed by the
time the appellant brought the application in the Labour Court, to
make the award
an order of court.
Discussion
[37]
This Court’s decision in
Motsoaledi
and that of the
Supreme Court of Appeal in
Brompton Court
are clearly
distinguishable on the facts, but, in any event, none of them
detracts from the reasoning, rulings, or findings, of
the majority
judgment of the Constitutional Court in
Pieman’s.
[38]
On the authority of
Pieman’s,
the review brought by the
respondent is “process” as contemplated in
section 15(1)
of the
Prescription Act and
it interrupts the running of prescription
in respect of the award. Accordingly, the appellant’s award
(for reinstatement
and backpay, which is a “debt” as
contemplated in the
Prescription Act) has
not yet prescribed because
the respondent’s application to review that award has not been
finalised.
[39]
While the facts in
Pieman’s
were slightly different from
those in the present matter, they are similar in material respects.
To reiterate, there the majority
of the Constitutional Court
concluded that a claim in terms of the LRA for reinstatement, or
re-employment and/or compensation
was a “debt” as
contemplated in the
Prescription Act and
the prescriptive period was
3-years. While a claim for such relief and an award granting such
relief are conceptually different,
it is rather artificial to
conclude that such a claim is a “debt” in terms of the
Prescription Act, but
that an award, in terms of which such a claim
is granted, is not. In any event, an award made pursuant to a claim
for reinstatement
(or for re-employment, or compensation) also seeks
to enforce a legal obligation and enjoins the employer to do
something positive.
In this instance, to essentially, resuscitate Mr
Majebe’s employment agreement with it and to pay him back-pay.
A quintessential
“debt”, and as contemplated in the
Prescription Act.
>
[40]
More importantly, the Constitutional Court in
Pieman’s
held that a referral to the CCMA interrupts prescription, and
prescription remains interrupted until the finalisation of the
processes
relating to it, which would include the review proceedings
of the award made consequent to the referral.
[40]
In the second judgment in
Myathaza(CC),
the correctness of which was clearly accepted in the majority
judgment in
Pieman’s
,
Froneman J, disagreeing with this Court’s finding in that
matter that the review there did not interrupt prescription,
expressed the view that statutory reviews under
s 145
of the LRA are
to be included as judicial process that interrupts prescription until
the review proceedings are finalised.
[19]
Froneman J, with respect, correctly concluded that an interpretation
that protects the right of access to court is preferable to
one that
does not, and that “[t]his can be achieved by allowing the
right of review to play the same role of finality as
the right of
appeal does in ordinary matters.”
[20]
[41]
That view is confirmed in the amendment to
section 145
of the LRA.
Section 145(9)
provides, in essence, that a review application does
interrupt the running of prescription in respect of an award made in
terms
of the LRA.
[42]
Thus, while the Labour Court was correct in applying this court’s
decision in
Myathaza(LAC
), it erred in its conclusion, as this
court erred, that the review application brought by the respondent
did not interrupt prescription.
In the circumstances, the decision of
the Labour Court cannot stand.
[43]
Unfortunately this Court is not in the position to deal with the
merits of the application brought
by the appellant in terms of
section 158(1)
(c)
of the LRA to make the award an order of the
court, because we were not addressed in that regard. It is therefore
necessary to
refer the matter back to the Labour Court for the
determination of the merits of that application. A referral is
appropriate for
the further reason that the review application that
is still pending in the Labour Court might also be relevant to that
determination,
although that point is still open to debate and
decision.
[44]
Taking all facts and circumstances, as well as the law and fairness,
into account, there shall
be no cost order.
[45]
In the result, the following is ordered:
1.
The late delivery of the notice of appeal and of the record are
condoned and
the appeal is reinstated on the roll.
2.
The appeal is upheld.
3.
The order of the Labour Court, dismissing the appellant’s
application to
make the award an order of the court on the basis that
the award has prescribed, is set aside and is substituted with the
following
order: “
The point of prescription raised by the
respondent is dismissed.”
4.
Unless they agree otherwise, or the appellant elects not to proceed
with its
application to make the arbitration award an order of court,
the parties are referred back to the Labour Court for that court to
deal with the merits of that application.
___________________________
P Coppin
Judge of the Labour
Appeal Court
Phatshoane ADJP and
Kathree-Setiloane AJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT: Mr
Riaz Itzkin
Instructed by Wesley
Pretorius & Assoc. Inc.
FOR THE
RESPONDENT: Mr
M Grobler
Instructed by Bowes
McDougall Inc.
[1]
Act 66 of 1995.
[2]
Myathaza
v Johannesburg Metropolitan Bus Service (SOC) Ltd t/a Metrobus;
Mazibuko v Concor Plant Cellucity (Pty) Ltd v Communication
Workers
Union obo Peters
[2015] ZALAC 45
; (2016) 37 ILJ 413 (“
Myathaza
(LAC
)”).
[3]
Myathaza
v Johannesburg Metropolitan Bus Service (SOC) Ltd t/a Metrobus
[2016] ZACC 49
;
2018 (1) SA 38
(CC);
2017 (4) BCLR 473
(CC)
(“
Myathaza
(CC
)”).
[4]
Mogaila
v Coca Cola Fortune (Pty) Limited
[2017] 5 BLLR 439
(CC); (2017) 38 ILJ 1273 (CC) (“
Mogaila
”).
[5]
Van
Tonder v Compass Group (Propriety) Limited and Others
[2017] 10 BLLR 1024
(LAC) (“
Van
Tonder
”).
[6]
Food
and Allied Workers’ Union obo Goashubelwe v Pieman’s
Pantry (Pty) Limited [
2018]
ZACC 7
;
2018 (5) BCLR 527
;
[2018] 6 BLLR 531:
(2018) 39 ILJ 1213
(CC) (“
Pieman’s
”).
[7]
See inter alia,
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A).
[8]
See and compare, inter alia,
Regal
v African Superslate
1962 (3) SA 18
(A) at 23 C-H and
Saloojee
& Another v Minister of Community Development
1965 (2) SA 135
(A) at 141 B-H.
[9]
Ibid.
[10]
See
Myathaza
(CC)
para 59.
[11]
Referred to in
Mogaila
as “the third judgment”.
[12]
See
Myathaza
(CC)
paras 140-141.
[13]
Ibid para 119.
[14]
Ibid para 43.
[15]
Ibid para 79.
[16]
See
Mogaila
paras 27-29.
[17]
Brompton
Court Body Corporate v Khumalo
[2018] ZASCA 17
;
2018 (3) SA 347
(SCA) (23 March 2018).
[18]
Motsoaledi
and Others v Mabuza
[2018] ZALAC 43
;
[2019] BLLR 21
(LAC).
[19]
See Second judgment in
Myathaza(CC)
para 86.
[20]
Ibid.