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[2015] ZALAC 45
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Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Ltd v CWU obo Peters (JA122/14) [2015] ZALAC 45; (2016) 37 ILJ 413 (LAC); [2016] 1 BLLR 24 (LAC); 2016 (3) SA 74 (LAC) (6 November 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 122/14
In the matter between:
SIZWE
MYATHAZA
Appellant
and
JOHANNESBURG METROPOLITAN BUS SERVICE
(SOC) LIMITED t/a
METROBUS
Respondent
Case no: JA 39/14
In the matter between:
DANIEL
MAZIBUKO
Appellant
and
CONCOR
PLANT
Respondent
Case no: CA 3/14
In the matter between:
CELLUCITY
(PTY)
LTD
Appellant
and
CWU
obo
PETERS
Respondent
Heard:
27 August 2015
Delivered: 6 November 2015
Summary
:
Prescription
of arbitration awards – applicability of the Prescription Act
to arbitration awards prior to the 2015 amendment
of the LRA –
different schools of thought –
HELD-
Prescription
Act applicable to arbitration awards made in terms of the LRA.
regardless of whether it is a compensatory or
reinstatement award
with or without back-pay. Court finding that
an
arbitration award under the LRA is not a judgment debt under the
Prescription Act but a debt subject to a three-year prescriptive
period. - Held that the debt encompassed in the award is due, unless
otherwise indicated in the award upon delivery of the award
and
regardless of whether it is certified. - Held that the running of the
prescription is interrupted by the process whereby the
creditor
claims payment for the debt and that final granting of the order
necessary for the interruption to be successful. –
Held that a
review application and a warrant of execution
do
not interrupt prescription whereas an application to make an award an
order of court does. Appeal in the Cellucity matter is
upheld -
Labour Court’s judgment set aside - Appeal in the other two
matters is dismissed.
Coram:
Musi JA, Coppin JA
et
Makgoka AJA
JUDGMENT
COPPIN JA
[1]
The three matters are all appeals against judgments of the Labour
Court. They were
all argued in one session before us and all deal
with the issue of prescription of arbitration awards made under and
in terms of
the Labour Relations Act (“
LRA
”).
[1]
There have been differences in opinion concerning the applicability
of the Prescription Act (“
the
Prescription Act
”)
[2]
in respect of arbitration awards made under the LRA.
[3]
[2] The appeal of
Myathaza
(Case No JA 122/14) is against the judgment of the Labour Court (Van
Niekerk J). The court
a quo
set aside the award obtained by
the appellant (i.e. the employee) having concluded that the
Prescription Act applies to arbitration
awards made in terms of the
LRA and that the award made in favour of the employee had prescribed
after three years.
[3] Similarly, the appeal
in
Mazibuko
(Case No JA 39/14) was by the employee (appellant
in that case) against the judgment of the Labour Court (Bank AJ)
which found
that the Prescription Act was applicable and that the
award made in favour of the employee had prescribed after three
years.
[4] The appeal in
Cellucity
(Case No CA 3/14) is an appeal by the employer (appellant) against a
judgment of the Labour Court (Rabkin-Naicker J) dismissing
the
employer’s application for a declarator that the award made in
favour of the employee had prescribed. The Labour Court
there held
that the Prescription Act was not applicable to arbitration awards
made in terms of the LRA.
[5]
All of these matters involve arbitration awards made before 1 January
2015 and are
to be decided on the LRA as it stood before the
amendment of section 145 of that Act
[4]
and in particular, before the insertion of section 145(9) into that
section which only applies to arbitration awards made after
1 January
2015. I shall deal in due course with the facts particular to each of
the appeals.
[6] The following issues
are common to all these appeals and arise for determination.
Firstly,
whether the Prescription Act applies to arbitration awards made under
and in terms of the LRA. Secondly, what period of
prescription is
applicable to such arbitration awards? Thirdly, whether an
application brought to review and set aside an arbitration
award
interrupts the running of prescription, or whether such an
application, otherwise, constitutes an impediment to the running
of
prescription as contemplated in section 13(1) of the Prescription
Act.
[7] In respect of two of
the matters, a further issue arises, namely, whether the
certification
of an award, as contemplated in section 143(3) of the
LRA, has an effect on the running of prescription and in respect of
the
Cellucity
appeal, whether the issue of a warrant of
execution on the strength of a certified arbitration award has an
effect on the running
of prescription. Lastly, and in respect of all
matters, and applying the law, whether having regard to their
respective facts,
the appeals ought to be upheld.
[8] I shall now deal with
the issues in turn.
[9]
This Court dealt with prescription of claims under the LRA in at
least two judgments
which are reported, namely,
Solidarity
and Others v Eskom Holdings Ltd (Solidarity
)
[5]
and
SA
Post Office Ltd v Communication Workers Union obo Permanent Part-time
Employees (SA Post Office )
[6]
where
it was held that part of the employees’ claim brought in terms
of the LRA had prescribed in terms of the Prescription
Act. However,
those cases did not deal with arbitration awards and specifically
with the situation where prescription was raised
as a defence to
defeat an employee’s attempt to enforce an arbitration award
after a review had been brought to have it set
aside.
[10] In my view, the broad approach that the
Prescription Act does not apply at all to LRA claims is not
correct.
I am not persuaded that this Court was wrong in its views regarding
the applicability of the Prescription Act, in the
context of deciding
the issues in light of the facts in the
Solidarity
and
SA
Post Office
matters, respectively, but I need not say anything
further about those decisions.
[11] However, it is necessary to consider the
main reasons for the view that the Prescription Act does
not apply to
LRA claims; the approach that it only applies to some kinds of
arbitration award and not to others and the view that
it applies to
all arbitration awards made in terms of the LRA.
[12]
In
Coetzee
and Others v Member of Executive Council of the Provincial Government
of the Western Cape
(“Coetzee”),
[7]
the Labour Court (Rabkin-Naicker J) expressed the same view that was
expressed in the
Cellucity
appeal, namely that the Prescription Act was not applicable to claims
brought in terms of the LRA, irrespective of the delay in
enforcing
the arbitration award. The Court there accordingly rejected an
argument that the award had prescribed, despite the fact
that there
had been a delay of more than three years from the date the
arbitrator ruled that the bargaining council had no jurisdiction
to
entertain the dispute and the referral of that dispute to the Labour
Court.
[13] One of the reasons given for that
decision was that if the Prescription Act applied, there would be
an
inconsistency between the Prescription Act and the LRA. The
contention being that the LRA itself provides for specific periods
for the lodging of claims and for condonation, while the Prescription
Act provides different periods for the prescription of claims
and for
the enforcement of arbitration awards (i.e three years) and for the
enforcement of Labour Court judgments (i.e 30 years).
Facts such as
those, according to the court in
Coetzee,
could cause
difficulties, such as when a delay occurs because an arbitrator’s
ruling necessitates that the matter be referred
to the Labour Court
for review, and if the review succeeds, has to be referred back to
the CCMA. A further reason cited was that
in instances where the LRA
allows for certain disputes to be passed from the CCMA to the Labour
Court, it would make no sense to
stipulate two different (artificial)
periods of prescription, depending on the forum in which the dispute
was to be resolved.
[14] In the
Cellucity
matter the
Labour Court added yet another reason why the Prescription Act should
not be applied to awards made in terms of the
LRA, namely, because
its application would frustrate employees’ rights to fair
labour practices and that this was against
public policy. This being
an adjunct to the viewpoint, that whereas the LRA is based in equity
and fairness, the Prescription Act
is not.
[15]
In
CEPPWAWU
on behalf of Le Fleur v Rotolabel (a division of Bidpaper Plus (Pty)
Ltd
(“
Rotolabel
”),
[8]
the Labour Court (per Van Niekerk J, who also decided the matter of
Myathaza,
which
is one of the appeals before us) identified at least four different
approaches to the question whether the Prescription Act
applies to
any claims under the LRA. Subscribing to the view that the
Prescription Act applied to all arbitration awards made in
terms of
the LRA, irrespective of whether they were for compensation, with, or
without, reinstatement and with, or without, back
pay, the Labour
Court was critical of, and rejected the other approaches.
[16] In particular, with reference to the
view held that by the Court in
Coetzee
and
Cellucity
,
the court in
Rotolabel
noted, regarding the argument that the
LRA provided for its own time periods, that those periods applied to
the pre-arbitration
and pre-adjudication phases and did not apply to
the periods after the statutory dispute resolution processes had been
finalised.
Further, that there was no inconsistency between the two
Acts because the periods in the Prescription Act would apply to the
period
after finalisation of the dispute resolution process and that
the strict time limit in the Prescription Act, namely, three years,
was consistent with one of the main objects of the LRA, which is to
promote the speedy resolution of disputes.
[17]
With regard to the argument of inconsistency in the prescription time
periods provided for by the two
Acts if a dispute were to be passed
from, say the CCMA to the Labour Court, it was held that the solution
was to be found in section
158(1)(c) of the LRA, which empowers the
Labour Court to make any arbitration award an order of court. The
person in whose favour
an award is made is thereby afforded an
opportunity to make an award (which would otherwise have prescribed
under the Prescription
Act in three years) into an order of court
(which would only prescribe in thirty years) and that such a person
would only have
himself or herself to blame if the opportunity to
make the arbitration award an order of court was not made use of.
[9]
[18] The court in
Rotolabel
was
further critical of the views expressed in
Coetzee
and
Cellucity
in light of this Court’s approach in
SA
Post Office
and
Solidarity
in respect of the applicability
of the Prescription Act to the claims in those matters and,
inter
alia,
of the fact that the LRA did not exclude the application of
the Prescription Act. The court also noted that the 2014 Labour
Relations
Amendment Act, which only came into operation on 1 January
2015, fortified its view that the Prescription Act applied to all
awards
issued under the LRA. The court’s view in
Rotolabel
was that if it was not the case, the legislature would not have
enacted the new section 145(9).
[19]
The court in
Rotolabel
also held, following the decision in
POPCRU
obo Sifuba,
[10]
that considerations of equity should not to be brought into account
to determine the application of prescription if a point of
prescription is properly taken by a party; that party would be
entitled as of right to have the plea of prescription upheld.
[20] Counsel for Cellucity in the appeal
before us, relied on the decision of
Rotolabel
and submitted
that the Prescription Act was indeed applicable to arbitration awards
made in terms of the LRA.
Discussion
[21]
In
Road
Accident Fund and Another v Mdeyide,
[11]
Van der Westhuizen J, who wrote the judgment of the Court,
stated that:
‘
Whether
the provisions of the Prescription Act apply is determined by section
16 of the Act. It states that the provisions apply
save insofar as
they are inconsistent with the provisions of any Act of
Parliament…
’
[12]
[22] Section 16(1) of the Prescription Act
deals with the applicability of its Chapter III, which includes
sections 10 to 16 (inclusive) relating to the prescription of debts.
It provides:
‘
(1)
Subject to the provisions of subsection (2)(b), the provisions of
this chapter shall, save
insofar as they are inconsistent with the
provisions of any Act of Parliament which prescribes a specified
period within which
a claim is to be made or an action is to be
instituted in respect of a debt or imposes conditions on the
institution of an action
for the recovery of a debt, apply to any
debt arising after the commencement of this Act.
”
[23] The Prescription Act in its general
chapter (i.e. Chapter IV) contains provisions precluding its
application in specific instances. For example, section 18 provides
that the Prescription Act shall not affect the provisions of
any law
prohibiting the acquisition of land or any right in land by
prescription. Section 20 provides that the Act does not apply
insofar
as any right or obligation of any person is governed by “
black
law
”. But of significance, there is no provision expressly
rendering the Prescription Act inapplicable to arbitration awards
issued under the LRA.
[24]
In
Moloi
and Others v Road Accident Fund,
[13]
it was held that:
‘
Although
section 16 of the Prescription Act is not drafted as clearly as it
might be it is reasonably plain that what is intended
is that the
provisions of Chapter III will apply to all debts save where they are
ousted by the provisions of an Act of Parliament
which is
inconsistent and then only to the extent of the inconsistency.’
[14]
[25] In order to determine the applicability
issue, it is therefore necessary to consider whether an arbitration
award is a “
debt
” as contemplated in section 16 of
the Prescription Act and whether the LRA has in its provisions
specified a period within
which the arbitration award (i.e. if it is
a debt) is to be paid (or satisfied). And if so, whether in that
regard, the provisions
of the Prescription Act (i.e. Chapter III) are
inconsistent with any of those provisions in the LRA.
[26]
If the arbitration award is not a “debt” as contemplated
in section 16(1) of the Prescription
Act that is the end of the
enquiry, because the Prescription Act can only apply to a “debt”
[15]
as contemplated in that Act.
[27] If the arbitration award is a “debt”,
or more specifically, embodies a “debt”
and the LRA has
in its provisions specified a period within which the “debt”
must be paid (or satisfied), but those
provisions are inconsistent
with the provisions of the Prescription Act, then the latter Act will
not be applicable to the arbitration
award issued under the LRA.
However, if the LRA has not specified such a period, or if it has,
but those provisions are not inconsistent
with the provisions in
Chapter III of the Prescription Act, then the latter Act will be
applicable to the arbitration award.
[28] Before I embark on an analysis of those
issues, it is necessary to deal with the purpose(s) of extinctive
prescription.
[29]
In his work, “
Extinctive
Prescription
”,
M Loubser,
[16]
in my view correctly, states that:
‘
The
main object of extinctive prescription is to create legal certainty
and finality in the relationship between the parties after
the lapse
of a period of time, and the emphasis is on the protection of the
defendant against a stale claim that has existed for
such a long time
that it becomes unfair to require the defendant to defend himself
against it. The emphasis is on the protection
of the defendant
because the claimant is responsible for enforcing his right timeously
and must suffer the consequences of failure
in this regard.
Essentially extinctive prescription embodies a desire for finality
and serves the common good by creating
legal certainty in individual
cases.’
[17]
[Footnotes omitted]
[30]
In
Mohlomi
v Minister of Defence,
[18]
Justice Didcott stated the reason for time limits in litigation: He
said:
‘
Rules
that limit the time during which litigation may be launched are
common in our legal system as well as many others. Inordinate
delays
in litigating damage the interests of justice. They protract the
disputes over the rights and obligations sought to be enforced,
prolonging the uncertainty of all concerned about their affairs. Nor,
in the end is it always possible to adjudicate satisfactorily
on
cases that have gone stale. By then witnesses may no longer be
available to testify. The memories of ones whose testimony
can
still be obtained may have faded and become unreliable. Documentary
evidence may have disappeared.
Such
rules prevent procrastination and those harmful consequences of it.
They thus serve a purpose to which no exception in principle
can
cogently be taken
.’
[19]
(emphasis
added)
[31]
In
Uitenhage
Municipality v Malloy,
[20]
Mahomed CJ said the following about the purposes of the Prescription
Act:
‘
One
of the main purposes of the Prescription Act is to protect a debtor
from old claims against which it cannot effectively defend
itself
because of loss of records or witnesses caused by the lapse of time.
If creditors are allowed by their deliberate or negligent
acts to
delay the pursuit of their claims without incurring the consequences
of prescription that purpose would be subverted.’
[21]
[32] In
Road Accident Fund and Another v
Mdeyide,
Justice Van der Westhuizen stated with regard to the
purpose and necessity of time limits, the following:
‘
This
Court has repeatedly emphasised the vital role time limits play in
bringing certainty and stability to social and legal affairs
and
maintaining the quality of adjudication. Without prescription
periods, legal disputes would have the potential to be
drawn out for
indefinite periods of time, bringing about prolonged uncertainty to
the parties to the dispute. The quality of adjudication
by courts is
likely to suffer as time passes, because evidence may have become
lost, witnesses may no longer be available to testify,
or their
recollection of events may be faded. The quality of adjudication is
central to the rule of law.’
[22]
[Footnote
omitted]
[33] A common thread to be found in the above
quotations is that prescription,
per se
, is justified and
necessary. It is clear from section 16(1) of the Prescription Act
that every debt, contemplated in that section,
must in our law
prescribe within a certain period. If the Act of Parliament under
which the debt resides does not prescribe that
period, then the
Prescription Act is applicable and it prescribes within that period.
Prescription is based on considerations of
fairness and equity and it
is therefore not correct to argue that prescription is inconsistent
with such considerations. Those
hallowed concepts do not only apply
to one party, but apply to all parties including employers and
employees.
Is an arbitration award issued under the LRA a “debt”
as contemplated in the Prescription Act?
[34]
One of the approaches identified by the court in
Rotolabel
was that adopted in
Circuit
Breakers Industries Limited v National Union of Metal Workers of
South Africa obo Hadebe and Others
(“Circuit
Breakers”)
[23]
where the application of the Prescription Act was merely limited to
awards granting compensation and not regarded as applicable
to orders
of reinstatement. The court in
Circuit
Breakers
was
not content with an arbitration award
per
se
being a “debt”, but looked at the nature of the relief in
the award. While the court regarded an award of compensation
as a
“debt” as contemplated in the Prescription Act, it
regarded the award of reinstatement as an order of specific
performance under the common law, but not as a “debt” in
terms of the Prescription Act.
[35] The term “debt” is not
defined in the Prescription Act, but courts have held that the
term
should be given a broad and general meaning.
[36]
In
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd (Electricity
Supply Commission),
[24]
it was held that a “‘
debt
”
means “
that
which is owed or due; anything as money, goods or services which one
person is under an obligation to pay or render to another
”.
[37]
In an earlier decision,
Leviton
and Son v De Klerk’s Trustee,
[25]
which was cited with approval in the
Electricity
Supply Commission
case,
‘
debt
’
was held to be “
whatever
is due – debitum – from any obligation
”.
[38]
In a more recent decision,
Desai
NO v Desai,
[26]
it
was held that the term “
debt
”
has a wide and general meaning and includes an obligation to do
something or refrain from doing something.
[39] In a number of decisions of the Labour Court,
which are referred to in
Rotolabel,
it has been held that all
arbitration awards for compensation and /or reinstatement with, or
without, back pay, were “
debts”
as contemplated in
the Prescription Act.
[40] Treating a compensation award
differently from a reinstatement award appears to be erroneous in
light
of the wide general meaning to be given to the term “
debt
”.
Both those kinds of award impose obligations on the person of entity
against whom the award is made. That person or entity
has an
obligation to pay compensation and/or to reinstate as stated in the
award. The award creates a “
debt
” for that person
and/or entity.
[41] In my view any arbitration award that
creates an obligation to pay or render to another, or to do
something, or to refrain from doing something, does meet the
definitional criteria of a ‘
debt
’ as contemplated
in the Prescription Act.
[42] Generally, arbitration awards pertaining
to unfair dismissals, in which compensation and/or reinstatement,
with or without back pay are awarded, shall constitute ‘
debts
’
as contemplated in the Prescription Act.
Does the LRA prescibe a period within which the arbitration awards
made under theLRA are to be paid, recovered or satisfied?
[43] It is clear from a close reading of the
LRA that even though it stipulates timeframes in relation
to
arbitration awards, those timeframes are primarily of application to
the stage prior to the making of the award. There is no
provision in
the LRA which prescribes a period or time limit within which the
arbitration award is to be executed, or within which
the “
debt
”
embodied in, or represented by, the award is to be recovered or
enforced. There is therefore in my view nothing inconsistent
in the
LRA and the Prescription Act regarding the imposition of a
prescriptive period in respect of the execution or enforcement
of
arbitration awards, which constitute “debts” as
contemplated in the Prescription Act.
[44] In those circumstances, on a proper
construction of section 16(1) of the Prescription Act, the provisions
of Chapter III of that Act “
shall
” apply to
arbitration awards that constitute “debts” as
contemplated in that Act.
[45] Having determined that arbitration awards,
generally, constitute “debts” as contemplated in
the
Prescription Act and that the provisions of Chapter III of the
Prescription Act will be applicable to them, it needs to be
determined what prescriptive period would be applicable to such
“debts”.
[46] The period is dependent on whether an
arbitration award constitutes “
a judgment debt
”,
in which case a 30 year prescription period would be applicable, or a
simple “
debt
”, in which case a three year
prescriptive period would be applicable.
[47] The argument raised on behalf of the
appellant in the
Cellucity
appeal and by the respondents in
the other two appeals is that the respective arbitration awards would
be simple “debts”
and not “judgment debts” as
contemplated in the Prescription Act and would thus be subject to a
prescriptive period
of three years. On the other hand, it was argued
on behalf of the appellants in the matters of
Myathaza
and
Mazibuko
that the awards in those matters are “
judgment
debts
” and therefore have a 30 year prescriptive period.
[48]
Counsel for the appellant, in the
Myathaza
appeal, submitted with reference to a number of decisions referred to
below, that because “
our
courts consider an arbitration award as a ‘judgment’”
and
the term has been used “interchangeably” with the term
“award”, an arbitration award is therefore a
“judgment
debt”.
[27]
In my view, this argument is based on a misreading of those
decisions. There are significant differences between judgments and
orders of court and arbitration awards. Using those terms
interchangeably does not make one into the other.
[49] Those decisions are also distinguishable on
their facts. None of them were concerned with whether an arbitration
award, let alone an arbitration award made in terms of the LRA,
constituted a “
judgment debt”
as contemplated in
the Prescription Act. Using the terms “award” and
“judgment” interchangeably, does not
clothe one with the
unique characteristics of the other.
[50]
In
Blaas
v Athanassiou,
[28]
the court (possibly
obiter
)
accepted as an argument, that because a clause in a arbitration
agreement specifically provided that
inter
partes
the award had the status of an order of court, the prescriptive
period applicable to court orders (i.e. namely thirty years) was
applicable to the award.
[29]
But that decision is also distinguishable from the facts of the
appeals before us. The arbitrations in terms of the LRA are different
from private arbitrations. They are not conducted in terms of the
provisions of the LRA.
[51] The LRA clearly distinguishes between
arbitration awards and court orders made in terms of that Act.
Although section 143(1) of the LRA provides that an arbitration award
issued by a Commissioner is final and binding and may be
enforced as
if it were an order of court (unless it is an advisory arbitration
award) and although, in terms of section 143(2),
if it is for the
payment of a sum of money, it attracts interest like in a judgment
debt, section 143(3) provides that it may only
be enforced as
contemplated in section 143(1) (i.e. as if it were a court order), if
the director has certified that it is an award
as contemplated in
section 143(1).
[52]
Furthermore, an arbitration award in terms of the
LRA is not subject to an appeal like a judgment or order
of the
Labour Court, but it is subject to review. In contrast, an order of
judgment of the Labour Court is not subject to review.
[30]
A court order or a judgment also does not require certification for
its execution.
[53] Unequivocal confirmation that an
arbitration award is not equal to (or equivalent to) an order, or
judgment of the Labour Court is provided by section 158(1)(c) of the
LRA, which empowers the Labour Court to make “
any
arbitration award an order of court
”. If they were the same
thing, section 158(1)(c) would be totally superfluous.
[54] In the circumstances, to give the term
“
judgment debt
” in the Prescription Act a meaning
which includes “
arbitration awards
” made under the
LRA, would unduly strain the language of the Prescription Act. Orders
or judgments of the Labour Court would
clearly fall within that
meaning, but not arbitration awards made under the LRA, which differ
from Labour Court orders and judgments
in significant respects.
[55]
Even though, generally, an arbitration award under the LRA is not a
“
judgment
debt
”
under the Prescription Act, it comfortably satisfies the definitional
criteria of a mere “
debt
”
under that Act. The other categories of debt in the Prescription Act
are clearly not applicable. Accordingly, a three year
prescriptive
period is applicable to such arbitration awards (i.e. the debts
embodied in them) generally. That is, in the absence
of an Act of
Parliament providing otherwise.
[31]
[56] In terms of section 10(1) of the
Prescription Act, subject to the provisions of Chapters III and IV
of
that Act, a debt shall be extinguished by prescription after the
lapse of the period which, in terms of the relevant law, applies
in
respect of the prescription of such a debt.
[57] Section 12 of the Prescription Act
stipulates when prescription begins to run and provides, in essence,
in section 12(1) that prescription commences to run as soon as the
debt is “
due
”.
When is the debt “due” in respect of an arbitration
award made under the LRA?
[58]
A debt is due “
when
the time arises for the performance by the debtor of the
obligation…
”.
[32]
[59] The inception of prescription in respect
of such awards depends on the wording of the award. It will
generally
be clear in respect of the time for the performance by the debtor of
the obligation(s) embodied in it. The debt embodied
in, or
represented by the award, is generally due, unless the award provides
otherwise, upon the issue or handing down of the award.
The general
position will thus be that a person or entity in whose favour it is
made may immediately, unless the award provides
otherwise, claim
satisfaction of the debt embodied in the award.
[60]
Section 143(3) of the LRA provides that an arbitration award may only
be enforced in terms of section
143(1), i.e. as if it were an order
of the Labour Court, if the director has certified that it is an
arbitration award as contemplated
in section 143(1)
[33]
.
[61] The question that immediately arises,
with particular reference to the appeals before us, is whether
the
certification, contemplated in section 143(3) of the LRA, affects the
inception of prescription in respect of the award, or
more
particularly, whether the lack of certification of an award means
that the award, or more specifically the “debt”
embodied
in the award, is not due.
[62]
The certificate is merely required to enforce arbitration awards as
if they were orders of the Labour
Court.
[34]
But compliance with the award is not delayed pending certification.
Performance by the debtor of the obligation(s) embodied in
the reward
is not dependent upon, or subject to, the certification contemplated
in section 134 of the LRA.
[63] Certification therefore has nothing to
do with whether the award is due or not, but is part of the
process
of executing an award as if it is an order of the Labour Court.
[64] We were not specifically addressed on
whether the issue of a warrant of execution on the strength
of a
certified award interrupts the running of prescription in respect of
the award. It is however a feature of the
Cellucity
appeal and
requires to be dealt with, albeit, very briefly. In terms of section
143 of the LRA, properly construed, a warrant of
execution may be
issued on the strength of an award for the payment of money (i.e.
ad
pecuniam solvendam
). Although this may be a necessary step to
obtain satisfaction of the award, it does not interrupt the running
of prescription
in respect of the award, because it is not a
“process” as envisaged in section 15 of the Prescription
Act, which deals
with the judicial interruption of prescription. In
order for it to constitute the “process” envisaged in
that section,
it must result in a “final judgment”,
because the section provides that in order for the “process”
to effectively
interrupt prescription, the creditor must
“successfully prosecute his claim under the process in question
to final judgment”.
[65]
Section 13 of the Prescription Act deals with the delay in the
completion of prescription in certain
circumstances. In my view, it
does not apply here. The reliance by some of the parties before us on
section 13(f) of the Prescription
Act, which provides that there
would be a delay in the case where “
the
debt is the object of a dispute subjected to arbitration
”
is misplaced. This is because an arbitration award itself is the
debt, but is not the object of the dispute subjected to
arbitration.
The arbitration award is the final outcome of the arbitration and it
replaces the original debt which was the object
of the dispute
subjected to arbitration.
[35]
[66] Section 14 of the Prescription Act
provides that prescription of a debt shall be interrupted by an
acknowledgment (be it tacit or express) of liability by the debtor.
The application of the section does not require consideration
here
because of the facts of the appeals before us. However, the appeals
require us to consider the application of section 15 of
the
Prescription Act which deals with the judicial interruption of
prescription.
The interruption of prescription
[67] The questions that arise for
determination in this regard are whether an application to make an
arbitration
award made in terms of the LRA, an order of court,
interrupts prescription and, also more importantly, whether an
application to
review an arbitration award made and issued in terms
of the LRA (i.e. before 1 January 2015) interrupts prescription of
the arbitration
award.
[68] Section 15(1) of the Prescription Act
provides that the running of prescription shall, subject to
the
provisions of section 15(2), “
be interrupted by the service
on the debtor of any process whereby the creditor claims payment of
the debt
”. It is important to note that for the
prescription to actually be interrupted, the creditor must
“
successfully prosecute his claim under the process in
question to final judgment
”. If he does not and the debtor
does not acknowledge liability, prescription shall not be deemed to
have been interrupted.
[69] An amendment to section 145 of the LRA
inserts,
inter alia,
a new section 145(9) which provides that
“
an application to set aside an arbitration award in terms
of this section interrupts the running of prescription in terms of
the
Prescription Act, 1969 (Act No 68 of 1969) in respect of that
award
”.
[70] Section 145(10) of the LRA as amended,
which is also a new insertion provides,
inter alia,
that
section 145(9) only “
applies to an arbitration award issued
after such commencement date
”. The commencement date is 1
January 2015.
[71] It is thus clear what the position is in
relation to reviews for the setting aside of awards issued
after 1
January 2015 is, because the LRA in section 145(9) now specifically
provides that such reviews interrupts the running of
prescription in
terms of the
Prescription Act. However
, the issue to be decided
pertains to the position regarding awards issued prior to 1 January
2015 (i.e. prior to the amendment
or the commencement of the
amendment), when there was no operative provision in the LRA to the
effect that an application to set
aside an arbitration award
interrupts the running of prescription.
[72] I agree with the argument that it is not
correct to utilise the amendment as justification or fortification
for the view that the position in the amendment was always the
legislative intent or purpose. The Legislature may simply have had
nothing to say on the matter before that or may have been content
with the strict position under
section 15
of the
Prescription Act, or
may since have changed its mind on the matter, hence the amendment.
It is noteworthy that the amendment is expressly not retrospective.
[73]
Section 15(1)
of the
Prescription Act is
unambiguous and it is plain that a review to set aside an award is
not “
process
whereby the creditor claims payment of
the debt
”. On the contrary, it is a process whereby the
debtor seeks to set aside the debt. Such a review, therefore, does
not interrupt
prescription.
[74] But for the amendment contained in
section 145(9)
, the same principle would have pertained to reviews in
respect of awards made after January 2015.
Section 145(9)
makes, or
introduces, a special exception, but it is not retrospective and
cannot be applied to reviews in respect of awards issued
before 1
January 2015.
[75]
In any event, it has long been recognised in our law that a creditor
cannot “
by
his conduct postpone the commencement of prescription.
”
[36]
Thus a creditor cannot by his own conduct in bringing a review
application, interrupt or postpone the running of prescription in
respect of the award, unless the law provides otherwise, as is the
case under the amendment.
[76] An application to make an arbitration
award an order of court could however be construed as a “
process
whereby the creditor claims payment of the debt
”. It is the
substance rather than the form of the application that matters. By
bringing such an application, the creditor
is in effect asking the
court to order the debtor to pay the debt (represented by the award).
[77]
The application to make an award a court order will interrupt
prescription by its mere service on the
debtor. But for it to
actually and effectively interrupt prescription, the creditor will
have to prosecute his claim under that
process to final judgment.
[37]
[78]
In argument, counsel pointed to the fact that where a review is
pending, the Labour Court is not likely
to make the award an order of
court. That may be the case, as was discussed by the Labour Court in
Rotolabel
and
POPCRU
obo Sifuba ,
[38]
amongst
others, but there is nothing preventing a debtor to, at any time
after the issue of the arbitration award, and before its
prescription, bring an application to make such an award an order of
court.
[79] The review is not a bar to the bringing
of an application to make the award an order of court. In
addition,
it is also important to note that it is not the granting of the order
in such an application that will trigger the deemed
interruption of
prescription, but the mere service of the application for such an
order, although the final granting of the order
is necessary for the
interruption to be successful in the end.
[80] I now turn to consider the facts of each of
the appeals.
Re
Sizwe Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited
t/a Metrobus
(Appeal Case JA 122/14
)
[81] For the purposes of deciding the point
of prescription, the following facts are relevant: The appellant
was
employed by the respondent as a bus driver in May 2001. On 20
September 2007, he was suspended pending an investigation into
ticketing irregularities. In terms of an agreement entered into by
the two unions, that is IMATU and SAMWU, with the respondent,
all
employees charged for ticketing irregularities were to return to
work. The appellant failed to return to work.
[82] The appellant was charged with
unauthorised absenteeism and, subsequently as a result, dismissed on
9 July 2008. He referred the dispute to the South African Local
Bargaining Council (SALBC) for conciliation and arbitration.
Following
an arbitration in that forum, the arbitrator issued an
award in favour of the appellant on 17 September 2008.
[83] The arbitrator found that the
appellant’s dismissal was both substantively and procedurally
unfair and she ordered the respondent to reinstate the appellant with
full retrospective effect. The award, in which the appellant
is
referred to as “
the applicant
”, reads as follows:
‘
The
applicant’s dismissal was both substantively and procedurally
unfair. The respondent City of Johannesburg (Metrobus) is
ordered to
reinstate the applicant, Sizwe Myathaza, with retrospective effect
from his date of dismissal, 9 July 2008 on the same
terms and
conditions that were applicable but for his unfair dismissal and
without any loss of benefits that would have accrued
to him.
The applicant is ordered to
submit valid proof of his remuneration to calculate the back pay
payable to him in terms of this award,
within five days of receipt of
this award.
The applicant is ordered to
report to work within five days of receipt of this award.
No
costs order is made…
’
[84] In a supplementary award, which is also
dated 17 September 2009, the arbitrator calculated the actual
amount
of back pay which the respondent had to pay the appellant. According
to the supplement, the respondent was to pay the appellant
an amount
of R90 747,86 (less the statutory tax that was payable on such
amount) within 14 days from the receipt of the award.
[85] It does not appear
ex facie
the
award that either the main award or the supplementary award had been
certified as contemplated in
section 143(1)
of the LRA.
[86] On 21 October 2009, the respondent
delivered an application in terms of
section 145
of the LRA to review
and set aside the award. The appellant opposed the application. All
affidavits and heads of argument were
filed and the matter was ripe
for hearing.
[87] On 27 August 2013, the appellant
delivered an application in terms of
section 158(1)(c)
of the LRA to
make the award an order of court. The respondent opposed the
application on two grounds namely that the application
to review the
award was still pending and that the award had prescribed after three
years (i.e. by 16 September 2012).
[88] The appellant, in a replying affidavit,
averred in essence, that the award was for reinstatement and
not for
monetary compensation; that the only debt that flows from the
reinstatement order was the order relating to the payment
of back
pay. It was also averred, that the reinstatement order had the effect
of restoring the contract of employment as if no
dismissal had
occurred. And that the non-payment by the respondent of the
remuneration and other benefits, the appellant was entitled
to by
virtue of his reinstatement, amounted to a breach of contract giving
rise to an independent cause of action, which “
results in a
series of ‘debts’ arising from month to month”
;
otherwise the reinstatement order itself was not a “
debt
”.
Counsel for the appellant argued that the order “
does not
give rise to new rights and obligations as it merely restores the
rights and obligations that are contained in the contract
of
employment which was unfairly terminated by the employer
”.
[89]
The matter was set down for hearing on 9 October 2014. The Labour
Court (Van Niekerk J), essentially
adopting the same reasons or views
expressed in
Rotolabel,
rejected the appellant’s argument that the order for
reinstatement was not a “debt”. The court held that an
arbitration award under the LRA was a “debt” for the
purposes of the
Prescription Act, irrespective
of whether it was an
award for reinstatement or compensation. The Labour Court in
Rotolabel
,
had referred and relied on what was held in the
Electricity
Supply Commission
case
[39]
regarding the meaning of “
debt
”,
and what
Loubser
had said about the use of the word “
debt
”
in the
Prescription Act
[40
]
namely, that it is used primarily to describe the “
correlative
of a right or claim to some performance, in other words as the duty
side of an obligation…produced by a contract,
delict, unjust
enrichment, statute or other source
”.
The court in
Rotolabel
also relied on a similar conclusion of J S Saner.
[41]
[90] The court
a quo
upheld the point
of prescription, having found that the arbitration award issued in
favour of the appellant had prescribed, and
consequently dismissed
the appellant’s application to make the award an order of
court.
[91] In his application for leave to appeal
against that decision, the appellant essentially alleged that
the
court
a quo
had erred in finding that an arbitration award
constitutes a “
debt
” under the
Prescription Act;
and
that it prescribes within three years after publication; and in
coming to the same conclusions as in
Rotolabel
. The appellant
stated that the court
a quo
“
ought to have held that
an arbitration award for reinstatement is a restoration of a contract
of employment…
” and that “
an award for
reinstatement does not constitute an obligation sounding in money,
goods or services
”.
[92] In argument before us, counsel for the
appellant submitted that: the
Prescription Act did
not apply; that an
arbitration award was not a “
debt
” for the
purposes of the
Prescription Act; that
if it was a “
debt
”,
it was a “
judgment debt
” that prescribed after 30
years; that even if it was a “
debt
” that
prescribed after three years, an application to review the award
interrupted prescription; that in any event, prescription
ran from
month to month, meaning that a portion of the appellant’s claim
“
remains alive and enforceable
”; and, lastly, that
“
that there are public policy and interest of justice
considerations that militate against prescription of a reinstatement
arbitration
award
”. The appellant also moved to make the
award for reinstatement and the payment of back pay an order of
court.
[93] I have dealt with these arguments
earlier and each of them stands to be rejected in light of what
I
have stated earlier. The
Prescription Act applies
to all “
debts
”.
The arbitration award in question is a “
debt”
as
contemplated in the
Prescription Act. It
creates an obligation(s).
The employer has (in terms of the award) an obligation to reinstate
on the terms stated by the Court,
including paying the back pay. It
is not a “
judgment debt”,
but merely a “
debt
”.
In terms of the
Prescription Act, a
three year prescriptive period
applies. The application for review did not interrupt prescription.
While an application to make
an award an order of court does
interrupt prescription, at the time the appellant brought that
application the period of prescription
had already run, i.e. the debt
(embodied in the award) had already been extinguished by
prescription. There is no public policy
or interest of justice
considerations that militate against prescription being applicable to
an award for reinstatement. On the
contrary, there are compelling
public policy and interest of justice considerations that justify the
prescription of such awards.
The obligation to reinstate the
appellant and to pay him back pay became due at the time the award
was issued, i.e. published.
Prescription began to run from then on
and the “debt” became prescribed after three years.
[94] In the circumstances,
the court
a quo
correctly held that the arbitration award issued in favour of the
appellant (
Myathaza
)
had prescribed and consequently, correctly dismissed the application
to make the award an order of court. The appeal therefore
stands to
be dismissed.
Re
the appeal of Mazibuko v Concor Plant
(Appeal
Case No JA 39/14
)
[95] The appellant in this matter, Mr
Mazibuko, was employed by the respondent, which operates in the
building and civil engineering sector, until his retrenchment by the
respondent on 24 April 2009.
[96] Mr Mazibuko referred a dispute of unfair
dismissal to the CCMA. After arbitration proceedings in that
tribunal, the arbitrator (i.e. the Commissioner) issued an
arbitration award in favour of Mr Mazibuko on 24 September 2009. The
Commissioner found that his dismissal was substantively unfair. The
Commissioner did not order reinstatement but merely awarded
Mr
Mazibuko monetary compensation. In terms of the award, the respondent
was to pay Mr Mazibuko an amount of R21 000,00, being
the equivalent
of seven months’ salary within 14 days of receipt of the award.
[97] The respondent delivered an application
to review the award on 19 November 2009. The award was filed
together
with the record of the arbitration proceedings on 7 September 2010.
The appellant delivered its answering affidavit to
the review on 5
October 2010. After an application for condonation was filed on 25
January 2012 by the respondent for the late
filing of the notice and
the record, the review application was set down for hearing on 2
February 2012.
[98] On that occassion, a postponement was
granted in favour of the appellant to enable him to file the
necessary papers opposing the application for condonation, or
alternatively, to bring an application to dismiss the review.
Answering
and replying affidavits, respectively, were filed. The
respondent applied on 26 April 2012 to the Registrar to enrol the
matter
for hearing. The date allocated for hearing was 10 January
2013.
[99] On 10 December 2012, the respondent
delivered an application for the dismissal of the appellant’s
claim on the grounds that it had prescribed. The appellant did not
oppose that application, but, instead, on 22 December 2012,
delivered
an application to make the arbitration award an order of the court
and also filed a response to the respondent’s
application for
condonation.
[100] On 9 January 2012, the respondent opposed the
appellant’s application for the dismissal of the review and
his
application to make the award an order of court and filed a reply in
respect of the condonation application.
[101] All these matters first came before the Labour
Court (Bank AJ) on 10 January 2013, but were postponed to 25 January
2013 to allow the parties to submit written heads of argument in
respect of the prescription issue and costs.
[102] These matters were then argued before the Labour
Court on 25 January 2013 and judgment was handed down on 18
July
2013. The court
a quo
held that the applicant’s
arbitration award had prescribed on 8 October 2012. The appellant’s
application to dismiss
the respondent’s review application was
also dismissed.
[103] The court
a quo,
sympathising with appellant
about this “
hard
” outcome, remarked that he ought
to have been advised at the earliest date to
inter alia
, apply
to make the award an order of court. When he eventually brought an
application to dismiss the review, which included a prayer
to make
the arbitration award an order of court, it was too late, because the
award had already prescribed about three months earlier.
To interrupt
prescription that application ought to have been brought before 8
October 2012.
[104] The court
a quo,
accordingly, upheld the
respondent’s application in terms of
Rule 11
, for the
appellant’s claim (in terms of the award) to be dismissed on
the grounds that it had prescribed. The court
a quo
made no
order as to costs.
[105] The court
a quo
granted the appellant leave
to appeal to this Court on a narrow point relating to prescription,
in particular, in respect of whether
the “
debt
”
was proven to be due. The court
a quo
rejected arguments that
the award was a “
judgment debt
” and also rejected
the appellant’s reliance on
section 13(1)(f)
of the
Prescription Act and
arguments that the service of the award had
interrupted prescription.
[106] Before us the appellant’s attorney argued
that the
Prescription Act did
not apply because it was inconsistent
with the LRA; alternatively that an arbitration award made in terms
of the LRA, even though
not appealable, was the “
equivalent
of a judgment or order of any court of law and not merely a claim
”;
that at worst, it was a “
judgment debt
” that
prescribed after 30 years.
[107] The appeal is opposed and contradicting argument
was advanced. I have traversed the appellant’s arguments
earlier. They do not stand up to scrutiny. In my view, the court
a
quo’s
decision is unassailable and the appeal stands to be
dismissed.
Re
Cellucity (Pty) Ltd v CWU obo Peters
(Appeal
No CA 3/14
)
[108] The appellant in this matter, Cellucity, dismissed
Mr Peters, its employee for unauthorised absenteeism on 3
June 2009.
[109] Mr Peters caused the dispute to be referred to the
CCMA which found that his dismissal was substantively unfair
and an
award dated 4 September 2009 was handed down on 9 September 2009
directing the appellant to pay Mr Peters an amount of R42
000,00 as
compensation.
[110] On 21 October 2009, the appellant brought an
application to review the arbitration award. The actual relief sought
by the appellant was an order in the following terms:
‘
1.
That it is to be declared that
the respondent is not entitled in terms of the arbitration
award
handed down by arbitrator S Bhana of the CCMA dated 4 September 2009
under case number WECT9584/09, on the basis that it
has become
prescribed;
2.
That it be declared that the warrant of execution issued by the court
on 12 July 2010
under case number WECT9584/09 be finally set aside;
3.
Granting such further and/or alternative relief for the applicant as
may be deemed
meet;
4.
That those parties who
opposed the granting of this application be ordered to pay
the costs
thereof.
’
[111] The application was not opposed and was heard and
dismissed by the Labour Court on 6 November 2012.
[112] In the meantime, on 12 July 2010, the respondent
had caused a writ of execution to be issued against the appellant.
The appellant then brought another application in the Labour Court
during about January 2013 declaring that the award had become
prescribed and for the setting aside of the writ. The Labour Court
(Rabkin-Naicker) dismissed the application and this is the decision
on appeal before us.
[113] The Labour Court, in essence, held that that the
Prescription Act was
not applicable to arbitration awards made in
terms of the LRA. I have already dealt with the reasons for rejecting
this approach
at the outset of this judgment.
[114] There was no appearance for the respondent at the
appeal and no heads of argument had been filed by him or on
his
behalf.
[115] In light of what I had stated at the outset, the
Prescription Act is
clearly applicable to the award. Nothing was done
to interrupt prescription of the “debt” embodied in the
award, which
was due since 9 September 2012. Certification of the
award and the issuing or service of the warrant
per se,
did
not interrupt prescription. The award is a debt to which a
prescriptive period of three years applied and the award had
prescribed
by 9 September 2012.
[116] The appeal stands to be upheld. In my view, there
is no reason why the application for a declarator that the
award had
prescribed, and for the setting aside of the warrant, should not have
succeeded.
[117] In respect of all three appeals, all parties
involved were in agreement that there should be no costs order
irrespective of the outcome of any of these appeals. In my view, in
light of the circumstances of these matters, the approach is
fair.
[118] In the result, the following is ordered:
1.
Re
Sizwe Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited
t/a Metrobus
(LAC
JA 122/14)
The appeal is dismissed.
2.
Re
Daniel Mazibuko v Concor Plant
(LAC
JA 39/14)
The appeal is dismissed.
3.
Re
Cellucity (Pty) Ltd v CWU obo Peters
(LAC CA
3/14)
3.1
The
appeal is upheld.
3.2
The
order of the court
a
quo
dismissing the application is set aside and substituted with the
following order:
“
The order sought in terms of paragraphs
1 and 2 of ‘the notice of motion’ dated 23 January 2013
is granted.
”
_____________________
P Coppin
Musi JA
et
Makgoka AJA concur in the judgment of Coppin JA.
APPEARANCES
In the
Myathaza
matter
FOR THE APPELLANT:
Adv V R Ngalwana
SC and Adv Mbelle and Adv R Naidoo
Instructed by Ndumiso Voyi Attorneys
FOR THE RESPONDENT:
Adv W Hutchinson
Instructed by Moodie and Robertson
In the
Mazibuko
matter
FOR THE APPELLANT:
Mr M E S Makinta
of Makinta Attorneys
FOR THE RESPONDENT:
Adv L Charoux
Instructed by Stanley Moldt Attorneys
In the
Cellucity
matter
FOR THE APPELLANT:
Mr S Snyman of Snyman
Attorneys
FOR THE RESPONDENT:
No appearance
[1]
The
Labour Relations Act No. 66 of 1995
.
[2]
The
Prescription Act No. 68 of 1969
.
[3]
J
Grogan in an article “
The
Sands of Time: Prescription and the LRA
”
Employment
Law
Vol 31,
Part 1
, February 2015, reviews the differing opinions as
they pertain in the Labour Court. The author identifies the various
approaches
taken by the Labour Court in different matters.
[4]
By the
Labour Relations Amendment Act No. 6 of 2014.
[5]
(2008)
29 ILJ 1450 (LAC).
[6]
[2013]
12 BLLR 1203
(LAC).
[7]
(2013)
34 ILJ 2865 (LC).
[8]
[2015]
2 BLLR 147 (LC).
[9]
See
also
POPCRU
obo Sifuba v Commissioner of the SAPS and Others
(“
POPCRU
obo Sifuba”)
(2009)
30 ILJ 1309 (LC);
[2009] 12 BLLR 1236
(LC) at para 30.
[10]
Supra.
[11]
2011
(2) SA 26 (CC).
[12]
At
para 43.
[13]
2001
(3) SA 546 (SCA).
[14]
At
para 13.
[15]
Or
more specifically, to the kinds of “debt’ specifically
contemplated in the
Prescription Act.
[16]
M
Loubser
Extinctive
Prescription
(Juta & Co 1996).
[17]
At 33.
[18]
1997
(1) SA 124 (CC).
[19]
At
para 11.
[20]
(1998)
19 ILJ 757 (SCA).
[21]
At 13.
[22]
At
para 8. See also
Brummer
v Minister for Social Development and Others
2009 (6) 323 (CC) at para 51; and
POPCRU
obo Sifuba
at
paras 28-30 (inclusive).
[23]
(2014)
35 ILJ 1261 (LC).
[24]
1981
(3) SA 340
(A) at 344F-G.
[25]
1914
CPD 685
at 691 and following.
[26]
[1995] ZASCA 113
;
1996
(1) SA 141
(A) at 146H-147A.
[27]
Counsel
for the appellants in
Myathaza
referred to
Die
Akademik Fyodorov: Government of the Russian Federation and
Another v Marine Expeditions Inc
1996
(4) SA 422
(C) at 446E-I;
MV
Yu Long Shan: Drybuck SA v MV Yu Long Shan
1998
(1) SA 646
(SE) at 655A;
Manning
v Metro Nissan – A Division of Venture Motor Holdings Ltd and
Another
(1998) 19 ILJ 1181 (LC) at para 55;
Armstrong
v Tee and Others
(1999) 20 ILJ 2568 (LC) at para 22;
Volkswagen
SA (Pty) Ltd v Brand NO and Others
(2001)
22 ILJ 1993 (LC) at para 110;
Balasana
v Motor Bargaining Council and Others
(2011) 32 ILJ 297 (LC) at para 10.
[28]
1991
(1) SA 723
(W) at 725H-I.
[29]
Also
referred to in
POPCRU
obo Sifuba
at
para 32.
[30]
Even
if it was made by the Labour Court pursuant to the proceedings
contemplated in
section 159(2)(b)
of the LRA. See
SAA
v Jansen-Van Vuuren and Another
(2014)
35 ILJ 2774 (LAC).
.
Also
compare
Kilroe-Daley
v Barclays National Bank Ltd
1984 (4) 609 (A) at 629F-I.
[31]
See
section 11(d)
of the
Prescription Act 68 of 1969
.
[32]
See
Uitenhage
Municipality
v
Malloy (supra
).
[33]
This
Court was not addressed on the position after the amendment of
s143
by
s20
of Act No. 6 of 2014. Accordingly the judgment only deals
with that section as it read before such amendment.
[34]
See
section 143(3) read with
section 143(1)
and
143
(4) of the
Labour
Relations Act.
[35]
See
POPCRU
obo Sifuba
(supra)
at para 32.
[36]
See
Uitenhage
Municipality v Malloy (supra
)
where the court referred with approval to what had been said in that
regard in
Benson
and Another v Walters and Others
1981 (4) SA 42
(C) at 49G and in
The
Master v IL, Back and Co Ltd and others
1983 (1) SA 986
(A)
at
1005G.
[37]
An
acknowledgement of liability by the debtor will also interrupt
prescription. See
sections 14
and
15
of the
Prescription Act.
[38
]
Supra
at
pages 1244-1245 at paras 34-35 inclusive.
[39]
(
Supra
)
at 344F-G.
[40]
See M
Loubser “
Extinctive
Prescription
”
page 100
et
seq
.
[41]
See J
S Saner “
Prescription
in South African Law
”
at 3-45.