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[2016] ZALAC 46
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Fawu obo Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd (JA20/2015) [2016] ZALAC 46; [2016] 12 BLLR 1175 (LAC); (2017) 38 ILJ 132 (LAC) (8 September 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA20/2015
In
the matter between:
FAWU
OBO GAOSHUBELWE AND
OTHERS
Appellant
and
PIEMAN’S
PANTRY (PTY) LTD
Respondent
Heard:
26 May 2016
Delivered:
08 September 2016
Coram:
Ndlovu, Sutherland JJA and Murphy AJA
JUDGMENT
SUTHERLAND
JA
A.
Introduction
The questions on
appeal
[1]
The
two questions in this appeal are:
1.1.
Whether
the Prescription Act 68 of 1969 (Prescription Act) applies to the
referral and prosecution of disputes in terms of section
191 of the
Labour Relations Act 66 of 1995 (LRA).
1.2.
If
it does apply, has the unfair dismissal dispute referred by the
appellant (FAWU) on behalf of the workers employed by the respondent
(the Employer), indeed, prescribed.
The essential
contentions and the Labour Court’s findings
[2]
On
behalf of FAWU, it has been contended that the
Prescription Act does
not apply at all to litigation under the LRA, but if it did, the
initial referral, in terms of
Section 191(1)
of the LRA, of a dispute
about an alleged unfair dismissal that occurred on 1 August 2001,
interrupted the running of prescription
because such referral
constitutes the event contemplated by section 15(1) of the
Prescription Act; ie
it constituted “service on the debtor of
…process whereby the creditor claims payment of a debt”.
[3]
The
argument on behalf of the employer, by contrast, contends that the
Prescription Act indeed
does apply to all labour litigation, and that
prescription starts to run only upon the issue of a certificate of
non-resolution,
as contemplated by
section 191(5)
of the LRA, rather
than from the date of the dismissal, because only upon the issue of
such certificate is there a litigable “cause
of action”.
[4]
The
judgment of the Labour Court now on appeal, held that the
Prescription Act does
apply to labour litigation, and, upholding the
employer’s argument that union’s cause of action “to
adjudicate”
arose only when the certificate of non-resolution
was issued, held that FAWU’s claim had indeed prescribed
because the filing
of the statement of case, which it held is the
event contemplated by
section 15(1)
of the
Prescription Act, occurred
“three years six months and two weeks” after the issue of
the certificate.
[5]
It
is necessary to enquire into the provisions of both statutes and the
circumstances in evidence to evaluate these perspectives.
The relevant Facts
[6]
The
relevant facts are all common cause. The controversy derives from
these events:
6.1.
On
1 August 2001, the workers were dismissed. The reason relied upon by
the employer to justify the dismissal was that they took
part in an
unprotected strike.
6.2.
On
7 August 2001, FAWU, on behalf of the workers, referred a dispute to
the Commission for Conciliation, Mediation and Arbitration
(CCMA).
6.3.
On
3 September 2001, the CCMA issued a certificate of non-resolution.
6.4.
FAWU
referred the dispute for arbitration; the date is not appearing from
the record.
6.5.
On
15 March 2002, the CCMA’s arbitrator ruled that the CCMA had no
jurisdiction to enquire into the dispute.
6.6.
FAWU
launched a review application. (The record does not reflect the date)
6.7.
On
9 December 2003, the Labour Court dismissed the review application.
6.8.
On
16 March 2005, FAWU filed a statement of claim in the Labour Court.
6.9.
On
19 April 2005, the employer filed a statement of defence in which it
pleaded prescription of the claim, and also, that the statement
of
claim had been filed late and no condonation had been sought.
6.10.
On
22 June 2008, the Labour Court granted an application by FAWU to
condone the late delivery of the statement of claim. That order
was
varied on 24 June 2009, by agreement to exclude a reference to
whether the union’s claim had prescribed.
6.11.
On
28 May 2014, the matter came before the Labour Court for trial. The
plea about the prescription of the dispute was argued.
6.12.
On
15 August 2014, the Labour Court upheld the plea of prescription.
[7]
I
turn now to deal with the controversies.
B.
The
relationship between the LRA and the
Prescription Act.
[8
]
The
prospect that litigation under the LRA might escape the application
of the
Prescription Act arises
from two statutory provisions:
‘
Section
16(1)
of the
Prescription Act:
(1
) Subject to the provisions of
subsection (2)(b), the provisions of this chapter shall, save in so
far 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.’
Section 210 of the LRA:
‘
If any
conflict, relating to the matters dealt with in this Act, arises
between this Act and the provisions of any other law save
the
Constitution or any Act expressly amending this Act, the provisions
of this Act will prevail.’
[9]
Section
16(1)
of the
Prescription Act has
been interpreted to mean that every
debt is subject to the
Prescription Act, save
when excluded by the
qualifications expressed in
section 16(1)
and limited to the reach of
such qualification. Farlam AJA, held in
Moloi
and Others v Road Accident Fund
[1]
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.’
[2]
(Emphasis supplied)
[10]
Coppin
JA in
Myathaza
v
Johannesburg Metropolitan Bus Service (SOC) t/a Metrobus/ Mazibuko v
Concor Plant/ Cellucity (Pty) Ltd v Communication workers
Union obo
Peters
[3]
(hereafter
Myathaza
)
at [23] – [24] and [33] echoed the dictum of Farlam AJA, and
also held that all debts are covered by the
Prescription Act, unless
the qualifications mentioned in
section 16(1)
are established. The
decisions mentioned hitherto, pre-date the Constitutional Court’s
decision in
Makate
v Vodacom
[4]
(
Makate)
handed
down three weeks before the hearing of this appeal.
Makate
has identified a class of debt that is not subject to prescription of
any kind; accordingly, the legal position as expressed in
the earlier
decisions must be modified.
Makate
is
dealt with more fully hereafter. Also, in terms of
section 20
of the
Prescription Act, “black
law” is excluded.
[5]
[11]
What
exactly is the content of chapter IIII with which inconsistency with
another statute must be shown? The critical provisions
relevant to a
comparison with the LRA are:
Section 10(1):
‘
... A debt
shall be extinguished after the elapse of the period which in terms
of the relevant law applies in respect of the prescription
of such
debt’
Section 12(1):
‘
...prescription
shall commence to run as soon as the debt is due’
Section 11(d)
‘
Save where
an Act of Parliament provides otherwise, three years in respect of
any other debt.’
Section 15(1):
‘
The running
of prescription shall, subject to the provisions of ss (2) be
interrupted by the service on the debtor of any process
whereby the
creditor claims payment of the debt.’
[12]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[6]
(
Sidumo
)
dealt with the topic of a section 210 “conflict” relating
to the “matters dealt with in [the LRA]”. Regrettably,
that decision offered no textual analysis of the provisions of
section 210
per
se.
In that case, the majority, by 6-4, held that the decisions of CCMA’s
arbitrators constitute “administrative action”
in the
sense contemplated by the Promotion of Administrative Justice Act 3
of 2000 (PAJA), but nevertheless, on a comparison of
the
schemes
of the two statutes, PAJA does not apply to arbitrations in terms of
LRA; ie the LRA trumps PAJA. Navsa AJ at paragraphs [94] –
[104] in
Sidumo
addressed the differences in the two statutes. He remarked that the
Supreme Court of Appeal’s (SCA) view
a
quo,
had
been that it was only the differently stipulated time periods within
which to institute litigation that were material
induciae
for the conclusion to exclude the application of PAJA to LRA
“matters”, but, so
Navsa
AJ concluded, at paragraph [99], in addition to that factor, it was
the different powers of the courts which established the
conflict
between the two statutes and the rationale for the exclusion of PAJA
from the “matters” under the LRA. This
was an example of
exactly the problem section 210 had been enacted to resolve. Notably,
the approach of the Constitutional Court
(CC) in
Sidumo
was
to assess holistically the
purpose
and the
apparatus
of the two statutes to decide if a conflict existed. Such an approach
does not, in my view, differ normatively, from the approach
articulated by the CC in
RAF
v Mdeyide
about an “inconsistency evaluation” being required.
[7]
[13]
The
extent to which the
Prescription Act applies
to litigations in terms
of the LRA has already been extensively considered by the Labour
Appeal Court (LAC) which has given three
judgments on the question,
and the Labour Court which has given several judgments.
[14]
One
major debate had been whether the
Prescription Act applied
to the
awards of arbitrators in the CCMA (and Bargaining Council Fora).
There were decisions of the Labour Court going both ways.
[8]
An amendment to the LRA in the form of
section 145(9)
took effect on
1 January 2015 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 68 of 1969), in respect of that award.
[Sub-s. (9) added by s. 22 of Act 6 of 2014.]’
[15]
The
decision of the LAC in
Myathaza
,
which dealt with three appeals, settled that question in favour of
the
Prescription Act being
applicable to such awards prior to the
amendment. The Judgment
a
quo
against which this present appeal is lodged was given on 15 August
2014. In this matter, we have been invited to consider whether
Myathaza
was correctly decided and overrule that earlier decision; that
invitation is declined for reasons which appear hereafter.
[16]
Among
the factors to weigh in addressing the arguments in the present case
is whether it is an appropriate interpretation of the
LRA to construe
its provisions in a way that some aspects of the litigation process
are subject to the
Prescription Act and
others not.
The
applicability of the
Prescription Act to
awards is, in my view, a
substantial indication that all litigations under the LRA ought to be
so subject.
[17]
It
is important to recognise that the decision in
Myathaza
is not authority for the proposition that litigation under the LRA,
prior to the rendering of an award, (or a judgment by the Labour
Court) is subject to the
Prescription Act. Therefore
that judgment
does not dispose of the present controversy. In
Myathaza,
the
ratio
was deliberately confined to the question of prescription of awards.
However, in an obiter dictum at [9] -[10] Coppin JA expressly
approved two LAC judgments which had addressed pre-award/ judgment
disputes where the
Prescription Act was
taken to applicable.
[18]
The
first of those judgments,
Solidarity
v Eskom (Solidarity)
[9]
dealt
with an application to the Labour Court for a declaration of rights
in terms of a collective agreement about early retirement
rights of
employees. The declarator was sought more than three years after the
agreement had been concluded. The employer argued
that the debt had
prescribed. The employees countered with the argument that the debt
upon which the employees relied, fell due
only when they sought to
retire and claimed the early retirement benefit. That stance was
endorsed by the court. The assumption
throughout the proceedings was
that the claim of right in terms of the collective agreement
constituted the “debt”
at issue and that it was indeed
subject to the
Prescription Act.
[19
]
In
the second matter,
SA
Post Office Ltd v CWU (SAPO),
[10]
,
the
parties had settled a dispute by means of an agreement. A subsequent
dispute arose about whether the employer had performed
in terms of
it. The union instituted an action to make the agreement an order of
the Labour Court four days before the third anniversary
of its
conclusion. Subsequently, the action was withdrawn. The union then
launched an application to the Labour Court for the identical
relief.
However, the application was launched some four years after the
conclusion of the agreement. The employer argued the claim
had
prescribed. The union offered as an argument that the earlier action
had interrupted prescription; however, the LAC held that
the
withdrawal of the action meant that reliance thereon was not
possible. Ergo, the application had indeed been made outside the
period of prescription. However, somewhat bizarrely, the union’s
bacon was saved by the LAC taking the view that prescription,
as
stipulated in
section 17(2)
of the
Prescription Act, must
be pleaded
to be raised. It was not pleaded. Raising it in argument on appeal
was held to inadequate.
[11]
The LAC ordered the matter to be dealt with by the CCMA.
[20]
Of
course, it was not argued in either case that the
Prescription Act
did
not apply to litigations under the LRA and therefore these
decisions cannot be understood to have disposed of that issue, albeit
that the application of the
Prescription Act to
litigation under the
LRA was uncontroversial.
[21]
In
my view, the circumstances evidenced by these two decisions about
pre-award and pre-judgment litigation, neither of which originated
from a referral in terms of
section 191(1)
of the LRA, are
indistinguishable, as regards the applicability of the Prescription
Act, from the present case which did originate
from a section 191(1)
referral.
[22]
I
turn now to consider Mr Van der Riet’s various arguments on
behalf of FAWU, for the exclusion of the
Prescription Act from
litigation under the LRA.
Argument No 1:
[23]
First,
it is contended that the task of interpretation must be driven by
section 39(2) of the Constitution of the Republic of South
Africa,
1996 (Constitution), which requires a court to harmonise existing law
with constitutional values and develop the law to
achieve that
outcome.
[12]
There can be no
doubt this is correct. Upon that foundation, it is further argued
that the LAC’s decision in
Myathaza
,
was wrong insofar as it failed to comply with the injunctions in
section 39(2). In other words, had a proper interpretation exercise
been carried out, the LAC in
Myathaza
would
have concluded that awards could not be subject to the
Prescription
Act. Regrettably
, that is the sum of the contention advanced and we
have not received assistance in unearthing exactly why we might reach
a conclusion
that the decision in
Myathaza
was clearly wrong, the necessary condition for us to reverse it. In
the absence of such a foundation, we regard ourselves bound
by the
earlier decision.
Argument no 2
[24]
It
was argued, in effect, that the nature of the remedies and special
procedures provided for in the LRA are a species distinct
from those
in civil litigation. The public interest premium placed on labour
peace means that the extinction of a labour dispute
by prescription
runs counter to the aims and purposes of the LRA. Thus, giving due
weight to the effect of
section 210
of the LRA, the
Prescription Act
ought
to be excluded from application to the LRA.
[25]
It
is certainly true that the scheme of the LRA is to create rights
hitherto unknown to our common law and, moreover, creates distinct
dispute resolution institutions (in the form of the CCMA and
bargaining councils with adjudicative powers similar to the CCMA and
the Labour Court and Labour Appeal Court) with exclusive jurisdiction
to adjudicate whether claims that the rights emanating from
the LRA
have been breached. The model is unequivocally a self-contained
system calculated to generate its own jurisprudence in
parallel with
the jurisprudence of the High Court.
[13]
That the attributes of this system must necessarily be compliant with
the dictates of the Constitution is self-evident, and the
appeal
process, which progresses ultimately to the tional Court is the most
visible manifestation of how that constitutional compliance
is
secured.
[26]
But
why should these public interest considerations which attach to
labour peace and harmony imply that prescription, as a principle,
has
no place in that “Labour Relations” regulatory system,
and further imply that there is a public interest “override”?
The argument advanced to us is not novel.
[27]
In
two Labour Court judgments, this stance, in substance, had been
adopted. In
Coetzee
and Others v MEC, Western Cape
(
Coetzee).
[14]
The
court questioned the applicability of the
Prescription Act to
the LRA
and set out several considerations which were thought adverse to the
notion, all premised on the distinctiveness of labour
disputes and
the supposed special needs of constituencies that the LRA serves. The
Coetzee
chain
of reasoning was invoked in the decision in
Cellucity
(Pty) Ltd v CWU obo Peters
[15]
(Cellucity
)
where the thesis was again advanced. After citing the
Coetzee
judgment
in
extenso,
the Labour Court held at [8]:
‘
The matter
before me provides a further and a clear illustration of why the
Prescription Act should
not be applied to unfair dismissal disputes
under the LRA. Over and above the considerations I raised in the
matter above, the
question of public policy comes strongly into
focus in this case. Public policy and the boni mores are now deeply
rooted in
the Constitution and its underlying values. The application
of the
Prescription Act to
LRA claims can be used to frustrate the
realization of employees' rights to fair labour practices. This is
particularly so in cases
where such dismissed employees are
members of vulnerable groups in our society. Many of these
individuals may struggle to
afford the means to execute on an award
in their favour, or are unable timeously to pursue their rights
because of a lack of resources.’
[16]
[Footnote omitted]
[28]
The
key issue in
Cellucity
was whether an award had prescribed. However, it is plain that the
basis for a finding that an award could not prescribe was seated
in
considerations broadly applicable to all litigations under the LRA.
When
Cellucity
went
on appeal (as one of three cases in
Myathaza
)
this view was rejected by the LAC. Coppin JA, at paragraphs [14] –
[20] cited a contrary view expressed by Van Niekerk J
in
CEPPWAWU
obo le Fleur v Rotolabel – A division of Bidpaper. (Pty)
Ltd
[17]
Van Niekerk J held thus:
‘
Insofar as
it might be suggested that the real incompatibility is between the
equity based jurisdiction established by the LRA and
the
inflexibility of the
Prescription Act, in
Police
& Prisons Civil Rights Union obo Sifuba v Commissioner of the SA
Police Service & others
(2009) 30 ILJ 1309 (LC) [A decision of Musi AJ, as he then was] the
court rejected a submission that considerations of equity ought
to be
brought into account to determine the application of
prescription.’
[18]
The court stated at
paragraph [44]:
'The
Prescription
Act does
not give the court a discretion. If the requirements for
a plea of prescription have been established by the party taking the
point then that party is entitled as a matter of right to have that
plea upheld. Although this court is a court of equity, in my
view
considerations of equity do not come into play when all the
requirements for a successful plea of prescription are established.
Extinctive prescription renders unenforceable a right by the lapse of
time. See
s 10(1)
of the
Prescription Act.
>
'
Coppin
JA then went on, with reference to decisions in the Constitutional
Court and the SCA, to conclude at paragraph [33] that
employers and
employees are not exempt from litigating under the mantle of
prescription. Indeed, that must be correct, and was
among the reasons
for concluding the narrow question of whether an award could
prescribe. In particular, Coppin JA referred to
the dictum of Didcott
J in
Mohlomi
v Minister of Defence
[19]
who,
in the course of striking down
section 113
of the
Defence Act 42 of
2002
as imposing unnecessary strictures on a person’s access to
court, nevertheless, as regards the policy of such strictures,
held
at paragraph [11] that:
‘
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.’
[29]
It
may indeed be appropriate to question whether the very principle of
prescription ought to enjoy the imprimatur of universal morality,
and
at very least, it ought to be recognised that at the philosophical
level, the morality of the concept of prescription is not
free from
doubt or controversy. In the literature about law and its
relationship to morality, prescription is a favourite example
of the
law’s supposed asinine inequity.
[20]
However, that is a debate which is pointless to pursue unless the
constitutionality of prescription itself is challenged. There
is
ample authority that, hitherto, prescription is regarded as
constitutionally compliant, a theme, for the present purposes,
adequately addressed by Coppin JA in
Myathaza
at paragraphs [30] – [33] and unnecessary to repeat here.
Argument no 3.
[30]
It
was argued that the litigation regime under the LRA, as provided in
section 191
of the LRA, ie the “mechanisms prescribed by the
LRA”
[21]
constitutes an
example of the sort of inconsistency with the
Prescription Act, as
contemplated in
section 16(1)
of the
Prescription Act, and
thus the
LRA regime trumps the
Prescription Act regime
. More specifically, the
LRA regime, in terms of which a party must refer a dispute with 30
days (or 90 days) of the dispute arising
and if not successfully
conciliated with 30 days thereafter, that party must refer the
dispute to arbitration or to the Labour
Court, depending on the
nature of the dispute, within a further period of 90 days, subject to
the power of the adjudicator to condone
non-compliance on good cause
shown, ought to trump the regime under the
Prescription Act. The
implication is that, at least in theory, a labour dispute, even after
three years, or however long a period, has elapsed, can remain
a
litigable issue, provided only that good cause is shown to the
satisfaction of the Labour Court. This theme, in substance, is
also
not novel. It too was ventilated in
Coetzee
and regurgitated in
Cellucity
,
albeit, of course, oriented towards the problem of an award
prescribing. The argument was rejected in
Myathaza.
[31]
The
relevant provisions of
Section 191
[22]
indeed do stipulate specified periods within which to make a claim
and also impose conditions to meet when instituting proceedings
to
obtain relief. But the crucial issue is whether these “other”
provisions give rise to an “inconsistency”
with the
provisions of the
Prescription Act. In
my view, the mere fact of an
alternative procedure is
necessary
but
not
sufficient
.
What is required is an examination of the relevant provisions to
determine whether the two statutory regimes are functionally
“inconsistent”; if they can be reconciled, there cannot
be an inconsistency.
[23]
Plainly,
section 191
does not “extinguish” a claim, extinction
being a
substantive
event;
rather,
section
191
regulates process
and vests a wide discretion to the Labour Court to oversee that
process. If this perspective is correct, can
section 191
really be
understood to create a regime that trumps prescription?
[32]
The
decision in
Investec
Employees Benefits Ltd v Marais and Others
[24]
(
Marais
)
is instructive in this regard. An argument was advanced that, as
contemplated by
section 16(1)
, the
Prescription Act did
not apply to
complaints submitted to the Pension Funds Adjudicator in terms of
section 30A
of the
Pension Funds Act 24 of 1956
. Such a complaint had
to be submitted within a period of three years as stipulated by
section 30I.
The complaint was lodged later than that and,
consequently, a request that the adjudicator condone the
non-compliance was made.
The adjudicator refused,
inter
alia
,
because it was alleged that the right to complain had prescribed.
Section 30I
was at that time worded thus:
[25]
‘
30I Time
limit for lodging of complaints
(1) The Adjudicator shall not
investigate a complaint if the act or omission to which it relates
occurred more than three years
before the date on which the complaint
is received by him or her in writing.
(2) If the complainant was unaware of
the act or omission contemplated in subsection (1), the period of
three years shall commence
on the date on which the complainant
became aware or ought reasonably to have become aware of such
occurrence, whichever occurs
first.
(3) The Adjudicator may on good cause
shown or of his or her own motion
(a) either before or after expiry of
any period prescribed by this Chapter, extend such period;
(b) condone noncompliance with any
time prescribed by this Chapter.”
[33]
The
Court rejected the inconsistency argument: Farlam JA held that:
‘
[29] The
third respondent's power under
section 30I(3)
to extend periods and
to condone non-compliance with time limits is restricted to periods
and time limits prescribed by the Act.
Although there is a similarity
between
section 12(3)
of the
Prescription Act and
section 30I of the
Act, the sections must not be conflated
The
Acts serve different and discrete functions
.
The Adjudicator's powers under the Act do not extend to the
provisions of the
Prescription Act:
cf
Premier Western Cape v Lakay
2012
(2) SA 1
(SCA) at paragraphs 7 and 10
[30] It was contended on behalf of the
first respondent that on a proper construction of the Act the
Prescription Act does
not apply to complaints received by the third
respondent. Reference was made to
section 16(1)
of the
Prescription
Act which
provides that the provisions of Chapter III of that Act are
to apply to any debt arising after the commencement of the Act:
"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."
[31] In my opinion,
this subsection does not assist the first respondent because section
30I of the Act is not inconsistent with
the
Prescription Act. A
claim
which is the subject of a complaint to the Adjudicator and which has
not prescribed (because, for example, the creditor is
under an
impediment), will still have to be lodged in the period prescribed in
section 30I
and may not be considered by the Adjudicator unless he or
she grants an extension in terms of
section 30I(3)
to enable him or
her to investigate the complaint.
Totally
different language would, however, be required if it was the
intention of the Legislature to empower the Adjudicator to
extend a
period of prescription which has already run its course and thus to
deprive an erstwhile debtor against whom a claim has
been
extinguished of its right to plead prescription
.’
(emphasis
supplied)
[34]
A
further example is that illustrated in
Ramajela
v Administrator, Cape
(
Ramajela
)
.
[26]
The
relationship of the
Prescription Act to
the Limitation of Legal
Proceedings (Provincial and Local Authorities) Act 84 of 1970 (LLP)
was at issue. The LLP provided for
a period of two years from the
time the plaintiff knew the identity of the wrongdoer and the facts
giving rise to the claim, within
which to sue the Province. It had
expired. The plaintiff wished to invoke
section 13
of the
Prescription Act to
avert a delay in the running of prescription. The
question was whether the two-year period was an “expiry”
period which
absolutely extinguished the claim or it was a
prescriptive period, which, but for the duration was in all other
respects subject
to the
Prescription Act. If
it was a prescriptive
period, then
Section 13
of the
Prescription Act would
apply and the
benefits of the stipulated instances which delayed prescription would
apply. (The judgment, curiously does not inform
the reader exactly
which “delay” benefit the plaintiff relied on.) Jennet J
held there was no inconsistency and the
Prescription Act did
apply.
For
present purposes, however, the case illustrates the importance of a
qualitative assessment of the differences, and the mere
fact that a
different period was stipulated did not exclude the application of
the
Prescription Act in
total.
[35]
After
due allowance for obvious differences in the text of the LRA, what is
illustrated in
Marais
and in
Ramajela
is
that
similarity
is not significant, but
function
is. Applying such an approach to the LRA and the
Prescription Act,
the
purposes of
section 191
of the LRA and the purposes of
sections
10(
1), 11(d), 12(1) and 15(1) of the
Prescription Act, ie
, the
critical sections which define the regime, are not, in my view,
inconsistent with
section 191
of the LRA.
[36]
The
lack of inconsistency is at the heart of the argument advanced by Mr
Snyman for the Employer, who contends that an appropriate
and useful
approach to the interpretation of the two statutes is to imagine each
as constructing a regime which may be overlaid
upon one another as a
pair of concentric circles. The outer circle is the
Prescription Act
which
extinguishes debts upon the expiry of three years. The inner
circle is the LRA which requires of parties to refer a dispute within
30 or 90 days during which conciliation may occur, and upon expiry
and the failure of conciliation efforts, a party has 90 more
days to
refer the matter to the Labour Court or go to arbitration as the case
may. In the present case, that next step was to the
Labour Court by
the filing of statement of case.
[27]
The discretion of the Labour Court to condone late filing operates
within, and not in competition with, the scope of the periods
stipulated by the
Prescription Act.
[37
]
Mr
Snyman argues that
section 191
imposes a time-bar not an alternative
prescription regime.
Section 191
is therefore not inconsistent with
the
Prescription Act. Time
bars must be constitutionally compliant.
In addressing the time bar in the Promotion of Access to Information
Act 2 of 2000 (PAIA),
it was held in
Brümmer
v Minister for Social Development and Others
[28]
:
‘
The
principles that emerge from these cases are these: time-bars limit
the right to seek judicial redress. However, they serve an
important
purpose in that they prevent inordinate delays which may be
detrimental to the interests of justice. But not all time
limits are
consistent with the Constitution. There is no hard-and-fast rule for
determining the degree of limitation that is consistent
with the
Constitution. The “enquiry turns wholly on estimations of
degree”. Whether a time-bar provision is consistent
with
the right of access to court depends upon the availability of the
opportunity to exercise the right to judicial redress. To
pass
constitutional muster, a time-bar provision must afford a potential
litigant an adequate and fair opportunity to seek judicial
redress
for a wrong allegedly committed. It must allow sufficient or adequate
time between the cause of action coming to the knowledge
of the
claimant and the time during which litigation may be launched. And
finally, the existence of the power to condone non-compliance
with
the time-bar is not necessarily decisive.’
[29]
[38]
Zondo
JP in
Solidarity
had occasion to address a difference of view ventilated in the
Majority and Minority judgments about the relevance of “unreasonable
delay” in approaching the court for a declaratory order some
four and a half years after the agreement creating the rights.
Zondo
JP, for the Majority, held that the notion of unreasonable delay did
not apply in the circumstances of that type of case
and was
applicable only to proceedings where no stipulated period to procure
relief was stipulated, such as a review application.
However, in an
obiter dictum, Zondo JP, in a lengthy passage, but
notwithstanding that, appropriate here to consider in full,
held
thus:
‘
[14]...the
“unreasonable delay” rule does not apply in this
case….the rule applies to reviews only.
Secondly,
such rule does not apply to a case that is subject to a statutory
limit in terms of the period within which it should
be
instituted.
In this case the
Prescription Act applies
and the prescription period
had not even begun to run when the appellants instituted court
proceedings. …
To
apply the “unreasonable delay” rule where the
Prescription Act applies
would, it seems to me, amount to the court
legislating another prescription period in addition to the one
prescribed by the
Prescription Act.
In
my view there is no reason or justification in law for that
additional prescription period and it can only serve to sow confusion
as to when the one period applies and when the other does not apply.
[15] Furthermore, the view that the
“unreasonable delay” rule applies to a case where the
Prescription Act applies
will render the relevant provisions of the
Prescription Act redundant
. In terms of the
Prescription Act, if
A
assaults B, B has three years within which to institute court
proceedings for the payment of damages arising from the assault.
The
effect is that A can sit at home and not do anything about his
claim until the last minute before the expiry of the prescription
period of three years. There is, in my view, no rule of law to the
effect that, despite the availability to him of a period of
three
years within which to institute court proceedings, B must
nevertheless, institute court proceedings within a reasonable time
prior to the expiry of that period of three years because, if he
fails to do so, he will be barred from doing so even though
the
prescription period of three years prescribed by the
Prescription Act
has
not expired. The reason why there is no such rule is because,
when the legislature prescribed three years, it regarded three years
as a reasonable period within which A should be required to institute
his claim for damages. There can, therefore, not be a rule
that
effectively nullifies the prescription period provided for in the
Prescription Act. That
is a rule that says A must institute court
proceedings within a reasonable time before the expiry of the three
years prescribed
by the
Prescription Act and
says, if he fails to do
so, he will suffer the same consequence that the
Prescription Act
says
he will suffer if he fails to institute court proceedings within
a much longer period, namely, three years. Such a rule would create
a
prescription period within a prescription period.
[16] In my view the same applies to
this case. In terms of the conclusion relating to the first “special
plea”, the
appellants' claim had not prescribed at the time of
the institution of the proceedings in the Labour Court. That means
that the
appellants could still have waited for more time before they
could institute the proceedings. However, in terms of the Labour
Court's
decision on the second 'special plea' the appellants were
obliged to have instituted court proceedings despite the fact that
their
claim had not prescribed.
The effect of that approach is
that the appellants' claim was subject to two prescription periods,
one in terms of the
Prescription Act and
the other in terms the
so called “unreasonable delay” rule
. The obvious
question that arises is: when will the prescription period as
prescribed by the
Prescription Act apply
and when will the
prescription period founded upon the “unreasonable delay”
rule apply? In other words: what is the
relationship between the
two?
[17]
Obviously, the “unreasonable
delay” rule can only apply prior to the expiry of the
prescription period prescribed by
the
Prescription Act because
, once
the prescription period prescribed by the
Prescription Act has
expired, there will be no claim to which the “unreasonable
delay” rule can apply
. Once the “unreasonable delay”
has occurred in a case prior to the expiry of the prescription
period, and there
is no good cause shown, the litigant is deprived of
his claim in the same way as he would have been if he had delayed
beyond the
statutory prescription period in instituting court
proceedings. In my view this would be untenable. The correct position
is simply
that, if a claim is subject to a prescription period
prescribed by the
Prescription Act or
is subject to any specific
statutory time frame within which it is required to be brought to
court, that is the time frame that
governs it and the unreasonable
delay rule has no application to it. In my view the “unreasonable
delay” rule applies
to reviews that are not subject to a
statutory requirement that they be instituted within a fixed period.
[18] The conclusion reached in
Khampepe JA's judgment in respect of the prescription point that the
appellants' claim has not prescribed
is based on the finding that,
when the respondent purported to withdraw or cancel the agreement
reflected in MD102, that conduct
on the part of the respondent
constituted a repudiation which vested the appellants with an
election to accept the repudiation
and treat the agreement as at an
end or to reject the repudiation and treat the agreement as alive and
hold the respondent to it.
It is also based on an acceptance that the
appellants elected to reject the repudiation and to hold the
respondent to the
agreement. In my view the effect of that election
was that the appellants were free to wait for the time in the future
when in
terms of that agreement between the parties they would be
entitled to go on early retirement and when the respondent would be
obliged
to afford them certain benefits. They would then at that
time be able to say to the respondent: the conditions which in terms
of the agreement must be met before you must give us benefits A, B
and C have been met and you must now give us those benefits.
If the
respondent gave them those benefits at that time, it would have
complied with its obligations. However, if it refused to
do so,
they would then be able at that time to institute court
proceedings. At that point the “debt” under the
Prescription Act would
become due and the prescription period would
start to run. The appellants would not have been able to claim early
retirement benefits
prior to the time when the conditions precedent
applicable had been met. In my view if and when in the future the
second and further
appellants reach their early retirement age in
terms of MD102, they will be entitled to require the respondent to
comply with its
obligations and, if the respondent fails to comply,
they will be entitled to institute appropriate court proceedings. I
am, obviously,
not necessarily saying that they will succeed. I am
saying that, if their allegations are taken as correct, they will
have a claim
at that time.’ (emphasis supplied)
[39]
In
my view, this dictum is supportive of the argument advanced by Mr
Snyman, inasmuch as Zondo JP sets out why the statutes are
reconcilable and why condonation powers are not a substitute or an
alternative to prescription, a view diametrically opposite to
that
advanced on behalf of FAWU by Mr Van der
Riet.
Mr Snyman’s argument reconciles the statutes rather than sets
up a competition for jurisdiction. Moreover, insofar as
the LRA must
be interpreted to fulfil its mission, the high premium placed on
expedition in dispute resolution remains satisfied.
[40]
By
contrast, a stark example of inconsistency with the
Prescription Act
is
illustrated in
Commissioner
for Customs and Excise v Standard General Insurance Co Ltd
[2000] ZASCA 138
;
2001
(1) SA 978
(SCA) esp [11] –[14]. Section 99(5) of the Customs
and Excise Act 91 of 1964 provides that liability shall “cease”
after a two-year lapse. That was held to be a demonstrable
inconsistency with
section 11(d)
of the
Prescription Act.
Argument
no 4
[41]
An
ancillary contention was advanced by Mr Van der Riet, inspired by the
recent decision in
Makate
to
question whether there was a “debt” at all, obviously, a
necessary requirement for the
Prescription Act to
apply. The “debt”
sought to be “enforced” was construed, in the argument on
behalf of FAWU, as a “claim
for reinstatement”.
[30]
[42]
The
two judgments delivered by the CC in
Makate
[31]
have illuminated a category of “right” which cannot
prescribe. A claim was made in that matter that the plaintiff’s
former employer was liable to negotiate fair compensation with him
for an idea he thought up and which was adopted by the employer
who
profited handsomely. The employer, among other contentions, argued
that the “right” which was alleged had prescribed
because
the claim was made outside the three-year period. The controversy was
about whether the claim could be a “debt”
as contemplated
by the
Prescription Act, because
if it were not, it could not be hit
by prescription. The claim was framed as one based on the breach of
an oral agreement to negotiate
an uncertain sum. The Constitutional
Court held that a “debt” cannot be construed so widely as
to encompass any “obligation
to do something or refrain from
doing something”, thereby disapproving the dictum to that
effect in
Desai
NO v Desai
[32]
relied
upon by the Court
a
quo.
Instead, given the need, post-1994, to heed section 39(2) of the
Constitution and be cautious about inhibiting rights of access
to a
court, a narrower meaning had to be attributed to the term “debt”.
However, it was held by Jafta J at paragraph
[92], that, for the
purposes of
Makate’s
case,
the dictum in
Electricity
Supply Commission v Stewarts and Lloyds of SA
[33]
was sufficient; ie “…a debt is an obligation to pay
money, deliver goods or render services”. The point made
in
Makate
is that a claim that cannot itself result in a “deliverable”
of some sort is not a “debt” as contemplated
by the
Prescription Act and
therefore cannot prescribe. Hence, the claim had
not prescribed because it was not a
debt
of the right sort.
[43]
In
the present case, an unfair dismissal claim is the font of the
dispute. What, however, is the “debt”, if any, that
is
the subject matter of the unfair dismissal claim and which would
bring it within the purview of the
Prescription Act? In
my view, the
debt can be usefully described as the workers’ “claim of
right”; eg, a claim that the workers’
jobs were unfairly
terminated and that unfairness must be remedied. That right is
expressly provided in
section 185
of the LRA; ie
‘
Every
employee has the right not be (a) unfairly dismissed; and (b)
subjected to an unfair labour practice.’
Such a
“debt” does not, in my view, fall into the limbo category
identified in
Makate
because
there is no uncertainty about what the employer has to do to render
tangible and substantive satisfaction to the dismissed
worker, and
there is no middle ground to traverse upon which a joust about the
creation of new rights needs to take place. An unfair
dismissal claim
is a species of a demand for specific performance, coupled with a
right of the aggrieved party to invite an adjudicator
to award
compensation in the alternative, and vesting in the adjudicator,
within strict parameters, a discretion not to order specific
performance, but rather award compensation.
[34]
[44]
How
might that sort of “debt” differ from the “debts”
addressed in
Solidarity
or
SAPO
?
In my view, it would be extraordinary if the
Prescription Act applied
to some debts and not others, or to bits and pieces of the possible
proceedings in terms of the LRA and not to other bits and pieces.
That incoherence is intolerable. In my view, there is no distinction
to be made between these “debts” that could be
relevant
to prescription. (The issue of what constitutes a debt in
section 191
litigation is addressed again hereafter in the context of what can
interrupt prescription.)
Conclusion
[45]
Accordingly,
in my view, the
Prescription Act does
indeed apply to all litigations
under the LRA, not least of all, litigations prosecuted in terms of
section 191.
C.
Has
FAWU’s claim unfair dismissal prescribed?
[46]
Prescription
may be interrupted in the manner provided for in
section 15(1)
of the
Prescription Act:
‘
The
running
of prescription shall, subject to the provisions of subsection 2, be
interrupted
by
the service on the debtor of any process whereby the creditor claims
payment of the debt
.’
(emphasis supplied)
Notably, “process”
is defined in
section 15(6)
as:
‘…
includes
a petition, a notice of motion, a rule nisi, a third party notice
referred to in any rule of court, and any document
whereby
legal proceedings are commenced’
.(emphasis
supplied)
[47]
On
behalf of FAWU, it is contended that the “debt” arose
upon dismissal and the referral to the CCMA of the unfair dismissal
dispute in terms of
section 191(1)
of the LRA, constitutes the
process which interrupted prescription. Hence, it matters not how
long afterwards the statement of
claim was filed with the Labour
Court.
[48]
On
behalf of the employer, it is argued that the referral could not have
such an effect because, at that stage, no “complete
cause of
action” yet existed. On the thesis advanced on behalf of the
employer, the “cause of action” came into
existence only
upon the issue of a certificate of non-resolution. It follows that,
on this thesis, the “debt” as contemplated
by the
Prescription Act, could
not arise at the time of the actual
dismissal, because an element of the cause of action was at that time
absent; ie, the exhaustion
of the conciliation phase, as evidenced by
a certificate of non-resolution. Prescription ran from the date of
the issue of the
certificate and could be interrupted only by the
filing of a statement of case.
[49]
The
controversy spawned by these rival contentions thus falls to be
resolved by deciding these questions
49.1.
What
is the legal status of:
49.1.1.
A
section 191(1)
referral,
49.1.2.
A
certificate of non-resolution,
49.1.3.
A
statement of Case.
49.2.
Is
a “cause of action” and a “debt” as
contemplated by the
Prescription Act the
same thing or distinct
concepts?
49.3.
What
is the cause of action relied upon by FAWU?
49.4.
For
the purposes of the
Prescription Act, what
is the “debt”?
49.5.
When
did the “debt” upon which FAWU relies arise?
49.6.
What
“step” that qualifies as “process whereby the
creditor claims payment of the debt” was taken by FAWU
and when
was it taken?
[50]
The
FAWU thesis is that the debt is the right not to be unfairly
dismissed, which right was breached by the dismissal. In my view,
this is the correct perspective. The employer thesis is that a
“complete cause of action” arises only after a
certificate
of non-resolution has been issued is misconceived. The
decision of the Labour Court
a
quo
was to uphold the employer’s contention that a certificate of
non-resolution was the source of FAWU’s “cause
of action”
and prescription ran from then. We respectfully disagree.
[51]
The
terms “debt” and “cause of action” are not
synonyms. Harms JA in
Drennan
Maud & Ptrs v Pennington Town Board
[35]
held
that a “debt” as contemplated
section 15(1)
of the
Prescription Act
‘…
does
not refer to the cause of action, but more generally to the claim’.
And, also:
‘
In deciding
whether a debt has become prescribed, one has to identify the debt,
on, put differently, what the “claim”
was in the broad
sense of that word’.
In
Umgeni
Water and Others v Mshengu,
[36]
these
notions were reiterated. The facts of that case illustrate usefully
the absence of an element of a complete cause of action.
Mshengu
claimed early retirement benefit and sued for it. However, his
parallel claim for unfair dismissal succeeded. The result
was that
his employment had not ended on the date he claimed the benefit was
due. Thus, the termination of his employment which
was an element of
his claim was absent, at the relevant time.
[52]
In
relation to the meaning of “debt” in relation to
prescription, Zulman JA remarked in
Standard
Bank of SA v Oneanate Investments (In Liquidation)
[37]
that:
‘…
the
concept of a “debt” for the purposes of the
[prescription] act ,is wider than the technical term “cause of
action…”’
In
CGU
Insurance v Rumdel Construction (Pty) Ltd
[38]
Jones
AJA held:
‘
...It is
important to bear in mind that the courts are now specifically
concerned with prescription of a “debt” within
the
meaning of the 1969 Act. The Act does not define “debt”
and “there is…a discernible looseness of language”
in its use thereof with the result that “debt” means
different things in different contexts. For this reason 'debt'
in the
context of s 15(1) must bear “a wide and general meaning”.
It does not have the technical meaning given to the
phrase 'cause of
action' when used in the context of pleadings (
Standard
Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd
(
in
Liquidation
)).In
Evins
v Shield Insurance Co Ltd
Trollip JA made a point of the distinction between “debt”
and “cause of action”, and describes the latter
in the
following way:
“
Cause of
action'' is ordinarily used to describe the factual basis, the set of
material facts, that begets the plaintiff's legal
right of action
and, complementarily, the defendant's ''debt'', the word used in the
Prescription Act.'
The
debt is not the set of material
facts. It is that which is begotten by the set of material facts….”’
[53]
Accordingly,
whilst it is correct that in formulating a “claim”, it is
necessary to aver the exhaustion of the conciliation
phase, to
justify access to the adjudicative forum (ie Labour Court or CCMA
arbitration), the existence of the “debt”
properly
described, is not dependent on that procedural requirement. An
attempt was made to invoke the decision in
NUMSA
v Intervalve (Pty) Ltd
(2015)
36 ILJ 363 (CC) (
Intervalve
)
as support for the notion that the certificate is one of the
essentialia
of the cause of action. That is not an accurate reading on
Intervalve
,
which addressed the requirement of a certificate of non-resolution as
a jurisdictional prerequisite, not as an element of the
cause of
action, still less an aspect of the debt.
[54]
However,
the contention that the referral is capable of constituting the
necessary “process” to interrupt prescription
is
incorrect because of reasons closely related to why the certificate
of non-resolution cannot interrupt prescription either.
The function
of a referral is similar in nature to a
section 17
“claim form”
in terms of the RAF Act 56 of 1996 or a section 129 notice in terms
of the
National Credit Act 34 of 2005
. In terms
section 17
of the RAF
Act, liability is imposed on the Fund to compensate victims of road
accidents. In
Pithey
v RAF
[39]
the
full bench considered the implications of a failure to comply
properly with section 17(1)(b) of the RAF Act, which required
the
completion and timeous submission of the “claim for
compensation”. It was held that if that condition was not
complied with a court would not entertain a claim. The same fate
befell the claimant in
RAF
v Duma & three similar cases,
[40]
where
it was held that a claim for general damages was premature if the
procedure prescribed by regulation 3(3) for the assessment
of a
“serious injury” by the Health Professions Council had
not been exhausted. In
Investec
Bank Ltd t/a Investec Private Bank v Ramurunzi,
[41]
the
bank sued to recover the debt owed by the debtor without having
furnished a notice in terms of Section 129 of the National Credit
Act
34 of 2005 (NCA). Section 130(3) of the NCA prohibits recovery of a
debt unless and until the section 129 process is exhausted.
That
process is aimed at alerting the debtor to options to avoid being
sued. It was held that the summons issued against the debtor
was not
invalidated by the non-compliance with section 129 and served to
interrupt prescription. Nevertheless, the peculiar provisions
of
section 130(4)(b) empowered the court to defer the bank’s claim
until the debtor had the chance to exercise the available
options,
including debt counselling. Accordingly, in my view, the requirement
of a referral can be likened
functionally
to these examples, where there is a condition precedent to
approaching a court, but that condition is not part and parcel of the
“debt” being sought to enforce.
[55]
What
Section 15(1)
of the
Prescription Act requires
to interrupt
prescription is a “process…. whereby legal proceedings
are commenced”. A referral does not do so
because a referral
does not commence legal proceedings. The function of a referral is to
oblige
the CCMA to intervene
in
a dispute. The initial role of the CCMA is to conciliate and thus
avoid legal proceedings. Section 17 of the RAF Act contemplated
an
opportunity for the Fund to acknowledge liability and avoid
litigation by the Fund investigating the claim, details of which
are
submitted in the claim form for consideration. Section 129 of the NCA
is one of several related provisions whose primary objective
is to
avoid litigation. When legal proceedings are launched steps
additional to these formal requirements are necessary. A referral
is
no more than a condition to be fulfilled to obtain access to a forum
that can adjudicate a dispute. It is the concretisation
of a policy
choice to avoid or limit litigation.
[56]
In
the case of a matter that must, like the present one, be ventilated
in the Labour Court, the referring party must after the referral
and
exhaustion of conciliation in terms of section 191(5)(b) “refer
the dispute to the Labour Court for adjudication”,
which
involves, in accordance with Rule 6(1) of the Labour Court Rules, the
filing of a statement of case, which, in terms of section
191(11)(a),
must be done within 90 days of the certificate of non-resolution.
This is the act initiates, as the text expressly
states,
“adjudication” (as distinct from conciliation) and which,
for that reason constitutes the “process”
which
interrupts prescription.
[57]
The
procedural route to an arbitration before the CCMA is differently
regulated. The relevant provisions could not be more tortuously
formulated. The first reference in section 191 to the consequences of
a failure to conciliate a dispute of the kind that is reserved
for
adjudication by arbitration is in section 191(5)(a). It states that
after a certificate of non-resolution is issued or the
elapse of 30
days since receipt of the referral, “…the …commission
must arbitrate the dispute at the request
of the employee…”
This provision in the structure of section 191(5) is the
corresponding trigger to adjudication to
the “referring”
of a dispute to the Labour Court in section 191(5)(b). How and when
an employee may “refer”
a dispute to the Labour Court is
dealt with in section 191(11)(a). Initially, in respect of proceeding
to an arbitration, section
191 was silent on the corresponding steps.
The 2002 amendments to the LRA amplified the procedure by the
insertion of section 191(5A):
‘
(5A)
Despite any other provision in the Act, the
council
or
Commission must commence the arbitration immediately after certifying
that the
dispute
remains
unresolved if the
dispute
concerns
–
(
a
) the
dismissal
of an
employee
for any reason relating to
probation;
b
)
any unfair labour practice relating to probation;
(
c
)
any other
dispute
contemplated
in subsection (5)(
a
)
in respect of which no party has objected to the matter being dealt
with in terms of this subsection.’
[58]
On
behalf of FAWU, it is argued that section 191(5A) must be read to
mean that the referral kicks the referred dispute automatically
into
the arbitration channel, seamlessly along with the conciliation
phase, and thus a referral ought on these grounds to be construed
a
“process” commencing legal proceedings. (Whether a CCMA
arbitration is indeed a “legal proceeding” in
the
relevant sense is a question I shall not address here and I assume
for the purposes of the analysis that it is.) CCMA Rule
18 provides
for a procedure in terms of which an employee may make the “request”
referred to in section 191(5)(a) by
filing a form LRA 7.13, and CCMA
Rule 19 empowers a commissioner to direct pleadings to be filed.
However, CCMA Rule 18(4) states
that it shall not apply to
“con-arb”
[42]
proceedings held in terms of section 191(5A).
[59]
In
my view, the contentions advanced on behalf of FAWU are misconceived.
Section 191(5A) may compel probation disputes to be immediately
arbitrated and require, in all other types of disputes, that a party
may object to immediate arbitration, but these provisions
are
obviously framed to address questions of timing and promote
expedition, but perform no additional role. It cannot be cogently
argued that there is no gear shift from conciliation to arbitration.
The absence of an “objection” to “con-arb”
has the identical
function
as a “request”. As regards a probation dispute, an
obviously special case, the provision addresses an axiomatic
intrinsic
urgency to such an issue. If probation matters are not
dealt at once, they shall be assured of being academic if dealt with
any
later. That policy choice addressing a special case cannot be
allowed to intrude a meaning that distorts the rest of the process.
Nevertheless, whatever industrial relations theory might be imposed
on the dynamic of con-arb, the section does not create a seamless
“process” to commence legal proceedings. Any other
interpretation must founder on the irreconcilability of the two
subsections, an outcome which an appropriate interpretation avoids.
[60]
Accordingly,
to sum up, a referral
per
se
plays no role in interrupting prescription. The need for a statement
of case to access the Labour Court is plain. In arbitrations,
the
need for a formal “request” can be obviated if an
arbitration is actually commenced, and a fictional “request”
is deemed to occur by the absence of an objection.
[61]
To
turn to the facts, which give rise to the grievance of FAWU in this
case, it is evident that prescription was running from the
date of
the dismissal. FAWU chose to pursue and persist in efforts to get the
dispute arbitrated. Those steps were ill-considered.
By the time FAWU
accepted it was in the wrong channel, and filed a statement of claim,
prescription had occurred. Section 15(2)
makes it plain that
bona
fide
steps to initiate litigation in the wrong forum do not constitute a
“process” contemplated by
section 15(1)
of the
Prescription Act.
[62
]
Accordingly,
the debt upon which FAWU relies has indeed prescribed.
D.
The
Order
[63]
In
the result, the appeal must fail. Given the nature of the controversy
and the ongoing relationship between the parties, no costs
orders
were sought.
[64]
Accordingly,
the order is thus:
The
appeal is dismissed.
Sutherland JA (with whom
Ndlovu JA and Murphy AJA concur)
APPEARANCES:
FOR THE APPELLANT:
Adv J Van der Riet
SC,
Instructed by Cheadle
Thompson & Haysom.
FOR
THE RESPONDENT:
Mr Snyman of S Snyman Attorneys,
[1]
[2000] ZASCA 144
;
2001 (3) SA 546
(SCA) at para 13.
[2]
Farlam
AJA went on to hold that: “The
inconsistent
provisions which have to be included
in an Act of Parliament and
which
will oust
some or all of the provisions of Chapter III are provisions which
(a) prescribe a specified period within which a claim is to
be made;
(b) prescribe a specified period within which an action is to be
instituted in respect of a debt; or (c) impose conditions
on the
institution of an action for the recovery of a debt…..”
(emphasis added)
In my view,
this passage gives rise to a difficulty if it is read to mean that
the mere existence of ‘provisions,’
as described, are
sufficient to constitute the ‘inconsistency.’ A better
reading is that the ‘type’ of
provisions in another
statute trigger the
risk
of inconsistency, but inconsistency
as a result of the provisions must still be
qualitatively
established. This would be the “consistency evaluation’
mentioned in
RAF v Mdeyide
2011 (2) SA 25
(CC):
“
[44]
Whether the provisions of the
Prescription Act apply
is determined
by s 16 of the Act. It states that the provisions apply save insofar
as they are inconsistent with the provisions
of any Act of
Parliament, which in this case would be the RAF Act.
[45]
A
consistency evaluation is thus necessary
. The test has been
formulated as 'in every case in which a plaintiff relies upon a
[certain provision], the cardinal question
is whether that provision
is inconsistent with [another provision]'. Inconsistency may arise
as the result of a different time
period being stipulated, but also
on other points, for example, with regard to mental capacity.
However, where provisions have been found to deal with a similar
subject-matter, yet without being identical, it has on occasion
been
held that there was no inconsistency.”
(emphasis supplied)
[3]
(
2016)
376 ILJ 413 (LAC).
[4]
2016 (4) SA 121
(CC).
[5]
This
provision, now in its amended nomenclature, so self-consciously and
inelegantly bowdlerised, refers to the exclusion of the
concept of
prescription from African Customary Law.
[6]
(2007) 28 ILJ 2405
(CC).
[7]
See
Footnote 1.
[8]
These
decisions are collected in
Myathaza
.
[9]
(2008) 29 ILJ 1450
(LAC).
[10]
(2014) 25 ILJ 35
(LAC).
[11]
Why
the proviso in
section 17(2)
of the
Prescription Act, in
terms of
which a court ‘may allow prescription to be raised at any
stage of the proceedings’ was not applicable is
not evident
from the judgment. It may be assumed that no application to ‘file’
an amendment about the point was made.
[12]
39
of the Constitution provides: Interpretation of Bill of Rights
(1)
When interpreting the Bill of Rights, a court, tribunal or forum-
(a)
must
promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
(b)
must
consider international law; and
(c)
may
consider foreign law.
(2)
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must
promote
the spirit, purport and objects of the Bill of Rights.
(3)
The Bill of Rights does not deny the existence of any other rights
or freedoms that are recognised or conferred by common
law,
customary law or legislation, to the extent that they are consistent
with the Bill.
[13]
This
zone of exclusivity of the labour fora exists together with a zone
of concurrent competence with the civil courts: see:
Chirwa
v Transnet Ltd and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC).
[14]
(2013) 34 ILJ 2865
(LC)
[15]
(2014) 35 ILJ 1237
(LC).
[16]
At para 8.
[17]
(2015)
36 ILJ 700 (LC).
[18]
At para 16.
[19]
1997 (1) SA 124
(CC).
[20]
Eg,
among many other authors, see: W Bradley Wendel,
Lawyers
and Fidelity to the Law
,
(Princeton University Press, 2010) pp 27-29
[21]
This
is the phrase used in the heads filed on behalf of FAWU.
[22]
Section
191 of the LRA:
Disputes
about unfair dismissals and unfair labour practices.
(1)
(
a
) If there is a
dispute
about the fairness of a
dismissal
, or a
dispute
about an unfair labour
practice, the dismissed
employee
or the
employee
alleging
the unfair labour practice may refer the
dispute
in writing
to(i) a
council
, if the parties to the
dispute
fall
within the registered
scope
of that
council
; or
(ii)
the Commission, if no
council
has jurisdiction.
(
b
)
A referral in terms of paragraph (
a
) must be made within
(i)
30 days of the date of a
dismissal
or, if it is a later date,
within 30 days of the employer making a final decision to dismiss or
uphold the
dismissal
;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within 90 days of the date on which the
employee
became aware
of the act or occurrence.
(2)
If the
employee
shows
good cause at any time, the
council
or
the Commission may permit the
employee
to
refer the
dispute
after
the relevant time limit in subsection (1) has expired.
2A
Subject to subsections (1) and (2), an
employee
whose
contract of employment is terminated by notice, may refer the
dispute
to
the
council
or
the Commission once the
employee
has
received that notice.
(3)
The
employee
must
satisfy the
council
or
the Commission that a copy of the referral has been
served
on
the employer.
(4)
The
council
or the Commission must attempt to resolve the
dispute
through conciliation.
(5)
If a
council
or a commissioner has certified that the
dispute
remains unresolved, or if 30 days or any
further
period as agreed between the parties have expired since the
council
or the Commission received the referral and the
dispute
remains unresolved
(
a
)
the
council
or the Commission must arbitrate the
dispute
at the request of the
employee
if
(i)
the
employee
has
alleged that the reason for
dismissal
is
related to the
employee'
s
conduct or
capacity,
unless paragraph (
b
) (iii) applies;
(ii)
the
employee
has alleged that the reason for
dismissal
is
that the employer made continued
employment
intolerable or the employer provided the employee with substantially
less favourable
conditions
or circumstances at work after a transfer in terms of section 197 or
197A, unless the
employee
alleges
that the contract of employment was terminated for a reason
contemplated in
section
187;
(iii)
the
employee
does not know the reason for
dismissal
;
or
(iv)
the
dispute
concerns an unfair labour practice; or
(
b
)
the
employee
may refer the
dispute to
the Labour Court
for adjudication if the
employee
has alleged
that
the reason for
dismissal
is
(i)
automatically unfair;
(ii)
based on the employer's
operational requirements
;
(iii)
the
employees
participation in a
strike
that does not
comply with the provisions of Chapter IV; or
(iv)
because the
employee
refused to join, was refused membership
of or was expelled from a
trade
union
party
to a closed shop agreement.
(5A)
Despite any other provision in the Act, the
council
or
Commission must commence the arbitration
immediately
after certifying that the
dispute
remains unresolved if the
dispute
concerns
(
a
)
the
dismissal
of an
employee
for any reason relating
to probation;
(
b
)
any unfair labour practice relating to probation;
(
c
)
any other
dispute
contemplated in subsection (5) (
a
)
in respect of which no party has objected to the
matter
being dealt with in terms of this subsection.
(6)
Despite subsection (5) (
a
) or (5A), the
director
must
refer the
dispute
to the Labour Court, if the
director
decides, on application by any party to the
dispute
, that
to be appropriate after considering
(
a
)
the reason for
dismissal
;
(
b
)
whether there are questions of law raised by the
dispute
;
(
c
)
the complexity of the
dispute
;
(
d
)
whether there are conflicting arbitration awards that need to be
resolved;
(
e
)
the public interest.
(7)
When considering whether the
dispute
should be referred to
the Labour Court, the
director
must give the parties to the
dispute
and the commissioner who attempted to conciliate the
dispute
, an opportunity to make representations.
(8)
The
director
must notify the parties of the decision and
refer the
dispute
(
a
)
to the Commission for arbitration; or
(
b
)
to the Labour Court for adjudication.
(9)
The
director's
decision is final and binding.
(10)
No person may apply to any court of law to review the
director's
decision until the
dispute
has been
arbitrated
or adjudicated, as the case may be.
(11)
(
a
) The referral, in terms of subsection (5) (
b
), of a
dispute
to the Labour Court for adjudication, must be made
within 90 days after the
council
or (as the case may be) the
commissioner has certified that the
dispute
remains
unresolved.
(
b
)
However, the Labour Court may condone non-observance of that
timeframe on good cause shown.
(12)
An
employee
who is dismissed by reason of the employer's
operational requirements
may elect to refer the
dispute
either to arbitration or to the Labour Court if
(
a
)
the employer followed a consultation procedure that applied to that
employee
only, irrespective of
whether
that procedure complied with section 189;
(
b
)
the employer's
operational requirements
lead to the
dismissal
of that
employee
only; or
(
c
)
the employer employs less than ten
employees,
irrespective of
the number of
employees
who are
dismissed.
(13)
(
a
) An
employee
may refer a
dispute
concerning
an alleged unfair labour practice to the Labour Court for
adjudication if the
employee
has alleged that the
employee
has been subjected to an occupational detriment by the employer
in contravention of
section 3
of the
Protected Disclosures Act,
2000
, for having made a protected disclosure defined in that Act.
(
b
)
A referral in terms of paragraph (
a
) is deemed to be made in
terms of subsection (5) (
b
).
[23]
See
Footnote 1;
[24]
[2012] 3 All SA
622 (SCA).
[25]
After
2007 the section reads thus:
30ITime
limit for lodging of complaints
(1)
The Adjudicator shall not investigate a complaint if the act or
omission to which it relates occurred more than three years
before
the date on which the complaint is received by him or her in
writing.
(2)
The provisions of the Prescription Act, 1969 (Act
68 of 1969), relating to a debt apply in respect of the
calculation of
the three year period referred to in subsection (1).
[26]
1990 (4) SA 11
(E).
[27]
Labour
Court Rule 6(1) read with sections 191(5) (b) and 191(11) of the
LRA.
[28]
2009 (6) SA 323
(CC).
[29]
At para 51.
[30]
This
formulation is in my view not different in substance to the
formulation I prefer as addressed in paragraph 43.
[31]
Makate
at paras 81 – 93 per Jafta J (for Majority) and at paras 185 –
99 per Wallis AJ (Minority) dealt with the prescription
issue.
[32]
Desai
NO v Desai
1996 (1) SA 141 (A).
[33]
ESCOM
v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) at 344E.
[34]
Section
193 of LRA. See too
Benson
v SA Mutual Life Assurance
1986 (1) SA 776
(A) on specific performance claims and the Civil
Courts’ residual discretion about enforcement and the
alternative of damages.
[35]
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 212 F – J.
[36]
(2010) 31 ILJ 88
(SCA) at para 6.
[37]
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) at 826J.
[38]
2004 (2) SA 622
(SCA) at para 6.
[39]
2013 (5) SA 226
(GNP).
[40]
2013 (6) SA 9
(SCA
).
[41]
2014 (4) SA 394
(SCA).
[42]
“
con-arb’
is the label derived from a ‘conciliation-arbitration’
process in which a single person acts as both
conciliator and
arbitrator, an arrangement which might seem to be counter intuitive
but is not unknown in the practice of industrial
relations.