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[2017] ZALAC 58
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South African Transport and Allied Workers' Union obo Masiteng v Scopeful 21 t/a Maluti Bus Services (JA18/2015) [2017] ZALAC 58 (18 October 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA18/2015
In the matter between:
SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS’ UNION obo M
MASITENG
Appellant
and
SCOPEFUL
21 t/a MALUTI BUS
SERVICES
Respondent
Heard:
05 September 2017
Delivered:
18 October 2017
Summary: Costs – opposition
to appeal against finding that award prescribed justified until the
Constitutional Court’s
decision in
Myathaza:
respondent
withdrawing opposition in light of that decision: respondent only
liable for costs of the appeal from date of that decision
to date of
appeal.
Coram: Coppin JA, Sutherland JA and
Savage AJA
JUDGMENT
COPPIN JA
[1]
This is an appeal against the judgment of the Labour Court
(Tlhotlhalemaje AJ (as he then was)) dismissing an application
brought
by the appellant in terms of section 158(1)(c) of the Labour
Relations Act
[1]
(“
the
LRA
”)
to make an arbitration award an order of court. Leave to appeal to
this Court was granted by the court
a
quo
.
[2] In terms of the award, which was
made on 29 July 2008, the dismissal of the employee, Mr M Masiteng,
was found to be substantively
unfair; the respondent was to reinstate
him, with full benefits, as Human Resources Officer on or before 11
August 2008; and the
respondent was to pay the employee back -pay
from the date of his dismissal to 1 July 2008.
[3] The appellant opposed an
application brought by the respondent to review and set aside the
award. Even though the respondent
withdrew that application on 2
December 2011, it still refused to comply with the award, resulting
in the appellant launching the
application, which is the main subject
of this appeal, on 7 June 2012.
[4]
The main defence raised by the respondent in its opposition to the
appellant’s application was that the award had prescribed
in
terms of the Prescription Act,
[2]
since more than three years had elapsed since the date of the issue
of the award. The court
a
quo
upheld the point, finding, in essence, that the Prescription Act was
applicable; that the running of prescription had not been
interrupted
by the respondent’s review; and that the award had prescribed
on or about 30 July 2011. No costs order was made.
[5]
At the time of the court
a
quo’
s decision,
there were conflicting decisions in the Labour Court on the issue of
the prescription of awards made in terms of the
LRA. Those decisions
are referred to in the court
a
quo’s
main
judgment and in its judgment in the application for leave to appeal.
The court
a quo
granted
leave to appeal to this Court, but the respondent opposed the appeal,
inter
alia,
in light of the (then pending) decision by this Court on the issue of
prescription.
[6]
In brief, this Court in
Myathaza
v Johannesburg Metropolitan Bus Services SOC Ltd t/a Metrobus,
[3]
(
Myathaza)
held,
inter
alia,
that the Prescription Act was applicable to an award such as the one
under consideration in this matter; that the award was a “
debt
”
as contemplated in that Act with a prescriptive period of three
years; and that a review application, i.e. not covered by
the Labour
Relations Amendment Act,
[4]
did not interrupt the running of the prescription.
[7]
This Court’s decision in
Myathaza
was taken on appeal to the Constitutional Court. In a decision handed
down in December 2016, the Constitutional Court, in effect,
overruled
this Court’s decision in the matter
[5]
.
Of the eight justices that constituted the Court, four justices
[6]
held that the Prescription Act did not apply, and that even if it did
apply to the award there, the award was not a “debt”
as
contemplated in the Prescription Act. Four other justices
[7]
held, in essence, that the Prescription Act was applicable; that the
award was a “
debt
”;
but that prescription was effectively interrupted by the review
application, and remained interrupted until all legal proceedings
between the parties had been finalised.
[8] Notwithstanding, the respondent
continued to oppose the appeal until 1 September 2017, when it, in a
letter to the appellant’s
attorneys, withdrew its opposition
and indicated that it will only be arguing the costs aspects before
this Court. The respondent
further indicated in that letter that it
was willing to tender the appellant’s costs from 15 December
2016 to the date of
the letter, namely, 1 September 2017.
[9]
At the hearing, counsel for the appellant submitted that in respect
of the merits of the appeal, and despite the uncertainty
of the ratio
in
Myathaza
,
the appellant should succeed on either of the two main conclusions
arrived at by the Constitutional Court in that matter; and
that such
approach was consistent, firstly, with the manner in which the
Constitutional Court itself dealt with a subsequent matter,
[8]
and secondly, this Court’s approach in
Van
Tonder v Compass Group (Proprietary) Limited and Others.
[9]
[10] Regarding the costs, the
appellant’s counsel submitted that the appellant was entitled
to the costs of both the application
and the appeal. The respondent’s
counsel, however, argued that taking into account the law and
fairness, its opposition to
the application and the appeal itself
were justified until the Constitutional Court’s decision in
Myathaza,
and particularly because there were other decisions
in the Labour Court supporting the respondent until then.
[11] There is merit in the
respondent’s counsel’s submission in respect of costs.
The tender is reasonable given
the legal position that pertained. For
the same reasons, there should be no costs in respect of the
application itself.
[12] In the result:
12.1 The appeal is upheld with costs
as tendered by the respondent in its letter dated 1 September 2017;
12.2 The order of the court
a quo
is set aside and substituted with the following order:
‘
The
arbitration award, issued by Adv Motloung on 29 July 2008 under the
auspices of the South African Road Passenger Bargaining
Council, is
made an order of the Labour Court in terms of
sec 158(1)(c)
of the
Labour Relations Act 66 of 1995
.’
_______________________________
P Coppin –
Judge of Appeal
Sutherland JA and Savage AJA concur.
APPEARANCES
FOR THE APPELLANT: J G van der Riet SC
Instructed by Cheadle Thompson and
Haysom
FOR THE RESPONDENT: R G Beaton SC
Instructed by De Villiers Du Plessis
Attorneys
[1]
Labour
Relations Act 66 of 1995
.
[2]
Prescription
Act 68 of 1969
.
[3]
Myathaza
v Johannesburg Metropolitan Bus Services SOC Ltd t/a Metrobus
2016
(3) SA 74 (LAC).
[4]
Labour
Relations Amendment Act 6 of 2014.
[5]
See
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and
Others
[2016] ZACC 49
; (2017) 38 ILJ 527; [2017] 3 BLLR 213; 2017 (4) BCLR
473 (CC).
[6]
See
the Judgment of Jafta JA (Nkabinde ADCJ, Khampepe J and Zondo J
concurring), especially at paras 56- 60.
[7]
See
the judgment of Froneman J (Madlanga J, Mbha AJ and Mhlantla J
concurring) especially at paras 66-98.
[8]
Mogaila
v Coco Cola Fortune
(Pty)
Ltd
[2017] 5 BLLR 435 (CC).
[9]
Van
Tonder v Compass Group (Proprietary) Limited and Others
(JA58/16) an unreported judgment of the LAC delivered on 1 June
2017.