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[2018] ZALAC 43
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Motsoaledi and Others v Mabuza (JA47/16) [2018] ZALAC 43; [2019] 1 BLLR 21 (LAC); (2019) 40 ILJ 117 (LAC) (6 September 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 47/16
In
the matter between:
DR
PAKASHE AARON
MOTSOALEDI First
Appellant
MR
GIDOEN PUDUMO
MASHEGO Second
Appellant
NATIONAL
DEPARTMENT OF
HEALTH Third
Appellant
MPUMALANGA
DEPARTMENT OF HEALTH Fourth
Appellant
and
ZANDILE
QUEEN
MABUZA Respondent
Heard:
02 March 2017
Delivered:
06 September 2018
Summary:
An alleged unfair labour practice constitutes a debt and the
provisions of the
Prescription Act 68 of 1969
are applicable.
An
application to a bargaining council to certify an award is not a
process contemplated by the
Prescription Act and
does not interrupt
prescription.
Brompton Court Body
Corporate v Khumalo
(398/2017)
[2018] ZASCA 27
(23 March 2018) considered but Froneman J’s
judgment in
Myathaza v Johannesburg
Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others
(2017) 38 ILJ 527 (CC);
[2017] 3
BLLR 213
(CC) and
Food
and
Allied Workers’ Union obo Gaoshubelwe v Pieman’s Pantry
(Pty) Limited
2018 (5) BCLR 527
(CC) followed. Appeal upheld as
regards two appellants that have no power to implement the order and
dismissed as regards the remaining
appellants.
Coram:
Waglay JP, Tlaletsi DJP, Landman JA
Neutral
citation:
Motsoaledi v Mabuza
(LAC JA47/16)
JUDGMENT
LANDMAN
JA
[1]
Dr P A Motsoaledi, Mr Gidoen Pudumo Mashego (in their official
capacities), the National Department of Health and the Mpumalanga
Department of Health, the first to fourth appellants, appeal against
the whole judgment of the Labour Court (Boda AJ) delivered
on 7
August 2015 that made an arbitration award of an arbitrator, acting
under the auspices of the Public Health and Social Development
Sectoral Bargaining Council, concerning Ms Z Q Mabuza, the
respondent, an order of court and granting consequential relief. The
appeal is with leave of the court
a quo
.
Condonation
and reinstatement of the appeal
[2]
The appellants applied for condonation of the late filing of
the notice of appeal and their failure to file the record timeously.
The respondent did not object to the application. As the explanation
was satisfactory condonation was granted.
The
background
[3]
On 7 August 2009, the
Health & Other
Services Personnel Trade Union of South Africa
(HOSPERSA),
other trade unions and the fourth appellant reached a
settlement
agreement during an arbitration. It was agreed,
inter alia
,
that nurses performing certain duties, as at 30 June 2007, would be
translated to specific salary notches.
[4]
Although the settlement agreement was reached on 7 August
2009, further deliberations took place between the parties stretching
to June 2012. The outcome does not affect the respondent as her claim
was instituted on 11 September 2010 when she referred a dispute
to
the Public Health and Social Development Sectoral Bargaining Council.
Case number PSHS711-09/10 was assigned to her case. I
infer that the
case number signifies that it was received on 11 September 2010.
[5]
The respondent’s referred a dispute or claim in terms of
the settlement agreement. The arbitrator notes that the issue to be
decided was whether the failure by the fourth appellant and the
Witbank Hospital to translate the respondent to salary notch PN-A8
because she had acted as Deputy Manager: Nursing since 2005
constituted an unfair labour practice.
[6]
The dispute was arbitrated. The arbitrator’s award dated
30 September 2010 was received ie published on 7 October 2010. The
arbitrator held that the failure by the fourth appellant and the
Witbank Hospital to translate the respondent to the post of Deputy
Manager: Nursing with effect from 1 July 2007 amounted to an unfair
labour practice. The fourth appellant and the Hospital were
ordered
to translate the respondent to that post with ’immediate
effect’ as from 1 July 2007. The process was to be
completed by
1 November 2010.
[7]
In spite of the demand, the fourth appellant did not comply
with the award. Therefore:
(a)
On 3 October 2013, the respondent caused the award to be
certified in terms of section 143 of the Labour Relations Act 66 of
1995
(“LRA”).
(b)
On 4 October 2013, the respondent served a statement of case
(the first statement of case) in order to enforce the award and a
copy
of form 1 (an application to the Registrar of the Labour Court
for a case number on the fourth appellant on 4 October 2013.
(c)
The Registrar had not issued a case number when the first
statement of case was served. At the insistence of the Registrar the
respondent
subsequently applied for a case number. Case number
JS1097/13 was issued. The second statement of case to enforce the
award, bearing
the case number, was served on the fourth appellant on
22 November 2013.
(d)
On the same date the respondent served an application in terms
of section 158(1)(c) of the LRA to make the award an order of court.
(e)
It seems that the application to make the award an order of
court was not pursued.
(f)
On 17 April 2015, the respondent launched an urgent
ex
parte
application to hold the appellants in contempt of court.
[8]
The contempt application gave rise to a rule
nisi
that
was opposed by the four appellants. They submitted that no one could
be held in contempt of an arbitration award. The first
and third
appellants submitted that they were not responsible for ensuring
compliance with the award. It was also contended that
the award was
only binding on the fourth appellant, but it was not enforceable
because it was not implementable and the award or
debt had prescribed
in terms of the Prescription Act 68 of 1969 (‘the
Prescription
Act&rsquo
;). The second and fourth appellants raised the plea of
prescription in their opposing affidavit in the following way:
‘
The
certification of the award does not make an award an order of court
and it does not [not] interrupt the running of prescription.
The
award prescribed on the 6 October 2013.’
The
judgment of the court
a quo
[9]
The court
a
quo
found that:
(a)
prescription had been interrupted by the
application for the certification of the award; and
(b)
the award was binding on all the
appellants.
[10]
The court
a quo
made the following order, which is the
subject of this appeal, against all the appellants:
‘
1.
The award of the Bargaining Council dated 30 September 2010 as served
on the parties on 7 October 2010 is binding on the Respondents
and is
hereby made an order of the Labour Court.
2.
The Respondents are compelled to comply with the award, they must do
so within two weeks of the date of this order by complying
with
paragraph 38 and 39 of the award as it appears on page 18 of the
paginated papers.
3.
Should the Respondents fail to comply with the award, the Applicant
is granted leave to re-enrol the application for contempt
in urgent
court.
4.
The Respondents are ordered to pay the costs of this application
jointly and severally.’
The
issues on appeal
[11]
This judgment examines:
(a)
whether the award was implementable;
(b)
whether it was competent for an order to be made against the
first and third appellants;
(c)
whether an unfair labour practice relating to promotion gives
rise to a debt;
(d)
whether this debt, that was the subject of arbitration
proceedings, prescribed in accordance with the
Prescription Act as
interpreted by the Constitutional Court;
(e)
whether this debt, that was the subject of arbitration
proceedings, prescribed in accordance with the
Prescription Act as
interpreted by the Supreme Court of Appeal;
(f)
whether it was competent for the court a quo to make the award
an order of court?
(a)
Is the award implementable?
[12]
The second and fourth appellants aver that the award is not
implementable but they do not elaborate on this. The action which
these
appellants are obliged to perform is clear and straightforward.
The complaint that the award is not implementable is probably not
directed at the clarity of the award and subsequent order. It may be
that these appellants are reiterating an objection, voiced
during the
arbitration, that it is too expensive to comply with the award
because several nurses acted in the position in question.
But this
does not assist them as they have not challenged the validity of the
award by means of an application to review it.
(b)
Was it competent for an order to be made against the first and third
appellants?
[13]
An award is only binding on the parties to the arbitration. In
this case, it binds only the second appellant in his official
capacity
and the fourth appellant on the one hand and the respondent
on the other hand. But where a corporate body or an organ of state is
required to perform an act, it is competent for the Labour Court, on
application, to:
(a)
make the award an order of court;
(b)
to order the natural person responsible to effect to or put in
operation the order into operation the order, to comply with the
order; and
(c)
should such a person fail to comply with the order, contempt
proceedings may be instituted and those responsible for the failure
may be joined in the application.
[14]
The second step may not
always be required. Nkabinde J writing for the Constitutional Court
in
Pheko and Others v
Ekurhuleni Metropolitan Municipality (No 2)
[1]
said:
‘
When
a court order is disobeyed, not only the person named or party to it
but all those who, with the knowledge of the order, aid
and abet the
disobedience or wilfully are party to the disobedience are liable.
The reason for extending the ambit of contempt
proceedings in this
manner is to prevent any attempt to defeat and obstruct the due
process of justice and safeguard its administration.
Differently put,
the purpose is to ensure that no one may, with impunity, wilfully get
in the way of, or otherwise interfere with,
the due course of justice
or bring the administration of justice into disrepute.’
[2]
But
it may be salutary to order such persons to comply with the order so
that they are apprised or reminded of their responsibilities
and
duties.
[15]
The first and third appellants operate on the third tier of
government and do not have the responsibility or power to give effect
to an award relating to an employee employed by the second tier of
government. It is common cause that the respondent is an employee
of
the Mpumalanga Provincial Government, the second tier of government.
The respondent has not pointed to any legal authority that
imposes
liability on the first and third appellants. The finding that the
award was binding on the first and third appellants is
erroneous and
therefore the order of court making that award an order of court
vis-à-vis
the first and third appellants cannot stand.
The appeal must be upheld as regards these appellants.
[16]
It was competent for the court
a quo
to make an order
that the award binding upon him as the MEC responsible for the fourth
respondent and to order him and the fourth
appellant to comply with
the order.
(c)
Is an unfair labour practice relating to promotion a debt?
[17]
In order to answer this question it is necessary to have
regard to the latest judgments of the Constitutional Court regarding
prescription
of claims addressed by the
Labour Relations Act.
[18
]
At the time the appeal
was heard, the applicability of the
Prescription Act 68 of 1969
to
claims governed by the LRA had been the subject of a decision of the
Constitutional Court in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
and Others (Myathaza)
.
[3]
The court was equally divided on the issue. The judgment written by
Jafta J
(Nkabinde
ADCJ, Khampepe J and Zondo J concurring)
held
that the
Prescription Act did
not apply to awards made in terms of
the LRA. Zondo J also provided his own reasons. The other judgment
written by Froneman J (Madlanga
J, Mbha AJ and Mhlantla J concurring)
held that the
Prescription Act does
apply but that the Act must be
read in harmony with the right of access to courts and that
prescription can readily be interrupted.
[19]
The four appellants relied on the judgment of Froneman J while
the respondent was content to rely on the judgment of Jafta J.
[20]
Since then the
Constitutional Court has revisited the applicability of the
Prescription Act to
claims in terms of the LRA in
Food
and Allied Workers’ Union obo Gaoshubelwe v Pieman’s
Pantry (Pty) Limited
(
Gaoshubelwe).
[4]
The majority decision written by Kollapen AJ may be summarised as
follows:
(a)
There is compatibility
and consistency between the provisions of the
Prescription Act and
those of the LRA. Although they both deal with the issue of time,
they focus on different aspects of its application in the litigation
process. The LRA deals with time periods that do not necessarily
result in the extinction of a claim in the event of non-compliance
with them, while the
Prescription Act deals
with time periods that
will result in the extinction of the claim in the event of
non-compliance.
[5]
(c)
The two relevant statutory provisions that require
consideration are
section 16(1)
of the
Prescription Act and
section
210
of the LRA.
Section 16(1)
of the
Prescription Act reads
:
‘
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 reads:
‘
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.’
[6]
(d)
The rationale for the existence
of time periods is generally to expedite litigation, to limit delays,
and to bring a measure of
certainty to the litigation process.
[7]
(e)
There are essentially two
distinguishable kinds of time periods - a time bar (as in the LRA)
and a true prescription time period
(as in the
Prescription Act).
Non-compliance with
a time bar is capable of being condoned while a
true prescription period is not.
[8]
(f)
A limitation within which an
action was to be instituted was not in itself constitutionally
offensive. A limitation’s ultimate
coherence with the scheme of
the Constitution of the Republic of South Africa of 1996 would be
determined by whether the time prescribed
could be regarded as
constituting a reasonable and fair opportunity to seek redress.
[9]
(g) The word ‘debt’ should
be given the meaning ascribed to it in the Shorter Oxford Dictionary,
namely:
‘
1.
Something owed or due: something (as money, goods or service) which
one person is under an obligation to pay or render to another.
2.
A liability or obligation to pay or render something; the condition
of being so obligated.’
[10]
(h)
A claim based on an alleged
unfair dismissal is a claim that seeks to enforce three possible
kinds of obligations against an employer:
reinstatement,
re-employment, and compensation. All three obligations fit neatly
within the definition of debt as they constitute
either an obligation
to pay or render something.
[11]
(i)
An unfair dismissal claim
activates proceedings for the recovery of a debt as contemplated in
section 16(1) of the Prescription
Act.
[12]
(j)
It is necessary, in the case of
a claim for dismissal, to evaluate the inconsistency which the first
judgment in
Myathaza
concludes does indeed
exist.
[13]
(k)
Difference in the various
provisions may provide evidence of inconsistency, but it does not
alter the fundamental test that the
section requires, namely a
finding of inconsistency.
[14]
(l)
Section 210 of the LRA, which
provides that the provisions of the LRA will apply in the event of
conflict between it and the provisions
of any other law but a
difference in itself will not constitute conflict unless such
difference necessarily leads to conflict.
[15]
(m)Regard being had to section 210 of
the LRA, the provisions of the LRA are not in conflict with the
provisions of the
Prescription Act. It
must follow that if there is
no inconsistency then,
a
fortiori
(with stronger
reason), there can be no conflict. The existence of conflict between
the two statutes has not been established.
[16]
(n)
Section 15 of the Prescription Act
reads:
‘
(1)
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.
(2)
Unless the debtor acknowledges liability, the interruption of
prescription in terms of subsection (1) shall lapse, and the running
of prescription shall not be deemed to have been interrupted, if the
creditor does not successfully prosecute his claim under the
process
in question to final judgment or if he does so prosecute his claim
but abandons the judgment or the judgment is set aside.’
(o)
The
referral
of disputes to the Commission for Conciliation, Mediation and
Arbitration (CCMA) for conciliation constitutes the service
of a
process commencing legal proceedings.
[17]
(p)
Applying the
Prescription Act to
the facts before it, the majority of the Court
said:
[18]
‘
For
these reasons, I would conclude that, although prescription began to
run when the debt became due on 1 August 2001, it was interrupted
by
the referral of the dispute to the CCMA on 7 August 2001 and
continued to be interrupted until the dismissal of the review
proceedings by the Labour Court on 9 December 2003. Accordingly, when
the dispute was referred to the Labour Court for adjudication
on 16
March 2005, it clearly had not prescribed. It is for these reasons
that the appeal must succeed.’
[21]
The majority judgment in
G
aoshubelwe
does
not explain when the interruption of prescription, ceases should an
award not be reviewed. The explanation must be sought in
the judgment
of Froneman J in
Myathaza.
After considering
Van
der
Merwe
v Protea Insurance Co Ltd
1982
(1) SA 770
(E)
at 773A-C
Froneman
J concludes:
[19]
‘
The
restriction
to
review
only
provides
a
cogent
and
compelling
reason
for
re-
interpreting the
Prescription Act to
include statutory reviews under
section 145
of
the LRA as included in the judicial process that interrupts
prescription until finality is reached under
section 15
of that Act.
The restriction infringes the right of access to courts more severely
than where a right of appeal is allowed. An
interpretation that best
protects the right of access should be preferred. That can be
achieved by allowing the right of review
to play the same role of
finality as the
right
of appeal does in ordinary matters.’
[22]
The appeal before us involves an unfair labour practice
relating to promotion as opposed to an unfair dismissal considered in
Gaoshubelwe
. But as the LRA treats unfair dismissals and
unfair labour practices in much the same way, this appeal is
undistinguishable from
the exposition of the law laid down in
Gaoshubelwe
.
[23]
A dispute concerning an unfair labour
practice must, in terms of s
ection
191(b)(ii) of the LRA, be referred to the CCMA or a bargaining
council having jurisdiction within 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. In terms of section
193(4) an arbitrator may determine any unfair
labour practice dispute
referred to the arbitrator, on terms that the arbitrator deems
reasonable, which may include
ordering reinstatement,
re-employment or compensation. A claim to remedy an unfair labour
practice clearly gives rise to a debt
as contemplated by the
Prescription Act. I
am of the opinion that the investigation and
conclusion undertaken in the majority judgment in
Gaoshubelwe
apply equally to the case of an unfair labour practice concerning
promotion.
What
is the period of prescription?
[24]
What
is the period of prescription that applies as regards an unfair
labour practice concerning promotion? A
debt
is extinguished by prescription after the lapse of the period which
in terms of the relevant law applies in respect of prescription
of
such debt.
[20]
In the absence of any other specific period set out in
section 11
(a), (b) and (c), the period of prescription of debts is three
years.
[21]
The period of prescription commences to run as soon as the debt is
due.
[22]
It
follows that the prescription period applicable to an unfair labour
practice concerning promotion is 3 years.
[25]
There is no indication on the record
when the respondent’s unfair labour practice debt commences to
run. I intend to return
to this aspect. However, it may be accepted
that prescription was interrupted when the dispute was referred to
the bargaining council
on
11 September
2010.
(d)
Did this debt, that was the subject of arbitration proceedings,
prescribe in accordance with the
Prescription Act as
interpreted by
the Constitutional Court?
[26]
In accordance with the
Froneman J’s judgment in
Myathaza
,
impliedly adopted in
Gaoshubelwe
,
the interruption of prescription ceases when any review proceedings
are terminated by a judgment.
[23]
The award in this appeal was not taken on review. So when did the
interruption of prescription cease?
[27]
The reasoning in
Myathaza
suggests that the interruption of
prescription ceases when the award is published because the
publication of the award gives rise
to a new prescription period of
30 years.
This follows from the
observation made in the judgment at para 71:
‘
Where
a debt is the object of a dispute subjected to arbitration the period
of prescription is delayed. The award of an arbitrator
in terms of an
arbitration agreement has the status of a court order between the
parties and the applicable prescription period
is that which is
applicable to a judgment debt. There seems little reason why parties
subjected to statutory arbitration should
not enjoy similar
protection in respect of arbitration awards in their favour.’
[28]
It follows that on the application of Froneman’s
judgment in
Myathaza
to the facts of this appeal the award
gave rise to a new period of prescription of 30 years. This period
had not expired when the
respondent’s application to hold the
appellant in contempt of court was served. Whether it was competent
for the court a
quo to make the award an order in regard to that
application will be investigated later.
[29]
In view of the 30-year prescription period it would not be
necessary to decide whether t
he court
quo
correctly held that the
certification of the award by the bargaining council interrupted the
running of prescription. But nevertheless
some remarks are called
for. In Froneman J’s Myathaza judgment he held at para 75 that:
‘
Unfair
dismissal disputes must be referred to the CCMA] or bargaining
councils and if conciliation fails can then be referred to
arbitration or the Labour Court. The CCMA Rules provide for service
of referrals and the further steps when arbitration follows.
Section
15(6)
of the
Prescription Act defines
“process” as
including a petition, a notice of motion, a rule nisi, a pleading in
reconvention, a third party notice
referred to in any rule of court
and “any document whereby legal proceedings are commenced”.
In Mountain Lodge Hotel
Georges CJ held in relation to a similar
provision in Zimbabwean legislation that:
‘
The
definition of “process” in subsection (6) is not
exclusive in its scope. The section merely enumerates some documents
which fall within the ambit of the word. It clearly contemplates that
other documents may fall within that ambit.’
Given
the CCMA’s constitutionally compliant status as an independent
and impartial tribunal resolving judicial disputes I
can see no
reason why the service of a referral under the provisions of the LRA
and the CCMA Rules should not fall within the ambit
of
section 15(1)
of the
Prescription Act.’
[30
]
The
certification of an award is the first step in the process of
enforcing an award. Although it has been held that an application
for
the certification of an award interrupts prescription,
[24]
this proposition is erroneous. The running of prescription is
“interrupted by the service on the debtor of any process
whereby
the creditor claims payment of the debt.” There is no
requirement that an application to certify an award, like a referral
of a dispute to the CCMA or bargaining council, must be served on the
debtor. Therefore, although an application for certification
is the
first step in enforcing an award, the absence of service does not
satisfy
section 15(1)
of the
Prescription Act and
it does not
interrupt the running of prescription.
[25]
(e)
Did this debt, that was the subject of arbitration proceedings,
prescribe in accordance with the
Prescription Act as
interpreted by
the Supreme Court of Appeal?
[31]
In
Brompton
Court Body Corporate v Khumalo (Brompton Court)
[26]
t
he
Supreme Court of Appeal (SCA) pointed out that even a judgment of a
court of law generally does not create a new debt. The SCA
said at
para 6 that a judgment of a court of law:
‘…
serves
to affirm and/or liquidate an existing debt which was disputed. What
the judgment does in relation to prescription of a debt,
is to give
rise to a new period of prescription of 30 years in terms of s
11(a)(ii) of the Act. The same must generally apply to
an arbitration
award, save that it does not attract a new prescriptive period in
terms of s 11 of the Act.’
[32]
The SCA examined
section 13(1)(f)
of the
Prescription Act.
This
section provides that:
‘
(1)
If —
…
(f)
the debt is the object of a dispute subjected to arbitration;
…
and
‘
(i)
the relevant period of prescription would, but for the provisions of
this subsection, be completed before or on, or within one
year after,
the day on which the relevant impediment referred to in paragraph
(a), (b), (c), (d), (e), (f), (g) or (h) has ceased
to exist,
the
period of prescription shall not be completed before a year has
elapsed after the day referred to in paragraph (i).’
[33]
The SCA said that the impediment to the enforcement of the
debt, caused by its submission to arbitration, save in exceptional
circumstances,
such as abandonment of the arbitration proceedings
before completion, will cease to exist on affirmation of an existing
debt by
an arbitration award. The Court went on to say at para 8 that
the sensible and logical approach is that the delay of completion
of
prescription in terms of
section 13(1)(f)
is intended to enable a
creditor to apply that the arbitration award be made an order of
court in terms of
section 31
of the
Arbitration Act 42 of 1965
,
before the debt, on which it is based, prescribes.
[34]
In applying the approach in
Brompton
Court
to the facts of the appeal
before us, the immediate problem is that one does not know when the
period of prescription of the debt
(the unfair labour practice) of
three years commenced to run. This means that one cannot calculate
what period of prescription
remained when the award was published on
7 October 2010. If any part of the
relevant
period of prescription would, but for the provisions of this
subsection (13(1)(f) be completed before or on 7 October 2010,
or
within one year of this date, the period of prescription is not
completed before a year has elapsed after 7 October 2010. On
the
other hand, although the SCA did not decide this, it would follow
that if the prescription period were to expire more than
a year after
the award as published this period would continue to apply.
[35]
If one assumes, for example, at best for
the respondent that her debt arose a day before the referral of the
unfair labour practice
dispute to the bargaining council on 11
September 2010, the 3-year period of prescription would have expired
on 10 September 2013.
[36]
As n
o process had been served before
this date,
if the
Brompton
Court
judgment is applied to the
facts of this appeal, the debt would have prescribed.
(f)
Was it competent for the court a quo to make the award an order of
court?
[37]
The appellants submitted that the court
a quo was bound by the four corners of the papers. There was no
application to make the
award an order of court (meaning that the
application that had been served was not moved). It was submitted
that it was not competent
for the court a quo to mero motu make the
award an order of court.
[38]
The respondent was remiss in failing to
move her application to make the award an order of court. It was
certainly competent for
the court that granted the rule and the court
a quo to have dismissed the application. But it was also competent
for the court
a quo, on the extended return day, to make the award an
order of court and effectively postpone the application a regards
contempt
of court. In her contempt application the respondent prayed
for further or alternative relief. The relief which the court a quo
afforded the respondent qualifies as alternative relief. There is no
suggestion that the appellants were prejudiced save as regards
the
additional costs. This ground of appeal falls to be dismissed.
Conclusion
[39]
The majority judgment in Gaoshubelwe resting on the Froneman J’s
judgment in Myathaza is binding on this court. In the
result the
respondent’s debt has not prescribed. The respondent was
entitled to enforce the order in the manner that she
did. But no
order should have been made as to costs in view of the way in which
the respondent sought relief. The court a quo erroneously
declared
that the award was binding on the first and third appellants but the
court a quo was entitled to order the second appellant
to comply with
the award. The award is implementable. The court a quo was entitled
to make the order that it did save that it must
be amended by
restricting its application to the second and fourth appellants.
Costs
[40]
I turn to the costs of the appeal. In terms of
section 179
of the
LRA, this Court may make an order for the payment of costs, according
to the requirements of the law and fairness, taking
into account the
factors set out in subsection (2).
[41]
The first and third appellants have been successful. Although the
first and third appellants were wrongly enmeshed in this
litigation,
their costs should be minimal as they used the same attorney and the
same advocate to represent them. I would not make
an order for their
costs.
[42]
The second and fourth appellants failed to comply with an award of
the bargaining council, failed to review the award, made
no attempt
to resolve the issue and simply took the prescription point. It seems
to me that they acted unfairly towards the respondent.
It will be
fair to order them to pay the costs of the appeal.
Order
[43]
The following order is made:
1. Condonation for the late filing of
the record is granted and the appeal is reinstated.
2. The application for condonation for
the late filing of the notice of appeal is condoned.
3. The appeal is upheld as regards the
first and third appellants.
4. The appeal is dismissed as regards
the second and fourth appellants.
5. The order of the court
a quo
is
amended to read:
‘
(1) The application as regards
the first and third respondents is dismissed.
(2)
The award of the Bargaining Council dated 30 September 2010 issued
under PSHS711-09/10 as served on the second and fourth respondents
on
7 October 2010 and attached hereto as annexure ‘A’, is
binding on these respondents and is hereby made an order
of the
Labour Court.
(3)
The second and fourth respondents are compelled to comply with this
order and must do so within two weeks of the date of this
order by
translating the applicant Ms MZ Mabuza to Deputy Manager Nursing
(PN-A8) with effect from 01 July 2007 in terms of the
OSD agreement.
(4)
Should the second and fourth respondents fail to comply with this
order the applicant is granted leave to re-enroll the application
for
contempt in urgent court.
(5)
There is no order as to costs.
6. The two-week period referred to in
paragraph 3 of the amended Labour Court order shall commence on the
date of service of this
order on the second and fourth appellants.
7. The second and fourth appellants
are ordered to pay the costs of the appeal.
______________________
A
A Landman
Judge
of the Labour Appeal Court
APPEARANCES:
FOR
THE APPELLANTS
:
Adv F P Phamba
Instructed
by the State Attorney Pretoria
FOR
THE RESPONDENT: Adv A Snider
Instructed
by Webber and Wentzel Attorneys
[1]
[2015] 6 BLLR 711 (CC).
[2]
At para 47.
[3]
(2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC).
[4]
2018 (5) BCLR 527 (CC).
[5]
At para 140 of the majority judgment in Gaoshubelwe
[6]
At para 142 of the majority judgment in Gaoshubelwe.
[7]
At para 143 of the majority judgment in Gaoshubelwe
[8]
. At para 143 of the majority judgment in Gaoshubelwe.
[9]
At para 147 of the majority judgment in Gaoshubelwe
[10]
At para 155 of the majority judgment in Gaoshubelwe.
[11]
At para 156 of the majority judgment in Gaoshubelwe
[12]
At para 157 of the majority judgment in Gaoshubelwe
[13]
At para 157 of the majority judgment in Gaoshubelwe
[14]
At para 159 of the majority judgment in Gaoshubelwe
[15]
At para 167 of the majority judgment in Gaoshubelwe
[16]
At para 181 of the majority judgment in Gaoshubelwe
[17]
At para 199 of the majority judgment in Gaoshubelwe
[18]
At para 204 of the majority judgment in Gaoshubelwe
[19]
At para 86 of the Froneman J’s judgment in Myathaza.
[20]
Section 10(1)
of the
Prescription Act.
[21
]
Section 11(d)
of the
Prescription Act.
[22
]
Section 12(1)
of the
Prescription Act.
[23]
Froneman J observed in Myathaza that:
‘
Just as there are statutory
provisions and court rules regulating the lodging and prosecution of
appeals, the LRA provides that
the review of an arbitration award
must take place within six weeks of the date of service of the
award, or within six weeks
of the date that the applicant discovers
corruption where the defect involves corruption. This avoids the
difficulty that the
absence of certain time limits may have in the
case of common law review. And, to reiterate, logically a judgment
cannot be final
and executable under
section 15
of the
Prescription
Act while
it is still subject to a final pronouncement by a court.’
[24]
See Sampla Belting SA (Pty) Ltd v CCMA (Labour Court, Case no:
JR2438/07, 24 April 2012).
[25]
An application for the certification of an award is not served on
the other side; it is not a document of a court; it does not
claim
payment of the debt and it is not a document whereby legal
proceedings are commenced. An application for certification
is no
better than a notice in terms of
section 3
of the Institution of
Legal Proceedings against Certain Organs of the State of Act 40 of
2002 which has been held not to be a
process as contemplated by
section 15(1)
of the
Prescription Act 68 of 1969
. See Seleka and
Others v Minister of Police and Others (unreported judgment under
case no 288/2013 of the Limpopo Division.
[26]
(398/2017)
[2018] ZASCA 27
(23 March 2018)