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[2008] ZALCJHB 91
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Mohlaka v Minister of Finance and Others (J2283/07) [2008] ZALCJHB 91 (13 November 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AND BRAAMFONTEIN
CASE
NO
: J2283/07
DATE
: 2008-11-13
REPORTABLE
In
the matter between:
MOHLAKA,
A
K
Applicant
and
MINISTER
OF
FINANCE
1
st
Respondent
SOUTH
AFRICAN REVENUE
SERVICES
2
nd
Respondent
THE
COMMISSIONER, SOUTH AFRICAN
REVENUE
SERVICES
3
rd
Respondent
J
U D G M E N T
PILLAY
D, J
:
The
facts
1.
The second respondent employer, the South African Revenue Services,
(SARS), employed the applicant employee on 1 May 2004 at
its call
centre. As the applicant was partially sighted, SARS trained
him in the use of software programmes to aid his vision.
SARS
gave the applicant access to the ZoomText software but not the Jaws
software. As a result, he did not perform all the
duties of
sighted call centre operators.
2.
SARS mistakenly sent him for training in October 2004. When he
objected to being taken off the training, the facilitator
informed
him that SARS was still trying to place him suitably. The employee
complained to his team leader and to the Human Resources
Department.
Neither responded to his satisfaction.
3.
On 14 October 2004 he resigned. On 2 February 2005 he referred
a dispute about his alleged constructive dismissal and discrimination
to the CCMA. His referral was late. The CCMA dismissed
his application for condonation about 21 April 2005. On
31
October 2007, more than two years later, the employee launched this
application for damages, purportedly in terms of
section 77
of the
Basic Conditions of Employment Act 75 of 1997
, for loss of earnings,
loss of future earnings, relocation costs, legal costs associated
with being blacklisted as a debtor and
loss of dignity.
Jurisdiction:
The scheme of Labour Laws
4.
SARS excepted to the jurisdiction of the Labour Court. To respond to
the exception, the Court takes it cue firstly, from the
explanatory
memorandum to the
Labour Relations Act 66 of 1995
ILJ 278 at 279, 281
- 282 (LRA), and secondly, from Chirwa v Transnet Ltd and Others
[2008] 2 BLLR 97
(CC).
5.
In Chirwa, the contest was between Administrative Law and Labour Law,
between PAJA and the LRA, and between the jurisdiction
of the High
Court and the Labour Court. The contest in this case is between
the common law of the contract of employment
and Labour Law, between
the LRA and the BCEA, and between the jurisdiction of the CCMA and
the Labour Court. Still, the opinions
of Skweyiya J and Ngcobo J in
Chirwa are pertinent to this case
6.
The crux of the reasoning in Chirwa is that effect should be given to
the primary objectives of the LRA. Skweyiya J stated
at
paragraph 41:
"(T)he
existence of a purpose-built employment framework in the form of the
LRA and associated legislation infers that labour
processes and
forums should take precedence over non-purpose-built processes and
forums in situations involving employment-related
matters. At
the least, litigation in terms of the LRA should be seen as the more
appropriate route to pursue. Where
an alternative cause of
action can be sustained in matters arising out of an employment
relationship, in which the employee alleges
unfair dismissal or an
unfair labour practice by the employer, it is, in the first instance,
through the mechanisms established
by the LRA that the employee
should pursue her or his claims."
7.
Ngcobo J fortified Skweyiya J’s opinion. (Chirwa paragraph 103
and 104) Although the following comment of Ngcobo J (Chirwa
para 112)
is in the context of the contest for jurisdiction between the High
Court and the Labour Court, it is also apposite to
the contest
between the common law, BCEA and LRA,:
"When
a proposed interpretation of the jurisdiction of the Labour Court and
the High Court threatens to interfere with the
clearly indicated
policy of the LRA to set up specialised tribunals and forums to deal
with labour and employment relations disputes,
such a construction
ought not to be preferred. Rather, the one that gives full
effect to the policy and the objectives of
the LRA must be
preferred. The principle involved is that where Parliament, in
the exercise of its legislative powers and
in fulfilment of its
constitutional obligation to give effect to a constitutional right,
enacts the law, courts must give full
effect to that law and its
purpose. The provisions of the law should not be construed in a
manner that undermines its primary
objectives. The provisions
of subsections (1) and (2) of
section 157
must therefore be construed
purposively in a manner that gives full effect to each without
undermining the purpose of each.”
8.
Skweyiya J also reflected on the Explanatory Memorandum to observe at
paragraph 48:
"One
of the express aims of the Labour Relations Bill was to address the
“lack of an overall and integrated legislative
framework for
regulating labour relations”, which arose as a result of a
multiplicity of laws governing different sectors,
especially the
private sector and the public sector. Therefore, the object of
the Bill was to eradicate the “inconsistency,
unnecessary
complexity, duplication of resources and jurisdictional confusion”
caused by the multiplicity of laws by proposing
a single statute that
was to apply to the whole economy whilst accommodating the special
features of its different sectors."
9.
Furthermore, Skweyiya J referred at paragraph 50 to
section 210
of
the LRA which provides:
"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."
10.
Unless the LRA and the BCEA are read consistently and as legislation
complementary to each other, the BCEA conflicts with the
LRA if it
duplicates processes and remedies already provided in the LRA because
duplication is precisely what the legislature sought
to avoid.
11.
Chirwa strives principally to streamline the resolution of
labour disputes under the LRA. The Constitutional Court
made a
similar effort to streamline Administrative Law in Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs
and Tourism and
Others [2004]
7 BCLR 687
(CC) para 22, when O'Regan J noted:
"There
are not two systems of law regulating administrative action —
the common law and the Constitution — but
only one system of
law grounded in the Constitution. The courts’ power to
review administrative action no longer flows
directly from the common
law but from PAJA and the Constitution itself. The grundnorm of
administrative law is now to be
found in the first place not in the
doctrine of ultra vires, nor in the doctrine of parliamentary
sovereignty, nor in the common
law itself, but in the principles of
our Constitution. The common law informs the provisions of PAJA
and the Constitution,
and derives its force from the latter. The
extent to which the common law remains relevant to administrative
review will
have to be developed on a case-by-case basis as the
courts interpret and apply the provisions of PAJA and the
Constitution."
12.
The purpose of administrative justice provisions is to bring about
procedural fairness in dealings between the administration
and
members of the public. The purpose of Labour Law is to bring about
fairness in employment. Skweyiya J is alive to a single
dispute
implicating several rights, Administrative Law and Labour Law rights,
when he remarks at paragraph 47:
"The
purpose of labour law as embodied in the LRA is to provide a
comprehensive system of dispute resolution mechanisms, forums
and
remedies that are tailored to deal with all aspects of employment.
It was envisaged as a one-stop shop for all labour-related
disputes.
The LRA provides for matters such as discrimination in the workplace
as well as procedural fairness; with the view
that even if a labour
dispute implicates other rights, a litigant will be able to approach
the LRA structures to resolve the disputes."
13.
The Constitutional Court (CC) reinforces this approach by holding as
follows in SANDU v Minister of Defence and Others
[2007] 9 BCLR
785
(CC):
"[51]
Where legislation is enacted to give effect to a constitutional
right, a litigant may not bypass that legislation and
rely directly
on the Constitution without challenging that legislation as falling
short of the constitutional standard."
14.
Cheadle AJ in Booysen v SAPS and Another
[2008] ZALC 87
;
[2008] 10 BLLR 928
(LC)
para 37 and 38 endorses this view:
"The
right to fair labour practices is given effect to by the LRA and
other labour legislation. Apart from challenges
to the
constitutionality or interpretation of that legislation or the
development of the common law where there is no legislation,
the
right plays no other role and does not constitute a separate source
for a cause of action. That is clear from the recent
decision
in SANDU v Minister of Defence & others
[2007] 9 BLLR 785
(CC)."
15.
Although Cheadle AJ was referring there to the synergy between the
Constitution of the Republic of South Africa Act No 108 of
1996 (The
Constitution) and the LRA, his opinion applies equally to the synergy
between the Constitution, the LRA and the BCEA.
The LRA and the
BCEA were a response to notorious problems plaguing Labour Law
(Chirwa [para 48] per Skweyiya; [para 98]
per Ngcobo J):
uncertainty about the rights and obligations of workers and
employers; contradictions in labour policy; the
expense of dispute
resolution; inequality of treatment of workers arising from the
application of differential laws by different
institutions; and the
disconnection between the LRA of 1956 and the BCEA of 1983.
16.
The aims of the LRA were to remedy these problems. These aims
are embodied in the primary objects of the LRA. When adjudicating
labour disputes therefore, the Courts must give effect to the primary
objects of the LRA and the BCEA. These objects are
to give
effect to and regulate the fundamental constitutional right to fair
labour practices.
17.
The Legislature carefully designed the LRA and the BCEA so that each
gives effect to particular labour practices. More
specifically,
the Legislature carefully demarcated the LRA as the statute
regulating collective bargaining, dismissal and unfair
labour
practices and the BCEA as a statute establishing, enforcing and
regulating basic conditions of employment, such as leave
and hours of
work.
18.
Initially, the legislative plan was to shift the unfair dismissal
chapter from the LRA to the BCEA or other statute dedicated
to
individual employment law so that the LRA remained exclusively a
collective bargaining statute. Although this has not
occurred
yet, the location of dismissal law in the LRA is merely a matter of
form. Substantively, the two statutes regulate
discreet issues
and prescribe particular processes. However, if dismissal law were
located in the BCEA, this would minimise if
not eliminate the scope
for litigants shopping for a forum between the LRA and BCEA.
19.
The codification of the law of dismissal also struck a new balance to
the common law contract of employment. It added
the notion of
fairness to the limited concept of unlawfulness. The LRA imputes the
right to fair labour practices as a term of
every contract of
employment. An unfair dismissal is therefore also an unlawful
dismissal because it violates the LRA and is a
breach of the contract
of employment. The codification extended the compensation for
breach of contract beyond the notice
period prescribed under the
common law to 12 or 24 months. It made reinstatement and reemployment
primary remedies. It prescribed
inexpensive dispute resolution
processes to remedy breaches of contract. Most of all, by
accomplishing all of this, the codification
created certainty of the
law of dismissal. The codification of terms and conditions of
employment under the BCEA created certainty
about leave, hours of
work and the calculation of remuneration.
20.
Section 77(3) of the BCEA provides that the Labour Court has
concurrent jurisdiction with the civil courts to determine any
matter
concerning a contract of employment, irrespective of whether any
basic condition of employment constitutes a term of that
contract;
this section cannot be interpreted so widely as to include any matter
concerning the contract of employment which is
already regulated in
the LRA. To allow concurrent jurisdiction between the Labour Court
and the CCMA would resuscitate the problems
identified above under
the old labour laws. The Legislature could never have intended that.
21.
Evidence that most employees embrace the scheme of our labour
laws emerges from their preference to prosecute their claims
as
unfair and unlawful labour practices under the LRA and not under the
common law, the BCEA or through the High Court.
Developing
the common law to acquire jurisdiction
22.
Does the common law contract of employment have a place in this
scheme? For the answer to this question the Court turns
to
sections 173, 8(3) and 39(2) of the Constitution. Section 173
confirms the inherent power of the High Court and inferentially,
the
Labour Court to develop the common law. Section 8 (3) prescribes to
courts to apply or “if necessary” develop the
common law.
However, courts may only develop the common law “to the extent
that legislation does not give effect to”
a right in the Bill
of Right; furthermore when developing the common law the courts must
take into account the interests of justice.
(Section 173) Section 39
(2) urges the Court when interpreting any legislation and when
developing the common law to promote the
spirit, purpose and objects
of the Bill of Rights.
23.
The last caveat emerges from the CC’s decision in Carmichele v
Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC) paragraph 36 in
which Ackerman and Goldstone JJ caution that the Legislature remains
the major engine for law reform. So did
Cameron J in Fourie and
Another v Minister of Home Affairs and Another
2005 (3) BCLR 241
(SCA) paragraph 22. The net effect of these provisions is to tightly
constrain the courts’ power to develop the common law
within
narrow limits. Courts may not embark on an “independent
exercise” to develop the common law in every case where
the
common law is at issue. (Halton Cheadle Current Labour Law 2008
para 9-16)
24.
The Court also looks to Bato Star above to deduce that it has an
obligation to develop the common law consistently with the
Constitution, the LRA and the BCEA. The obvious instance when the
common law must be developed is when legislation does not regulate
an
issue. For instance, the LRA does not regulate the termination of
employment by operation of law. Thus an employee has
no remedy
prescribed under the LRA and the BCEA to challenge the termination of
her employment because her fixed-term contract
expires, or when her
employer cancels her contract either because she does not meet
statutorily prescribed qualification requirements
or because she
falls below the legal age for employment. The Labour Court has
jurisdiction to determine the true reasons for the
termination of
employment. If it is by operation of law then the limited remedies
for termination of a contract under the common
law such as damages
for misrepresentation and undue enrichment apply.
25.
However, the LRA and BCEA must apply to interpret and apply the
contract consistently with the right of “everyone”
to
fair labour practices (Section 23(1) of the Constitution) and with
international law (Sections 232 and 233 of Constitution;
Discovery
Health Ltd v Commission for Conciliation, Mediation and Arbitration
and Others [2008] 29 ILJ 1480 (LC) para 20-57). The
Labour Court has
had to apply the common law contract of employment consistently with
the Constitution and the LRA in two matters
in which the validity of
the contracts were at issue, without recourse to the common law or
its development.
26.
In “Kylie" v Commission for Conciliation Mediation
and Arbitration and Others, [2008] 29 ILJ 1918 (LC) the legal
validity and enforceability of a sex worker's contract of employment
was at issue. Cheadle AJ found that as the Sexual Offences
Act No 23
of 1957 rendered the contract illegal and unenforceable, it was a
justifiable limitation of the fair labour practice
rights in section
23 of the Constitution (“Kylie” paragraph 74-88). He came
to this conclusion by determining the scope
of section 23 (1) to
exclude the protection of prohibited work (“Kylie”
paragraph 53-72).
27.
In Discovery Health Ltd v Commission for Conciliation, Mediation and
Arbitration and Others [2008] 29 ILJ 1480 (LC) the employee
was a
foreigner who did not have the statutorily prescribed permit to work
in South Africa. Van Niekerk AJ (as he then was)
found that
section 38
(1) of the
Immigration Act No 13 of 2002
did not render
the contract invalid. If it did, that would defeat the primary
purpose of section 23 (1) of the Constitution to
give effect to fair
labour practices. He came to this conclusion by giving “everyone”
in section 23 (1) of the Constitution
and the definition of employee
wide interpretations. (Discovery paragraph 40-54)
28.
The difference in outcomes between “Kylie” and Discovery
is that In “Kylie” the prohibition was against
illegal
work. In Discovery the prohibition was against people employed
illegally. Both judgments are correct in that the Labour
Court cannot
protect and promote illegal work, but it can protect vulnerable
workers employed illegally.
29.
An instance when the common law may be invoked is when a mechanical
application of the text of legislation has the effect of
denying or
diminishing rights in conflict with the Constitution. A
purposive interpretation of both the Constitution and
labour
legislation ensures that the courts give effect to the primary
intention of the Legislature.
30.
The purpose of the LRA, the BCEA and the Constitution is to correct
the structural inequality in employment by elevating the
otherwise
vulnerable position of employees under the common law. It
follows therefore, that if an employee secures a contract
of
employment with superior terms and conditions, such a contract trumps
the less favourable terms offered by the legislation.
Neither
the Constitution nor the Legislature takes away or diminishes rights,
especially not of the weak and vulnerable. In relation
to employers
as the owners of the workplace and the means of production, employees
are weak and vulnerable.
31.
In this context, upholding a five year fixed term contract was
manifestly more favourable to the employee than awarding him
the
maximum compensation of 12 or 24 months allowed under the LRA in
Fedlife Assurance Ltd v Wolfaardt,
2002 (1) SA 49
, paragraph 15
to 20. Nugent AJA (as he then was) emphasised that the constitutional
disposition does not deprive employees of their
common law rights to
enforce fixed-term contracts.
32.
Outside the constitutional and human rights setting, relying on the
common law of contract can destroy labour rights.
Not all
contracts of employment favour employees. For many security guards,
cleaners and other low-skilled employees, fixed-term
contracts of
short duration are their only means of being employed. Most
low-skilled workers must want security of tenure.
However, their
circumstances force them to agree to short terms of employment or to
face unemployment and poverty. The common law
test for duress is so
high that such employees can seldom successfully avoid the limited
duration clauses of their contracts to
claim employment on indefinite
terms.
33.
However, Barkhuizen v Napier,
[2007] 7 BCLR 691
(CC)
kindles the debate about whether fixed-term contracts of employment
aimed at circumventing the LRA are consistent with constitutional
values and whether upholding such contracts is compliant with ILO
obligations. (See also PAK le Roux “Individual Labour
Law
in Current Labour Law 2007 page 9.) This is a question for another
time.
34.
In contrast to Fedlife, the employees’ reliance on the common
law was misplaced in two subsequent decisions of the Supreme
Court of
Appeal. The employee in Old Mutual Life Assurance Company South
Africa Ltd v Gumbi,
2007 (5) SA 552
attacked not the substantive
but only the procedural fairness of his dismissal. This cause
of action fell squarely within
the LRA, which codified the common
law. The SCA should not have accepted jurisdiction. Instead,
Jafta JA “developed”
the common law by referring to
previous cases which applied the audi alteram partem principle and to
the ILO Convention on Termination
of Employment, Convention 158 of
1982.
35.
This was quite unnecessary. In the LRA, the Legislature
codified best practice and policy and took into account international
standards of not only the ILO, but other international instruments
such as the United Nations Declaration of Human Rights and the
directives of the European Union. The codification of Labour
Law under the LRA extended over more than a year. Consultation
with experts from the ILO, with trade unions, employers organisations
and other stakeholders chiselled numerous drafts of the LRA
until it
was whittled to a state what was acceptable to all stakeholders.
36.
The richness of the process of legislative law making therefore far
outweighs judicial law making. Judicial law making
arises when
the law does not regulate a situation, not when the Legislature
exercises its prerogative to legislate, as it did for
Labour Law.
37.
Why the employee did not proceed under the LRA is not apparent from
the judgment. Perhaps he missed the time limits under
the LRA
as the employee in the next case did.
38.
The second dismissal case brought under the common law before the
Supreme Court of Appeal was Boxer Superstores Mthatha and
Another v
Mbenya,
2007 (5) SA 450.
In this case, the employee missed the
CCMA time limits by seven months. She asked the High Court to
set aside her pre-dismissal
hearing and dismissal as being unlawful
and to reinstate her – all the relief that the LRA offers,
and at no cost, through
the CCMA and bargaining councils.
39.
Cameron J, writing for a unanimous bench, accepted jurisdiction
because the claim was formulated in terms of contractual unlawfulness
not unfairness. He applied the earlier unanimous decision of the SCA
in Old Mutual (above) to reiterate that the common law of
contract
now includes the right to a pre dismissal hearing (Boxer Superstores
para 6).
40.
Old Mutual and Boxer Superstores together resuscitated all the
problems that the LRA and the BCEA sought to avoid: competing
jurisdiction, multiplicity of forums, high costs of protracted
litigation, uncertainty about process, its costs, timing and outcome.
41.
Referring to United National Public Servants Association of South
Africa v Digomo NO and Others, [2005] 26 ILJ 1957 (SCA)
on which
Cameron J based his decision in Boxer, Ngcobo J in Chirwa (para 92)
observed the following:
"By
characterising the manner in which the disciplinary hearing was
conducted as unfair dismissal, the employee could have
the dispute
heard in the Labour Court. Yet by characterising the same
dispute as constituting a violation of a constitutional
right to just
administrative action, the employee could have the same dispute heard
in the High Court. It could not have
been the intention of the
legislature to bring about this consequence."
42.
Referring to Boxer Superstores Ngcobo J got to the heart of the
controversy in the following extract where he exposes the
difficulties
of preferring form over substance as the SCA did in
Boxer Superstores at paragraph 12 (Chirwa paragraph 95):
"However,
in Boxer Superstores, the Supreme Court of Appeal expressed a
different view. There it was contended that what
matters is not
the form of the employee’s complaint but the substance of the
complaint. The Supreme Court of Appeal
held that the focus on
the substance of the dispute leaves out of account the fact that
jurisdictional limitations often involve
questions of form. It
noted that the employee in that case “formulated her claim
carefully to exclude any recourse
to fairness, relying solely on
contractual unlawfulness”. This illustrates the
difficulty of relying on form rather
than substance to which I
alluded earlier. This would enable an astute litigant simply to
by-pass the whole conciliation
and dispute resolution machinery
created by the LRA and rob the Labour Courts of their need to exist.
But is this what the
legislature intended when it enacted the
provisions of section 157(2)?"
43.
To this rhetorical question, the learned judge nevertheless proffers
an answer by tracking the primary purpose of the LRA and
the problems
it sought to remedy to conclude that the Court must give effect to
the primary objects of the LRA.
44.
In view of the opinions of Skweyiya and Ngcobo JJ in Chirwa, this
Court is not bound to follow the SCA in Old Mutual and Boxer
Superstores. Further support for this view emerges from the judgment
of Nugent JA in Makambi v MEC for Education Eastern Cape,
[2008] ZASCA 61
;
2008
(5) SA 449.
Nugent JA confirmed that lower courts may deviate from
the “schizophrenic” decisions of higher courts.
45.
In this case, the employee initiated proceedings under the LRA for
unfair dismissal and discrimination. He knew and understood
his
claim to be founded in Labour Law. He approached the Labour
Court only because the CCMA barred him from prosecuting his
claim.
He delayed referring his dispute for conciliation. No matter
the merits of his claim, empathy for his predicament
cannot found the
jurisdiction of the Labour Court. (Chirwa per Langa paragraph 155)
His attempt to introduce a claim for compensation
based on the common
law contract of employment through section 77 of the BCEA must fail.
46.
Likewise, his delictual claim for loss of dignity must also
fail for reasons which Cheadle AJ advanced in Booysen para
34-35:
there is no independent right to dignity for the purposes of section
157(2). Such a right is embraced in the right to fair
labour
practices. Furthermore, nothing in section 157 confers jurisdiction
on the Labour Court to try a claim for delict.
Act
40 of 2002 and Prescription
47.
SARS contested the jurisdiction of the Court on two further grounds:
Firstly, the employee failed to comply with section 3 and
4 of the
Institution of Legal Proceedings Act Against Certain Organisations of
State Act, (Act 40 of 2002). Secondly, the claim
prescribed. (Benson
and Another v Walters and Others
1984 (1) SA 283
(A).
Section
3(1) of Act 40 of 2002 provides as follows:
"Notice
of intended legal proceedings to be given to organ of state
3.(1)
No legal proceedings for the recovery of a debt may be instituted
against
an organ of state unless—
(a)
the creditor has given the organ of state in question notice
in
writing of his or her or its intention to institute the legal
proceedings in question."
SARS
is an organ of State (section 2(39) of the Constitution read with
section 2 of the South African Revenue Services Act) Section
3(2) of
Act 40 of 2002 states:
"(2)
A notice must—
(a)
within six months from the date on which the debt became due, be
served on the organ of state in accordance with section
4(1)."
48.
Act 40
of 2002 defines debt as follows:
"'debt'
means any debt arising from any cause of action:—
(a)
which arises from delictual, contractual or any other liability,
including a cause of action which relates to or arises from any —
(i)
act performed under or in terms of any law; or
(ii)
omission to do anything which should have been done or in terms of
any law; and
(b)
for which an organ of state is liable for payment of damages, whether
such debt became due before or after the fixed date."
(HMP
Properties (Pty) Ltd v King,
1981 (1) SA 906
(N))
49.
As the claim is for a breach of contract and delict, section 3(1)
applies. It would not have applied if the employee's claim
was
founded under the LRA firstly because section 210 of the LRA trumps
section 3(1). Secondly, section 3(1) would render nonsensical
the
30-day referral provision and the expedited dispute resolution
conceived under the LRA.
50.
The debt became due on 14 October 2004 when the employee
resigned. The employee served the Statement of Case on
11
November 2007 and filed it on 31 October 2007.
51.
Section 5(2) of Act 40 of 2002 states:
"No
process referred to in subsection (1) may be served as contemplated
in that subsection before the expiry of a period of
30 days after the
notice, where applicable, has been served on the organ of state in
terms of section 3(2)(a)."
Subsection
5(3) states:
"If
any process referred to in subsection (1) has been served as
contemplated in that subsection before the expiry of the period
referred to in subsection (2), such process must be regarded as
having been served on the first day after the expiry of the said
period."
52.
By applying the provisions of section 5(2) and (3), the Statement of
Case is deemed to have been served on 11 November 2007,
almost a
month after the debt prescribed on 14 October 2007.
53.
Counsel for the employee, Ms du Toit, urged the Court to hold
that the CCMA proceedings interrupted prescription; insofar
as it did
not, the Court should give her leave to apply for condonation.
54.
To this submission
section 15
of the
Prescription Act 68 of 1969
proffers a response:
"15.
Judicial interruption of prescription
(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."
55.
The employee abandoned the CCMA proceedings when he failed in his bid
for condonation. In Legal Aid Board and Others v
Viven
Singh, case 14939/05, appeal AR99/07, unreported decision of the NPD
dated 25 August 2008, Theron J refused to condone noncompliance
with
section 3(1)(a)
of Act 40 of 2002 because the application for
condonation was made after the claim had prescribed.
In
the circumstances the applicant's claim prescribed and leave to apply
for condonation fails.
The
order that the Court makes is the following:
1.
The claim is dismissed with costs.
_______________________
PILLAY
D, J
Judge
of the Labour Court
Date
of Hearing: 10 November 2008
Date
of Judgment: 10 November 2008
Date
of Editing: 6 January
2009
APPEARANCES
For
the Applicant:
M Du Toit from Du Toit Attorneys & Labour Law Practitioners
For
the 1
st
Respondent:
Adv D T Skosana
Instructed
by
State Attorneys
For
the 2
nd
& 3
rd
Respondent: P Maserumule from
Maserumule Inc.