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[2009] ZALCJHB 71
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Mamang and Others v Maxis Strategic Alliance (Pty) Ltd (J246/06) [2009] ZALCJHB 71 (27 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J246/06
In
the matter between:
MAMANG
JOHANNES MAMPURU
AND OTHERS
APPLICANTS
and
MAXIS
STRATEGIC ALLIANCE (PTY)
LTD RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which
the Applicants seek an order to make a settlement agreement concluded
on the 19
th
August 2002, an order of Court. The Respondent has raised two points
in limine
in opposition to the claim.
Background
facts
[2]
The claim of the Applicants arises from an
agreement concluded with Maxi Security Services (Pty) Ltd and the
South African Transport
and Allied Workers Union. The relevant clause
of the agreement for the purposes of this application is clause 2(e)
which reads
as follows:
“
(e)
The employees in annexure “A” will receive their full
salary on the 31
st
of July 2002. Their outstanding monies in respect of annual leave,
outstanding days i.e from the period of the 15
th
of July 2002 to 26
th
of July 2002, severance pay and bonuses will be paid on the 30
th
of August 2002 provided that all outstanding uniforms has been handed
in.”
Each
of the retrenched employees received a retrenchment letter from the
branch manager, Maxi Security (Pretoria Branch). The deponent
of the
founding affidavit cites the Respondent as “
Maxi Security
(Pty) Ltd Company.”
[3]
The Applicants contend that the Respondent
has failed to perform in terms of the agreement and as a result
thereof they have not
received their severance pay. It is for this
reason that the Applicants seek an order directing the Respondent to
comply with the
terms of the agreement.
[4]
In its defence the Respondent has raised
two points
in limine.
The
first point
in limine
raised by the Respondent is that it has been wrongly cited as a party
to the agreement and also to this application. The second
point
raised by the Respondent concerns prescription of the claim of the
Applicants.
[5]
In as far as the first point
in
limine
is concerned the Respondent
contended that itself and Maxi Services (Pty) Ltd are two different
entities. Mr Motshwane, counsel
for the Applicants argued that this
argument is unsustainable because the Respondent did not provide
proof that the two were not
the same. He contended that the
Respondent should produce a deeds search to prove that the Respondent
and Maxi Security Services
are two different entities. He argued in
this regard that the Respondent was aware that the Applicants were
its employees and at
all material times laboured under such
impression.
[6]
With regard to the second point in limine
the Respondent contended that the claim of the Applicants have
prescribed in terms of
section 10 read with 11 of the
Prescription
Act 68 of 1969
. The Respondent’s case is that the Applicant’s
case prescribed on the 30
th
August 2002 which was the last day the monies claimed by them were to
have been paid.
[7]
In attacking the point about prescription,
Mr Motshwane for the Applicants argued that the retrenchment
agreement is a document
which stipulated the rights and obligations
of the parties and therefore the case of the Applicants was not about
a claim but enforcement
of rights. For this reason the provisions of
the
Prescription Act did
not according to him apply in the present
instance. He argued in the alternative that should it be found that
the retrenchment
agreement was a debt then it be concluded that the
provisions of
section 11(c)
of
Prescription Act be
regarded as
applicable.
Section 11(c)
of the Act reads as follows:
“
11
…
(c)
six years in respect of a debt arising from a bill of exchange or
other negotiable instrument or from
a notarial contract, unless a
longer period applies in respect of the debt in question in terms of
paragraph (a) or (b).”
[8]
It is trite that this Court is empowered by
s158 (1) (c) of the Labour Relations Act 66 of 1995 (the LRA) to make
an agreement an
order of Court. However, the LRA does not stipulate
the time period within which the application must be filed to have an
agreement
made an order of Court.
[9]
This Court in the case of
Public
Servants Association on behalf of Khaya v Commission for
Conciliation, Mediation & Arbitration & others [2008] 29
ILJ
1546 (LC),
agreed with the case of
Mpanzama v Fidelity Guards Holding (Pty)
Ltd
[2000]
12 BLLR 1459
(LC),
that the provisions
of the
Prescription Act do
apply to the provisions of the LRA. See
also
Cape Town Municipality v Allie NO
1981 (2) SA 1
(C)
.
The same approach was adopted in the case of
Uitenhage
Municipality v Mooley
1998 (19) ILJ 757
(SCA), where the Court held that the provisions of s12 (1) of the Act
were applicable to a determination of whether
the debts which were
due to the employee were recoverable in terms of the Basic Conditions
of Employment Act 3 of 1983. This approach
has now been endorsed by
the Labour Appeal Court in he case of
Solidarity
& others v Eskom Holdings Ltd [2008] 29 ILJ 1450 (LAC).
[10]
Section 11 read with s10 of the Act,
provides for the period within which a debt becomes prescribed. The
extinctive prescription
period of thirty years applies to, (a) any
debt secured
by a mortgage bond, (b) any judgment debt, and
(c) any debt in respect of any debt in relation to any taxation
imposed under the
law. The prescriptive period of fifteen years
applies in respect of any debt owed to the State. And the
prescriptive period of
six years applies in the case of a debt
arising from a bill of exchange or negotiable instrument. Any other
debt that do not fall
under any of the above categories are governed
by a three year prescriptive period. In
Deloitte Haskins and Sells
Consultants (Pty) Ltd v Bowthope Hellerman Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991
(1) SA 525
(A) page 532G-I, the Court held that:
“
Prescription
shall commence to run as soon as the debt is due. This means that
there has to be a debt immediately
claimable by the debtor or,
stated in another way, that there has to be a debt in respect of
which the debtor is under an obligation
to perform immediately.’’
[11]
The notion of a “
debt”
in the
Prescription Act has
been described as referring to an
obligation to do something either by way of payment or by delivery of
goods and services or not
to do something. See
HMD
Properties (PTY) Ltd v King
1981 (1) SA 906
(N) at 909A-B.
[12]
In
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA
340(A)
at 344F-G,
the Court held that a
debt is:
“
That
which is owed or due; anything (as money, goods or services) which
one person is under an obligation to pay or render to another.”
[13]
In the case of
Solidarity (supra)
Khampepe AJA, when
dealing with the same issue had this to say:
“
[25]
The meaning of what the term “debt due” denotes in terms
of section 12(1) of the Act, has received the attention
of the courts
in many judicial pronouncements. It has authoritatively been
determined to mean that “there has to be a debt
immediately
claimable by the debtor [sic creditor] or stated in another way, that
there has to be a debt in respect of which the
debtor is under an
obligation to perform immediately
.
[26]
A debt is due in this sense, when the creditor acquires a
complete cause of action for the recovery of the debt, that
is when
the entire set of facts which the creditor must prove in order to
succeed with his or her claim against the debtor is in
place or in
other words when everything has happened which would entitle the
creditor to institute action and to pursue his or
her claim.”
[14]
In the present instance as indicated above the Applicant’s
contention in the alternative is that the retrenchment agreement
does
not constitute a “debt” as envisaged in the
Prescription
Act. There
is no merit in this contention. In my view the debt as
envisaged by the
Prescription Act arose
on the
30
th
August 2002, when the severance monies claimed by the Applicants were
to have been paid. Thus the 3 (three) year period within
which the
Applicant should have claimed their debt has prescribed and therefore
their current claim stand to be dismissed.
[15]
In my view, although the Applicants delayed
in bringing this application, it cannot be said that they acted
unreasonably in bringing
this application. It would accordingly be
unfair in the circumstances to grant costs.
[16
In the premises the following order is
made:
(i)
The Applicant’s application to have
the settlement agreement concluded on 19
th
August 2002 made an order of Court is dimissed.
(ii)
The Applicants’ claim has prescribed.
(iii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
7
th
August 2008
Date
of Judgment :
27
th
February 2009
Appearances
For
the Applicant :
Adv T Motshwane
Instructed
by :
Tau Phalane Incorporated
For
the Respondent: Adv J
Pansegrouw
Instructed
by :
Durant Du Toit Attorneys