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[2009] ZALCJHB 109
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National Union of Metalworkers of South Africa (NUMSA) and Another v Espach Engineering (J2432/08) [2009] ZALCJHB 109 (23 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J2432/08
In
the matter between:
NATIONAL
UNION OF METALWORKE
RS
OF
SOUTH AFRICA (“NUMSA”)
1
ST
APPLICANT
J.
RAMAHOYO
2
ND
APPLICANT
and
ESPACH
ENGINEERING
RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application to have the
arbitration award issued under the auspices of the bargaining council
for the motor industry
made under case number NT212/03 dated 19
th
March 2004, made an order of court. In terms of the arbitration award
the commissioner ordered the respondent to pay the employee
compensation and reinstatement. The applicant was to be reinstated
and paid the compensation amount by no later than 15
th
April 2004.
[2]
The respondent opposed the application and
raised a point
in limine
concerning prescription and in the alternative that the conduct of
the applicant was dilatory in enforcing its claim and sought
to have
the applicants’ claim dismissed for those reasons.
[3]
The brief background to this matter is that
subsequent to the issuance of the award, the respondent being unhappy
with the outcome
thereof filed an application to review and have it
set aside under case JR919/2004. The respondent was unsuccessful in
its endeavoured
to have the award reviewed and set aside as its
application was dismissed by the Court on 24
th
April 2006. The respondent then sought leave to appeal to the Labour
Appeal Court which leave to appeal was granted on 23
rd
May 2006.
[4]
Despite being granted leave to appeal the
respondent failed to prosecute the appeal in that it failed to
deliver the record of appeal
within sixty days (60) of the date of
the order granting leave to appeal. The applicants brought this
failure to the attention
of the respondent’s attorneys in a
letter dated 15
th
February 2008. In that letter it was specifically recorded that in
terms of Rule 5 (17) of the Labour Appeal Court if the applicant
fails to lodge the record within the prescribed period, the appellant
will be deemed to have withdrawn the appeal. The applicants
also in
this letter called on the respondent to comply with the arbitration
award and to confirm that they will do so by close
of business on
Wednesday, 20
th
February 2008. The respondent failed to comply with the award and
this is the reason for this application.
[5]
I am called upon in this matter to
determine whether or not prescription in terms of the
Prescription
Act No.68 of 1969
can be interrupted by the filing of the review
application.
[6]
The relevant provisions of the
Prescription
Act read
as follows:
“
Section
10(1)
provides that:
Subject to the provisions
of this Chapter and of Chapter IV, a debt shall be extinguished by
prescription after the lapse of the
period which in terms of the
relevant law applies in respect of the prescription of such debt”
[7]
In terms of
section 12(1)
prescription
shall commence to run as soon as the debt is due.
Section 12(3)
provides that:
“
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts from which
the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.”
[8]
Section 15(1)
provides that:
“
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.”
[9]
It is trite that in terms of
section 11(d)
of the
Prescription Act a
debt arising from an arbitration award
prescribes after a period of three years. See
Solidarity
& Others v Eskom Holdings Limited (2005) 26 ILJ 338 (LC)
.
However, the three year period of prescription may be interrupted in
terms of
section 15(1)
of the same Act by service of any process on
the debtor by the creditor. The word “
process”
is defined in
section 15(6)
of the
Prescription Act to
mean:
“
.
. . a petition, a notice of motion, a rule nisi, a pleading in
reconvention a third party notice referred to any rule of
the court,
and any document whereby legal proceedings are commenced.”
[10]
In terms of the Labour Relations Act, once
an award has been issued the successful employee party may enforce it
either in terms
section 143
of the
Labour Relations Act 66 of 1995
,
by having it made as if it is an order of the Court or made an order
of the Court in terms
section 158(1)(c)
of the
Labour Relations Act.
These
processes which in my view are part of those envisaged in
section 15(6)
of the
Prescription Act, are
available to the
successful employee party despite the fact that the employer party
may have filed an application to have the arbitration
award reviewed.
[11]
It is trite that a review application does
not automatically stay the enforcement of an arbitration award. In
this respect Grogan
AJ in
Professional
Security Enforcement v Namusi (1999) 20 ILJ 1279 (LC);
[1999] 6
BLLR 610
(LC) at para 10
had this to
say
:
“
Neither
the Act not (sic)] the common law lays down a hard-and-fast rule that
an application to have an award (or any judicial order)
made an order
of court must be dismissed or conditionally postponed if the person
against whom it is to be made has applied for
its rescission or
review. This court has, however, adopted the practice of postponing
applications brought under
s 158(1)(c)
if the respondent has filed an
application for review.”
[12]
The issue of whether or not the filing of a
review interrupts prescription received attention in the case of
Police & Prison Civil Rights Union
on behalf of Sifuba v Commissioner of the SA Police Service
(2009) 30 ILJ
1309 (LC).
The decision
of the court in that judgment which I align myself to, is that the
filing of a review does not interrupt prescription
as envisaged by
section 15(6)
of the Prescription Act.
[13]
Before dealing with the provisions of the
Prescription Act, Musi
AJ in the
Sifuba
matter (supra),
deals with the
philosophy and policy considerations underlying extensive
prescription. In this regard the Learned Judge had the
following to
say:
“
[29]
The aim is therefore to compel a plaintiff to prosecute a claim
expeditiously within a specific time failing which to run the
risk of
having the claim declared unenforceable. Prescription therefore
operates in favour of a defendant and protects a defendant
from stale
claims. Prescription also creates legal certainty and finality in the
relationship between creditor and debtor after
the lapse of a period
of time. See A Loubser M M Extinctive Prescription (Juta 1996) at
22.”
[14]
Turning to the purpose of the
Labour
Relations Act the
Court in
Sifuba
found that one of its objectives was to promote the effective
resolution of labour disputes, which entails the expeditious
resolution
of labour disputes. This point was emphasized by the
Constitutional Court in
National
Education Health & Allied Workers Union v UCT B &
others
2003 (3) SA 1
(CC); (2003) 24 ILJ 95 (CC) at para 31
where it is observed that:
“
By
their nature labour disputes must be resolved expeditiously and be
brought to finality so that the parties can organize their
affairs
accordingly. They affect our economy and labour peace. It is in the
public interest that labour disputes be resolved speedily.”
[15]
There seems to be no doubt that the debt in
the present instance arose from the arbitration award issued in
favour of the second
applicant. The common practise by the Court to
postpone the application to make the arbitration award an order of
Court in terms
of
section 158(1)(c)
of the
Labour Relations Act, if
there is a pending review has no impact on the prescription of the
claim. It is trite that the review application is no bar to
an
application to have the arbitration award made an order of Court. See
National Education Health & Allied
Workers Union on behalf of Vermeulen v Director-General: Department
of Labour (2005) 26 ILJ
911 (LC) at para 23 and Ntshangase v
Speciality Metals CC (1998) 19 ILJ 584 (LC) para 14.
[16]
In preparation of this judgment and having
regard to the contention by the applicant that the filing of the
review application had
interrupted prescription, I noticed that the
review papers were not before me. I then issued a directive to both
parties to enquire
about their attitude in the Court having regard to
the review application papers filed under case number JR919/2004.
Both parties
indicated that they did not believe that the Court
should have regard to the review papers. I regard myself as being
bound by the
preferences of the parties, and have had no regard in
arriving at my decision below to those papers. I must however mention
that
my decision would probably have been different had the parties
agreed that regard should be had to the review papers.
[17]
As indicated above there are certain
processes which in terms of
section 15(1)
of the
Prescription Act may
interrupt prescription. One of the processes is pleadings in
reconvention, which may include a counter claim. Had the parties
agreed to place the review papers before me, I would have had to
evaluate the nature of the processes that arose from the applicant’s
papers in that review application. I may also mention that in the
review application, the papers of which I had sight of, the union
in
its notice of opposition pleaded for the dismissal of the review
application and confirmation of the award. It is highly probable
that, if I had the review papers being before me, I may have treated
that as a process as envisaged in
section 15
of the
Prescription Act.
[18
]
In the light of the above I am of the view,
that running of prescription in this matter was never interrupted and
accordingly the
arbitration award which was issued in favour of the
applicant has prescribed.
[19]
In the premises, I make the following
order:
1.
The debt in the form of the arbitration
award has become prescribed.
2.
The application to make an award an order
of the Court is dismissed.
3.
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
23
rd
April 2009
Date
of Judgment :
23
rd
September 2009
Appearances
For
the Applicant :
Mr Xolisa Ngako of Ruth Edmonds Attorneys
For
the Respondent: Mr C
Geldenhuys of Geldenhuys CJ @ LAW INC
Instructed
by :
The State Attorney