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[2010] ZALCCT 13
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Fredericks v Grobler NO and Others (C590/2007) [2010] ZALCCT 13 (3 February 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
REPORTABLE
CASE NO: C590/2007
In
the matter between:
P
FREDERICKS
Applicant
and
HILDA
GROBLER N.O
First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second
Respondent
DEPARTMENT
OF CORRECTIONAL
SERVICES
Third
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicant in this matter seeks to have the ruling issued by the
first respondent reviewed and set aside in terms of section
158(1)
(g) of the Labour Relations Act 66 of 1995 (LRA). In terms of the
ruling which was issued under case number PSGA 463-0708
and dated 8
October 2007, the third responded dismissed the applicant’s
application for condonation for the late referral
of his unfair
labour practice dispute.
The
factual background
[2]
The dispute which the applicant sought to have considered by the
first respondent concerned the alleged failure by the third
respondent to promote him following a recommendation in that regard
by one of his supervisors. According to the applicant he discovered
during 1997, after having access to his personnel records that he met
the required criteria for promotion during 1986, 1987 and
1988 and
was in fact recommended for promotion by his supervisor but that the
third respondent nevertheless failed to effect such
recommendations.
[3]
As a result of this discovery the applicant addressed a letter on the
23
rd
December 1997, to the third respondent wherein he
complained about failure to promote him. The applicant’s complaint
received attention during December 1997 and those in charge
recommended that “
the situation regarding his promotion be
rectified.”
[4]
The situation remained the same but the applicant continued to insist
that his complaint be addressed.
[5]
The applicant did not give up in his endeavor to have what he
regarded as unfair treatment address by the third respondent and
this
continued into 1998. The third respondent responded to the complaint
again on the 24
th
April 1998, in a letter to the
third respondent stating that the situation will not be dealt with
any further and that the
applicant should consider the situation as
finalized.
[6]
The applicant again did not accept what he was told by the third
respondent and pursued the matter further by addressing a letter
to
the respondent on 5
th
March 1999, to which the third
respondent replied on the 19
th
April 1999 and stated that
they consider the matter finalized as an objective investigation was
not possible and that in terms
of the
Prescription Act 68 of 1969
,
the matter has prescribed.
[7]
Thereafter, the applicant seems to have done nothing regarding his
complaint for a period of about six months. It was only on
1
st
November 1999, that the applicant made representations to the
Minister of Correctional Services ("the Minister"). The
Minister replied on the 28
th
January 2002 and in essence
confirmed the decision of the third respondent.
[8]
The applicant addressed a further letter to the Minister on the 3
rd
December 2002 and made further representation. The Minister having
not responded to this letter the applicant addressed several
more
letters thereafter.
[9]
The third respondent further to the letter of the applicant of the
14
th
May 2004, responded by reiterating its position that
it regarded the matter as finalized.
[10]
Three months thereafter and on the 23
rd
August 2004, the
applicant referred an unfair labour practice dispute to the Public
Service Commission (PSC). The PSC in turn and
only on the 24 May 2005
referred the matter to the third respondent for their resolution.
[11]
In response to the dispute as referred to it by the PSC, the third
respondent indicated in a letter to the PSC dated 9
th
October 2006, that there was no basis for the claim by the applicant
that he was entitled to have been promoted during 1986 to
1989.
[12]
The intervention of the PSC having not produced the desired result
from the perspective of the applicant, he then addressed
a letter on
the 6
th
December 2006 to the Human Rights Commission and
requested assistance.
[13]
The assistance of the Human Rights Commission having also not yielded
the desired results the applicant referred his dispute
to the
bargaining council with an application for condonation for the late
referral of the dispute. The referral was done on the
27
th
July 2007. As indicated earlier the condonation application was
dismissed by the commissioner resulting in the applicant instituting
these proceedings.
The
grounds for review
[14]
The essence of the applicant’s attack on the commissioner’s
ruling is that the commissioner failed to take into
account in
arriving at her conclusion, that the applicant is a lay person who
filled in the standard form provided by the bargaining
council for
the purposes of condonation application unassisted by a lawyer. The
applicant further contended that the delay of 10
(ten) years was not
excessive because as soon as he became aware of the unfair labour
practice he “
started to lodge complaints and grievances
.”
[15]
As concerning failure to attach the supporting documentation the
applicant attributes this to the fact that he is a lay person
and
that he was unaware that the annexure had to be attached and further
that he was never contacted to furnish the same.
[16]
The essence of the applicant’s case in as far as prospects of
success were concerned in motivating for the granting of
condonation
for his late referral of his dispute concerns inconsistent
application of promotion policy by the third respondent
in that
another employee who had found himself in a similar situation like
him was promoted. The applicant also attacked the ruling
with regard
to the approach adopted by the commissioner in dealing with issues of
prejudice, the importance of the matter and balance
of convenience.
[17]
The commissioner in refusing to grant condonation reasoned that the
applicant failed to comply with the requirements set out
in the
standard form which he filed in his application for condonation. The
commissioner further found that the applicant in his
application
failed to satisfied the guidelines set out in
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531
(A)
. The commissioner
also says in her award that the delay of 10 (ten) years was
excessive.
[18]
The respondent contended that the applicants’
claim became due at the very latest on 3
rd
September 2001 when the CCMA issued the certificate that it had not
been able to settle the dispute. To this extent the respondent
argued
that the debt which was due to the individual applicants had become
prescribed, as prescription began to run as soon as
they acquired the
right to institute the proceedings against the respondent in terms of
section 191(11) of the Labour Relations
Act 66 of 1995 (the LRA).
[19]
As concerning the process envisaged in section
15(1) of the Prescription Act 68 of 1969 (the Act),
the applicant
argued that the running of prescription would only have
been interrupted if the applicants had filed their statement of claim
in
terms of rule 6 of the rules of the Labour Court. The applicant
relied on the cases of:
Peak v Global
Technology Ltd (2003) 24 ILJ 1580 (LC)
at
1584, Embling and Another v Two Oceans
Aquarium
2000 (3) SA 691
(C), Standard Bank of South Africa Ltd v
Oneate Investment (PTY) Ltd (In Liquidation)
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) at
826 and Waveley Blankets Ltd v Shoprite Checkers (PTY) Ltd and
Another 2002(4) SA 166 (C).
[20]
The above authorities do not support the case of
the applicant. The facts in
Peak v
Global Technology
are distinguishable
from the present case in that the Court in that case dealt with an
amendment to a statement of claim. Francis
J held that even if the
statement of claim was excipiable on the basis that it did not
disclose the cause of action, it can nonetheless
interrupt
prescription. It was on this basis that the Learned Judge granted the
application to amend the statement of claim which
amendment he saw as
clarifying the cause of action.
[21]
In
Waveley Blankets
Ltd v Shoprite Checkers
,
the court dealt with the issue of whether a joinder application would
interrupt prescription. The Court held that where the defendant
is
joined in its own application, there would be no “process
whereby the creditor claims payment of the debt” from
the
debtor. However, the important principle enunciated by the Court (at
page 174H), taken from the
Cape Town
Municipality and Another v Allianz Insurance Co Ltd
1990 (1) SA
311(C)
at 334H
, which is apposite to
the present case and is discussed later in this judgement is that:
“
It is sufficient for the purposes
of interrupting prescription if the process to be served is one
whereby the proceedings begun
there under are instituted as a step in
the enforcement of a claim for payment of the debt.”
It
should be noted in this regard that the notion of a “debt”
in the Act has been described as referring to an obligation
to
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
.
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.”
[22]
It is now well established that extinctive
prescription as envisaged
Prescription Act applies
to employment
issues. See in this regards
Mpanzama v
Fidelity Guards Holding (Pty) Ltd
[2000] 12 BLLR 1459
(LC), Cape
Town
Municipality v Allie NO
1981 (2) SA
1
(C)
and
Uitenhage
Municipality
v Mooley
1998 (19) ILJ 757 (SCA)
. A
“debt” would in the context of the present case mean that
the respondent had an obligation not to unfairly dismiss
the
applicant.
[23]
Sections 10(1), 11(d) and 12(1) of the Act
provide that a debt shall be extinguished by prescription after the
lapse of a period
of three years from the date upon which the debt
becomes due. Section 15(1) provides that the running of prescription
shall be
interrupted by the service of any process whereby the
creditor claims payment of the debt.
[24]
Section 12
of the
Prescription Act provides
that:
‘
(1)
Subject to the provision of subsections (2) and (3), prescription
shall commence to run as soon as the
debt is due. . . .
(2)
. . . .
(3)
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.'
[25]
In
Solidarity v Eskom Holdings (Pty)Ltd 2008 ILJ 4150 (LAC)
the
Labour Appeal Court per Khampepe A J A held that :
“
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.”
[26]
In
Truter v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA)
, the court had
the following to say in respect of
s 12(1)
of the
Prescription Act:
“
The
term 'debt
due' means a debt, including a delictual debt, which is owing and
payable. 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.”
[27]
As to when can it be said that prescription commences to run, the
Court in
Deloitte Haskins & Sells Consultants (Pty) Ltd
v Bowthorpe Hellerman Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A)
said the following:
'
Section 12(1)
of the
Prescription Act 68 of 1969
provides 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
.'
[28]
The issue of what happens to the running of prescription in a case of
a creditor who takes no steps to enforce his or her claim
was
answered in the case of
Uitenhage Municipality v Malloy
(1998) 19 ILJ 757 (SCA),
in the following manner:
“
As was stated
by Van den Heever J in Basson & another v W alters and others
1981 (4) SA 42
(C) at 49 G-Y
Our courts have
constantly held that a creditor is not able by his own conduct to
postpone the commencement of prescription. This
approach was
confirmed by the court in the case on The Master v I L Back & Co
Ltd at 1005G when Galgut AJA endorsed the following
assertion:
If all that is
required to be done to render the debt payable is a unilateral act by
the creditor, the creditor cannot avoid the
incidence of prescription
by studiously refraining from performing that act.”
[29]
In the present instance there are two issues arising from the
contentions of the parties. The first issue for determination
relates
to prescription and the second concerns refusal to grant condonation
for the late referral of the dispute to the CCMA by
the commissioner.
[30]
It needs to be pointed out that because the
issue of condonation concerns the jurisdiction of the CCMA, the
decision of the commissioner
is peripheral because it is the Court
that has to determine whether or not the facts before it support the
view that the CCMA has
jurisdiction. This means that the party that
challenges the decision of the commissioner for refusing to grant
condonation for
the late referral of a dispute is entitled to treat
the matter as if the application is made
de
novo.
It also means a party that
challenges the decision refusing the granting of condonation is
entitled to put forward other materials
which were not before the
commissioner.
[31]
At the level of review in a condonation
application for the late filing of the referral of the dispute an
applicant may expand on
its reasons for the lateness and other
factors required to convince the Court that condonation need to be
granted in order to find
jurisdiction for the CCMA. This includes
making further and additional averments about prospects of success.
[32]
I do not intend dwelling into the issue of
condonation and the issue of the decision of the commissioner except
to say that the
applicant has not made out a case against the
decision of the commissioner, neither has he made out a case before
this Court that
there are good and valid reasons for the excessive
delay. He has also not made out a case about the prospects of
success.
[33]
The issue, upon which this matter turns, is
in my view, prescription. The question is whether the claim of the
applicant has already
prescribed. For the reasons set out below, the
claim has prescribed.
[34]
Initially, Ms Ferreira for the applicant
argued that the claim that the applicant made could not have
prescribed because it was
a claim based in labour law and not common
law. When invited by the Court to explain the distinction that she
had made, Ms Ferreira
correctly conceded that a claim under labour
law prescribes in the same way as it would in other fields of law.
[35]
However, having made the above concession,
Ms Ferreira argued that as a general principle before prescription to
commence running,
the claimant should have been aware of his or her
right to claim or be expected to have been ware of such a right. In
this respect
Ms Ferreira contended that the applicant was not aware
of his right to claim because he was from the very beginning of this
matter
told by the respondent that he had no claim for promotion
under the
Labour Relations Act. This
argument in my view has no merit
as it is not supported by the objective facts and evidence.
[36]
The letter which the applicant wrote to
several institutions and the Minister do not support the argument
that he was not aware
that he had a claim against the respondent. The
reading of those letters indicates very clearly that even though the
applicant
was a lay person in terms of the specific technicalities of
the law he was not illiterate. He asserted and articulated very
clearly
what he believed was he right and wrote to the highest
authorities, although not legal relevant for the purposes of dealing
with
his claim. In his own words the applicant states in the letter
he wrote in August 2004, that:
“
This
has left me with an untenable situation in the
sense that I have a
clear right to assert that there
is no forum that I can
approach due to the lapse of
time . . . .”
[37]
The argument that the applicant was not
aware about prescription cannot sustain because the issue of
prescription was specifically
raised with by the respondent during
1999.
[38]
It is clear in applying the legal
principles discussed earlier that the applicant had a claim which he
was aware of or at most ought
reasonably to have been aware off,
which he failed to institute within the period prescribed by the
Prescription Act. The
letters he addressed to the various authorities
did not constitute a process as envisaged in the
Prescription Act
which
could be said to have interrupted the running of prescription.
[39]
I find for the above reasons that the
applicant’s claim has prescribed. I do not however belief that
it would be fair to order
the applicant to pay the costs of the
proceedings.
[40]
In the premises I make the following order:
1.
The applicant’s claim has prescribed.
2.
The applicant’s case is accordingly
dismissed.
3.
There is no order as to costs.
______________
Molahlehi
J
Date
of Hearing :
30
th
September 2009
Date
of Judgment :
3
rd
February 2010
Appearances
For
the Applicant :
Adv Louise Ferreira
Instructed
by :
Raymond McCreath
Inc
For
the Respondent: Adv T
Madima
Instructed
by :
The State Attorney