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[2011] ZALCJHB 31
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Mangengenene v PPC Cement (Pty) Ltd and Others (JR698/02) [2011] ZALCJHB 31; [2011] 12 BLLR 1198 (LC); (2011) 32 ILJ 2518 (LC (29 April 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Reportable
CASE NO: JR 698/02
In the matter between:
MAGENGENENE MBALEKI
FRANS
….............................................................
Applicant
And
PPC CEMENT (PTY) LTD
….................................................................
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
…...............................................
Second
Respondent
GRACE GAORONGWE
SEBOTHOMA NO
….....................................
Third
Respondent
JUDGMENT
BHOOLA J:
Introduction
[1] This is an
application in which the applicant seeks the following relief:
(i) that the first
respondent’s review application dated 10 May 2002 be dismissed;
(ii) that the arbitration
award of the third respondent, dated 11 April 2002 be made an order
of Court;
(iii) costs of suit be
paid by the first respondent and all those who oppose the
application; and
(iv) further or
alternative relief.
The issue
[2] This matter has a
long and unfortunate history. An arbitration award was issued in
April 2002 reinstating the applicant following
a referral of his
unfair dismissal dispute to the second respondent in 2001. The first
respondent filed a review application in
terms of section 145 (1) of
the Labour Relations Act 66 of 1995 (“the LRA”) on 15 May
2002. The applicant has not opposed
the review. The applicant
tendered his services and was informed that the review was pending.
The tape recording of the proceedings
was incomplete and an attempt
was made to reconstruct portions of the initial record. Deliberations
followed between the parties
and it would appear that the applicant
took a rather obstructive approach to the reconstruction process, as
appears from the opposing
affidavit in this application, to which the
applicant has not filed a replying affidavit.
[3] The application to
make the award an order of court has been brought eight years after
the award was made. The third respondent
pleads that the award has
prescribed since the extinctive prescription rules as provided for in
the
Prescription Act 68 of 1969
are applicable.
Submissions
[4] The primary
submission of Mr Mphephya, on behalf of the applicant was that the
Prescription Act is
not applicable on account of the general
equitable jurisdiction exercised by this Court as set out in
section
151
(1) of “the LRA”. The invoking of the
Prescription
Act in
these circumstances would result in denying a constitutional
right to the applicant and all others similar to him on account of
their illiterate and indigent status. The applicant moreover did not
simply sit back but sought legal assistance from a para-legal
advice
office and a radio station in order to enforce the award, and when he
finally obtained assistance (from his brother, who
has some legal
training) he is met with a technical legal point. Whilst conceding
the application of the
Prescription Act to
proceedings in terms of
“the LRA”, Mr Mphephya urged this Court to find that
prescription was interrupted by the review
and to grant the relief
sought by the applicant.
[5] Mr Watt-Pringle SC,
appearing for the first respondent, submitted that despite his
sympathy for the applicant’s plight,
this Court was required to
apply the law. It is trite that extinctive prescription as envisaged
in the
Prescription Act is
applicable to LRA disputes. In this regard
an arbitration award is a debt as contemplated in the
Prescription
Act
>: Chemical Energy Paper Printing Wood and Allied Workers Union
& another v Le-Sel Research (Pty) Ltd
(2009) 30
ILJ
1818 (LC);
Public Servants Association obo Khaya v CCMA &
others
(2008) 29
ILJ
1546 (LC). With certain exceptions, a
debt prescribes after a three-year period as provided for in
section
11
(d) of the
Prescription Act:
>Mampuru & others v Maxi
Strategic Alliance (Pty) Ltd
[2009] 8 BLLR 762 (LC). In
POPCRU
on behalf of Sifuba v Commissioner of the SA Police Service &
others
(2009) 30
ILJ
1309 (LC), the Court held that a
counter-application to make an award an order of court will interrupt
prescription, but seeking
this relief in an answering affidavit in
the review was insufficient. Furthermore, in
National Union of
Metalworkers of South Africa & another v Espach Engineering
(2010) 31
ILJ
987 (LC), Molahlehi J held that once an award
had been issued, an employee could enforce it either by way of
section 143
or applying to make it an order of court under
section
158(1)
(c) of “the LRA”. Both of these are processes as
envisaged in
section 15
(6) of the
Prescription Act, which
would
interrupt prescription but the filing of a review does not interrupt
prescription as envisaged in
section 15
(6) of the
Prescription Act.
Conclusion
[6] Molahlehi J,
correctly in my view, confirmed the principle expressed in
Sifuba
(supra)
that the expeditious resolution of labour disputes was
consistent with the timeous enforcement of debts as set out in the
Prescription Act. Accordingly
, he held that a party’s right to
enforce an award by having it made an order of court prescribes three
years after the issue
of the award.
[7] Lastly, in
Sifuba
(supra)
Musi AJ dealt expressly with the equitable
jurisdiction point and proceeded to debunk the notion that this Court
exercises a jurisdictional
discretion in regard to whether the
Prescription Act is
applicable or not. He held that it was a rule of
practice, not of law, that a review application suspends the
operation of an award.
In these circumstances “the LRA”
merely confers on the Labour Court a discretion to stay the
enforcement of an award
where circumstances so require and that a
pending review application is not a bar to making an award an order
of court. If these
principles are to be applied to the present matter
it would make it clear that a review is not a legal impediment that
interrupts
the running of prescription, and the applicant should have
taken timeous steps to enforce the award.
[8] Since this finding
renders the award unenforceable and disposes of the review as well,
it is unnecessary to consider the dismissal
application. There is no
doubt that the finding that the award has prescribed undoubtedly
compounds the injustice the applicant
feels, and that it is
opportunistic of the first respondent, as was put to its Counsel
during his submissions, to plead prescription
after having delayed
its review. However it is the only conclusion on the clear legal
authority cited that can be made on the facts,
and even the exercise
of any equitable jurisdiction can sadly not resuscitate the
applicant’s claim.
[9] In the premises, I
make the following order:
The application to make
the award an order of this court in terms of
section 158(1)
(c) is
dismissed. There is no order as to costs.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Date of hearing: 19 April
2011
Date of judgment: 29
April 2011
Appearance:
For the Applicant: Mr
Mphepya, Legal Aid Board
For
the First Respondent: Adv C E Watt-Pringle SC instructed by Fluxmans
5