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[2011] ZALCJHB 70
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Technikon Pretoria (Now Tshwane University of Technology) v Nel NO and Others (J 1832/02) [2011] ZALCJHB 70; (2012) 33 ILJ 293 (LC) (16 August 2011)
Technikon
Pretoria v Z Gordon –Fatagodien Case No: J 1832/02-
Prescription-Interruption and Lapsing of Prescription
MOAHLEHI
J
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN BRAAMFONTEIN)
Reportable
Case
No: J 1832/02
In
the matter between:
TECHNIKON
PRETORIA
(Now.
Tshwane University of Technology)
…........................................................
Applicant
And
COMMISSIONER
E.P NEL N.O
….............................................................
1
ST
Respondent
COMMISION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
…...............................................................................
2
nd
Respondent
Z
GORDON –FATAGODIEN
…...................................................................
3
rd
Respondent
Date
of proceedings and date of order : 24 March 2011
Date
of reasons : 16 August 2011
JUDGMENT
MOLAHLEHI,
J
Introduction
The dispute that gave rise to this
matter arose 11 years ago and to date remains unresolved. The third
respondent is the former
employee of the applicant who was dismissed
in November 2000. The history of this matter is accompanied by
several complications
and technicalities which contributed to this
excessive delay in finalising the dispute.
[2] The matter on the main involves
the review of the rescission ruling that had been issued by the first
respondent (“the
Commissioner”). The rescission ruling
which the applicant seeks to review and set aside concerns the
default arbitration
award which had been granted in favour of the
third respondent who will in this judgment for convenience and ease
of reference
be referred to as “the employee”.
[3] The review application was
launched during 2003. The employee had since the issuance of the
arbitration award made several applications
seeking to enforce the
arbitration award in terms of section 158 (1) (c) of the Labour
Relations Act (LRA).
1
The matter came before Gush J on 3
December 2010 and was postponed to 24 March 2011, in an order that
detailed a number of aspects
which the parties needed to attend to
before the next hearing.
[4] The matter was postponed again on
the 24 March 2011. The order made on that day reads as follows:
“
1.
The matter is postponed to afford the respondent (an opportunity) in
the point
in
limine
(prescription point) to file further heads of argument.
2.
The submission (third respondents’) shall be made by the 12
April 2011.
3.
The applicant shall have thereafter 10 days to file any reply
thereto.”
[5] The above order was consequent to
a “Notice to argue point of law” filed by the applicant
on 23 March 2011, a day
before the hearing. The notice of point in
law reads as follows:
“
The
applicant will argue, with reference to the decision in Sifuba v
Commissioner of the SAPS and other (2009) 30 ILJ 1309 (LC),
and other
authorities, that any debts created by the default arbitration award
and/or the ruling refusing rescission, have prescribed
in terms of
the
Prescription Act 68 of 1969
, and accordingly are not enforceable.
The current review application and and an order to this effect (and a
declaratory that the
award has prescribed) will be sought at the
hearing hereof.”
[6] As a result of the above, this
Court is called upon to deal with the issue of prescription before it
can entertain the main
issue being the review application.
Background Facts
[7] The brief history of the process
that has unfolded in this matter is as follows: The default award
ordering the reinstatement
of the employee was made on the 17 April
2002. The arbitration award was issued on the applicant on the 23
April 2002
.
[8] It would appear that the applicant
did not comply with the arbitration award as on 20 May 2002, the
employee filed an application
in terms of which he sought to have the
arbitration award made an order of Court in terms of
section 158
(1)
(c) of the LRA.
[9] It would also appear that before
the
section 158
(1) (c) could be considered, the applicant filed an
application to have the default arbitration award rescinded on 3 June
2002.
As indicated earlier, the applicant was unsuccessful in its
rescission application.
[10] The applicant being unhappy with
the outcome of the rescission application filed its review
application of the rescission ruling
on 3 May 2003. Thereafter and
for a number of years nothing materially happened regarding the
review application. On 1 July 2009,
the employee filed another
application in terms of
section 158
(1) (c) of the LRA. That
application was subsequently withdrawn. Another
section 158
(1) (c)
application was filed by the employee on 21 June 2010. That
application was set down as unopposed on the unopposed roll
for
hearing on 24 November 2010. The matter was then removed from the
unopposed roll as there was opposition on the day of the
hearing. The
matter was placed on the opposed roll and set down for 3 December
2010. At the hearing, the Court made the order referred
to above and
in terms of which time frames were set out as to what the parties
were expected to do.
[11] I now turn to deal with the issue
at hand, namely prescription. The employee has raised a point
in
limine
in relation to the applicant’s point concerning
prescription. The employee’s attorneys of record contend that
the prescription
point raised by the applicant should be dismissed
because the point was not formally raised in the pleadings. It is
argued in the
heads of argument that the issue of prescription needed
to be pleaded so as to indicate the date when the prescription took
place.
[12] The need to plead prescription is
necessary, according to the employee, even where it is common cause
or self evident as to
when prescription took place. The further point
made on behalf of the employee is that the applicant was aware of the
point when
the matter came to Court on 3 December 2010 and although
it was mentioned, at that stage it was never pleaded.
[13] The applicant in its
supplementary heads states that the matter had prescribed because:
“
10.
(The employee) abandoned the first
section 158(1)
(c) application.
10.1
(The employee) launched 2 further applications for identical relief
(enforcement of arbitration award) on identical grounds
as 158(1)
(c).
10.2
(The employee) failed to take any steps to prosecute the first
application. No replying papers were filed, and the matter was
never
set down for hearing. The employee only persists with the third
section 158(1)(c)
application. The effect is that the employee failed
to successfully prosecute his claim (the first 158(1)(c) application)
to finality,
and therefore this claim is deemed to have never
interrupted the prescription at all.
12.
“It follows that the debt in the form of the arbitration award
has become prescribed, with effect from 17 April 2005.
13.
Both the review application and the 158(1)(c) application are
academic and should be dismissed
.”
[14] In his oral submission, Mr Fourie
for the applicant submitted that the prescription was initially
interrupted by the
section 158(1)
(c) of the LRA filed by the
employee during May 2002. According to him, that interruption has
elapsed because it was not pursued
to finality in terms of
section
15(2)
of the
Prescription Act.
2
The employee failed to take any step
to prosecute his
section 158(1)(c)
for a period of nine years. The
two other
section 158(1)
(c) are no longer before this Court because
they have been withdrawn.
[15] The employee on the other hand
has raised a point
in limine
to the applicant’s prescription
point. In this regard, it has been submitted in the heads of argument
on behalf of the employee
that the prescription point is not
sustainable because it was not raised in the applicant’s
pleadings.
[16] The approach to be adopted in
raising the issue of prescription is dealt with in the case on
Minister of
Justice-Constitutional Development V Mathobela and Others
3
,
in which the Court per
Hendricks J, held that:
“
I
am of the view that prescription was not properly raised as a defence
seeing that no facts were placed before this Court by way
of an
opposing affidavit. The Court cannot on its own motion take notice of
prescription. First Respondent who wishes to invoke
prescription as a
defence should have done so in an opposing affidavit as a relevant
document, and not in
heads
of argument.”
[17] In
Rand
Staple –Machine Leasing
v
I.C.I. (S.A.)
LTD,
4
the Court in dealing with the
provisions of
section 17(2)
of the Act had the following to say:
“
I
do not agree that the interlocutory motion proceedings initiated by a
party who wishes to amend his pleadings are such proceedings
as are
envisaged in section 17(2) of the Act 68 of 1969. The litigant
invokes prescription is variably the defendant or the defendant
in
reconvention in trial proceedings or the respondent in motion
proceedings and the document to be filed by him off record in
the
trial proceedings is his plea or plea in reconvention or his opposing
affidavit in motion proceedings. The proceedings envisaged
are, in my
view, the main proceedings and are not intermediate or interlocutory
proceedings”.
[18] The Court in
Rand
Staple Machine Leasing
went
further to say that; “the proper way to raise this issue of
prescription is to do so by way of a special plea. Although
this type
of special plea is often referred to as peremptory exception…”
5
[19] In response to the above point
raised by the employee that the prescription was not properly raised,
the applicant responded
as follows:
“
4.The
Court may allow prescription to be raised at any stage of the
proceedings. While the case law indicates that prescription
should
preferably be raised in the pleadings, this rule is not inviolate:
4.1
Prescription Act expressly
grants the court discretion in this
regard. The general principle is that pleadings are made for the
court and not visa versa.
…
4.3
The issue was raised prior to the hearing of the matter, by way of a
notice to argue a point in law. While this point could
be raised in
an affidavit, it was properly raised by way of a notice to argue a
point of law, which is recognized in motion court
practice.
4.4
The dominant consideration is potential prejudice to the other
party-for this reason the court allowed the third respondent’s
attorneys to hand up further documents during the course of the
argument and further time to file written submission. This clearly
cured the possible prejudice which could have arisen by the late
raising of the point of law.
4.5
While the third respondent’s attorneys filed further notices
that the matter was postponed, no further affidavits were
filed,
despite ample opportunity to do so. This is not surprising- the facts
upon which the prescription argument is raised all
appear in the
papers already before the court.
4.6
In summary, this court has already ruled that it will consider the
point of law, and has reserved judgment on this point. Given
the
arrangement made to negate any possible prejudice, the question of
the late raising of the point of law has been dealt with
and does not
require further consideration.”
[20] The applicant further contended
that the employee had abandoned his
section 158(1)
(c) application of
2002. Whilst conceding that the
section 158(1)(c)
of the LRA served
as a process interrupting prescription, that interruption lapsed
because of failure by the employee to prosecute
the claim to
finality.
Evaluation
[21] It is now well established that
in terms of
section 10(1)
, (11)(d) and
12
(1) of the
Prescription Act,
an
arbitration award which is regarded as a debt is extinguished by
prescription after a lapse of three years from the date it was
issued.
[22] In terms of
section 15
(1) of the
Prescription Act, the
running of prescription is interrupted by the
service of any process whereby the creditor claims the debt. In the
present instance,
it is common cause that the
section 158(1)(c)
of
the LRA which was filed by the employee in 2002 serves as a process
that interrupted prescription in this matter as envisaged
in section
15 (1) of the Act.
6
[23] As stated above in the present
instance, it is common cause that the running of prescription was
interrupted by the filling
of section 158(1)(c) during 2002. The two
questions that have arisen in the present instance is whether the
employee has abandoned
the section 158(1)(c) of the LRA and whether
the interruption that arose from that process has lapsed because of
the undue delay
in the prosecution of that very process.
[24] The key question to answer before
answering the above questions is whether the prescription point is
properly before this Court.
If the answer to this question is in the
negative then the need to answer the above questions would not arise.
As indicated earlier,
the contention of the employee is that the
prescription point is not properly before the Court because it was
not properly pleaded.
[25]
Section 17
of the
Prescription
Act entitled
“Prescription to be raised in pleadings”
provides:
“
A
party to litigation who invokes prescription, shall do so in the
relevant document filed of record in the proceedings: Provided
that a
court may allow prescription to be raised at any stage of the
proceedings.”
[26] In considering the implication of
section 17(2)
of the
Prescription Act in
the
Mathobela
case, ,
Hendricks J, had the following to say:
"
Section
17
(1) forbids that a court take
mero
motu
cognizance
of the fact that a claim had prescribed. Understandably so, because
there may well be certain facts which are not placed
before the court
that may have interrupted the running of prescription. Prescription
must be invoked by the party who raises it
as a defence and it must
be done in the relevant document.
7
[27] The learned judge went further to
say:
“
Though
Section 17
(2) refers to “relevant document” and not
specifically to “pleadings” as contained in its
predecessor
(Section 14
of Act 18 of 1943), I am of the view that the
“relevant document” is either a plea (special plea) in
trial proceedings
or an opposing affidavit in motion proceedings.
In
my view heads of argument is an aid prepared by counsel or an
attorney or a litigant for the convenience of the Court. Heads
of
argument cannot be regarded as evidence by a party. In my view the
way to invoke prescription as envisaged in Section 17 (2)
is either
by way of a plea (special plea) in trial proceedings or an opposing
affidavit in motion proceedings. First Respondent
should have filed
an opposing affidavit even if the only issue contained therein would
have been prescription. By raising the issue
in the manner it did,
the First Respondent has, in my view, done so in an incorrect
manner.”
8
[17]
The onus is on the party that alleges that an obligation has been
extinguished by prescription to plead and prove the necessary
averment in this regard.”
[28] The facts in the
Mathobela’s
case are very similar to
the present. In that case, the respondent through his/her attorney
raised the issue of prescription in
the heads of argument.
[29] The Court in the
Mathobela’s
case in making the findings
as it did with regard to the provisions of
section 17
of the
Prescription Act relied
on the cases of
Rand
Staple
.
9
[30] In Heeriah
and
Others v Ramkissoo
10
,
in
dealing with the same
issue, under the 1943 Act which specifically required that
prescription should be pleaded had the following
to say:
“
The
question of prescription was not raised by the defendants in their
plea, nor was any application made to the Magistrate or to
this court
to amend the plea so as to refer to it. I mention this because it is
provided for in sec 14 of Act 18 of 1943, as follows:‘
A party
to a suit who raises prescription shall do so in the pleadings:
Provided that the court may allow prescription to be raised
at any
stage in the proceedings.’ I think that the requirement that a
party to a suit who raises prescription shall do so
in the pleadings,
is peremptory in this sense that the court will not hold a claim made
before it to be prescribed by extinctive
prescription unless the
prescription is raised in the pleadings, whether in convention or
reconvention, though I take it that the
word ‘pleadings’
would be extended to cover affidavits if the relevant proceedings
were by way of application or cross
application. I think that what
was intended by sec 14 was that prescription must be specifically
raised in the pleadings (or affidavits,
as the case may be) where it
is relied upon as rendering unenforceable the claim made by the
opposite party.”
[31] It seems clear from the above
authorities that a proper way of raising prescription is by way of a
plea or an answering affidavit.
It would seem to me that because the
law allows for prescription to be raised at any stage of the
proceedings, a supplementary
affidavit may be filed where the
answering affidavit has already been filed when the point is raised.
Harms says the reason for
requiring the prescription point to be
raised by way of a plea or special plea and not by way of exception
is that the other party
(the employee in the present instance) may
have a valid answer to the prescription point and more importantly to
the issue of the
delay in prosecuting the process interrupting the
prescription to finality.
11
[32] In raising the prescription point
in the manner it did, the applicant denied the employee the
opportunity to give a full account
of the delay in relation to
prosecuting his section 158(1)(c) of the 2002 application to
finality. In this regard, it is trite
that the Court has a discretion
which it has to exercise judicially, to dismiss a matter if a
litigant delays in prosecuting that
matter within a reasonable time.
There are a number of factors which the Court in exercising such a
discretion would have to take
into account regarding whether such a
delay should be condoned or not. Those factors in my view can only be
considered on the basis
of the facts presented by the parties before
the Court.
[33] The other factor which the Court
has to take into account in dealing with the delay in the prosecution
of the matter has to
do with the extent or the contribution to the
delay by the party seeking to have the matter dismissed because of
the alleged unreasonable
delay. In other words, the question which
the Court needs to determine is, what did the party complaining about
the delay do in
order to progress the matter to the next stage.
Because of the approach adopted by the applicant in placing this
matter before
the Court, those facts are not before the Court. The
Court is therefore unable to exercise its discretion properly.
[34] In light of the above discussion
it is my view that the applicant’s point regarding prescription
stands to fail. The
point raised by the Respondent that the offer was
not properly placed before court stands to succeed. I see no reason
why costs
should in the circumstances of this case not follow the
results.
[35] In the premises the following
order is made:
1) Prescription in this matter had
been interfered by section 158 (1) (c) of the LRA
2) The Applicant’s point
regarding prescription is dismissed.
3) The Applicant is to pay the costs.
__________________
Molahlehi J
Judge of the Labour Court of South
Africa
Appearances:
For the Applicant: Adv. G.A. Fourie
Instructed by: Glynn Marais Inc.
For the Respondent: Mr A.L. Goldberg
from Jansens Labour Court Attorneys
1
66
of 1995.
2
68
of 1969.
3
(1185/05)
[2007] ZANWHC 5
(25 January 2007) unreported at para 22.
4
1977
(3) SA 199
(W) at page 201H-2002.
5
Ibid
at
202 F.
6
The
provisions of
section 15(1)
of the
Prescription Act 68 of 1969
reads
as follows: “ 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.”
7
Above
n3 at para 11.
8
Above
n3 at para 15-17.
9
Above
n3 at paras 13-14.
10
[1955]
(3) SA (N)
11
Harms
Amler’s precedents of
pleadings
7 ed
(LexixNexis, Durban 2009) at 331.
11