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[2011] ZALCJHB 167
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AON South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR2766/04) [2011] ZALCJHB 167 (21 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Reportable
Case No: JR2766/04
In the matter between:
AON SOUTH
AFRICA (PTY) LIMITED
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
KHAYALAKHE
MNGEZANA N.O.
Second
Respondent
YVONNE
MABJAIA
Third
Respondent
Date of Hearing: 26
th
day of July 2011
Date of Judgment: 21 September 2011
JUDGMENT
COOK AJ
Introduction
The Third Respondent [“the employee”] was
dismissed in November 2003. The matter was referred to the CCMA and
an award
was issued on 13
th
of October 2004 in terms of
which the commissioner found that the dismissal of the employee by
the Applicant was both procedurally
and substantively unfair [“the
award”]. In terms of the award, the employee was awarded
R126 400, 00 which is
the equivalent of 12 months’
salary.
The Applicant was unsatisfied with the award and with
alacrity filed a review application on 11
th
of November
2004.
In October 2011, the employee filed an application to
have the review application dismissed with costs and to have the
award made
an order of Court. In answer to this application, the
Applicant sought to have the dismissal application dismissed on two
grounds:
that the award had prescribed
and in addition, the employee’s erstwhile
attorneys had “dilly dallied” over the reconstruction
of the record
and thus had caused the delay
Applicable law
Prescription
Arbitration awards prescribe within three years.
1
The party who raises prescription has to prove prescription.
2
Review proceedings do not automatically stay enforcement of an
arbitration award.
3
Review proceedings are not a bar to enforcing the arbitration
award, by having it made an order of Court.
4
In terms of section 14 of the Prescription Act
5
:
“
(1)
The running of prescription shall be interrupted by an express or
tacit acknowledgement of liability by the debtor.
(2) If the running of
prescription is interrupted as contemplated in subsection (1),
prescription shall commence to run afresh from
the day on which the
interruption takes place or, if at the time of the interruption or at
any time thereafter the parties postpone
the due date of the debt
from the date upon which the debt again becomes due.
“
Inordinate
delay on the part of the Plaintiff to bring the action to finality
does not in itself constitute a ground for application
of section
15(2). The implications for the Defendant are not unduly
prejudicial, because to a certain extent he also has
a say in the
running of the proceedings. He can enforce the period within which
pleadings have to be filed or particulars
furnished. If, for
example, Plaintiff fails to furnish further particulars to his
claim for an inordinate length of time,
Defendant for some reason
does not compel the furnishing of further particulars, the
Defendant cannot rely on section 15(2)
as basis for a special plea
of prescription.
Inordinate and
inexcusable delay therefore does not in itself constitute failure to
prosecute a claim successfully.”
6
Failure to prosecute
In the matter of
Karan t/a Karan Beef Feedlot and
Another v Randall,
7
(Van Niekerk J set out the applicable legal principles regarding
applications for dismissals:
“
The
rules of this court make no specific provision for an application to
dismiss when a party fails diligently to pursue a claim
referred to
the court for adjudication. The Court has recognized and adopted the
rule based on the maxim vigilantibus non dormientibus
lex subveniunt,
in terms of which a party may in certain circumstances be debarred
from obtaining the relief to which that party
would have been
entitled because of an unjustifiable delay in prosecuting the claim.”
In
National Construction Building and Allied
Workers Union and Others v Springbok (Pty) Limited t/a Summit
Associated Industries
8
the Court held that:
“
The
unreasonable delay rule has received attention in a number of
judgments of the Labour Court. It has generally been accepted
that
where a litigant delays in the prosecution of his or her claim he or
she may be barred from obtaining the relief sought for
that reason.
……………
.
The factors which the court will
take into account in considering whether or not to dismiss a matter
due to unreasonable delay in
its prosecution are the following: the
length of the delay; the effect of the delay on the other party and
the prejudice which
the other party will suffer if the matter is not
dismissed for that reason. The other factor which needs to be weighed
together
with these factors is the inaction or otherwise of the
respondent in ensuring that the matter is brought to finality. The
defence
of a party opposing an application for the dismissal of a
claim on the basis of unreasonable delay is quite often that the
other
party in not taking action to progress the matter to the next
step has also contributed to the delay. In this regard often
judgments
relied upon are those of
Bezuidenhout v Johnston NO &
others
(2006) 27 ILJ 2337 (LC);
[2006] 12 BLLR 1131
(LC) and
Karan Beef Feedlot & another v Randall
(2009) 30 ILJ 2937
(LC). I do not read those judgments as saying that the inaction of
the applicant in an application to dismiss
a matter on the basis of
unreasonable delay is necessarily an absolute defence. The
contribution to the delay by the party seeking
to have the matter
dismissed for delay in prosecution must be objectively assessed with
a view to evaluating the extent to which
the inaction of the
applicant contributed towards the excessiveness or otherwise of the
delay. The inaction has to be weighed against
the objective facts
that may point towards loss of interest in pursuing the matter by the
party opposing such an application. It
may well be that the facts and
the circumstances objectively point to a case where the respondent
can be said to have abandoned
or lost interest in the matter. In that
instance I do not believe that it would be correct and fair to blame
the applicant for
contributing to the delay due to his or her
inaction.”
Prescription
Unless prescription was interrupted, the award would
have prescribed on 13
th
of October 2007.
In terms of the notice of opposition to the application
to have the award made an order of Court, the Applicant sought an
order:
“
2.
That the Applicant’s claim has prescribed in terms of Section
13(1) (f) and (l) read with
Section 11(d)
of the
Prescription Act 68
of 1969
.”
The Applicant states:
“
During
November 2009, the Third Respondent attempted to bring an application
to have the award made an order of Court and to dismiss
the review
application. She did so under case number J2411/09. That application
was opposed and has never been heard. For the sake
of completeness, I
attach marked “A”, a copy of the opposing papers in that
application. As can be seen, Aon South
Africa (Pty) Ltd raised the
issue of prescription in those papers. The application, as I
understand it, still pending.”
I am satisfied that the Applicant has raised the issue
of prescription appropriately in terms of
section 17(2)
by raising
the issue in the answering affidavits to the application to have the
award made an order of Court in November 2009
and in the answering
affidavit to the current application to have the review application
dismissed.
9
The debt in this matter is created by the arbitration
award. The Applicant, by launching the review application,
acknowledged
the debt created by the award, but seeks to have the
debt reviewed, corrected or set aside by the Court. I am of the view
that
the filing of the review application by the Applicant, the
debtor, amounts to express acknowledgement of liability by the
Applicant
to the employee, the creditor. Accordingly, the running of
prescription was interrupted by an express acknowledgement of
liability
by the debtor on 11
th
of November 2004.
The review application came before court on 30
th
of March 2006, when it was postponed
sine die
and in terms of
the court order was not to be set down until the record of the
arbitration proceedings was reconstructed and
typed. On 14
th
of June 2007, the matter was yet again postponed
sine die
for
the purposes of the parties to reconstruct a common record. On 16
th
of September 2009, the matter was struck off the roll for the non
appearance of the Applicant. (The Applicant states that the
matter
was meant to be removed from the roll by agreement.)
I am of the view that the above subsequent steps taken
by the Applicant in prosecuting the review application amount to a
tacit
acknowledgement of the debt. It was only in November 2009 that
the Applicant raised the issue of prescription and therefore no
longer acknowledged the debt. Accordingly, the Applicant has
acknowledged the debt up until at least September 2009, and
accordingly
prescription has been interrupted and can only commence
to run a fresh from the earliest September 2009.
If I am wrong in the view that the review application
interrupted prescription by acknowledging liability for the debt,
then I
need to consider whether prescription has not being
interrupted on any other basis.
The Applicant states:
“
The
point however is that for 5 years, the Third Respondent at no stage
attempted to enforce the award by having the award made
an order of
Court in terms of
section 158
of the LRA or by certifying it in terms
of
section 143
of the LRA.”
10
However, on 7
th
of June 2005, the employee
filed an application to dismiss the Applicant’s review
application. In terms of the notice of
motion, the employee sought
an order in the following terms:
“
1.1
Dismissing the Applicant’s application for review of the
arbitration award issued by Commissioner Khayalakhe Ngezana.
Re-enforcing the existing CCMA award.” [“the 2005
application to dismiss”]
Again on 13
th
of July 2006, the employee
filed an application to dismiss the Applicant’s review
application. In terms of the notice of
motion, the employee yet
again sought an order in the following terms:
“
1.1
Dismissing the Applicant’s application for review of the
arbitration award issued by Commissioner Khayalakhe Ngezana.
Re-enforcing the existing CCMA award.”
[“the
2006 application to dismiss”]
The Applicant makes no mention of the 2005 and 2006
applications to dismiss the review application in its answering
affidavit
to the application to have the review application
dismissed that was launched in October 2010.
From the founding affidavit to the 2006 application to
dismiss the 2005 application to dismiss was abandoned by the
employee when
a copy of transcriptions was received on 9
th
of June 2005. It does not seem that the 2006 application to dismiss
has been heard. I do not find any notice of withdrawal of
the
original application to dismiss. It would therefore appear that the
2006 application to dismiss is still pending. Similarly,
I do not
find anything in the Court file indicating that the Applicant has
taken steps to dismiss the original application to
dismiss the
review application for lack of prosecution or any steps to have the
matter set down for hearing. Further the Applicant
has not pleaded
the issue of
lis pendens
.
I am of the view that the application to dismiss the
review application satisfies the definition of process in terms of
15(6)
of the
Prescription Act No. 68 of 1969
. The delay in
prosecuting the original dismissal application does not in itself
constitute failure to prosecute a claim successfully.
The Applicant fails to make any mention of the original
application to dismiss the review application, nor any submissions
in
respect of the status of this application. Accordingly, I am of
the view that the Applicant has failed to prove that the arbitration
award has prescribed.
Failure to prosecute
The award is dated 13
th
of October 2004. It
is now July 2011. The employee was meant to be paid the sum of
R125 400, 00 or no later than on 30
th
of October
2004. The Applicant filed its review application on 11
th
of November 2004. A period of 2512 days (as of 30 August 2011) has
expired since the granting of the award.
The Applicant’s explanation for the delay in
prosecuting the review, is that as there were no tape recordings of
the arbitration
proceedings available to be transcribed, the
Applicant had to reconstruct the record. The Applicant states that
the reconstruction
took absolutely ages not least of all because of
the recalcitrance of the employee and her attorney at the time. The
Applicant
informs the Court that the record is still not completely
reconstructed purely as a result of the employee’s failure to
approve the reconstructed record or to supply a reconstructed record
of her own.
The Applicant submits the prejudice that the employee
suffers, was caused as a direct result of her dilly-dallying over
the reconstruction
of the record. The Applicant informs the Court
that,
“
The
Applicant had a reconstructed record ready for approval, discussion
and debate years ago. The Third Respondent and her attorney
did
nothing to concretise the finalisation of that record.”
The Labour Appeal Court has held:
“
A
reconstruction of a record (or part thereof) is usually undertaken in
the following way. The tribunal ... and the representatives
... come
together, bringing their extant notes and such other documentation as
may be relevant. They then endeavour to the best
of their ability and
recollection to reconstruct as full and accurate a record of the
proceedings as the circumstances allow. This
is then placed before
the relevant Court with such reservations as the participants may
wish to note. Whether the product of their
endeavours is adequate for
the purpose of the appeal or review is for the court hearing same to
decide, after listening to argument
in the event of a dispute as to
accuracy or completeness. “
11
Nothing prevented the Applicant from launching an
application to compel the CCMA or the employee to co-operate in the
reconstruction
of the record. Nothing further prevented the
Applicant from filing its version of the complete record and
informing the Court
that the employee had been uncooperative and
that the record filed was as accurate as could be in the
circumstances and the best
endeavours of the Applicant.
The record could have been placed before the Court with
such reservations as the Applicant wished to note. The employee
would
then have had to deal with the record and note any objections
to the accuracy of the record if the employee had any such
reservations.
The Court hearing the review, then would have made a
decision in the event of a dispute as to the accuracy or
completeness of
the record.
The argument that the employee is to blame for the
delay in the prosecution of the matter, due to her uncooperativeness
in respect
of the reconstruction of the record can only assist the
Applicant to a certain point. The Applicant should have realised
that
it was not going to receive any joy from the employee and her
erstwhile attorneys, and should have taken steps to prosecute the
review. The Applicant clearly had no desire to prosecute the review,
as it was of the view that the award had prescribed, and
therefore
was not in a rush to proceed with the matter. The employee on the
other hand has launched four applications in order
to attempt to
bring this matter to finality.
The answering affidavit to the application to dismiss
fails to provide a full and reasonable explanation for the delay as
to demonstrate
to the Court that it has an excusable explanation.
The effect on the delay in this matter has been
extremely frustrating for the Applicant. The employee appeared
before Court unrepresented,
as her attorneys of record had withdrawn
due to lack of funds. Due to the substantial and unjustifiable delay
in this matter,
in my view justice will not be served if the
application for dismissal is not granted.
Accordingly, I make the following order:
The matter has not prescribed.
The review application instituted by the Applicant
under case number JR2766/2004 is dismissed.
The arbitration award dated 13
th
of October
2004 under case number GA41204-03 is made an order of Court.
The Third Respondent is awarded costs of opposing the
review application together with costs of this application.
______________________
ASHLEY LYLE COOK
Acting Judge of the Labour Court
Appearances:
For the Applicant: Donald Graham
For the Third Respondent: In person
1
S
olidarity
and Others v Eskom Holdings Ltd
(2005)
26 ILJ 338 (LC)
PSA obo Khaya v CCMA
and Others
(2008) 29 ILJ 1546 (LC).
2
ABSA
Bank Bpk v De Villiers
2001 (1) SA 481
(SCA) at 486 G and 487
A-C.
3
Police
and Prisons Civil Rights Union on behalf of Sifuba v Commissioner of
the SA Police Service
and Others
(2009) 30 ILJ 1309 (LC)
NUMSA v Espach Engineering
(2010) 31 ILJ 987 (LC).
4
See:
NUMSA and Another v Espach Engineering
(2010) 31 ILJ 987 (LC)
at para 15.
5
68
oF 1969.
6
Extinctive
Prescription, Interuption, Loubser, Juta, page 138
7
(2009)
30 ILJ 2937 at para
5. .
8
[2011]
32 ILJ 689 (LC) at para 25 and 28. .
9
Minister
of Justice and Constitutional Development v Mathobela and Others
(1185/05)
[2007] ZAN WHC 5
(25
th
January 2007) unreported at para 27.
10
Paragraph
7, page 9 of the indexed bundle.
11
Lifecare
Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v
Commission For Conciliation, Mediation and Arbitration
and Others
(2003) 24 ILJ 931 (LAC) at parapara 17