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[2012] ZALCJHB 36
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SAMPLA Belting SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR2438/07) [2012] ZALCJHB 36; (2012) 33 ILJ 2465 (LC) (24 April 2012)
9
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHHANESBURG
JUDGMENT
Reportable
Of interest to other
judges
Case no
:
JR2438/07
In the matter between:
SAMPLA BELTING SA
(PTY) LTD
…..............................................................
Applicant
and
CCMA
…...............................................................................................
First
Respondent
COMMISSIONER DORMUND
…....................................................
Second
Respondent
HILBIG LINDA
…................................................................................
Third
Respondent
Heard
:
13 April
2012
Delivered
:
24
April 2012
Summary: Prescription:
Three applications:- Application to review award of the CCMA;
Application to dismiss review application (rule
11) and Application
to dismiss application to dismiss review application on grounds that
award had prescribed. As application based
on prescription of award
would dispose of the entire matter only this application proceeded.
This application granted; award found
to have prescribed, which
disposed of the entire matter as the remaining two applications
rendered academic.
JUDGMENT
GUSH J
This matter concerns an
application to review and set aside the award of the second
respondent and two interlocutory applications.
The effect of the
second respondent’s award was that the applicant's dismissal
of the third respondent was unfair and the
second respondent awarded
the third respondent compensation and ordered that the applicant pay
the costs of the arbitration.
The award was made on 27
August 2007 and the applicant filed an application to review and set
aside the award on 29 October 2007.
The matter subsequently
followed a somewhat tortured path culminating in its enrolment today
for the purpose of considering and
deciding:
the main application by
the third respondent to review and set aside the arbitration award;
an application by the
third respondent to dismiss the applicant's review application for
reasons that the applicant has not
diligently pursued the matter;
and
an application by the
applicant to dismiss the third respondent's application as set out
in paragraph 3 (b) on the grounds that
the award which is the
subject of the main review application has prescribed.
In circumstances when an
award has prescribed any application to review that award or any
other interlocutory application concerning
the review application
becomes academic.
In this matter, although
the applicant in its "prescription" application in the
main seeks to have the third respondent's
application to dismiss its
review dismissed on the grounds that the award has prescribed. If
the award has indeed prescribed
this disposes of the matter in its
entirety.
It was accordingly
agreed that the matter would firstly proceed only in respect of the
issue of prescription.
The second respondent’s
award is dated 27 August 2007 and ordered that the applicant pay to
the third respondent the compensation
awarded within 10 days of the
date of the award. All things being equal the award prescribed on 8
September 2010 being three
years and 10 days after the date of the
award.
In response to the
applicant’s averment that the award has prescribed, the third
respondent’s attorney filed an answering
affidavit in which he
relies on a letter which is annexed thereto, which he avers
interrupted prescription. The letter was addressed
to the third
respondent's attorneys by the applicant’s erstwhile attorneys
"J D Verster Labour Law Office” and
reads:
‘
We refer to
above matter and can advise that we have received instructions from
our client to lodge review proceedings against the
award handed down
in this matter.
In view of the fact that the review
application does not stay the effect of a certified award of the
CCMA, our instructions are
to recommend that your client holds
further steps in the enforcement of the award in abeyance pending the
adjudication of our client’s
review application.
Please revert to us on your client's
attitude to our client's suggestion’
The third respondent’s
does not give any clue as to his attitude at the time to the
suggestion made in the letter. For the
rest the third respondent’s
attorney refers to delays caused by the applicant’s attorneys
in prosecuting the review
application, and promises that further
legal argument in respect of prescription will be addressed at the
hearing of the matter.
The question of
prescription is governed by the
Prescription Act 68 of 1969
. The act
deals with the interruption of prescription in
sections 14
and
15
.
Section 14
of the Act,
under the heading “Interruption of prescription by
acknowledgement of liability” provides:
‘
The running
of prescription shall be interrupted by an express or tacit
acknowledgement of liability by the debtor.
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.’
Section 15
of the Act,
under the heading "judicial interruption of prescription"
provides:
‘
(1) 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.
(6) For the purposes of this section,
'process' includes a petition, a notice of motion, a rule nisi, a
pleading in reconvention,
a third party notice referred to in any
rule of court, and any document whereby legal proceedings are
commenced.’
The letter addressed to
the third respondent's attorneys cannot by any stretch of the
imagination be interpreted to be ‘an
express or tacit
acknowledgement of liability by the debtor’ and in any event
even if it was, it was merely a suggestion
and there is no
indication in the papers that the third respondent ever agreed to
the “suggestion”.
It is established law
that the
Prescription Act applies
to awards of the CCMA and that the
filing of a review application does not interrupt prescription. See
Technikon Pretoria (now Tshwane University of Technology) v Nel
NO and Others
(2012) 33 ILJ 293 (LC);
SA Transport and
Allied Workers
Union
on behalf of
Phakathi v Ghekko
Services SA (Pty) Ltd and Others
(2011) 32 ILJ 1728 (LC) and
Magengenene v PPC Cement
and Others
(2011) 32 ILJ
2518.
The third respondent
opposed the applicant’s application concerning prescription on
three grounds viz.
Firstly, that the
applicant had interrupted the running of prescription as provided
for in
section 14
of the
Prescription Act by
expressly or tacitly
acknowledging liability;
The third respondent’s
second ground was that the answering affidavit and the application
to dismiss the applicant’s
application constituted "a
process" as defined in
section 15
of the
Prescription Act and
therefore amounted to "service on the debtor of a process
whereby the creditor claims payment of the debt"; and
Thirdly and apparently
in amplification of the second ground, the respondent somewhat
obliquely argued that the answering affidavit
to the review
application and the application to dismiss the review application
constituted processes designed to have the
effect of removing an
impediment (the review application) to the third respondent
enforcing the award and therefore interrupting
prescription, , and
that therefore somehow the filing of these processes interrupted
prescription.
I will deal with the
third respondent’s grounds in the order in which they were
raised.
Dealing with the third
respondent’s first ground: Having disposed of the averment
that the letter addressed to the third
respondent’s attorneys
interrupted prescription, I will deal with the second basis upon
which the third respondent avers
that the applicant acknowledged
liability. Despite the fact that the applicant’s review
application expressly challenged
the award and was intended to set
aside the second respondent’s award which imposed the
liability on the applicant,
the
third respondent argued that the fact that the applicant had
launched the review application constituted ‘an express
or
tacit acknowledgement of liability’. During argument,
the third respondent’s
Counsel persisted in referring to ‘acknowledgement of
the
liability’ which
may to some extent assist in understanding the third respondent’s
argument. It is,
however,
inconceivable that the application by the applicant to challenge the
award of the second respondent’s award and
have it set aside
could ever amount to an ‘acknowledgement of liability’
by the applicant as envisaged by
section 14
of the
Prescription Act.
The
application to review and set aside the award arises purely from
the fact that the applicant in fact disputes being liable for
the
debt. I am satisfied that the applicant’s application to
review the second respondent’s award did not interrupt
prescription.
1
The third respondent’s
second ground is that the third respondent’s answering
affidavit and application to have the
review application dismissed,
despite the provisions of
section 15
of the prescription Act,
constituted a ‘process
whereby the creditor claims payment of the debt’. It is
abundantly clear from both the answering
affidavit and the dismissal
application that that neither of them constitute ‘process
whereby the
creditor
claims payment of the debt’
.(my
emphasis).
In this regard,
the third respondent
relied on an unreported decision of this Court where the Honourable
Judge Cook AJ held not only that an application
to review an
arbitration award interrupted prescription but that even if that
view was incorrect an application to dismiss a
review application
did.
2
Having dealt with the
averment that a review application interrupts prescription it
remains to consider, in the light of this
judgment, whether either
the third respondent’s answering affidavit or the application
to dismiss interrupted prescription.
The provisions of
section 15
of the
Prescription Act set
out quite clearly what would
constitute judicial interruption of prescription viz: “service
on the debtor of any process
whereby the creditor claims payment of
the debt”. In order therefore for either the answering
affidavit or application
to dismiss the review application the
“process” must claim payment of the debt. It is patently
clear from both the
third respondent’s answering affidavit and
application to dismiss that neither “process” claimed
payment of
the debt. The position in the AON case
3
was markedly different.
In that matter it appears from the judgment that the application to
dismiss the review did comply with
section 15
of the
Prescription
Act in
that not only did the applicant seek the dismissal of the
review application but in addition sought an order “reinforcing
the existing CCMA award”(sic).
4
Insofar as the third
ground is concerned, the applicant’s review application does
not constitute an impediment to the running
of prescription nor is
it an impediment to the third respondent [the creditor] interrupting
prescription.
At all times the third
respondent could have interrupted prescription either by applying
for the award to be certified by the
CCMA in accordance with section
143 of the Labour Relations Act or applying to have the award made
an order of court in accordance
with section 158(1)(c) of the Labour
Relations Act. The third respondent did not do so.
Despite the seemingly
unfair consequence of a review application not interrupting
prescription, the court has no option but to
give effect to the
Prescription Act.
It
is worth noting
though, that the provisions of section 24 of the Labour Relations
Act Amendment Bill, 2012, proposes that the
Labour Relations Act be
amended to provide that the filing of a review application will
suspend the running of prescription.
The proposed amendment to
section 145 of the Labour Relations Act reads as follows:
‘
(9) an
application to set aside an arbitration award in terms of this
section interrupts the running of prescription in terms of
the
Prescription Act (Act
No. 68 of 1969) in respect of the award’
Whilst this amendment
will remedy the unfairness, it also serves to confirm that the
filing of a review application does not at
present interrupt
prescription.. In the circumstances and particularly as the
applicant has properly raised the question of prescription
in its
pleadings, I am obliged to uphold the applicant’s plea of
prescription.
As far as the question
of costs is concerned, this matter has proceeded far beyond the date
upon which the award prescribed. It
was not necessary for the
applicant to proceed with its review application after September
2010 and the matter of prescription
could have been dealt with then.
I am therefore satisfied that is just and equitable that no order as
to cots be made.
In the circumstances, I
make the following order: on the basis that the second respondent’s
award in favour of the third
respondent has prescribed, the plea of
prescription is upheld and the remaining applications that are
before the court are dismissed.
There is no order as to costs.
____________
Gush J
Judge of the Labour Court
APPEARANCES
APPLICANT: Donald Graham;
GSR Attorneys
THIRD RESPONDENT: Adv. A
Cook
Instructed by Anthony
Hinds Attorneys
1
See
also the judgments referred to above.
2
AON
SA (Pty) LTD and CCMA and Others
Case Number JR 2766/04
(unreported).
3
supra
4
AON
supra at pages 8 and 9 paragraphs 14 and 15