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[2012] ZALCPE 7
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SATAWU obo Hani v Fidelity Cash Management Services (Pty) Ltd (P 297/11) [2012] ZALCPE 7; (2012) 33 ILJ 2452 (LC) (30 March 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
case
no: P 297/11
In the matter between:
SATAWU o.b.o HANI
......................................................................
APPLICANT
and
FIDELITY CASH MANAGEMENT
SERVICES (PTY) LTD
.................................................................
RESPONDENT
Heard
:
23 February 2012
Delivered
:
30 March 2012
JUDGMENT
BHOOLA J
Introduction
This is an opposed application in terms of section 158(1) (c) of the
Labour Relations Act, 66 of 1995 (“the LRA”)
to have an
arbitration award, in which the dismissal of the individual
applicant (“Mr Hani”) was declared to be substantively
unfair, made an order of court. The respondent opposes the
application and pleads that the debt created by the award has become
prescribed by the effluxion of time.
The common cause facts
The individual applicant was dismissed by the respondent and
referred a dispute to the National Bargaining Council for the Road
Freight Industry (“the Bargaining Council”), which
culminated in an arbitration award being issued by arbitrator
Van
Der Walt on 24 April 2007 directing that he should be reinstated
with effect from 2 May 2007.
The respondent initiated review proceedings by way of an application
dated 23 May 2007. The review application was opposed by the
applicant and was dismissed with costs by Steenkamp J in a judgment
dated 18 March 2009. Steenkamp J also dismissed the application
for
condonation for the late filing of the review. Dissatisfied with the
outcome, the respondent then sought leave to appeal, which
was again
opposed by the applicant, and was likewise dismissed in 2010. The
application for leave to appeal was out of time by
more than a year.
The respondent proceeded to petition the Labour Appeal Court, which
petition was dismissed by way of an order
dated 30 May 2011.
On 9 June 2011 the applicant’s attorneys wrote to the
respondent seeking reinstatement of Mr Hani in compliance with the
arbitration award. The respondent’s attorneys replied on 15
June 2011 contending that the arbitration award had become
prescribed.
In 1 July 2011 the applicant instituted these proceedings.
The Prescription Act
Section 11 (d) of the Prescription Act, 68 of 1969 (“the Act”)
provides that a “judgment debt” prescribes
in 30 years
and that the period for “other debts” is three years.
Section 10(1) provides that “a debt shall
be extinguished by
prescription after the lapse of the period which in terms of the
relevant law applies in respect of the prescription
of such debt.”
Section 12 provides that “prescription shall commence to run
as soon as the debt is due”.
Section 13 provides that in certain specified circumstances the
running of prescription is delayed. In particular, section 13(1)
(f)
states: “If…(f) the debt is the object of a dispute
subjected to arbitration the period of prescription shall
not be
completed before a year has elapsed after the day referred in
paragraph (i)”. Paragraph (i) provides : “the
relevant
period of prescription would, but for the provisions of this
subsection, be completed before or on, or within one year
after, the
day on which the relevant impediment referred to in paragraph (a),
(b), (c), (d), (e), (f), (g) or (h) has ceased to
exist”.
Section 14 provides for the interruption of prescription in the
following circumstances :
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 provides as follows :
15. Judicial interruption of
prescription.—(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.
(2) Unless the debtor acknowledges
liability, the interruption of prescription in terms of
subsection
(1)
shall lapse, and
the running of prescription shall not be deemed to have been
interrupted, if the creditor does not successfully
prosecute his
claim under the process in question to final judgment or if he does
so prosecute his claim but abandons the judgment
or the judgment is
set aside.
(3) If the running of prescription is
interrupted as contemplated in
subsection
(1)
and the debtor
acknowledges liability, and the creditor does not prosecute his claim
to final judgment, prescription shall commence
to run afresh from the
day on which the debtor acknowledges liability or, if at the time
when the debtor acknowledges liability
or at any time thereafter the
parties postpone the due date of the debt, from the day upon which
the debt again becomes due.
(4) If the running of prescription is
interrupted as contemplated in
subsection
(1)
and the creditor
successfully prosecutes his claim under the process in question to
final judgment and the interruption does not
lapse in terms of
subsection
(2)
prescription
shall commence to run afresh on the day on which the judgment of the
court becomes executable.
(5) If any person is joined as a defendant on his own
application, the process whereby the creditor claims payment of
the
debt shall be deemed to have been served on such person on the date
of such joinder.
(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 parties’ submissions
The applicant submits that in the labour law context the application
raises two possibilities – that the debt becomes due
when the
employee is dismissed or when the arbitration award is issued. In
this regard the applicant submits as follows :
If the true ‘debt’ is the fact of a dismissal then the
applicant’s referral of his dispute to arbitration
served to
interrupt the running of prescription. This interruption continued
for the statutorily sanctioned litigation which
followed and
included the review application and the unsuccessful petition.
If the ‘debt’ is considered to be the arbitration award
itself then there are two arguments. Firstly, the review application
served as an acknowledgement of debt within the contemplation of the
Prescription Act
1
,
thereby interrupting the running of prescription. Secondly, this
‘debt’ does not ‘become due’ within the
contemplation of the
Prescription Act until
the respondent’s
right of review is exhausted. Only then does the debt become
executable.
Mr Buchanan, appearing for the applicant, submitted that it was
inherently unfair and inequitable that an employee with an award
in
his favour, like Mr Hani, should find himself in a position where he
is unable to enforce the award as a result of the respondent’s
reliance on prescription. Although the applicant does not abandon
the arguments made in its primary heads by Mr Wade, it submits
that
s 13
(1) (f) provides a substantive answer to this dilemma despite
the fact that it appears not to have been raised in this context
before. In this regard Mr Buchanan submitted that where a debt is
the subject of a dispute which is “subjected to arbitration”
within the meaning of
s 13(1)(f)
, there is a period of one year
after
the arbitration is concluded before prescription starts
to run. The applicant’s claim would then only prescribe on 2
May
2012, one year after the petition to the Labour Appeal Court was
refused.
Mr Buchanan’s primary submissions in this regard were that it
is common cause in the present case that there was a dispute
and that
it was “subjected to arbitration” and that this ended
only when the Labour Appeal Court finally disposed of
the matter. The
term “subjected to arbitration” he argued envisages an
actual reference to arbitration (not simply
a potential to refer to
arbitration based on an arbitration clause) and that the arbitration
must have commenced.
2
In this context he submitted that it is common cause that the
original dispute between the parties, i.e. the dismissal of Mr Hani,
was in fact the dispute “subjected to arbitration” and
that the arbitration proceedings indeed commenced. By initiating
the
review (in addition to the review interrupting prescription in that
it was a tacit acknowledgment of debt – a point to
which I
shall return) the respondent acknowledged that the dispute was still
“subjected to arbitration”. Indeed, the
very purpose of
the review, in Mr Buchanan’s submission, was to set aside the
arbitration award and to seek remittal of the
dispute to another
arbitrator for another arbitration. The arbitration proceedings can
therefore be said to only have ended for
the purposes of the
Prescription Act when
the Labour Appeal Court refused the petition.
Until such time the dispute was still “subjected to
arbitration” within
the terms of
section 13(1)(f).
The
applicant would then have had a year after such decision on 30 May
2011 before prescription began to run.
Notwithstanding the above submissions, Mr Buchanan conceded that
there was significantly sparse authority on the meaning of the
rather
cryptic phrase “subjected to arbitration”. It goes beyond
requiring that there must be potential for arbitration
or that an
arbitration clause exists in a contract. It envisages that the
dispute must have actually been referred to arbitration.
In the
present instance there is no difficulty with that requirement and the
only issue is when the arbitration was held and when
it ended. The
respondent, he argued, concedes that when the dispute was referred to
the Bargaining Council it was “subjected
to arbitration”
and prescription was interrupted. This was an impediment as defined
in
s 13(1)
(f), he argued, and the sole issue is when that impediment
ceased to exist. The respondent concedes that it ceased when the
award
was issued. However, that cannot be correct, Mr Buchanan
submitted, since the common practice in the Labour Court is that an
award
is not made an order of court if there is a review pending.
Instead, the application is stayed pending the outcome of the review.
Thus in his view while the review is pending the debt is still the
object of a dispute “subjected to arbitration”.
Both in
the Labour Court and High Court in proceedings in terms of the
Arbitration Act, it is invariable that the relief in a review
is that
the award is set aside in a successful review and remitted to be
heard
de novo
by another arbitrator. Patently, Mr Buchanan
submitted, under such circumstances the award is still “subjected
to arbitration”.
Mr Buchanan submitted that insofar as the respondent contends that
once the award was issued a new debt arose, this ignores the
relief
sought in the review application. In this regard the respondent cites
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington
Municipality
1984 (1) SA 571
(A) at 579-580 as follows :
“
For present purposes s 13(1) of the Act
is the provision which gives effect to this principle. It lays down
that prescription is
delayed in certain circumstances, eg where the
creditor is a minor or is insane, or is a person under curatorship
etc. Where an
“impediment” of the type mentioned in s 13
exists a year or less before prescription would otherwise have been
completed,
the completion of prescription is delayed until a year
after the impediment has ceased to exist.
The same duality of purpose can be seen, in my view, in s13(1)(f)
of the Act, which is of direct relevance to the present case. The
subsection applies “if…the debt is the object of a
dispute subjected to arbitration”. An arbitration agreement
does not necessarily oust the jurisdiction of the court. Despite the
existence of such an agreement, although he might be met by
an
application for a stay of proceedings or a special plea to the same
effect (see
s 6
of the
Arbitration Act 42 of 1965
; Universiteit van
Stellenbosch v J A Louw (Edms) Bpk
1983 (4) SA 321
(A) at 333G-H and
authorities there cited). The court would in practice normally order
a stay if requested to do so (ibid at 333H-
334C). An arbitration
agreement is therefore in a sense an impediment to the recovery of a
debt by means of legal proceedings,
but it is one because it provides
an alternative means of resolving disputes which carries the approval
of the law. This applies
a fortiori where a dispute has actually been
subjected to arbitration. The creditor is protected against the
running of prescription
because there exists an impediment to his
approaching the ordinary courts, and the impediment exists because he
is taking appropriate
alternative steps to recover his debt. It is
against this background that s 13 (1) (f) of the Act should in my
view be interpreted
and applied.”
Mr Buchanan submitted that this quote reflects an approach that
deals neatly and appropriately with the difficulties that inevitably
arise from a strict interpretation of the
Prescription Act to
the
effect that the award has become prescribed. On this approach it was
only on 30 May 2011 when the petition for leave to appeal
was
refused that Mr Hani could enforce his award. Until that date his
dispute was still “subjected to arbitration”
in the
broad sense. Such an interpretation he submitted would be fair and
equitable to both parties. It would allow Mr Hani to
seek to enforce
an award in his favour and the respondent to refuse to reinstate him
pending the outcome of a review which may
or may not succeed.
Mr Snyman submitted on behalf of the respondent that equity and
fairness were trumped by the provisions of the
Prescription Act. He
argued that the constitutional validity of rules relating to
prescription (in this case section 23(1) of the Road Accident Fund
Act, 56 of 1996 (“RAF Act”) has recently been confirmed
by the Constitutional Court. In
Road Accident Fund v
Mdeyide
3
the Court reaffirmed that the limitation on the right of access to
courts by section 23(1) of the RAF Act was reasonable and justifiable
under section 36 of the Constitution. The Court held (at para [8]):
“PLEASE INSERT.
“
This court has repeatedly emphasized the
vital role time limits play in bringing certainty and stability to
social and legal affairs,
and maintaining the quality of
adjudication. Without prescription periods, legal disputes would have
the potential to be drawn
out for indefinite periods of time,
bringing about prolonged uncertainty to the parties to the dispute.
The quality of adjudication
by the courts is likely to suffer as time
passes, because evidence may have become lost, witnesses may no
longer be available to
testify, or their recollection of the events
may have faded. The quality of adjudication is central to the rule of
law. For the
law to be respected, decisions of court must be given as
soon as possible after the events giving rise to disputes, and must
follow
from sound reasoning, based on the best available evidence.
”
The Court addressed any prejudice to an individual applicant by
stating that all he or she needed to do in three years to avoid
prescription was to file a notice of motion. In this regard Mr Snyman
referred to
Cadac v Webber
4
as
a case in point. The plaintiff did nothing to prosecute his claim
after issuing summons and after a considerable period of time
the
defendant claimed that the debt had prescribed. The Court held that
it had not.
Mr Snyman submitted further that whilst it was correct that the
general practice in this Court was to stay the enforcement of
an
arbitration award pending the outcome of a review, this was not an
inflexible rule. Instead the Court weighed the different
considerations and had in fact in some instances refused a stay. He
cited in this regard
Khoza v Sasol (2002) 23
ILJ 1567 (LC)
in which Ntsebeza AJ made the award and order of court, as well as
Ntshangase v Speciality Metals cc (1998) 19 ILJ 584
at para
14.
The respondent’s principal submission is that section 13(1) (f)
finds no application in the present instance. Mr Snyman submitted
that section 13 deals with an impediment to the issue of a summons or
notice of motion or a statement of claim in labour law. It
refers to
the impediments that prevent legal process from being issued –
for instance the claimant is a minor, married, outside
the Republic,
in partnership or the dispute is subjected to arbitration. For this
reason the
Prescription Act disregards
process until the impediment
ceases. For example, if parties opt for arbitration they do not have
to issue process until a year
after the arbitration is concluded.
5
He submitted further that the
ratio
in Murray & Roberts
(supra) is clear. The impediment exists because an alternative
dispute resolution mechanism has been agreed
to settle the debt
itself. In the labour law context the alternative dispute resolution
mechanism is the only manner in which the
dispute is to be resolved,
and the parties cannot proceed to court directly as an alternative to
arbitration.
Section 191
(5) (a) and (b) of the LRA makes it clear
that, depending on the reason for dismissal, an unfair dismissal
dispute must be arbitrated.
This is a primary dispute resolution
mechanism and not an alternative to litigation. Mr Snyman submitted
in the alternative that
the “debt” (i.e. the dismissal)
has already been determined by the arbitration award. The proceedings
have therefore
concluded and any impediment would have ceased. For
the applicant’s interpretation to prevail it must be the award
that is
the dispute that is “subjected to arbitration”,
and this interpretation cannot be correct. The dismissal constituted
a separate debt or cause of action and was novated by the arbitration
award, which created a new debt in relation to the reinstatement
of
the individual applicant. To fall within the ambit of
s 13(1)(f)
as proposed by the applicant it must have been the
dismissal which was the dispute subjected to arbitration. Needless to
say, this
cannot be correct.
In the alternative Mr Snyman submitted, even if
section 13(1)(f)
were to find application in the present instance, it envisages that
prescription is only interrupted for a year after the impediment
is
removed. See
Jans v Nedcor Bank Ltd
2003 (6) SA 646
(SCA); Bank
of Lisbon International ltd v Neves
1992 (3) SA 349
(W);
Kilroe-Daley v Barclays National Bank Ltd
[1984] ZASCA 90
;
1984 (4) SA 609
(A).
Therefore, even if it is accepted that the arbitration and
the consequent review application formed part of the “impediment”,
this impediment would have ceased on 18 March 2009 when the Labour
Court decided the review. Prescription would then have continued
to
run from one year thereafter. The applicant only filed its
application on 1 July 2011 and even on this interpretation the
claim
would still have prescribed.
Evaluation of submissions
I have had the opportunity to comment on these issues in
Mangenegene
v Pretoria Portland Cement and others
(unreported judgment case
number JR698/02 dated 29 April 2011 – NOW REPORTED PLEASE
CITE). It is trite that an arbitration
award is a debt as
contemplated in the
Prescription Act
:
National Union of
Metalworkers of SA & another v Espach Engineering
(2010) 31
ILJ
987 (LC);
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);
SA
Transport and Allied Workers Union obo Phakati v Ghekko Services SA
(Pty) Ltd and others
(2011)
32 ILJ 1728 (LC).
The launching of review proceedings does not automatically stay
enforcement of an award nor does it bar the award being made an
order
of court: See
Ghekko (supra)
,
Espach
(supra),
and
Police and Prisons Civil Rights Union on behalf of Sifuba v
Commissioner of the SA Police Service and others
(2009) 30
ILJ
1309 (LC).
It is trite that prescription starts to run when the “debt”
becomes due. On the facts in
casu
prescription would have
commenced to run when the award was issued to the parties on 24 April
2007 or, more correctly, on 2 May
2007 when the applicant’s
right to be reinstated came into effect. The parties are in agreement
that the award created a
new debt (although the applicant relies
primarily on the unfair dismissal as having been the dispute
subjected to arbitration in
the context of
section 13(1)(f)).
This
approach is consistent with that taken by Friedman JP in
Primavera
Construction SA v Government, North-West Province and Another 2003
(3) SA 579 (B).
At 604 the court held: “The effect of a
valid award by an arbitrator will usually be to create new rights and
obligations
between the parties, and it will either dissolve existing
rights or bring an end to a dispute as to whether certain rights
existed
or not. It is clear that in the absence of voluntary
compliance, the award can be enforced only with the approval of the
Court.
The party therefore wishing to enforce the award will sue on
the award and not on the original contract from which the dispute
arose. It is clear that a judgment debt lapses through prescription
after 30 years, an arbitrator’s award will acquire the
status
of a judgment debt only once it has been made an order of Court…I
reiterate that once the award has been made an
order of Court, it
becomes a judgment debt which prescribes after 30 years. See s
11(a)(ii) of the Act. Until it is made an order
of Court, it appears
that a party’s right to enforce the award would ordinarily
prescribe within three years from the date
of publication of the
award”. This approach has been endorsed by the Labour Court in
Sifuba
(supra at para 33) in the following terms: “The
debt in issue in this matter is the debt that flows from the
arbitration award.
A valid arbitration award, like a court of
judgment in certain circumstances, is regarded as a novation of the
former debt on which
the award was granted and the arbitration award
itself constitutes the new debt. The former debt is converted into a
new debt that
is due by virtue of the valid arbitration award. New
rights, duties and obligations are created by a valid arbitration
award.”
In regard to the s 13(1) (f) point I do not agree that arbitration in
this context is an impediment to the determination of the
dispute by
the courts. Section 13 (1) (f) therefore cannot therefore find
application in this context. This is apparent from the
literal
meaning of impediment in the section. In
Silhouette Investments
Ltd v Virgin Hotels Group Ltd 2009 (SA) 617 (SCA)
the Court held
as follows with regard to the meaning of impediment: “The
various impediments listed in s 13(1) are circumstances
which, as
Professor M.M Loubser puts it in his work Extinctive Prescription at
117, ‘have in common some legal or practical
problem which
makes it difficult or undesirable for a creditor to institute
proceedings for the enforcement of his claim against
the debtor’.
See also
ABP 4X4 Motor Dealers (Pty) Ltd v
IGI Insurance Co
Ltd
1999 (3) SA 924
(SCA)
at 930I-931A, where it was said that
–the word impediment…covers a wide spectrum of
situations ranging from those
in which it would not be possible in
law for the creditor to sue to those in which it might be difficult
or awkward, but not impossible,
to sue.” There was therefore,
as Mr Snyman submitted, no impediment in place that prevented or made
it impossible in law
or undesirable for Mr Hani to approach the
Labour Court to enforce his award. S 13(1)(f) has no application in
the present instance.
I agree with Mr Snyman that it is trite that the award could not have
been the dispute “subjected to arbitration”.
This would
only apply to the unfair dismissal. Section 13 (1) (f) is not the
definitive answer the applicant suggests. There must
be a distinction
between compulsory arbitration as envisaged in the LRA and voluntary
arbitration agreed by the parties as an alternative
to litigation in
the ordinary course. The section makes no provision for compulsory
arbitration as envisaged in the LRA as a primary
dispute resolution
mechanism for “debts” arising from unfair dismissals in
certain circumstances. Such arbitration
would not constitute an
impediment as it arises out of a carefully crafted institutional
framework in the LRA to expedite the resolution
of individual labour
relations disputes.
The general submissions in my view likewise do not assist the
applicant. As Molahlehi J makes it clear in
Espach
(supra)
that review proceedings do not interrupt prescription. Nor was there
any impediment to the applicant issuing process in
its steps to
enforce the award. Molahlehi J stated the position clearly in Espach
(supra at [15]) in the following terms : “There
seems to be no
doubt that the debt in the present instance arose from the
arbitration award issued in favour of the second applicant.
The
common practice by the court to postpone an application to make an
arbitration award an order of court in terms of s 158(1)
(c) of the
Labour Relations act, if there is a pending review, has no impact on
the prescription of the claim. It is trite that
the review
application is no bar to an application to have the arbitration award
made an order of court. See
National Education Health & Allied
Workers Union on behalf of Vermeulen v Director-General : Department
of Labour (2005) 26
ILJ 911 (LC) at para 23 and Ntshangase v
Speciality Metals CC (1998) 19 ILJ 584 (LC
) para 14”.
Mr Hani’s right to reinstatement in terms of the arbitration
award (in other words the debt) came into existence on 2 May
2007.
This was when the debt became due and when prescription began to run.
The predominant approach in the Labour Court is that
prescription is
not interrupted by a review and given the applicant’s failure
to issue any “process” as envisaged
in the
Prescription
Act the
debt would accordingly have prescribed three years later i.e.
on 2 May 2010. This application was brought a year and two months
after the claim had prescribed. Although the applicant opposed the
review the first steps it took to enforce the award were taken
four
years and 2 months later, on 1 July 2011. Nothing in the respondent’s
attempts to set aside the award prevented the
applicant from simply
filing this application at any stage after the award was issued. This
and nothing more would have interrupted
prescription and avoided this
unfortunate consequence for Mr Hani. In
Solidarity obo
Prins
and 10 others v Gijima AST (Pty) Ltd
(judgment of Van Niekerk J
in JS 333/08 dated 31 March 2010) Van Niekerk J indicated that this
was very simply all the applicant
needed to do. In dispensing with
the argument that a letter from the respondent “suspended”
prescription, Van Niekerk
J held : [11] There is no merit in this
argument. The fact remains that nothing stood in the way of the
applicants simply instituting
process to stay prescription, as some
of them in fact did. As a matter of law, the applicants cannot rely
on any explanation, or
any allegation about the conduct of the
respondent for their inaction and in particular, their failure to
file proper and prescribed
process to stay prescription. In this
instance, the claim having prescribed as a matter of legal
consequence (see Phasha v Southern
Metropolitan Local Council of the
Greater Johannesburg Metropolitan Council
2000 (2) SA 455
(W)
469-473). All that was required was a unilateral act by the
applicants, in the form of the issuing and service and filing of
process, to interrupt prescription. In Uitenhage Municipality v
Malloy (1998) 19 ILJ 757 (SCA) Mahomed CJ said the following in
the
context of an employment law dispute, a statement that can equally be
applied in this instance having regard to the defence
raised by the
applicants:
“
A creditor against whose claim prescription
commences to run, may protect himself or herself from its
consequences, by causing the
interruption of prescription in terms of
s 15
of the
Prescription Act through
the service of ‘any
process, whereby the creditor claims payment of the debt.’”(at
760E- 761G)
In regard to the submission that the applicants were awaiting the
outcome of the review Van Niekerk held that this issue had
specifically been determined by the court in Van Der Grijp v City of
Johannesburg (2007) 28 ILJ 2079 (LC) in a context where
the
applicant cited as a reason for the delay that she was awaiting a
judgment in a a similar matter. The court held : “
The…applicant’s explanation appears to be entirely
spurious for many reasons. There is no sound excuse as to why
the
applicant could not have complied with the legal enactment prior to
the release of the said judgment however important it
was expected
to be to her. She should have delivered the required notice by no
later than 25 may 2005. Had the judgment not been
in her favour
afterwards she would have been entitled simply to withdraw the
notice at any time after the release of such judgment.
Had the
judgment subsequently been in her favour she would have been
entitled to initiate the proceedings at any time after the
expiry of
the requisite notice.”
There is no merit to the
s 13(1)(f)
argument nor to any of the
general submissions made by the applicant in support of its
application to make the arbitration award
an order of court. As a
legal consequence of the
Prescription Act therefore
, the claim stands
to be dismissed. Given that this is personally an unfortunate
consequence for Mr Hani I do not consider it to
be in the interests
of fairness that costs should follow the cause and for that reason I
do not make any order as to costs.
Order
Therefore, I make the following order:
The application is dismissed. Each party is to pay its own costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R G Buchanan SC
Instructed by Gray Moodliar Attorneys, Port Elizabeth
RESPONDENT: S Snyman, Snyman
Attorneys, Johannesburg
1
The
applicant relied on
Aon
South Africa (Pty) Ltd v CCMA
(as
yet unreported judgment of
Cook AJ, case number JR2766/04 dated 21 September 2011)
as authority for this submission.
2
See
Members
of the Sugar Industry Central Board v Maritz & Another
1984
(4) SA 101
(T) and
Prescription
in South African Law,
Saner,
at 3 – 34 to 3-86.
3
2011
(2) SA 26
(CC).
4
2011
(3) SA 570
SCA at 21.
5
For
purposes of this judgment I do not consider it necessary to
determine when arbitration concludes i.e whether it is when the
award is issued or when the LAC refused the petition for leave to
appeal.