About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2013
>>
[2013] ZALCCT 12
|
|
Coetzee and Others v MEC of the Provincial Government of the Western Cape and Others (C 751/2008) [2013] ZALCCT 12; (2013) 34 ILJ 2865 (LC) (20 March 2013)
9
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH
AFRICA, CAPE TOWN
JUDGMENT
Reportable
case no: C751/2008
In the matter between:
PROF A R COETZEE & 48 OTHERS
.............................................................
Applicants
and
THE MEMBER OF THE EXECUTIVE COUNCIL
OF THE PROVINCIAL GOVERNMENT OF THE
WESTERN CAPE
.................................................................................
First
Respondent
THE UNIVERSITY OF THE WESTERN CAPE
...............................
Second
Respondent
THE UNIVERSITY OF STELLENBOSCH
...........................................
Third
Respondent
THE NATIONAL MINISTER OF HEALTH
.........................................
Fourth
Respondent
Heard:
10 August 2012
Delivered:
20 March 2013
Summary:
Point
in limine
regarding prescription of a
claim originally brought before the Bargaining council which found it
had no jurisdiction; the design
of the LRA makes it inconsistent with
the
Prescription Act 68 of 1969
contrary to a number of decisions of
this court.
JUDGMENT
RabkinNaicker J
[1] The applicants are principals and
chief specialists in their various fields of medicine. They practice
at the Groote Schuur,
Tygerberg and Redcross War Memorial Children’s
Provincial hospitals. They are employed in terms of the joint
conditions of
staff of both the first and second respondents (in the
case of UCT doctors) or of both the first and third respondents (in
the
case of the University of Stellenbosch doctors).
Background
[2] On 4 November 2010, this court per
Cheadle AJ issued a declarator that the applicants were entitled to
the scarce skills allowance
paid by the first respondent to other
medical practitioners at Groote Schuur and Tygeberg hospitals in
terms of a collective agreement
- PHSDSBC Resolution 1 of 2004.
[3] Having found on the merits for the
applicants, the issue of quantum stood over for separate
determination. First respondent
was given leave to appeal to the LAC
on the merits. The parties agreed that quantum be determined by this
court before the appeal
on the merits proceeds.
[4] In respect of the determination on
quantum I note as follows:
4.1. The first respondent has raised a
special plea of prescription in respect of the allowances, which I
deal with below.
4.2. Since the hearing of this matter
before me, on direction, a minute of agreement on quantum has been
filed which records the
capital value of each applicants total scarce
skills allowance. The parties have undertaken to calculate interest
on these capital
values once I have made a determination regarding
the special plea.
Special plea
[5] The first respondent’s
special plea on prescription reads as follows:
“
2.
PRESCRIPTION
2.1. The claim of the Applicants is
based on facts of which the applicants had knowledge or,
alternatively, facts of which they
could have acquired knowledge by
exercising reasonable care, prior to 10 October 2005.
2.2. The process whereby the
Applicants claimed such relief was served on the Respondents after 10
October 2008.
2.3. By virtue of
Section 12
of the
Prescription Act, No 68 of 1969
, read with
Section 11
(d) thereof,
the claim has prescribed.”
[6] The submissions by Mr. Oosthuizen
on behalf of the first respondent were in essence as follows:
6.1.
Section 12
(1), read with
Section
12
(3) of the
Prescription Act, No 68 of 1969
, stipulates that
prescription shall begin to run from the date on which the creditor
has knowledge of the identity of the debtor
and of the facts from
which the debt arises.
6.2.
Section 11
(d) of the
Prescription Act stipulates
that save where an act of Parliament
otherwise provides, the period of prescription shall be three years
in respect of any debt
other than those specified in
Section 11
(a)
to
11
(c).
1.5
in; text-indent: -0.5in; margin-top: 0.17in; margin-bottom: 0.08in; line-height: 150%">
6.3 The provisions of the
Prescription
Act apply
to claims under the LRA.
6.4. It was common cause that the
Applicants were aware or alternatively could, by exercising
reasonable care, have become aware
of the collective agreement by the
end of January 2004. The prescription began to run in January 2004
and the claim prescribed
in January 2007.
Background of the referral to this
court
[7] The dispute was referred to
conciliation in accordance with the provisions of clause 3.5 of
part
C
of schedule 2 of the constitution of the PH& WSBC (the
bargaining council) on 13 June 2006. On 5 December 2006, the
bargaining
council ruled that it did not have jurisdiction to hear
the matter as the applicants were contractually employed by the
universities
not by the Department of Health.
[8] On 25 August 2008, first
respondent was given notice of proceedings to be brought in this
court, and on the 10 October 2008
the statement of claim was filed in
this court.
Interruption of Prescription
[9] It is submitted on behalf of first
respondent that neither the referral to the bargaining council nor a
notice in terms of
Section 3
of the
Institution of Legal Proceedings
Against Certain Organs of State Act, No 40 of 2002
interrupted
prescription.
[10] The material provisions of the
Prescription Act dealing
with the interruption of prescription are 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) ………………
(4) ………………..
(5) ………………..
(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.”
Evaluation
[11]
First respondent’s submission that claims under the LRA are
subject to the provisions of the
Prescription Act relies
on the case
of
Mpanzama
v Fidelity Guard Holdings (Pty) Ltd
.
1
The court in that
matter held that given
neither
section 143
nor
section 158(1)(c)
of the LRA proscribe any time
limits for instituting proceedings to make an award an order of
court, and the LRA does not explicitly
exclude the
Prescription Act,
it
would not be inconsistent to apply that statute to the provisions
of the LRA. The court per Pillay J bolstered its approach by reliance
on the principle of effective and expeditious resolution of disputes.
2
[12]
This approach to the certification process of awards, and
applications to make an award an order of court, has been followed
in
a number of subsequent Labour Court decisions.
3
In
SA
Transport and Allied Workers Union v Phakathi v Ghekko Services SA
(Pty) &Others
4
the court, per Basson J held that an
application in terms of
section 143(4)
of the LRA to enforce an
arbitration award is a process envisaged by
section 15(6)
of the
Prescription Act which
interrupts prescription.
5
The Labour Court has therefore, on the
basis that an award constitutes a debt in terms of the
Prescription
Act, held
that such award prescribes three (3) years before it has
been certified and/or made an order of court. The implication of this
is that the referral of a claim to the CCMA or bargaining council is
not a debt for the purposes of the
Prescription Act and
prescription
only begins to run once an award is made an order of court or is
certified.
[13]
In my judgment this proposition thus far accepted as established or
even trite in decisions of this court, deserves further
consideration. Is the
Prescription Act consistent
with the LRA? The
LAC has found that the
Prescription Act does
apply to contractual
claims.
6
It has not dealt with the issue in as
far as unfair dismissal claims under the LRA are concerned.
[14]
In
Road Accident Fund and
Another v Mdeyide
7
the Constitutional Court considered
the important question of consistency between the
Prescription Act
and
other statutes – in that matter, the Road Accident Fund
Act. The court found that the
Prescription Act 68 of 1969
regulates
the prescription of claims in general, and the Road Accident Fund Act
56 of 1996 (RAF Act) is tailored for the specific
area it deals with,
namely claims for compensation in terms of s 17 against the Road
Accident Fund for those injured in road accidents.
It found that the
legislature enacted the RAF Act — and included provisions
dealing with prescription in it — for the
very reason that the
Prescription Act was
not regarded as appropriate for this area.
8
Dealing with the constitutional and
legal framework applicable to that matter, the court had this to say:
“
Section
34 of the Constitution enshrines the right of access to courts and
states that '(e)veryone has the right to have any dispute
that can be
resolved by the application of law decided in a fair public hearing
before a court or, where appropriate, another independent
and
impartial tribunal or forum'. The Constitution also recognises the
values of human dignity and the advancement of human rights,
and
requires the State to respect, protect, promote and fulfil the rights
recognised in it……
The
Prescription Act deals
with prescription in general. In terms of
s 10
a debt is extinguished by prescription after the lapse of the period
which applies in respect of the prescription of the debt.
A claim is
thus after a certain period of time no longer actionable and
justiciable. It is a deadline which, if not met, could
deny a
plaintiff access to a court in respect of the specific claim.
Generally
under the
Prescription Act, prescription
applies to a debt.For the
purposes of this Act, the term 'debt' has been given a broad meaning
to refer to an obligation to do
something, be it payment or delivery
of goods or to abstain from doing something. Although it may on
occasion be doubtful whether
an obligation is indeed a debt in terms
of the Act, there is no doubt that a claim under the RAF Act
constitutes a debt. However,
the RAF Act regulates the prescription
of claims under it and some of the differences between the two
statutes have been placed
at the core of this matter……
When
does prescription begin to run? This question is central to the
present enquiry.
Section 12(1)
of the
Prescription Act stipulates
that it begins as soon as the debt is due. A debt is due when it is
'immediately claimable or recoverable'. In practice this will
often
coincide with the date upon which the debt arose, although this is
not necessarily always so. In terms of
s 12(3)
of the same Act, a
debt is deemed to be due when a creditor has knowledge of the
identity of the debtor and of the facts from which
the debt arises. A
creditor is deemed to have the required knowledge if she or he could
have acquired it by exercising reasonable
care….”
9
[15] First respondent’s case in
respect of prescription relies on the submission that ‘all
claims under the LRA fall
under the
Prescription Act&rsquo
;. In my
judgment the LRA, in its design, is inconsistent with such a
submission. Instead of any reference to prescription or the
inclusion
of a prescription clause, the LRA includes specific time periods for
the referral of claims and underscores the use of
the tool of
condonation by this court when such periods are exceeded in the text
of the statute, rather than in the court’s
rules.
[16] Further, if the
Prescription Act
did
apply, there should be no distinction as regards its application
between the different routes required by the LRA i.e. those that
go
to conciliation and then to arbitration, and/or those which are
adjudicated in the Labour Court after conciliation. This lack
of
distinction would accord with our constitutional values, particularly
the right to equality and of access to justice. The LRA
does not
proscribe a hierarchy of dismissal claims litigants may bring.
[17] The question of the interruption
of prescription is also problematic if one accepts that the
Prescription Act applies
to all LRA claims and that claims which are
arbitrated are only hit by prescription three years after an award is
certified or
made an order of court. There are various outcomes
possible when a referral is made to a bargaining council or the CCMA.
One of
these occurs when the debtor raises the issue of jurisdiction
at conciliation, as happened in this matter, and a ruling ensues in
the debtors favour. Should such a finding negate the interruption of
prescription by the original referral? First respondent argues
that
it must even though a referral does provide the creditor with
knowledge of the debt and of the facts from which the debt arises.
[18] Under the design of the LRA the
same problem may arise for a litigant in the following circumstances:
a referral is made to
conciliation by the creditor and subsequently
is referred to arbitration. At the arbitration, a jurisdictional
point is raised
by the debtor and it is found that the CCMA had no
jurisdiction to conciliate or arbitrate the dispute and the matter
must go to
the Labour Court. Is the statement of claim subsequently
filed in this court the only process that can interrupt prescription
of
the claim despite the fact that the parties have already appeared
at two tribunals together.
[19]
Another obstacle to the proposition that the
Prescription Act applies
to all claims under the LRA is the following: a litigant who has to
go the arbitration route and gets an award in her favour will
not be
able to enforce that award after three years. Another litigant who
must go the adjudication route in terms of the LRA will
obtain a
“judgment debt” in this court which in terms of the
Prescription Act prescribes
only 30 years after it is handed down.
10
[20] Further, the LRA, in its design,
does not establish an impenetrable wall between proceedings in the
CCMA and / or Bargaining
Councils and the Labour Court. Indeed
proceedings can move across the divide between court and tribunal in
both directions. An
example is provided by
Section 158
(2) and (3) of
the LRA which reads as follows:
“
(2)
If at any stage after a dispute has been referred to the Labour
Court, it becomes apparent that the dispute ought to have been
referred to arbitration, the Court may-
(a)
stay the proceedings and refer the dispute to arbitration; or
(b)
with the consent of the parties and if it is expedient to do so,
continue with the proceedings with the Court sitting as an
arbitrator, in which case the Court may only make any order that a
commissioner or arbitrator would have been entitled to make.
(3)
The reference to 'arbitration' in subsection (2) must be interpreted
to include arbitration-
(a)
under the auspices of the Commission;
(b)
under the auspices of an accredited council;
(c)
under the auspices of an accredited agency;
(d)
in accordance with a private dispute resolution procedure; or
(e)
if the dispute is about the interpretation or application of a
collective agreement.”
[21] In my judgment, for at least the
above reasons, I find that the
Prescription Act is
inconsistent with
the LRA. Its application to LRA claims would create inequalities
between litigants using different routes for
their disputes and
furthermore will be unworkable where disputes move between tribunal
and court and vice versa. It will be beneficial
if these issues are
considered by the LAC and I give leave to the parties to appeal and
cross appeal the following order together
with the main order on the
merits:
The point
in limine
is
dismissed.
The First respondent is to pay the
costs of this application.
____________________
Rabkin- Naicker J
Judge of the Labour Court
APPEARANCES
For the Applicants Adv. R.G.L Stelzner
SC instructed by MacRobertInc
For the First Respondents
AdvA.Oosthuizen SC instructed by State Attorney
1
[2000]
12 BLLR 1459
(LC)
2
At
paragraphs 9 and 10
3
See
for example Magengenene v PPC Cement & Others (2011) 32 ILJ 2518
(LC); Technicon Pretoria (now Tswane University of Technology)
v Nel
NO and Others (2012) 33 ILJ (LC); Sampla Belting SA (Pty) Ltd v CCMA
& Others (2012) 33 ILJ 2465 (LC)
4
(2011)
32 ILJ 1728 (LC)
5
At
paragraph 24
6
Solidarity
& Others v Eskom Holdings Ltd (2008)29 ILJ 1450 (LAC) and
National Union of Public Service & Allied Workers
v Public
Servants Union (2010) 31 ILJ 2347 (LAC)
7
2011(2)SA
26 (CC)
8
At
paragraphs 50-53
9
At
paragraphs 6,10, 11 and 13
10
Section
11(a)
iii of the
Prescription Act 68 of 1969