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[2014] ZALCJHB 201
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Job Creations v Meko and Another (J989/14) [2014] ZALCJHB 201 (6 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: J 989/14
JOB CREATIONS
Applicant
And
ALPHEUS MEKO
SHERIFF OF THE HIGH
COURT: GERMISTON SOUTH
First Respondent
Second Respondent
Heard:
3 June 2014
Delivered:
6 June 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicant approached the Court on an
urgent basis to seek an order in the following terms:
1.1
The writ of execution issued by the
Registrar of the Court on 16 September 2010 under case number MEGA
27164 be set aside.
1.2
The Second Respondent be interdicted from
removing the Applicant’s goods already attached pending the
outcome of this application.
Background:
[2]
Following a referral of an alleged unfair
dismissal dispute by the First Respondent to the Metal Engineering
Industries Bargaining
Council (The MEIBC), an award was issued in his
favour on 23 March 2010. In terms of the award, the Applicant was
ordered to pay
the First Respondent compensation in the amount of six
months compensation, totalling R62 975.52 on or before 12 April 2010.
The
award was certified in terms of Section 143 (3) of the Labour
Relations Act (The LRA) on 16 July 2010 by the Commission For
Conciliation,
Mediation and Arbitration (The CCMA).
[3]
On 11 May 2010, the Applicant had filed an
application to review and set aside the arbitration award under case
number JR1066-2010.
On 12 October 2010, the First Respondent had
approached the Applicant with instructions to execute the writ. He
had attached numerous
items belonging to the Applicant. It is not
clear from the papers as to what had happened to that writ or the
goods that were attached,
as the First Respondent had sought to
execute the same writ some years later.
[4]
The matter remained dormant until 7 July
2011, when the First Respondent filed an application to dismiss the
review application
in terms of Rule 11 of the Rules of this Court.
This application came before the Honourable Justice Rabkin-Naicker on
20 June 2012.
It was removed from the roll after being opposed, with
a further order that the Applicant should file the record of
proceedings
in the review application and to comply with Rule 7A (8)
of the Rules of the Court within a certain time frame. The Court had
further
ordered that where there was non-compliance with the order,
the First Respondent could re-enrol the application to dismiss on the
same papers.
[5]
The Applicant had duly complied with the
Court order of 20 June 2012. Thereafter, nothing happened until 14
April 2014 when the
First Respondent visited the Applicant’s
premises with the same writ of execution issued on 16 September 2010,
and with instructions
to execute. It was on the basis of this recent
visit that the Applicant approached the Court. Its main contention
was that the
First Respondent had waited four years and one month
after the date of the arbitration award and three years and seven
months after
the date of the writ of execution to take steps to
execute the writ of execution. In the light of these delays, it was
argued that
as the claim arose from the arbitration award, it had the
status of a debt, and that the debt had prescribed after three years.
The First Applicant had opposed the application on the grounds that
the Prescription Act did not apply, more so in view of the
Applicant’s failure to timeously prosecute the review
application, and further on the grounds that a Rule 11 application
interrupted prescription.
Preliminary
issue raised:
[6]
The First Respondent had contended that the
deponent of the Applicant’s founding affidavit was not
authorised to act on its
behalf, and that there was no resolution
attached to the founding affidavit to corroborate his allegations
that he was duly authorised
to depose to that affidavit. In his
replying affidavit, Peter Maphanga had submitted that he was a member
of the Applicant, was
duly authorised to act on its behalf and
further that he had personal knowledge of the facts of the matter. He
had also attached
to the replying affidavit, confirmation from the
Applicant that he was indeed authorised to act on its behalf. In
these circumstances,
nothing further turns on the preliminary point
raised by the First Respondent.
The
legal framework pertaining to urgent applications:
[7]
The
well-known legal requirements to be satisfied in order to succeed in
an urgent application are as follows: (a) the applicant
has to
either show a clear right or a
prima
facie
right in the case of interim relief; (b) a well-grounded apprehension
of irreparable harm if the relief is not granted on an urgent
basis,
(c) that the balance of convenience favours the granting of the
relief on an urgent basis; and (d) that the applicant has
no other
satisfactory relief
[1]
.
[8]
An applicant instituting an urgent
application must justify the necessity to circumvent the ordinary
time periods set out in the
rules of this Court. This is apparent
from Rule 8 of the Rules of this Court which provides that:-
“
(2)
The affidavit in support of the application must also contain-
(a)
the reasons for urgency and why urgent
relief is necessary;
(b)
the reasons why the requirements of the
rules were not complied with, if that is the case ...”
[9]
The First Respondent had submitted that the
urgency was self-created in that the Applicant had failed to
prosecute its review application,
and that its notice of motion was
only signed on 2 May 2014, whilst the founding affidavit was signed
on 25 April 2014.
[10]
The Applicant’s contentions on the
other hand were that in the light of the background facts, the normal
rules and time limits
would not suffice in prohibiting the Second
Respondent from executing the writ of execution. It was contended
that an application
in due course in accordance with the provisions
of Rule 7 of the Rules of this Court would not in the circumstances
assist the
Applicant at all, as the First Respondent would proceed
with the execution of the writ if not interdicted by the Court.
[11]
It is my view that the fact that the Second
Respondent is in possession of a writ, which it appears that he is
prepared to execute
at any given time when least expected, makes this
matter urgent. It would not in my view assist the Applicant to wait
for the Second
Respondent to first execute the writ and then approach
the Court once its property has been attached as before.
[12]
The Second Respondent had lamented the fact
that the manner with which the documents in this application were
filed indicates that
the urgency is self-created. The Applicant’s
contention however was that following the First Respondent’s
approach
to the Applicant on 15 April 2014 with a view to execute the
writ, attempts were made to contact him with a view of making
arrangements
in respect of the execution of the writ. The First
Respondent’s view however when contacted was that only a court
order could
prevent the execution of the writ. This being so, and
since the First Respondent had clear intentions to execute the writ,
and
more so at any time he needed to do so, the Applicant was indeed
entitled to approach the Court on an urgent basis. Furthermore,
it
was common cause that the Applicant’s alleged failure to
timeously prosecute the review application was the subject matter
before the court under the Rule 11 application launched by the First
Respondent. Thus the allegation that the matter was not urgent
on the
grounds of lack of timeous prosecution of that application becomes
unsustainable.
Has
the award prescribed?
[13]
There is divided opinion in this Court as to
whether the
Prescription Act
68 of 1969
is applicable to
awards issued under the auspices of the Labour Relations Act.
Section
10
of the
Prescription Act provides
that;
Extinction
of debts by prescription
‘
(1)
Subject to the provisions of this Chapter and of Chapter IV, 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.’
[14]
In
considering the issue of prescription within the context of our
labour law, Pillay J in
Mpanzama
v Fidelity Guards Holding (Pty) Ltd
[2]
stated the following;
‘
Given that the
Labour Relations Act does not expressly exclude the operation of the
Prescription Act, it
will therefore not be inconsistent to apply the
provisions of the
Prescription Act to
section 143
read with section
158(1)(c) of the Labour Relations Act.
Whatever the rationale
may be for the doctrine of prescription or the limitation of actions,
the Labour Relations Act compels the
effective resolution of disputes
(section 1(d)(iv) of the Labour Relations Act).
This implies that labour
disputes must be resolved or finalised expeditiously. For this reason
too, it would not be inconsistent
to apply the
Prescription Act to
sections 143 and 158 (1)(c) of the Labour Relations Act.
The
Prescription Act has
been applied to the Basic Conditions of Employment Act of 1983.
(Uitenhage Municipality v Malloy 1998 (19) ILJ 757 (SCA)).
In
Uitenhage Municipality v Molloy, the Supreme Court of Appeal stated
the following:
‘
The remedy lies in
the employee's own hands. Such an employee cannot profit by his or
her own inaction. As was stated by Van den
Heever J in Benson and
another v Walters and Others
1981 (4) SA 42
(C) at 49G:
‘
Our Courts have
consistently held that a creditor is not able by his own conduct to
postpone the commencement of prescription.
[3]
’
[15]
Subsequent
to that decision, there have been a number of judgments which
followed Pillay J’s approach, which shall be dealt
with in due
course. On the other hand, Cook AJ in
Aon
SA (Pty) Ltd v Commission for Conciliation, Mediation Arbitration and
Others
[4]
in considering the applicability of prescription within the context
of arbitration awards where an application for a review had
been
launched had stated the following;
‘
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 11th of
November 2004.’
[16]
In
Cellucity
(Pty) v CWU OBO Peters
[5]
and also in
Coetzee
& 48 others v The Member of the Executive Council of the
Provincial Government & Others
[6]
,
Rabkin-Naicker J had held in both matters that the
Prescription Act
was
incompatible with the architecture of the LRA. The rationale
behind this view was
inter
alia
that there was a strong case on public policy grounds to find that
prescription does not apply to unfair dismissal claims under
the LRA,
and that the application of the
Prescription Act 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.
[17]
It is accepted that the LRA does not expressly exclude the operation
of the
Prescription Act as
pointed out in
Mpazama
, and this
lacuna is to be addressed in the amendments to the LRA. In the
meanwhile, and since the advent of the LRA in 1995, this
lacuna has
indeed created an untenable position for vulnerable employees who are
in possession of a favourable award that is taken
on review. These
employees ultimately become at the mercy of reviewing parties and the
slow machinery of the judicial system.
[18]
The pending
amendment to
section 145
[7]
of
the LRA, which invokes the interruption of the running of
prescription in terms of the
Prescription Act is
small comfort for
these employees. Inasmuch as I agree with my sister Rabkin-Naicker J
in the decisions referred to above, more
pertinently regarding the
incompatible nature of the
Prescription Act with
public policy, and
the unintended iniquitous consequences it creates, the difficulty
always arises on the basis that once it is
established that the Act
applies to our labour law as a matter of interpretation and operation
of that Act, then this Court has
no discretion in the matter. As Musi
AJ (As he then was) had stated in
Police
and Prisons Civil Rights Union on behalf of Sifuba v Commissioner of
the SA Police Service and Others
[8]
,
although this court is a court of equity, considerations of equity do
not come into play when all the requirements for a successful
plea of
prescription are established. Furthermore, inasmuch as this lacuna in
the LRA created untenable consequences, it is also
accepted as
pointed out in
Uitenhage
Municipality v Molloy
that a remedy lies in the employees’ own hands, and that
employees could not profit by their own inaction.
[19]
Rule 11 of the Rules of this Court, together with clause 11.2.7 of
the Practice Manual of this Court were meant as stop-gap
measures to
ameliorate the effects of lack of timeous prosecution of review
application. However, unrepresented employees, and
in most times,
those that are even represented, hardly ever approached the court in
terms of these provisions for intervention.
In the end, employees
tended to hold on to favourable awards which ultimately became
meaningless on account of their own inaction
and that of their chosen
representatives. In the end, the court’s intervention in such
circumstances becomes limited.
[20]
Adv. Prinsloo on behalf of the Applicant
raised five pertinent questions the court had to deal with in
determining this application.
These are watered down to the
following;
(i)
Does the
Prescription Act apply
and
what is the status of an arbitration award?
The
Labour Court is a court of equity, and it follows that the
application of the
Prescription Act creates
iniquitous results as it
inter
alia
,
deprives an employee of the benefits of a favourable award. However,
flowing from the decision in
Mpanzama
,
upon which the Applicant had relied upon, and with which I align
myself with, an arbitration award has the status of a debt. Further
reliance was placed on
Police
& Prisons Civil Rights Union obo Sifuba v Commissioner of the SA
Police Service & others
[9]
where it was held that until the arbitrator’s award is made an
order of Court, the applicant’s right to enforce
the award
therefore prescribes within three years of the publication of the
award. Upon this interpretation and operation of this
particular Act,
as indicated above, the Court finds itself constrained.
(ii)
What is the effect of the review
application filed by the Applicant in 2010?
[21]
A
number of decisions
[10]
of
this Court have held the view that the filing of a review application
does not interrupt prescription
[11]
.
Gush J in
Sampla
Belting SA (Pty) Ltd v CCMA
[12]
and acknowledged the lacuna already pointed above by stating that;
‘
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.’
Since
a review application does not interrupt prescription, it is incumbent
upon a party against whose award a review application
is brought, to
ensure that that application is timeously prosecuted. In this regard,
the usefulness of the provisions of
Rule 11
of the Rules of this
court, and clause 11.2.7 of the Practice Manual of this Court have
been pointed out. It is accepted that the
prosecution of that
application should ordinarily be driven by an applicant party. Be
that as it may, the onus is still on the
respondent party whose
execution of that award is stayed, not to fold its arms and wait for
four years before acting on that award
as the First Respondent had
done in this case.
(iii)
The effect of the
section 143
certification and the
Rule 11
application filed by the First
Respondent
[22]
Section 143
(1) of the LRA provides that;
‘
An
arbitration award issued by a commissioner is final and binding and
it may be enforced as if it were an order of the Labour Court,
unless
it is an advisory award’
[23]
It
is common knowledge that the mere certification of an award is not
sufficient on its own for the purposes of execution, especially
in
the face of a recalcitrant employer. After the applicant has
approached the CCMA for certification in terms of
s 143(3)
, the next
step would be to approach the Labour Court with an application for
the registrar of the court to issue a writ of execution
for
enforcement of the award. The Applicant’s view in this case was
that the certification of the award did not equate that
award with an
order of court. Support for this contention is also found in
SA
Transport & Allied Workers Union on behalf of Phakathi v Ghekko
Services (Pty) Ltd & others
[13]
where this court confirmed that certification did not give the award
the same status as an order of the Labour Court. The Court
had
however found that the employee could enforce the award by way of
contempt proceedings without the need first to approach the
court for
an order in terms of
s 158(1)(c).
Further pertinent to that matter is
that the Court had found that as more than three years had elapsed
since the award was certified,
the employee's claim had prescribed,
and an unsuccessful attempt by the employer in the meantime to have
the award reviewed had
not interrupted the running of prescription.
Similarly in this case, the award was merely certified without a
further application
in terms of
section 158
(1) ( c) of the LRA, and
in seeking relief to dismiss the application in casu in terms of
Rule
11
, the First Respondent hardly ever made any mention of any relief
in terms of these provisions.
[24]
The Applicant had further relied on the
provisions of
Section 15
of the
Prescription Act, under
the heading
"judicial interruption of prescription" which
provides that;
‘
(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.’
[25]
In the light of these provisions, the
Applicant had submitted that the filing of a
Rule 11
application to
dismiss the review application did not constitute service on the
debtor of ‘process’ in terms of the
Prescription Act and
that the running of prescription was therefore not interrupted. Even
if it is accepted that the First Respondent had invoked the
provisions of
Rule 11
, at the same time, he does not appear to have
simultaneously filed an application in terms of
section 158
(1) (c)
of the LRA for a conclusion to be made that there was ‘service
on the debtor of any process whereby the creditor
claims payment of
the debt’. Curiously, after that application was removed from
the roll on 20 June 2012, and the Applicant
had complied with the
court order to comply with the provisions of
Rule 7A
(8) of the Rules
of this court, the First Applicant had again folded his arms and sat
on his writ, which he again belatedly sought
to execute.
(iv)
Was prescription in casu interrupted
?
[26]
The Applicant had conceded that the
certification of the award on 16 July 2010 interrupted the running of
prescription. It however
maintained that the certified award had to
be prosecuted and executed within 3 years from date of certification,
failing which
it became prescribed on 15 July 2013.
[27]
The First Respondent had only approached
the Applicant on 15 April 2014 with a view of executing the writ. In
his pleadings, he
had contended that the proper approach would have
been for the Applicant to prosecute its review application and also
to bring
an application to stay the writ of execution. In my view, in
the light of the stated principles and conclusions reached above in
respect of the effect of a review application on the running of
prescription, it would still not make much difference even if the
writ was stayed or the application for a review was to be heard at
some stage in the future as the claim or debt has prescribed.
This
fact rendered the review application ultimately redundant as there no
longer exists the
justa causa
of that application on account of prescription.
Other
considerations pertaining to the relief sought:
[28]
The First Respondent in his pleadings had
contended that the Applicant had not met the requirements of the
relief that it seeks.
The difficulty with the First Respondent’s
averments is that they concentrated much on the reason that
prescription should
not apply and accusations levelled against the
Applicant for failure to timeously prosecute the review application
and attempts
to frustrate the execution of the writ. I am however
satisfied that the applicant has shown a clear right for the relief
it seeks
in that the First Respondent is in possession of a writ
which he has shown to seek to execute at any time when least
expected.
The right that the Applicant has derives from the
conclusions stated above in regards to the application of
prescription in such
matters. Furthermore, on account of the writ
that the First Respondent has in his possession, the Applicant has
established a well-grounded
apprehension of irreparable harm if the
relief is not granted on an urgent basis as the First Respondent can
approach the sheriff
and attach the Applicant’s assets as he
deems fit. The balance of convenience clearly favours the granting of
the relief
on an urgent basis for reasons already mentioned, and even
though the Applicant has an alternative remedy of placing the matter
on the ordinary roll to set aside the writ, it would be foolhardy on
its part to wait for the moment that the First Respondent
decides to
act on his writ, and then to approach the court on the ordinary roll.
Costs:
[29]
The Applicant had sought a cost order
against the First Respondent. It is my view that considerations of
law and fairness dictate
that such a cost order would be
inappropriate. As matters stand, the First Respondent lost out on the
benefits of a favourable
award on account of his inaction or
operation of the law. To burden him further with a cost order would
be like the proverbial
nail in the coffin for him. In conclusion, it
is reiterated that the award in favour of the First Respondent has
prescribed, and
the plea of prescription should be upheld.
Accordingly, the following order is made;
Order:
i.
The writ of execution issued by this Court
on 16 September 2010 under case number MEGA 27164 is set aside.
ii.
There is no order as to costs.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. Connie Prinsloo
Instructed
by:
De Villiers & Du Plessis Attorneys
On
behalf of the Respondent: Adv .
Mashitoa
Instructed
by:
BM Kolisi Inc
[1]
See
inter
alia
,
Jonker
v Wireless Payment Systems CC
(2010) 31 ILJ 381 and also
LF
Boshoff Investment (Pty) Ltd v Cape Town Municipality
1969
(2) SA 256
(C) at 267 A-F.
[2]
[2000] 12 BLLR 1459
(LC) at paras 8-11.
[3]
Ibid
at 762F-G.
[4]
(2012) 33 ILJ 1124 (LC).
[5]
2014] 2 BLLR 172
(LC)
[6]
(2013) 34 ILJ 2865 (LC)
[7]
The
proposed amendment to s 145 of the Labour Relations Act reads as
follows:
‘
(9)
[A]n 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.’
[8]
2009
30 IJ 1309 (LC) at para 44.
[9]
Supra
.
[10]
See
Technikon
Pretoria (now Tshwane University of Technology) v Nel NO and Others
(2012) 33 ILJ 293 (LC);
[11]
Police
and Prisons Civil Rights Union on behalf of Sifuba v Commissioner of
the SA Police Service and Others
(2009) 30 ILJ 1309 (LC).
[12]
(2012)
33 ILJ 2465 (LC) at para 23-25.
[13]
(2011)
32 ILJ 1728 (LC)