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[2015] ZALCPE 55
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National Union of Mineworkers obo Majebe v Civil & General Contractors (P501/13) [2015] ZALCPE 55 (20 November 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P501/13
In
the matter between
NATIONAL
UNION OF MINEWORKERS OBO
MAJEBE
Applicant
and
CIVIL
& GENERAL
CONTRACTORS
Respondent
Heard:
12 February 2015
Delivered:
20 November 2015
Summary:
The prescription Act applies to arbitration awards issued in terms of
the LRA. Filing a review application
does not interrupt the
running of prescription of an award issued before 1 January 2015.
JUDGMENT
Lallie,
J
[1]
The applicant launched this application seeking an order to have an
arbitration award issued by the Commission for Conciliation
Mediation
and Arbitration (“the CCMA”) made an order of court in
terms of
section 158
(1) (c) of the
Labour Relations Act 66 of 1995
as amended (“the LRA”). The application is opposed by the
respondent.
[2]
Most material facts of this matter are not in dispute. Its factual
background is that the individual applicant, Mr Majebe (“Majebe”)
was employed by the respondent. Pursuant to his dismissal on 8
December 2006, he referred an unfair dismissal dispute to the CCMA
which, in an award dated 19 June 2007, found his dismissal
substantively unfair and ordered the respondent to reinstate him and
pay him in an amount of R13 251-60 in “back pay”.
The respondent was ordered to reinstate Majebe within 7 days
and pay
the amount of R13 251-60 within 21 days of being notified of the
award.
[3]
In August 2007, the respondent launched an application to have the
arbitration award reviewed and set aside. Owing to the respondent’s
delay in the prosecution of the review application, the applicant’s
attorneys asked the respondent’s attorneys on 26
March 2008, to
indicate the respondent’s intention with regard to the review
application. The party’s attempts to reconstruct
the record
which was of very poor quality were unsuccessful. The applicant
submitted that its attorneys’ letter of 30 May
2013, informing
the respondent’s attorneys that no further steps would be taken
in respect of the review application and
demanded compliance with the
arbitration award was disregarded. On 14 January 2014, the applicant
filed the present application
seeking an order making the arbitration
award an order of court.
[4]
The respondent’s basis for opposing the application was that
the award dated 19 June 2007, had prescribed and not capable
of being
made an order of court. It sought an order dismissing the application
with costs. The applicant denied that the award
had prescribed.
[5]
When this matter was argued, the Labour Court was divided on whether
arbitration awards were susceptible to prescription and
how the
Prescription Act 68 of 1969 (“the
Prescription Act&rdquo
;)
applied to them. The applicant followed the school of thought which
espouse the view that arbitration awards do not prescribe
and that
this court is not obliged to apply the
Prescription Act in
instances
where grave injustice will result. It was further argued that
prescription is not applicable to reinstatement orders.
A further
argument that the applicant sought to rely on was that filing a
review application interrupts the running of prescription
which does
not necessarily run from the date of the award. The applicant sought
to rely on
section 145
(9) of the LRA which was introduced by the
2015 amendment to the LRA, on the basis that it is a definitive
statement of the legislature’s
intention. The applicant further
argued that the respondent’s point of prescription should be
disregarded as it was not pleaded
properly.
[6]
When this matter was argued three applications dealing with
prescription were pending before the Labour Appeal Court. In the
unreported judgement of
Myathaza v Johannesburg Metropolitan Bus
Service (SOC) Ltd t/a Metrobus; Mazibuko v Concor Plant; Cellucity
(Pty) Ltd v CWU obo
Peters
under case number JA122/14 and
delivered on 6 November 2015 the issue of prescription in relation to
arbitration awards was enunciated.
I will consider the submissions
and arguments before me against the findings in
Myathaza (supra)
in determining the issue of prescription. Contrary to the view
expressed in some judgments the applicant sought to rely on, the
court found that prescription is based on considerations of fairness
and equity as the concepts do not apply to one party only
but to all
parties including employers and employees. It expressed the view that
arbitration awards made under the LRA meet the
definitional criteria
of a ‘debt’ as contemplated in the
Prescription Act
because
they create an obligation to pay or render to another, or to
do something, or to refrain from doing something. It found that
arbitration
awards pertaining to unfair dismissals, in which
compensation and/or reinstatement, with or without back pay
constitute “debt”
as contemplated in the
Prescription
Act. The
court held that in the absence of an Act of Parliament
providing otherwise (the court found none existed), a three year
prescriptive
period is applicable to arbitration awards.
[7]
The court based its finding on when prescription of an arbitration
award begins to run on
section 12
(1) of the
Prescription Act which
provides that it commences as soon as the debt is due. The court
referred with approval to
Uitenhage
Municipality v Malloy
[1]
in
finding that it is due ‘when the time arises for the
performance by the date of the obligation...’ It was found that
the inception of prescription depends on the wording of the award.
The award stipulate that the respondent should reinstate the
applicant within seven days and pay the amount due to Majebe in terms
of the award within 21 days of being notified of the award.
Prescription of Majebe’s reinstatement commenced seven days
from 19 June 2007 and for the payment of the amount due, 21 days
from
19 June 2007. The respondent’s debt arising from the award
therefore prescribed in July 2010.
[8]
The applicant’s argument that the latest amendment to the LRA
introducing
section 145
(9) which provides that a review application
interrupts the running of prescription to fortify the view that the
position in the
amendment was always the intention of the legislature
was rejected by the court. In reaching the finding, the court relied
on
section 15
(1) of the
Prescription Act which
provides that a
review application does not suspend the running of prescription. The
respondent’s view that
section 145
(10) which was introduced by
the same amendment provides that
section 145
(9) applies to
arbitration awards issued after 1 January 2015, the commencement date
of the amendments is correct. The court expressly
stated that the
review is not a bar to the bringing of an application to make an
award an order of court. The filing of the application
to review and
set aside the arbitration award which the applicant seeks this Court
to make an order of court did not interrupt
the running of
prescription.
[9]
The arbitration award was issued on 19 June 2007 and the respondent
was ordered to comply with it within 21 days. Prescription
commenced
on the 22
nd
day from the day on which the award was
issued. The award therefore prescribed three years thereafter in July
2010. Prescription
was not interrupted by the filing of the review
application. When the application at hand was filed on 14 January
2014 the arbitration
award had prescribed.
[10]
The respondent sought a costs order against the applicant. In view of
the respondent’s contribution to the delay which
led to the
prescription of the award, granting a costs order will not be
appropriate.
[11]
In the premises, the following order is made:
11.1
The application is dismissed.
____________________________
Lallie J
Judge of the Labour Court
of South Africa
Appearances
For the Applicant:
Advocate Grogan
Instructed by Wesley
Pretorius & Associates
For the Respondent:
Advocate Grobler
Instructed
by Bowes, Mcdougall Inc
[1]
[1997] ZASCA 112
;
1998 (2) SA 735