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[2016] ZALCJHB 3
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Lekhoeneha v Minister of Police (JR2422/14) [2016] ZALCJHB 3 (8 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR2422/14
COLONEL
MOSEDI JONAS LEKHOENEHA
Applicant
and
MINISTER OF POLICE
Respondent
Heard:
6 January 2016
Delivered:
8 January 2016
JUDGMENT
N FOURIE,
AJ
[1]
This is an application
to make an arbitration award issued on 14 July 2014 an order of court
in terms of section 158(1)(c) of the
Labour Relations Act 66 of 1995
(“
the LRA
”).
The respondent opposes the application, and has brought a
counter-application to stay the enforcement of the award under
section 145(3) of the LRA, pending the outcome of a review
application brought under case number JR 1765/2014 to set aside that
award.
[2]
In the course of the
hearing, it was brought to my attention that the applicant has in
case number JR 1765/2014 also brought a Rule
11 application in which,
among other things apparently, the applicant also seeks to make the
same arbitration award that is the
subject of the review an order of
court.
[3]
Pending the review, the
applicant has accordingly brought two applications under two case
numbers to attempt to enforce the award,
and the respondent has twice
brought an application to stay enforcement – first in the form
of an urgent application which
it then did not pursue due to
non-compliance of that application with the rules of court, and then
in the form of the counter-application
that is the subject of this
hearing.
[4]
I was further informed
that in case number JR 1765/2014 the Honourable Justice Molahlehi
had, in response to a request for a directive,
instructed that the
parties enrol the rule 11 application together with the review
application under case number JR 1765/2014 in
order to avoid the
piecemeal determination of the matter.
[5]
It appears to me,
following the same logic, that this application and
counter-application ought to be consolidated with the applications
pending under case number JR 1765/2014 in order to allow the
determination of all four applications in one hearing.
[6]
The respondent’s
representative had initiated attempts to agree to the postponement of
this hearing in order to achieve just
such a consolidation, but no
agreement could be reached with the applicant’s representative.
[7]
The applicant’s
counsel explained that this refusal and the decision nevertheless to
argue this application and counter-application
upfront had been
informed by two considerations. First, he said that the
applicant was concerned that the review was being
delayed.
However, the applicant presented no evidence in this application
regarding such a delay. I am told that facts regarding
progress made
in the prosecution of the review appear from the applications filed
in matter JR 1765/2014. This too suggests
that a consolidation
of the two cases would have been the preferable approach.
[8]
Second, he explained,
the application to enforce the award could not be postponed or
consolidated with the review because of the
risk that the arbitration
award would in the meantime prescribe. The
Prescription Act 68
of 1969
applies to awards issued before 1 January 2015 when the
Labour Relations Amendment Act 6 of 2014 came into effect. The
Amendment
Act introduced section 145(9) which provides that an
application to review an award under section 145 interrupts the
running of
prescription in terms of the
Prescription Act in
respect
of that award.
Section 145(10)
, however, provides that
section 145(9)
applies only to arbitration awards made after 1 January 2015.
[9]
The fear of
prescription, however, was not justified in light of the decision of
the Labour Appeal Court in Myathaza v Johannesburg
Metropolitan Bus
Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant;
Cellucity (Pty) Ltd v CWU obo Peters (JA122/14)
[2015] ZALAC 45
(6
November 2015). The LAC in that matter confirmed that, whereas
an application to review does not interrupt the running
of
prescription (unless
section 145(9)
applies), a
section 158(1)(c)
application to enforce an award does interrupt prescription of that
award. The LAC also emphasised at paragraph 27 that it is not
the
granting of the order in such an application that will trigger the
interruption of prescription, but the service of the application,
assuming of course that the application is ultimately successful.
[10]
In the present case,
the application to enforce will, if ultimately successful, interrupt
prescription with effect from the date
of its service. If the
application to enforce were to be unsuccessful, prescription will not
have been interrupted and prescription
will still be running. It
seems to me preferable in these circumstances to decide the
application for enforcement under
section 158(1)(c)
once the review
is ready to be determined, and not before.
[11]
The respondent urged me
to grant a costs order against the applicant due to his refusal to
agree to the reasonable request for a
postponement and consolidation
with the pending review matter. The applicant’s legal
representative, on the other hand,
urged me to consider the financial
burden of the ongoing litigation on the applicant, which he submitted
had been severe.
I have some sympathy for the applicant’s
position as an individual litigating against the state. But his
position may
well have been exacerbated by his failure, or perhaps
that of his legal representative, to agree to a sensible arrangement
in order
to consolidate and resolve the matter. These matters
have, however, not been addressed in evidence before me.
Order:
[12]
In the circumstances, I
accordingly make the following order.
12.1
This matter is consolidated with the matter in JR 1765/2014.
12.2
In the event that either party fails to comply with the time periods
in the rules for prosecuting the review
application, the other party
may approach the Judge President to appoint a judge to undertake the
case management of the files,
and to ensure an expeditious hearing.
12.3
Once the review is ripe for hearing, the Registrar is directed to
enrol the consolidated matter as a matter
of urgency.
12.4
Costs are reserved.
_________________
N
Fourie, AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant:
Adv. J.P. Breytenbach
Instructed
by:
Lovius Block Attorneys
For the
Respondent:
Adv. P.R. Cronje
Instructed
by:
The State Attorney