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[2016] ZALCJHB 160
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Compass Group SA (Pty) Ltd v van Tonder and Others (JR260/13) [2016] ZALCJHB 160; (2016) 37 ILJ 1413 (LC) (2 March 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of
interest to other judges
Case
no: JR 260/13
In the
matter between:
COMPASS GROUP SA (PTY) LTD
Applicant
and
CHRIS VAN TONDER
First Respondent
COMMISSIONER T D LYNCH
Second Respondent
CCMA
Third Respondent
Heard
:
10 February 2016
Delivered
:
2 March 2016
Summary:
Prescription – prior to s 145(9) of LRA
coming into effect – Court bound by LAC ruling in
Metrobus
[2015] ZALAC 45
– review of arbitration award not interrupting
prescription – award prescribed.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
employee in this case (the first respondent, Mr Van Tonder) has an
arbitration award in his favour worth some R 228 000. The
applicant,
Compass Group SA (Pty) Ltd – his erstwhile employer –
seeks to have the award reviewed and set aside. But
this Court need
not pronounce on the merits of that application, as the arbitration
award has prescribed. The outcome, in my view,
is not fair; but it is
the law, at least as it stood until the legislature addressed the
iniquity of the law as it stood by amending
the LRA
[1]
and adding the new section 145(9). But that change came too late for
Mr Van Tonder.
Background
facts
[2]
Given
my finding on the law, the background facts leading to the employee’s
dismissal are not important. He was dismissed.
He referred an unfair
dismissal dispute to the CCMA.
[2]
The arbitrator
[3]
found the dismissal to have been unfair. He ordered Compass to pay
the employee compensation amounting to R 228 000.
The
review
[3]
The award was issued on 14 September 2012.
Compass became aware of it on 7 November 2012. It delivered its
review application in
terms of s 145 of the LRA on 5 December 2012.
In terms of the award, its debt to the employee became due on 21
November 2012.
[4]
The
employee delivered an answering affidavit on 11 April 2013. After
responding to the applicant’s grounds of review, he
said
[4]
:
“
Wherefore
I respectfully pray that the above Honourable Court dismiss the
application with costs and confirm the arbitration award
as an order
of the above Honourable Court.”
Prescription
[5]
The applicant, Compass, argues that the
debt prescribed on 20 November 2015, i.e., three years after it
arose.
[6]
The
argument is based on s 11(d) of the Prescription Act:
[5]
“
The
prescription of debts shall be the following:
…
(d)
save where an Act of Parliament provides otherwise, three years in
respect of any other debt.”
[7]
Such an Act is the LRA. Section 145 of that
Act was amended with effect from 1 January 2015 to add s 145(9):
“
An
application to set aside an arbitration award in terms of this
section interrupts the running of prescription in terms of the
Prescription Act, 1969 (Act No 68 of 1969) in respect of that award.”
[8]
The purpose of the new subsection is clear:
it implies that, before the amendment, an application for review of
an arbitration award
in terms of s 145 did
not
interrupt the running of prescription. And, unfortunately for Mr van
Tonder, the new s 145(10) specifies that the new s 145(9)
only
“applies to an arbitration award issued after such commencement
date”, i.e. 1 January 2015.
[9]
Before
the amendment, there were conflicting judgments emanating from this
Court on the question whether the institution of review
proceedings
interrupted prescription.
[6]
That led to the LAC hearing appeals against three matters in one
sitting.
[10]
In
Myathaza
v Metrobus
[7]
the
LAC pronounced on the law as it stood before 1 January 2015. It held
that an arbitration award issued under the LRA is a “debt”
as contemplated by the LRA and that the
Prescription Act applies
.
[11]
The
LAC considered the argument that, where a review is pending, the
Labour Court is not likely to make the award and order of court;
but,
held the Court, “there is nothing preventing a debtor to, at
any time after the issue of the arbitration award, and
before its
prescription, bring an application to make such an award an order of
court.”
[8]
The
answering affidavit
[12]
In this case, the employee did not apply to
have the award made an order of court. Did the paragraph in the
answering affidavit
containing the prayer that the Court dismiss the
review application “and confirm the arbitration award as an
order”
of court interrupt prescription, as Mr
Nel
argued?
[13]
As morally and emotionally persuasive as
that argument is, I think not, given the judgment of the LAC in
Metrobus.
The
LAC unequivocally required an application to make the award an order
of court; and the prayer in the answering affidavit is
not an
application. Nor is it a counterclaim.
[14]
Rule 7(1)
specifies that “an
application” must be brought on notice to all persons who have
an interest in the application; and
rule 7(2)
refers to a “notice
of application” that complies with Form 4 and that is supported
by an affidavit in terms of
rule 7(4).
The prayer in the employee’s
answering affidavit does not comply with those prerequisites of “an
application”
as contemplated by
rule 7.
[15]
In
Sifuba
[9]
the Labour Court held that, in that case, the answering affidavit was
not a process whereby an action was instituted (and that
would have
interrupted prescription):
“
In
this matter a counter-application would have sufficed as a process
whereby action is instituted. An answering affidavit is not
a
counter-application. If the applicant [trade union] wanted to apply,
simultaneously with its opposition to the review application,
to make
the arbitration award an order of court it should have launched a
review application. Sifuba’s request in the answering
affidavit
is not a counter-application.”
[16]
The
judgment of the LAC in
Metrobus
does
not appear to me to have disturbed that finding. Nor has it
overturned
Sampla
Belting
[10]
where Gush J held:
[11]
“
[18]
The third respondent’s second ground is that the third
respondent’s answering affidavit and application to have
the
review application dismissed, despite the provisions of
section 15
of
the prescription Act, constituted a ‘process whereby the
creditor claims payment of the debt’. It is abundantly
clear
from both the answering affidavit and the dismissal application that
that neither of them constitute ‘process whereby
the creditor
claims payment of the debt’. (my emphasis).
[19]
In this regard, the third respondent relied on an unreported decision
of this Court where the Honourable Judge Cook AJ held
not only that
an application to review an arbitration award interrupted
prescription but that even if that view was incorrect an
application
to dismiss a review application did. Having dealt with the
averment that a review application interrupts prescription
it remains
to consider, in the light of this judgment, whether either the third
respondent’s answering affidavit or the application
to dismiss
interrupted prescription.
[20]
The provisions of
section 15
of the
Prescription Act set
out quite
clearly what would constitute judicial interruption of prescription
viz: “service on the debtor of any process
whereby the creditor
claims payment of the debt”. In order therefore for either the
answering affidavit or application to
dismiss the review application
the “process” must claim payment of the debt. It is
patently clear from both the third
respondent’s answering
affidavit and application to dismiss that neither “process”
claimed payment of the debt.
The position in the AON case was
markedly different. In that matter it appears from the judgment that
the application to dismiss
the review did comply with
section 15
of
the
Prescription Act in
that not only did the applicant seek the
dismissal of the review application but in addition sought an order
“reinforcing
the existing CCMA award” (sic).
[21]
Insofar as the third ground is concerned, the applicant’s
review application does not constitute an impediment to the
running
of prescription nor is it an impediment to the third respondent [the
creditor] interrupting prescription.
[22]
At all times the third respondent could have interrupted prescription
either by applying for the award to be certified by the
CCMA in
accordance with section 143 of the Labour Relations Act or applying
to have the award made an order of court in accordance
with section
158(1)(c) of the Labour Relations Act. The third respondent did not
do so.
[23]
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.”
[17
]
Ms
Govender
also
referred the Court to
Giflo
Engineering (Bop) (Pty) Ltd v MEIBC.
[12]
In that judgment, Lagrange J
[13]
confirmed the principle in
Sifuba
that
the filing of an answering affidavit by the award creditor in a
review application does not amount to taking a legal step to
recover
the debt owing in terms of the award that would interrupt the running
of extinctive prescription in terms of
s 15(1)
of the
Prescription
Act.
Conclusion
[18]
I am bound by the decision of the LAC in
Metrobus
on the facts of this case. When the applicant instituted review
proceedings – and when the employee delivered his answering
affidavit –
s 145(9)
of the LRA had not commenced. I have no
option but to find that the arbitration award has prescribed.
[19]
The upshot is that the employee has been
deprived of an award of R 228 000. I am not persuaded that justice
has been served. The
law is, in this case, an ass; but I am
reluctantly forced to hand down an asinine judgment.
[20]
As to costs, I take into account the
elements of both law and fairness, as I am enjoined to do by
s 162
of
the LRA. In this case, those two elements do not coincide. A costs
award would not be fair.
Order
The
arbitration award of 14 September 2012 has prescribed.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
Ms P Govender of MacGregor
Erasmus.
FIRST RESPONDENT:
A J Nel
Instructed by Lee & McAdam.
[1]
Labour Relations Act, Act 66 of 1995.
[2]
The Commission for Conciliation, Mediation and Arbitration (the
third respondent).
[3]
Commissioner T D Lynch (the second respondent), who did not live up
to his surname.
[4]
Language as in the original affidavit.
[5]
Act 68 of 1969.
[6]
The Court in
Cellucity
[per
Rabkin-Naicker J] said yes; the Court in
Myathaza
[Van Niekerk J] and
Mazibuko
[Bank
AJ) held the contrary view.
[7]
Myathaza v Johannesburg
Metropolitan Bus Service (SOC) Ltd t/a Metrobus
[2015]
ZALAC 45
(6 November 2015) [per Coppin JA, Musi JA and Makgoka AJA
concurring].
[8]
Metrobus
para [78].
[9]
POPCRU obo Sifuba v
Commissioner of SAPS
(2009)
30
ILJ
1309 (LC) para [40] [per Musi AJ, as he then was].
[10]
Sampla Belting SA (Pty) Ltd
v CCMA
(2012) 33
ILJ
2465 (LC).
[11]
Paras [18] – [23].
[12]
(2012) 33
ILJ
388
(LC).
[13]
Para [7].