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[2017] ZALCPE 17
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Argent Steel Group (Pty) Ltd t/a Sentech Industries v NUMSA obo Piet and Others (P282/09) [2017] ZALCPE 17 (3 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case
No: P282/09
In the matter between:
ARGENT STEEL GROUP (PTY) LTD t/a
SENTECH INDUSTRIES
Applicant
and
NUMSA obo PIET AND 3
OTHERS
First Respondent
SHERIFF TP MALGAS N.O
Second Respondent
Heard:
4 November 2016
Delivered:
3 November 2017
Summary: The applicant may not rely
on the
Prescription Act 68 of 1969
to have a writ of execution set
aside because the Act does not apply to arbitration awards issued in
terms of the
Labour Relations Act 66 of 1995
.
JUDGMENT
LALLIE
J
Introduction
[1] In this application the applicant
seeks an order mainly in the following terms:
‘
1.1
Setting aside the writ of execution and warrant issued from the above
honourable court under case
number P282/09 (Motor Industry Bargaining
Council case number MICT3963) dated 10 June 2016.
1.2
Directing that the moveable assets of the applicant which have been
attached, being 2 x
Atego 8 ton vehicles; and 1 x 3 ton Toyota Dyna,
be released and that the Applicant have immediate access thereto.
[2] The salient facts of this matter
are that the individual first respondents (respondents) were employed
by the applicant until
their dismissal for misconduct in 2007. They
referred an unfair dismissal dispute to the Motor Industry Bargaining
Council (MIBCO).
On 5 August 2008 MIBCO issued an arbitration award
in which their dismissal was found to be unfair and the applicant
ordered to
reinstate them and pay them an amount of R119 147.28. The
award was certified in terms of section 143(3) of the Labour
Relations
Act 66 of 1995 (the LRA). In June 2009, the applicant
launched an application to have the award reviewed and set aside. On
19 February
2010 this court granted an order staying the enforcement
of the award pending the outcome of the application for review. In a
letter
dated 1 December 2015 the applicant advised the respondents
that their claim had prescribed and that it would no longer be
pursuing
the review application. On 10 June 2016 a writ of execution
was issued against the applicant based on the certified arbitration
award. After the second respondent had attempted to execute the writ
on 27 June 2017, the applicant and first respondent reached
an
agreement that the applicant’s property would neither be
attached nor removed but the assets would only be recorded. A
discussion over the validity of the writ ensued with the applicant
submitting that the award has prescribed and the respondents
denying
the prescription.
[3] On 28 October 2016 the applicant
launched the application at hand. It was argued on 29 November 2016.
The applicant’s
attack on the validity of the writ of execution
is two pronged. The first is that it is in contempt of the court
order of 19 February
2010 which stayed the enforcement of the award
pending the outcome of the review application. It is common cause
that the applicant,
through its attorneys informed the respondent’s
attorneys in a letter dated 1 December 2015 that it was no longer
pursuing
the review application. When the writ was obtained on 10
June 2016 the review application was no longer pending and it came to
finality on 1 December 2015 when the applicant communicated to the
respondents its intention not to pursue it. It is common cause
that
the applicant took no steps to pursue the review application after 1
December 2015.
[4]
After this matter had been argued the Constitutional Court handed
down its judgment in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metro Bus &
Others
[1]
in which it held that the
Prescription Act 68 of 1969
does not apply
to arbitration awards issued in terms of the LRA. Arbitration awards
therefore do not prescribe. The applicant conceded
that based on the
Myathaza decision (supra) the respondent’s claim in terms of
the monetary amount in the award has not prescribed.
[5] The respondent sought a costs
order against the applicant. It was argued on behalf of the applicant
that the costs order should
not be granted because the applicant
acted within its rights and in term of relevant jurisprudence when it
raised prescription.
Section 162
LRA requires that the law and
fairness be taken into account when a decision on the payment of
costs is made. When the applicant
launched this application it relied
on the decision of the Labour Appeal Court in which it was held that
the
Prescription Act applied
to arbitration awards. Jurisprudence
changed after the application was argued. Fairness does not justify a
costs order against
the applicant as the applicant could not have
foreseen that jurisprudence would change shortly after this matter
was argued.
[6] The applicant has not established
valid grounds for the setting aside of the write of execution issued
on 10 June 2016. Its
application cannot succeed.
[7] In the premises, the following
order is made:
Order:
1.
The
application is dismissed.
2.
No
order is made as to costs.
Z Lallie
Judge of the Labour Court
Appearances
For
the Applicant: Advocate Euijen
SC
Instructed by Goldberg & De
Villiers Inc
For the Respondent: Mr Niehaus of
Minaar Niehaus Attorneys
[1]
(2017) 38 ILJ 527 (cc)