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[2018] ZALCCT 32
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PTAWU obo Xoloani and Others v Mhoko's Waste & Security Services (C202/15) [2018] ZALCCT 32; [2019] 1 BLLR 62 (LC); (2019) 40 ILJ 185 (LC) (5 October 2018)

Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no: C 202/15.
In
the matter between:
PTAWU
obo XOLOANI & OTHERS
Applicant
and
MHOKO’S
WASTE & SECURITY SERVICES
Respondent
Heard
:
4 May 2018
Delivered
:
5 October 2018
Summary:
(Contempt – special plea – prescription –
Prescription Act applicable to arbitration award - 3 year period for

prescription passed by the time contempt application launched –
award prescribed – special plea upheld)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicants in this matter have applied for an order holding the
respondents in contempt for failing to comply with an arbitration

award certified in terms of section 143 of the Labour Relations Act
66 of 1995 (the LRA). At the hearing, the respondent belatedly
raised
a special plea of prescription. In order to give the applicant a
proper opportunity to deal with special plea, the contempt

application was adjourned pending a ruling on the special plea once
the applicant had an opportunity to file an answering affidavit
and
the respondent any reply, as well as filing heads of argument.
[2]
The respondent also raised a point
in limine
claiming that on
account of a previous contempt application in respect of the same
award being dismissed that the matter was
res judicata.
At the
hearing of the matter this objection was abandoned by the respondent
and only sold to pursue the special plea of prescription.
[3]
Following the adjournment, the applicant did not file an opposing
affidavit but instead made submissions in a document entitled
“Filing
Sheet of Opposing the Prescription Application”. In
circumstances where the union official is drafting pleadings,
I will
deal with the matter on the basis that the special plea is opposed
but that the applicants did not feel it necessary to
plead any
factual issues for the determination of the application. As matters
stand, the factual issues to be considered in determining
the special
plea are common cause and the substantive issues in dispute are
essentially legal in nature.
Background
[4]
On 29 April 2012, a CCMA commissioner issued an arbitration award in
terms of which she found that the 51 individual applicants
were
unfairly dismissed and awarded their reinstatement with retrospective
effect to 22 January 2012, but limited payment of back
pay to two
months’ remuneration.
[5]
Initially, the respondent indicated that it was going to pursue a
review application but appears not to have done so. The respondent

claimed it was unable to reinstate the applicants because it did not
work for them and on 15 November 2012, concluded a settlement

agreement, which was made an award. The applicants however claimed
that this settlement agreement did not supersede the arbitration

award and was merely a settlement of monetary claims the applicants
had against the respondent. Their claim for reinstatement remains

intact based on the award issued on 29 April 2012. It was the
respondent’s failure to reinstate them in terms of that award

which led to this contempt application and the previous one being
launched. For the purposes of determining the special plea, the

respondent’s claim that the settlement agreement superseded the
award is neither here nor there.
[6]
The crisp issue is whether the award which was issued on 29 April
2012 and which was certified on 8 May 2014 as a binding award
in
terms of section 143(3) of the LRA, prescribed before this contempt
application was launched on 17 August 2017.
[7]
The first application for contempt of court in respect of the same
award was dismissed by Steenkamp J on 26 October 2016.
The
first application had been filed on 23 March 2015. The respondent
raised two
in limine
objections to that application. Firstly,
it disputed the
locus standi
of Mr F Magidi as an official of
the applicant union, PTAWU. Secondly, it pointed out that no personal
service had been effected
on the owner of the respondent, which is a
pre-requisite for launching a contempt application. Steenkamp J
dismissed the first
in limine
objection but upheld the second
relating to defective service.
[8]
Strictly speaking, the first application was fatally defective and
could just as well have been struck off the roll on account
of the
second
in limine
point as there was no proper contempt
application before the court in the absence of personal service.
Legal
principles
[9]
The Constitutional Court has deliberated on three occasions on the
application of the
Prescription Act 68 of 1969
to disputes concerning
unfair dismissals under the LRA.
[10]
The first decision in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus &
others
[1]
contained three separate judgments, without yielding any majority
ratio
.
Despite the differences in the judgments, there was agreement on the
order. In the Constitutional Court’s subsequent unanimous

decision in
Mogaila v
Coca Cola Fortune (Pty) Ltd
[2]
it characterized the effect of the outcome in
Myathaza
as follows:
[27] Because of the parity of votes in
Myathaza
,
in which none of the judgments secured a majority, no binding basis
of decision (
ratio
)
emerges from the court’s decision. But, on either approach,
that of Jafta J and Zondo, or that of Froneman J, Ms Mogaila
is
entitled to an order declaring that the arbitration award ordering
her reinstatement has not prescribed. She is entitled to
secure its
certification under
s 143(3)
of the LRA, and its enforcement under
s
143(1).
[3]
Accordingly,
in
Mogaila
, without deciding whether the
Prescription Act was
applicable to arbitration awards, the court reasoned on the basis of
the factual similarities between the case before it and those
in
Myathaza
the outcome would be the same.
[11]
In
Myathaza
, the court was seized with deciding whether or not
an arbitration award prescribed three years after it was issued in
terms of
the
Prescription Act.  In
that case, the employee had
been a victim of a common litigation strategy in terms of which an
arbitration award in favour of the
employee was taken on review by
the employer and when the review application was dismissed and the
employee sought to enforce the
award, the employer would retort that
the award had prescribed.
[12]
The essential facts were that in April 2008, a CCMA commissioner had
issued an arbitration award to the effect that the applicant
employee
had been unfairly dismissed and had awarded her reinstatement with
six months’ back pay. The employer’s application
to
review and set aside the arbitration award was dismissed. When the
employee then presented herself for work to be told by the
employer
that the arbitration award constituted a ‘debt’ for the
purposes of the
Prescription Act 68 of 1969
, and that, because more
than three years had elapsed since the date of the award, her claim
had prescribed.
[13]
In the first judgment of Jafta J, in which Nkabinde ADCJ, Khampepe J
and Zondo J concurred , it was held that:
13.1
The
Prescription Act did
not
apply to the LRA primarily for two reasons. Firstly, the provisions
of the
Prescription Act were
inconsistent with the provisions of the
LRA
[4]
,
within the meaning of the term ‘inconsistent’ in
section
16
(1) of the
Prescription Act.
[5
]
13.2
Secondly, even if the
Prescription Act did
apply to the LRA, an award of reinstatement did
not amount to a debt within the meaning of the
Prescription Act as
it
was not an obligation to pay money or deliver goods or render
services and accordingly could not prescribe like one.
[6]
In the sense of inconsistency which prescribes a specified period
within which a claim is to be made or an action is to be instituted

in respect of a debt or imposes conditions on the institution of an
action for the recovery of a debt (and therefore Mr Myathaza’s

arbitration award had not prescribed);
[14]
In the second judgement by Froneman J, in which  Madlanga J,
Mbha AJ and Mhlantla J concurred, it was held that:
14.1
The
Prescription Act and
the
LRA are capable of complementing each other in a way that best
protected the fundamental right of access to justice but also

preserved the speedy resolution of LRA disputes.
[7]
14.2
The injustice of an employee
being deprived of the benefits of an award in his favour by way of
the institution of review proceedings
then the employer “crying
prescription on the back of the time wasted by the review can be met
by application of the principle
that prescription should not run
until court proceedings are finalised.”
[8]
14.3
Setting in motion the dispute
resolution processes of the CCMA, served to interrupt prescription
under
section 15
of the
Prescription Act and
, similarly, the
institution of review proceedings ought to have the same effect of
extending the finalization of a judgment until
the review is
decided.
[9]
[15]
The third judgment by Zondo J, as he then was, provided additional
reasons  in support of the order, namely that :
15.1
An arbitration award is not a
debt as contemplated by The
Prescription Act.
>
[10]
15.2
In any event, it would be
legally untenable to hold that prescription in terms of the
Prescription Act starts
to run once an arbitration award is issued,
until it had been made an order of court.
[11]
15.3
Further, a referral of a
dismissal dispute to the CCMA could not interrupt prescription since
that could occur only by the service
on the debtor of the process
contemplated in
s 15(1)
read with subsection (6) of the
Prescription
Act.
[12
]
15.4
Without legislative amendment ,
it would be  impossible to apply the
Prescription Act to
the
LRA  without doing serious violence to the language of
either or both of those acts  and to do so as the second

judgment did  would amount to  impermissible legislation by
the court.
[13]
[16]
As previously mentioned, the second decision in
Mogaila’s
case also was concerned with the prescription of an arbitration
award and simply found that on the facts of that case the court in
Myathaza
would have come to the same conclusion despite the
lack of a single
ratio
in that judgment. Accordingly,
Mogaila
did not resolve any of the legal issues which remained
indeterminate after the
Myathaza
decision.
[17]
The third decision
bearing on the application of prescription to claims under the LRA is
that of
Food & Allied
Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty)
Ltd
[14]
, in which there was a majority decision yielding a
ratio
for the judgment. That case concerned if and when a claim of unfair
dismissal prescribes. Contrary to the views expressed in the
first
and third judgments in
Myathaza
,
the majority held that the
Prescription Act was
not inconsistent with
the LRA and that a claim of unfair dismissal
which
sought to enforce three possible kinds of obligations against an
employer, namely reinstatement, re-employment and compensation
and
that any one of these amounted to an obligation to pay or render
something. As such, a claim for unfair dismissal constitutes
a debt
as contemplated in
s 16(1)
of the
Prescription Act, which
states that
the provisions of the
Prescription Act provisions
apply to “any
debt arising after the commencement of this Act”.
[15]
The court also held, contrary to the first judgment in
Myathaza
,
that there was no inconsistency between the
Prescription Act and
the
LRA in the sense contemplated by
s 16(1)
of the
Prescription Act. The
crux of the court’s reasoning appears in the following
paragraphs:
[177] Are the time periods provided
for in
s 191
of the LRA inconsistent with the provisions of the
Prescription Act? As
I have demonstrated, while they both deal with
time periods, they do so for different reasons and to achieve
different objectives.
The time periods in the LRA indicate when a
litigant is expected to take the necessary steps in the
dispute-resolution process
to properly prosecute a claim, while the
Prescription Act provides
a cut-off point when those steps are no
longer available to a litigant on account of the claim having
prescribed.
[178] Simply on that analysis, it can
hardly be said that there is inconsistency between the provisions of
the LRA and the
Prescription Act, insofar
as they relate to time
periods. Of course, if the LRA provided for a prescription period, as
did the RAF Act in
Mdeyide
, that would have been a different
matter, but that is not the case here.
[179] The time periods in the LRA and
in the
Prescription Act regulate
different features of the litigation
process and are not only reconcilable but can exist in harmony
alongside each other.
[180] The application of the
Prescription Act to
the LRA would advance the speedy resolution of
employment disputes by firstly, leaving wholly intact the mandated
time periods
for referrals that
s 191
provides for. The application
of the
Prescription Act cannot
have as an unintended consequence the
implied extension of those time periods to coincide with the period
of prescription. Secondly,
subjecting claims under the LRA to an
outer time limit would considerably enhance the efficiency of the
dispute-resolution process.
Placing an outer limit beyond which the
litigation process simply cannot continue prevents employment
disputes from being litigated
after a considerable passage of time.
This may impact negatively on both the quality of adjudication as
well as I the important
policy considerations that relate to the
quick and speedy resolution of employment related disputes, the
ability of workers to
continue to earn a living, as well as the
ongoing ability of businesses to continue operating.
[181] For these reasons, I must also
conclude, regard being had to
s 210
of the LRA, that the provisions
of the LRA are not in conflict with the provisions of the
Prescription Act. It
must follow that if there is no inconsistency
then,
being
(with
stronger reason), there can be no conflict. The definition of
conflict is a considerably higher bar to meet than the consistency

evaluation which I have undertaken. I also conclude that the
existence of conflict between the two statutes has not been
established.
[16]
Evaluation
[18]
The issue which arises in the context of this
application is what the effect of the
Pieman’s
decision is on those issues which
remained unresolved in the
Myathaza
and
Mogaila
decisions. For the purposes of this judgment, the only question which
arises is whether this court is still at large to make a
decision
based simply on the common result in
Myathaza
, and if not, how does the
Pieman’s
judgement affect matters?
[19]
Superficially, this case is also
concerned with the prescription of an award, as was the case in
Myathaza
and
Mogaila,
rather than the prescription of the right to pursue a claim of unfair
dismissal, which was the issue in
Pieman’s.
However, unlike the first two matters this is not a case where the
applicants launched proceedings to enforce the award after
unsuccessful review proceedings. The respondent had merely indicated
its intention to launch review proceedings in a letter dated
18 May
2012, but had taken no steps to do so by the time the six week period
for doing so in terms of
section 145
(1) (a) of the LRA had expired.
[20]
On the strength of the decision in
Pieman
s,
it appears to me that the uncertainty regarding the application of
the
Prescription Act to
the LRA has been resolved. Accordingly, I
must approach the special plea on the basis that an arbitration award
obliging an employer,
amongst other things, to reinstate employees
amounts to a debt in terms of the
Prescription Act.
[21
]
The first contempt application
was filed on 24 March 2015, a few weeks short of three years since
the award was handed down. At
this juncture, it should be mentioned
that the fact that it was certified on 8 April 2014 did not change
its status. In
Tony Gois
t/a Shakespeare’s Pub v Van Zyl and Others
[17]
the Labour Court was concerned with the recent amendments to
section
143(3)
that had been made at that time. The court was seized with a
review of a ruling by a commission that an application to rescind an

award could not be entertained because the award had already been
certified in terms of
section 143
(3). The court had the following to
say on the effect of certification:
If the third respondent had considered
the reasons for the amendments to the Act it would have realised that
the purpose of the
amended section 143 of the Act was to simplify the
process of executing CCMA awards. The amendments arose out of the
recognition
that the process in terms of section 158(1)(c) was
cumbersome. The Labour Court can now be omitted from the process of
enforcing
CCMA awards. The effect of the second respondent’s
ruling is to artificially include the Labour Court in a process from
which
the legislature has chosen to exclude it. …
As stated above the process of
certification is merely designed to streamline the execution process.
Whether or not an award is
certified has no bearing on the merits of
the causa underlying the award.
…
The Amendment Act – the new
section 143 – did not alter the nature or the composition of
the award. The award remains
a CCMA arbitration award. It is not
transformed into a court order as a result of the certification
process and as such there is
no need to involve this Court in the
process of rescinding CCMA awards.
[18]
[22]
The first contempt application, as mentioned, was dismissed on 26
October 2016. Assuming that this application had interrupted

prescription until judgment was handed down, prescription resumed
running from that date. This contempt application was only launched

in August 2017, by which stage the three year period had long expired
in November the previous year, and there is no longer an
enforceable
award, which the respondent can be compelled to comply with.
[23]
In the circumstances, I conclude that the special plea of
prescription must succeed. It should be mentioned that the award
in
question was handed down before the 2015 amendments to the LRA which
resulted in further changes to s 143. Accordingly, the
application of
prescription on the facts of this case might not be applicable to
awards issued after those amendments were promulgated.
Order
[1]
The special plea of prescription is upheld.
[2]
This contempt application is dismissed.
[3]
No orders matters to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
A
T Mgidi of PTAWU
RESPONDENT:
R
Nyman instructed by Mariaise Muller Yekiso Inc.
[1]
(2017) 38
ILJ
527 (CC)
[2]
(2017) 38
ILJ
1273 (CC)
[3]
At 1281-2.
[4]
At 540-545, paras [43] to [58].
[5]
Section 16 of the Prescription Act provides:
‘
(1)
Subject to the provisions of subsection (2)(b), the provisions of
this chapter shall,
save in so far as they are inconsist
ent
with the provisions of any Act of Parliament which prescribes a
specified period within which a claim is to be made or an
action is
to be instituted in respect of a debt or imposes conditions on the
institution of an action for the recovery of a debt,
apply to any
debt arising after the commencement of this Act.
(emphasis
added)
[6]
At 545, para [59].
[7]
At 547, para [66].
[8]
At 547, para [67].
[9]
At 551, para [83] and 553 para [86].
[10]
At 562, para [119]
[11]
At 564, para [129]
[12]
At 568-9, paras [140] – [141].
[13]
569-570 at [145].
[14]
(2018) 39
ILJ
1213 (CC)
[15]
At 1260-1261, paras [154] to [157].
[16]
At 1266-7.
[17]
[2003] 11 BLLR 1176 (LC)
[18]
At 1176, paras [21] – [24].