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[2019] ZALCJHB 205
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Monare v South African Tourism (JS133/16) [2019] ZALCJHB 205 (2 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of Interest to Other
Judges
Case No: JS 133/16
In the matter between:
TEBOGO BRIAN
MONARE
Applicant
and
SOUTH AFRICAN
TOURISM
Respondent
Delivered:
2 May 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
:
[1]
In his statement of claim, the applicant seeks the following relief;
1)
Payment in the amount of R87 529.54, being the amount that
he
was short-paid in respect of an arbitration award issued in his
favour and
mora
interest thereon, in respect of which claim
the respondent had tendered to pay him on or before 28 February 2018.
2)
An order declaring the termination of his contract of employment
and
his dismissal on 30 September 2010 to be unlawful.
3)
Payment of the amount of £257, 550.42 for damages suffered
in
respect of salaries owed to him for the period 1 October 2010
to 31 January 2015, together with interests
at 15.5%
per
annum
from the date on which payment of each of his salary
payments during the aforesaid period fell due until the date of the
final
payment.
Background:
[2]
The applicant’s claim emanates from
protracted litigation between the parties that started with the
termination of his five
year- fixed term contract on
30 September 2010 and ended with a judgment of the Labour
Appeal Court on 11 November 2015.
[3]
The respondent is a statutory body and has various
offices abroad. It entered into
a five-year fixed term
contract of employment with the applicant on 23 December 2009,
in terms of which the latter was
appointed as Finance and
Administration Manager based at its offices in the United Kingdom.
The employment relationship was to
take effect from 1 February 2010
until 31 January 2015. The applicant’s gross
remuneration package was
set at £5 674.23 per month.
[4]
Some seven months into the employment relationship, the applicant was
subjected to a disciplinary enquiry and dismissed from the
respondent’s employ on 30 September 2010 on account
of allegations of misconduct related to dishonesty and fraud. He
subsequently referred an unfair dismissal dispute to the Commission
for Conciliation Mediation and Arbitration (CCMA) on
17 November 2010.
[5]
When attempts at conciliation failed, the dispute was referred for
arbitration.
In an arbitration award issued on 31 August 2011,
Commissioner Faizel Mooi of the CCMA found that the dismissal of the
applicant was procedurally fair, but substantively unfair. The
respondent was ordered to reinstate the applicant with no loss of
salary in the sum of £37, 509.54 from 23 February 2011,
to be paid by no later than 23 September 2011.
The
reinstatement was to take effect from 13 September 2011.
[6]
In response to the applicant’s attorneys’ enquiry as to
when
the applicant should report for duty in terms of the arbitration
award, the respondent’s attorneys advised on 12 September 2011
that no reinstatement would take place as review proceedings were to
be instituted.
[7]
The review application under case number JR 2298/11 was served and
filed
on or about 13 October 2011. The matter came before
the Court, and in his judgment delivered on 31 March 2014,
Van Niekerk J found that the CCMA lacked jurisdiction to determine
the dispute, and accordingly, the arbitration award was reviewed
and
set aside.
[8]
The applicant then lodged an appeal under case number JA 45/11
against
the judgment and order of Van Niekerk J. In a judgment
delivered on 11 November 2015, the Labour Appeal Court
upheld
the applicant’s appeal and substituted Van Niekerk J’s
order with one dismissing the respondent’s review application
with costs.
[9]
The effect of the Labour Appeal Court’s order was to
retrospectively
restore the employment relationship between the
parties. However, at the time that the Labour Appeal Court’s
judgement was
delivered, the fixed term contract of employment had
already expired.
[10]
On 19 December 2015, the parties agreed that the amount
payable to the applicant
in respect of the arbitration award and
mora
interests thereon was £69 172.52.
[11]
Payment of the amount of R1 582 986.83 was made to the
applicant on 11 January 2016,
being back-pay due to him in
terms of the arbitration award as well as
mora
interest
thereon.
The
nature of proceedings before the Court.
[12]
The applicant’s statement of claim was filed and served on
18 February 2016.
The respondent had filed and served its
response and raised a special plea of prescription. The applicant had
filed a replication
in response to the special plea. The parties
having concluded and signed pre-trial minutes, the matter was
initially set-down for
trial for three days. On the first day of the
trial, the parties had agreed that the dispute be determined by way
of a stated case
in the light of the special plea of prescription.
[13]
A joint stated case was filed, and subsequent thereto, the parties
had filed their heads
of argument. Upon receipt of the applicant’s
heads of argument, the respondent held the view that the applicant
had raised
issues that were inconsistent with what was contained in
the stated case. It then filed supplementary heads of argument and
the
applicant did likewise.
[14]
To the extent that the applicant had in his heads of argument
submitted that his claim
for salaries arose on a monthly basis on the
date that each salary payment fell due, the respondent had contended
that on that
version, a substantial portion of his claim would have
prescribed as outlined in its Annexure ‘
A
’ to the
supplementary heads of argument. The respondent further held the view
that the applicant’s claim for salary
on a monthly basis was
pertinent to the overall question for determination, which
necessitated a rejoinder application as well
as an application to
amend its case. The applicant had refused to accede to the request in
the light of the agreed stated case.
The matter was then set down for
the hearing of oral arguments.
The
dispute and issues for determination:
[15]
The respondent conceded that the termination of the applicant’s
fixed term contract
was unlawful. That effectively disposed of prayer
2 of the applicant’s claim.
The central
issues for determination are therefore
;
a)
Whether the applicant’s claim in respect of prayer 3 has
prescribed.
b)
Whether the award of reinstatement was suspended during the
period
between the Labour Court judgment being handed down on 31 March 2014
and the Labour Appeal Court judgment being
handed down on
11 November 2015.
c)
Whether prescription in respect of the contractual claim was
interrupted for this period by virtue of the said suspension.
The
parties’ submissions:
[16]
In raising a special plea of prescription, the respondent’s
primary contentions are
that;
16.1
It is not competent for the applicant to claim (Prayer 3) in the
manner he did. He could only
claim for a globular amount being the
salaries owed to him in terms of his fixed term employment contract,
and that he would only
be entitled to such salaries in as far as his
claim hereto had not prescribed.
16.2
The claim
for damages for the balance of the fixed term contract has prescribed
in terms of Chapter 3, section 11 of the Prescription
Act
[1]
based on the following;
16.2.1 The
dismissal took place on 30 September 2010, and the
applicant’s cause of action arose on that
date. His statement
of claim was only served on the respondent on 18 February 2016,
more than three years after the cause
of action arose, and
accordingly, his claim in accordance with the provisions of section
11 of the Prescription Act had prescribed.
16.2.2
Prescription
may be interrupted under the provisions of sections 14 and 15 of the
Act
.
[2]
However, under the provisions of section 14, no acknowledgement of
liability was made on the facts of this matter.
16.2.3 In
regards to the provisions of section 15 of the Prescription Act, the
essence of the meaning ‘
judicial interruption’
is
that there is service on the debtor of any process whereby the
creditor claims payment of the debt. In this case however, it
was
argued that this did not happen within the three year period. To this
end, it was submitted that there was simply no basis
to allege in
respect of the applicant’s contractual claim, that proceedings
based on the unfairness regime under the LRA
interrupted the
prescription of the civil claim.
16.2.4 To the
extent that the applicant had alleged that the contract was
repudiated, or unlawfully terminated and that
the respondent had
committed a material breach of the contract, it was submitted the
events happened on 30 September 2010,
and it was
inexplicable that the applicant would suggest that the cause of
action arose on any other date other than 30 September 2010,
as no other breach was pleaded.
16.2.5 The
status of the award between the review and appeal was irrelevant for
the purposes of determining whether
the contractual claim had
prescribed or not.
[17]
In summary, the applicant’s contentions were that he was
entitled to payment of salaries
for the balance of his fixed term
contract for the period 1 October 2010 until
31 January 2015, together with
interest at 15.5%
per
annum
from the date that each salary payment fell due, and that
the respondent had in effect repudiated the contract. In the
alternative,
he seeks an amount that the Court finds to be due to
him. He further denied that his claim had prescribed based on the
following;
17.1
His cause of action did not arise on 30 September 2010 and
prescription did not commence
to run from that date;
17.2
This Court had reviewed and set aside the arbitration award on
31 March 2014, and the
judgment of the Labour Appeal Court
on 11 November 2015 had the effect of reviving the
arbitration award to reinstate
him.
17.3
The award of reinstatement was suspended during the period of
31 March 2014 (with the
judgment of Van Niekerk J) and
11 November 2015 (with the judgment of the Labour Appeal
Court), and during that period,
prescription was interrupted.
17.4
The amount of £257 550.42 claimed was damages in respect
of salaries owed to him for
the period 1 October 2010 to
31 January 2015. The claim is a common law contractual
claim and not located in
the LRA, and to that end, the date on which
the cause of action for an unfair dismissal claim arose was
irrelevant to the present
enquiry.
17.5
There was no factual or legal basis to support the respondent’s
contention that the total
claim for salary for the unexpired portion
of the contract became due on 30 September 2010.
17.6
A debt could only become due when the creditor’s cause of
action was complete. Prescription
therefore began to run not
necessarily when the debt arose but when it became due. In this case,
the fact that the debt may have
arisen on 30 September 2010
was not determinative of the enquiry as something more,
i.e
.,
a complete cause of action to recover the debt, was required.
17.7
Prescription in respect of the claim did not commence on
30 September 2010 whether
based on a construction of
cancellation or specific performance of the contract.
17.8
Having sought and obtained a reinstatement, and further to the extent
that he had tendered his
services, this was a clear intention that he
had elected to enforce the contract, and such a tender was
inconsistent with an election
by him to cancel the contract.
17.9
His claim
for arrear salaries could not be instituted during the period prior
to reinstatement of the fixed term contract of employment,
which only
happened on 11 November 2015 when the judgment of the
Labour Appeal Court was delivered. In this regard, prescription
in
respect of a claim for such salaries accordingly was not interrupted
or delayed, and only commenced to run from 11 November 2015.
To the extent that his statement of claim was served on
18 February 2016, this was well within the prescription
period
of three years
[3]
.
[18]
In the supplementary heads of argument, the respondent’s
further submissions were
that;
18.1
In circumstances where the applicant sought to obtain specific
performance of the fixed term
contract, that claim could only have
arisen on 30 September 2010 when the respondent allegedly
repudiated or purported
to repudiate the contract of employment.
18.2
In either event, the ‘
debt’
in accordance with
section 12 of the Prescription Act became due on 30 September 2010
and that is the period from which
prescription began to run. Since
that period and for three years, the applicant had a cause of action
against the respondent in
terms of which he could have compelled it
to perform its obligations in terms of the fixed term contract,
alternatively, he could
have been awarded appropriate damages. It was
therefore incorrect for the applicant to contend that specific
performance only arose
well after the termination of the fixed term
contract.
18.3
Reliance on the Judgment of Zondo J (as he then was) in
Hendor
was misplaced, as that case dealt with
matters located squarely in the fairness regime under the LRA,
reliance upon which the applicant
had specifically disavowed.
In this case, there was no restoration of a
contract as in
Hendor
,
and the entire legal matrix within which that matter is located was
labour related and could not be applied in this case.
18.4
To the extent that the applicant’s claim for
salary arose on a monthly basis, a substantial part of the claim
would have in
any event have prescribed.
[19]
In his supplementary heads of argument, the applicant’s
submissions were
inter alia
that;
19.1
His claim for specific performance, even if it is found that reliance
on
Hendor
was misplaced, had not prescribed.
19.2
Since the unlawful termination of the contract took place on
30 September 2010, which
constituted a repudiation thereof,
the general rule was that where one party had repudiated, the injured
party had a right to elect
to accept the repudiation and sue for
damages, or to ignore the repudiation and hold the other party to
contract and sue for specific
performance.
19.3
Even if the respondent was not contractually obliged to provide him
with work during the period
of the contract, it was contractually
obliged to remunerate him during the period of the contract, which in
this case represents
arrear salaries.
19.4
An employee was entitled to claim specific performance in the form of
an order to compel the
employer to receive him/her into its employ
and comply with its obligations in terms of the contract, or he/she
can simply claim
remuneration that would have been earned for the
period that he/she would have been employed.
19.5
In the light of the history of litigation, he was compelled to wait
for the dispute between the
parties to be finalised and then claim
arrear salaries. Since he was prevented from rendering his services,
and further since his
tender was not accepted prior to the expiry of
the contract, he was entitled to claim arrears salaries that would
have been payable
to him for the remaining period of the fixed term
contract
The
legal framework and evaluation:
[20]
In
Lancelot
Stellenbosch Mountain Retreat (Pty) Ltd v Gore N.O. and Others
[4]
,
it was
held that the onus was upon the person asserting prescription, to
allege and prove the date from which prescription commenced
to run.
In this regard, the Court held that;
‘…
As
I have pointed out above, the first question is whether it was
established that the debt on which the liquidators’
locus
standi
was based, had prescribed. It is a determination that must precede
the question whether or not the running of the prescription
had been
interrupted. Depending on the outcome of the enquiry on the first
question, the determination of the latter question may
or may not
arise at all. This is so because when a debtor raises the defence of
prescription he bears the full evidentiary burden
to prove it. And
that burden shifts to the creditor only if the debtor has established
a
prima
facie
case. In that event, a creditor bears the onus to allege and prove
the interruption of prescription through either an express or
tacit
acknowledgement of liability by the debtor, in terms of s 14 of the
Prescription Act.
[5]
[21]
Insofar as
the provisions of section 12 of the Prescription Act
[6]
are concerned, it is accepted that the phrase “
debt
”
is not defined in that Act. The term however has been given its
ordinary meaning, to mean a debt owing and already payable
or
immediately claimable or exigible at the election of the creditor
[7]
.
[22]
In
Makate
,
the meaning that the Constitutional Court unanimously attributed to
the word ‘debt’ as contemplated in sections 10,
11 and 12
of the Prescription Act is the meaning ascribed to it in the
Shorter
Oxford English Dictionary
, namely:
‘
1.
Something owed or due: something (as money, goods or service)
which one person is under an obligation to pay or render
to another.
2. A liability or obligation to pay or render something; the
condition of being so obligated.’
[8]
[23]
In
Makate
,
Wallis AJ, in the second of the
two judgments stated the following:
‘
The
correlative of a debt in this sense is a right of action vested in
the creditor in which the payment of money, or the delivery
of goods,
or the rendering of services is claimed. And, when payment,
delivery or the rendering of services extinguishes
the debt, the
right of action is likewise extinguished. That is why s12(1) of
the Prescription Act provides that prescription
will commence to run
once the debt is due. If the debt is not due then prescription
cannot run. Debts become due when
they are immediately
claimable and recoverable.’
[9]
[24]
Under the
provisions of section 12 (1) of the Prescription Act,
prescription
begins
to
run as soon as the debt is due. These provisions were interpreted in
Truter &
another v Deysel
[10]
as follows;
‘
For the purposes
of the Act, the term ‘debt due’ means a debt, including a
delictual debt, which is owing and payable.
A debt is due in this
sense when the creditor acquires a complete cause of action for the
recovery of the debt, that is, when the
entire set of facts which the
creditor must prove in order to succeed with his or her claim against
the debtor is in place or,
in other words, when everything has
happened which would entitle the creditor to institute action and to
pursue his or her claim’.
(Footnote omitted.)
[25]
In
Duet and Magnum Financial Services CC (In Liquidation) v
Koster ,
Nugent JA held that;
‘…
Prescription
is about rights that have come into existence but have ceased to
exist by the passage of time. If a right has not come
into existence
then there is nothing that is capable of expiring. That is why
prescription is raised in a plea. If no existing
right has been
alleged in the particulars of claim then the particulars of claim are
excipiable and will not attract a plea. It
is only once facts have
been alleged that establish the existence of a right that the
question whether that right has expired is
capable of arising’
[11]
.
[26]
In this case, a determination needs to be made as to the nature of
the claim advanced by
the applicant. He primarily seeks damages in
the form of arrear salary consequent upon the termination of his
fixed term contract
of service, and his cause of action is founded in
that contract.
[27]
To
the extent that
that
debts in terms of the 1969 Prescription Act become due when they are
immediately claimable and recoverable, in the sense that
there has to
be a debt in respect of which the debtor is under an obligation to
perform immediately
[12]
, the
principal question in the determination of the dispute is when did
the cause of action arise in the light of the history of
litigation
between the parties.
[28]
There are certain similarities between the facts of this case and
those in
Hendor
which the applicant relied upon. In
Hendor
,
the Constitutional Court handed down two Judgments on whether the
prescription period in respect of unpaid remuneration owing
in terms
of a Labour Court reinstatement order was three or 30 years. In the
first Judgment (Madlanga J with
Froneman J,
Khampepe J and Mbha AJ concurring), it was found that
the
there was no distinction between the period before the reinstatement
order and the period thereafter until the employees were
in fact
reinstated. It found that the claim for arrear wages arose from the
reinstatement order and constituted a judgment debt.
The claim
therefore prescribed after 30 years.
[29]
In the second Judgment, Zondo J (with
Mogoeng CJ,
Jafta J and Mhlantla J concurring), the court agreed,
albeit
for different reasons, that
the reinstated employees’
claim had not prescribed. Central to that Judgment was that the claim
for arrear wages for the purposes
of the Prescription Act had to be
separated into two distinct periods,
i.e.
, the claim before
the reinstatement order, which was a judgment debt and in regard to
which the 30-year prescriptive period applied,
and the claim after
the order, which constituted a contractual debt in regard to which
the three-year period of prescription applied.
[30]
In relying on
Hendor,
the
applicant’s contentions were that his claim for arrear salaries
could not be instituted during the period prior to reinstatement
of
the fixed term contract of employment which happened on
11 November 2015 when the judgment of the Labour Appeal
Court
was delivered, and to that end, prescription in respect of his
claim for arrear salaries only commenced to run from
11 November 2015.
[31]
It was submitted on behalf of the respondent that reliance on
Hendo
r by the applicant was misplaced, as reinstatement in
terms of the LRA was not specific performance in terms of the common
law contract,
and that retrospective back-pay in terms of an award
made in the labour milieu was not common law specific performance. It
was
further argued that since there was no question of restoration of
a contract as in
Hendor
, and since the applicant sought
specific performance, prescription began to run immediately the
contract was repudiated, and thus
the cause of action for specific
performance occurred on 30 September 2010.
[32]
The
difficulty with the respondent’s contentions is that once it
had conceded that the termination of the applicant’s
fixed term
contract was unlawful, it cannot divorce that concession from the
overall principle that a contract of employment for
a fixed term is
enforceable in accordance with its terms, and an employer is liable
for damages if it is breached on ordinary principles
of the common
law
[13]
.
In
Masetlha
v President of the Republic of South Africa and Another
[14]
,
the Constitutional Court, (per Moseneke DCJ), held that when a fixed
term contract of employment is terminated, the applicant
may claim
re-instatement or full payment of benefits for the remaining period
of the contract.
[33]
Whether a
claim for specific performance in terms of that contract is
sustainable in the light of that contract having expired at
the time
of the delivery of the Labour Appeal Court judgment is neither here
nor there, as specific performance is defined as,
inter
alia
,
an order to perform a specific act or to pay money in pursuance of a
contractual obligation
[15]
.
[34]
Of the two Judgments in
Hendor
, the Judgment of Zondo J is
more in point in respect of the facts of this case, particularly to
the extent that the applicant’s
claim is based on contract,
which is a factor for consideration in the second leg of an enquiry
alluded to in that judgment.
[35]
The
contention on behalf of the respondent that the facts in
Hendor
and the issues to be determined therein fell squarely within the
ambit of the fairness jurisdiction of the LRA is clearly correct,
but
only insofar as the first leg of the enquiry referred to in that
judgment is concerned. However, in the light of the
conclusions
reached in respect of what constituted a contractual debt emanating
from a court order that arose in that case, the
second leg of the
enquiry is clearly on point and applicable to the facts of this case.
In any event, a civil claim for damages
as provided for in the BCEA
has nothing to do with a claim for an unfair dismissal in terms of
the LRA
[16]
.
[36]
As already
indicated, the starting point with the Zondo J’s judgment is
its emphasis in regard to such claims that the Court
ought to make a
distinction between the nature of the claims made between a
pre-judgment period and a post-judgment period
[17]
.
The claim in respect of the post-judgment period is a contractual
claim in respect of a contractual debt, and not a judgment debt,
which is a new dispute or cause of action
[18]
.
[37]
In this case, and in applying the approach followed by Zondo J, the
applicant, as correctly
pointed out by the respondent, has disavowed
any reliance on the provisions of the LRA and his claim is a
contractual one, emanating
from the Judgment of the Labour Appeal
Court, which effectively revived the arbitration award in respect of
the fixed term contract.
The effect of that revival however in the
light of the contract having expired at the time of the delivery of
the judgment of the
Labour Appeal Court could only have been up to
31 January 2015 and not beyond that date.
[38]
The
launching or service of an application for review in this case only
had the effect of suspending the operation of the arbitration
award
order sought to be reviewed. It did not in any way have the effect of
amending the terms of that award
[19]
.
Accordingly, the applicant’s fixed term contract of employment
was deemed to have been in operation (although suspended)
for the
whole time since the arbitration award of 31 August 2011
until set aside by the Van Niekerk J’s order.
The implications
thereof are that but for the review application and the expiry of the
fixed term contract, the respondent would
have been contractually
liable for its obligations under that contract, in so far as the
applicant had tendered his services on
12 September 2010.
Thus, when the Labour Appeal Court overturned the judgment of Van
Niekerk J on 11 November 2015,
it is accepted that the
fixed term contract could only have been restored up to
31 January 2015.
[39]
In summary,
and in line with the principles enunciated in
Coca
Cola Sabco (Pty) Limited v Van Wyk,
which
Zondo J in
Hendor
appears to have endorsed, the effect of a reinstatement order as
upheld by the Labour Appeal Court was to revive the arbitration
award
and thus the contract of employment. Flowing from such an order, the
rights and obligations of the parties would again be
governed by the
contract of employment. Thus,
the
applicant would have a contractual claim, which is a totally
different cause of action against the respondent
[20]
,
which means a debt in respect of which the debtor is under an
obligation to perform immediately
[21]
.
[40]
It follows from the above conclusions that the applicant’s
claim could not have arisen
from the date of the dismissal being
30 September 2010 for the purposes of a debt under Chapter
III of the Prescription
Act as contended for by the respondent. Any
debt could not have been due and claimable pending the review and
appeal proceedings,
as during that period, the fixed term contract as
restored by the arbitration award was in suspension.
[41]
Furthermore,
it is difficult to appreciate how in the light of the facts of this
case it could have been expected of the applicant
to have referred an
unfair dismissal dispute and a section 77 of the Basic Conditions of
Employment Act claim at the same time
as suggested by the respondent.
This is so in that pending the appeal proceedings, there was no basis
for the applicant to have
either accepted the repudiation or
cancelled the contract as it was suspended. Furthermore, in line with
Truter &
another v Deysel
and
Duet
and Magnum Financial Services CC (In Liquidation) v Koster,
the applicant prior to the Labour Appeal Court judgment and the
restoration of the fixed term contract, could not have been said
to
have acquired a complete cause of action for the recovery of the
debt, as not everything had happened which would have entitled
him to
institute action and to pursue his claim. In the absence of the
restored fixed term contract, any rights to claim a debt
had not come
into existence, and therefore, there was nothing that was capable of
expiring. The same principles are equally applicable
insofar as it
was argued on behalf of the respondent that there was no requirement
for a cancellation before damages could be claimed
[22]
.
Any claim in that regard would still have been without any foundation
pending the finalisation of review and appeal proceedings.
It
therefore follows that the provisions of section 14 and 15 of the
Prescription Act had no role in the facts of this case.
[42]
In the end,
the respondent has not discharged the onus placed on it to prove that
prescription in this case commenced to run prior
to any time before
the Labour Appeal Court’s judgment. Prior to that judgment,
there was no full cause of action for prescription
to could have ran,
and to the extent that the Prescription Act was applicable to the
applicant’s claims, prescription only
started running from
11 November 2015, which is when the new cause of action
arose, and not from 30 September 2010.
These conclusions
resonates with Froneman J’s statement in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
and Others
[23]
to the
effect that;
‘
The
manifest injustice of depriving the applicant of the arbitration
award in his favour by first avoiding its implementation by
way of
instituting review proceedings and then 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…’
Relief:
[43]
In the light of a conclusion being reached that the applicant’s
claim in respect
of arrear salary was contractual in nature, and only
commenced to run from the date of the judgment of the Labour Appeal
Court,
it is also accepted in line with the exceptions pointed out by
Zondo J in
Hendor
that an employer cannot be liable for
payment of remuneration to an employee for a period when that
employee would no longer have
been in its employment for any reason
including
inter alia
, death or taking of retirement.
[44]
In this case, it is accepted that the applicant had tendered his
services, which tender
was rejected on 12 September 2010 as
the respondent sought a review of that arbitration award. The
respondent’s
review application was successful with the
judgment of Van Niekerk J on 31 March 2014. Effectively,
the arbitration award
was in operation from 31 August 2011
– 31 March 2014. When the Labour Appeal Court
delivered its judgment
on 11 November 2015, the arbitration
award was revived in full, but only to the extent that or until that
the fixed term
contract was in place, being 31 January 2015.
It follows that any remuneration due to the applicant could only have
been
for the exact duration and remainder of the fixed term contract.
[45]
A further dispute that arose in these proceedings pertains to the
exact nature of the applicant’s
claim, leading to the
respondent to seek an applications for a rejoinder and condonation.
This according to the respondent was
necessitated by the applicant
having contended in his heads of argument that his defence to the
special plea of prescription was
purportedly that his claim for
salaries arose on a monthly basis on the date that each salary
payment fell due. In response to
the respondent’s contentions,
it was submitted on behalf of the applicant that the defence was
merely based on the provisions
of the fixed term contract.
[46]
Clause 2 of the fixed term contract makes provision for the payment
of an annual salary
per annum, and it is not clear from that clause
as to what ‘monthly payments’ the applicant could
possibly have referred
to as there is no such provision in that
clause. The issue of monthly payments came about in the stated case.
Furthermore, in regards
to the relief he seeks, nowhere is it
mentioned that his claim for salaries arose on a monthly basis, and
only a total amount as
calculated per his paragraph 32 of his
statement of claim was claimed. In my view, the applications for a
rejoinder and condonation
were unnecessary, particularly since it was
conceded that these applications did not change the facts, to the
extent that it was
found that prescription did not commence with the
breach on 30 September 2010.
[47]
It therefore follows that in line with the common cause facts
pertaining to the applicant’s
claim as restated in the joint
stated case, he is entitled to a globular payment of salaries owed to
him in terms of his fixed
term contract of employment from
1 October 2010 to 31 January 2015.
[48]
In regards to the claim in the amount of R87 529.53 which the
applicant contends was
tendered by the respondent flowing from the
Labour Appeal Court judgment, these related to a shortfall in the
light of applicable
Rand/British Pound Sterling exchange rate as at
11 January 2016. For reasons that appear unclear, the
respondent despite
admitting liability for payment of that amount
together with
mora
interest thereon has to date, failed to
make such payment. In the absence of any reason as to why such
payments were not made,
there is no reason why this Court in the
light of the claim having been pleaded should not make an order in
that regards.
Costs:
[49]
I have had regard to the circumstances of this case and the issues
raised. The special
plea of prescription cannot by any stretch of
imagination be considered to have been ill-conceived in the light of
the peculiar
circumstances of this case. In regards to the further
application lodged prior to the hearing of this matter in respect of
the
outstanding amounts flowing from the respondent’s admission
of liability, it is my view that such an application was indeed
superfluous, as that claim had already been pleaded in the original
statement of claim. To this end, it is my view that the requirements
of law and fairness dictate that a costs order should not be made.
[50]
The following order is therefore deemed to be appropriate;
Order:
1. The
special plea of prescription as raised by the Respondent is
dismissed.
2. The
Respondent is ordered to pay to the Applicant, an amount
of
R87 529.53, together with interest thereon at the rate of 9.75%
per annum
calculated from 11 January 2016 to the
date of payment.
3. The
Respondent is ordered to pay to the Applicant, an amount
of
£257 550.42 for damages suffered in respect of salaries
for the period 1 October 2010 until 31 January 2015.
4. The
amount mentioned in (3) above for the purposes of conversion
from
Rand/British Pound Sterling shall be at the exchange rate as
applicable at 31 January 2015, together with interest
rate
as applicable as at that date, and from the date on which payment
fell due until the date of final payment.
5. There
is no order as to costs.
_______________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: R Gundlingh, instructed by Bester & Rhoodie
Attorneys
For
the Respondent: A Snider, instructed by Cliffe Dekker Hofmeyr INC
[1]
Act
68 of 1969
CHAPTER
III PRESCRIPTION OF DEBTS (ss 10-16)
10.
Extinction of debts by prescription
(1)
Subject to the provisions of this Chapter and of Chapter IV, a debt
shall be extinguished by prescription after the lapse of the period
which in terms of the relevant law applies in respect of
the
prescription of such debt.
(2)
By the prescription
of a principal debt a subsidiary debt which arose from
such
principal debt shall also be extinguished by prescription.
(3)
Notwithstanding the provisions of subsections (1) and (2), payment
by the debtor of a debt after it has been extinguished by
prescription in terms of either of the said subsections, shall be
regarded as payment of a debt.
11
Periods of prescription of debts
The
periods of prescription of debts shall be the following:
(a)
thirty years in respect of-
(i)
any debt secured by mortgage bond;
(ii)
any judgment debt;
(iii)
any debt in respect
of any taxation imposed or levied by or under any law;
(iv)
any debt owed to
the State in respect of any share of the profits, royalties
or any
similar consideration payable in respect of the right to mine
minerals or other substances;
(b)
fifteen years in
respect of any debt owed to the State and arising out of
an advance
or loan of money or a sale or lease of land by the State to the
debtor, unless a longer period applies in respect
of the debt in
question in terms of paragraph (a);
(c)
six years in
respect of a debt arising from a bill of exchange or other
negotiable instrument or from a notarial contract, unless a longer
period applies in respect of the debt in question in terms
of
paragraph (a) or (b);
(d)
save where an Act of Parliament provides otherwise, three years in
respect
of any other debt.
[2]
14
Interruption
of prescription by acknowledgement of liability.
—
(1)
The running of prescription shall be interrupted by an express or
tacit
acknowledgement of liability by the debtor.
(2)
If the running of prescription is interrupted as contemplated in
subsection
(1), prescription shall commence to run afresh from the
day on which the interruption takes place or, if at the time of the
interruption
or at any time thereafter the parties postpone the due
date of the debt, from the date upon which the debt again becomes
due.
15.
Judicial interruption of prescription.
—
(1)
The running of prescription
shall, subject to the provisions of subsection (2), be
interrupted
by the service on the debtor of any process whereby the creditor
claims payment of the debt.
(2)
Unless
the debtor acknowledges liability, the interruption of
prescription
in terms of subsection (1) shall lapse, and the running of
prescription shall not be deemed to have been interrupted,
if the
creditor does not successfully prosecute his claim under the process
in question to final judgment or if he does so prosecute
his claim
but abandons the judgment or the judgment is set aside.
(3)
If the
running of prescription is interrupted as contemplated
in subsection
(1) and the debtor acknowledges liability, and the creditor does not
prosecute his claim to final judgment, prescription
shall commence
to run afresh from the day on which the debtor acknowledges
liability or, if at the time when the debtor acknowledges
liability
or at any time thereafter the parties postpone the due date of the
debt, from the day upon which the debt again becomes
due.
(4)
If the
running of prescription is interrupted as contemplated
in subsection
(1) and the creditor successfully prosecutes his claim under the
process in question to final judgment and the
interruption does not
lapse in terms of subsection (2), prescription shall commence to run
afresh on the day on which the judgment
of the court becomes
executable.
(5)
If any
person is joined as a defendant on his own application,
the process
whereby the creditor claims payment of the debt shall be deemed to
have been served on such person on the date of
such joinder.
(6)
For the purposes of
this section, “process” includes a petition,
a notice of
motion, a rule
nisi
, a pleading in reconvention, a third
party notice referred to in any rule of court, and any document
whereby legal proceedings
are commenced.
[3]
In
reference to
National
Union of Metalworkers of SA on behalf of Fohlisa & others v
Hendor Mining Supplies (A Division of Marschalk Beleggings
(Pty) Ltd
[2017]
6 BLLR 539
(CC) (
Hendor
)
at paras 177 - 178
[4]
(108/2014)
[2015] ZASCA 37
(25 March 2015)
[5]
At
para 10; See also
Makate
v Vodacom (Pty) Ltd
[2016] ZACC 13
;
2016 (6) BCLR 709
(CC);
2016 (4) SA 121
(CC) at para
185;
Macleod
v Kweyiya
(365/12)
[2013] ZASCA 28
;
2013 (6) SA 1
(SCA) (27 March 2013)
at
para 10;
Kelbrick
and Others v Nelson Attorneys and Another
(307/2017)
[2018] ZASCA 55
(16 April 2018), it was held that at para
9, where it was held that;
“
…
It is trite that
the respondent, as the debtor who invoked the special defence of
prescription, bore the onus of establishing
‘both the date of
the inception and the date of the completion of the period of
prescription’. See Gericke v Sacks
1978 (1) SA 821
(A) at 6
827H-828A; Van Staden v Fourie
1989 (3) SA 200
(A) at 216B; Santam
Ltd v Ethwar
[1998] ZASCA 102
;
1999 (2) SA 244
(SCA) at 256G.”
[6]
12.
When prescription begins to run.
—
(1)
Subject to the provisions of
subsections (2) and (3), prescription shall commence
to
run as soon as the debt is due.
(2)
If the
debtor wilfully prevents the creditor from coming to know
of the
existence of the debt, prescription shall not commence to run until
the creditor becomes aware of the existence of the
debt.
(3)
A debt
shall not be deemed to be due until the creditor has knowledge
of
the identity of the debtor and of the facts from which the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care.
[7]
Delloitte
Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman
Deutsche (Pty) Ltd
1991
(1) SA) 525
(A) at 532H
[8]
Makate
v Vodacom (Pty) Ltd
[2016]
at paras
85-86,
93 and 187
[9]
At
para 188
[10]
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) at para 15
[11]
[2010] ZASCA 34
;
2010 (4) SA 499
(SCA) ;
[2010] 4 All SA 154
(SCA)
at para 9
[12]
See
D
eloitte
Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman
Deutsch (Pty) Ltd
[1990]
ZASCA 136
;
1991 (1) SA 525
(A) at 532G-H
[13]
Fedlife
Assurance Ltd v Wolfaardt
[2001] ZASCA 91
;
[2002] 2 All SA 295
(A) at para 22 and 24, where it
was held that;
‘
If
an employee, as here, accepts repudiation and cancels, the Labour
Court would not order reinstatement or re-employment (see
s 193
(2)). That would leave compensation under s 194. S
194(1) allows punitive compensation only and s 194 (2) is
limited to
a year’s remuneration. Having deliberately set those
restrictions, it seems difficult, if not impossible,
to infer that
the legislation intended (notwithstanding the apparently limitless
scope of s 158 (1)(a)(vi) and s 193 (3)) that
the 1995 Act itself
should nevertheless provide the employee with the full balance of
the common law damages as well. Absent
such intention, s 195
must surely contemplate that for such balance (recovery of which it,
in terms, allows) an employee is free
to sue in the civil courts.
No doubt
s 77
(3) of the
Basic Conditions of Employment Act 75 of
1997
subsequently conferred concurrent jurisdiction on the Labour
Court but that is not what is in issue in the present case.’
[14]
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
at paras 88
and 91
[15]
Christie:
The
Law of Contract
4
ed (Butterworths, Durban 2001) at 606
[16]
[2016] ZALAC 35
;
[2016] 11 BLLR 1135
(LAC); (2016) 37 ILJ 2581
(LAC) at para 36
[17]
At
para 78
[18]
At
paras 81 and 155
[19]
At
para 132. See also at
[167],
where Zondo J stated that;
‘
What
did Goldstone JA’s statement in this passage that “an
employer who appeals from [an order of reinstatement] knowingly
runs
the risk of any prejudice which may be the consequence of delaying
the implementation of the order” relate to? It
related to the
prejudice that the employer’s operations may suffer as a
result of the fact that the employer may have to
reinstate workers
after a long time since the dismissal. It
also
relates to the fact that, if, ultimately, the employer has to
reinstate the workers, it would be contractually liable for
the
remuneration that the workers would have earned had the employer
complied with the reinstatement order and not pursued appeals.’
[20]
(2015)
36 ILJ 2013 (LAC) at paragraphs 16, 22, 24 and 30
[21]
Reference
was also made to
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at para 15, where it was held that;
“…
For
the purposes of the Act, the term ‘
debt due’
means a debt, including a delictual debt, which is owing and
payable. A debt is due in this sense when the creditor acquires
a
complete cause of action for the recovery of the debt, that is, when
the entire set of facts which the creditor must prove
in order to
succeed with his or her claim against the debtor is in place or, in
other words, when everything has happened which
would entitle the
creditor to institute action and to pursue his or her claim”
[22]
In reference to
HMBMP
Properties (Pty) Ltd v King
1981 (1) SA 906
(n) at 912G-I
[23]
[2016] ZACC 49
; (2017) 38 ILJ 527 (CC);
[2017] 3 BLLR 213
(CC);
2017
(4) BCLR 473
(CC);
2018 (1) SA 38
(CC) at para 67.