Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others (CCT232/15) [2016] ZACC 49; (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC); 2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) (15 December 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2016
>>
[2016] ZACC 49
|

|

Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others (CCT232/15) [2016] ZACC 49; (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC); 2017 (4) BCLR 473 (CC); 2018 (1) SA 38 (CC) (15 December 2016)

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 232/15
In the matter
between:
SIZWE
MYATHAZA
Applicant
and
JOHANNESBURG
METROPOLITAN BUS
SERVICES (SOC)
LTD t/a METROBUS
First Respondent
MINISTER OF
JUSTICE AND CORRECTIONAL
SERVICES
Second Respondent
CELLUCITY (PTY)
LTD
Third Respondent
CONGRESS OF SOUTH
AFRICAN TRADE UNIONS
Fourth Respondent
Neutral citation:
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited
t/a Metrobus and Others
[2016] ZACC 49
Coram:
Nkabinde ADCJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ,
Mhlantla J and Zondo J
Judgments:
JAFTA J (first judgment): [1] to [65]
FRONEMAN J (second
judgment): [66] to [98]
ZONDO J (third
judgment): [99] to [146]
Heard on:
1
September 2016
Decided on:
15 December 2016
Summary:
Prescription Act, 1969
—
Labour Relations Act, 1995
—
dismissal dispute — arbitration award —
section 158(1)(c)
application — prescription of arbitration award
Prescription of debt
— meaning of “debt” — is an arbitration award
a “debt” in terms of the
Prescription Act —
applicability
of the
Prescription Act to
the LRA dispute resolution
system
ORDER
On appeal from the
Labour Appeal Court (hearing an appeal from the Labour Court):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Labour Court and the Labour Appeal Court are set
aside and that of the Labour Court is replaced with the following:
“
The
arbitration award issued on 17 September 2009 in favour of Mr Sizwe
Myathaza is made an order of the Labour Court.”
4. Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus is
ordered to pay costs in the Labour Court, Labour Appeal Court
and
this Court, including costs of two counsel where applicable.
JUDGMENT
Although three
judgments were prepared here, all of them support the same order but
for different reasons.  That order appears
at the end of the
first judgment.
JAFTA J (Nkabinde ADCJ, Khampepe J and Zondo J concurring):
Introduction
[1]
This
matter concerns the question whether an arbitration award issued in
terms of the
Labour Relations Act
[1]
(LRA) in favour of the applicant has prescribed in terms of the
Prescription Act
[2
]
on the expiry of three years from the date on which the award was
issued.  The resolution of the dispute requires us first
and
foremost to consider whether the
Prescription Act applies
to matters
governed by the LRA.  If it does, the next question would be
whether the current award constitutes a debt envisaged
in
section 10
of the
Prescription Act.  If
the award is a debt contemplated in
the
Prescription Act, then
the final question would be whether in
present circumstances that debt has prescribed.
Facts and
litigation history
[2]
The facts are simple and not contested.  Mr Sizwe
Myathaza (applicant) was employed as a bus driver by the Johannesburg
Metropolitan
Bus Service (SOC) Limited t/a Metrobus (Metrobus) for a
period of seven years.  In September 2007 he was suspended
together
with other bus drivers for receiving money without issuing
tickets to commuters.  In April 2008 Metrobus reached an
agreement
with two unions that represented the suspended employees.
Metrobus agreed not to take further disciplinary action against
the
affected employees if they pleaded guilty to the charge of irregular
ticketing and accepted a final written warning as a sanction.
[3]
Maintaining his innocence, the applicant declined to plead
guilty and insisted on facing a disciplinary inquiry.  He did
not
return to work and Metrobus charged him with absenting himself
from work without permission.  A telegram was sent to his
address,
informing him about the disciplinary action.  Without
confirming that he had received notice, Metrobus went ahead with the

enquiry in his absence.  At its conclusion, he was found guilty
of being absent from work without permission.  He was
dismissed
for that misconduct.  An internal appeal by his union was
rejected on the ground that it was lodged out of time.
[4]
Unhappy with the turn of events, the applicant submitted a
dispute of an unfair dismissal to the relevant bargaining council
which
appointed an arbitrator to arbitrate it since conciliation had
failed.  The arbitration was held in September 2009.
Metrobus conceded at the commencement of the arbitration proceedings
that the applicant’s dismissal was procedurally unfair.

What remained for determination by the arbitrator was whether the
dismissal was also substantively unfair.
[5]
Having heard evidence from both sides, the arbitrator issued
an award in these terms:
“
(a) The applicant’s
dismissal was both substantively and procedurally unfair;
(b) The respondent City of
Johannesburg (Metrobus) is ordered to reinstate the applicant, Sizwe
Myathaza, with retrospective effect
from his date of dismissal, 9
July 2008 on the same terms and conditions that were applicable but
for the unfair dismissal and
without any loss of benefits that would
have accrued to him;
(c) The applicant is ordered to
submit valid proof of his remuneration to calculate the back pay
payable to him in terms of the
award, within 5 days of receipt of
this award;
(d) The applicant is ordered to
report to work within 5 days of receipt of this award; and
(e) No order as to costs is made
as the parties genuinely attempted to settle the matter on their
own.”
[6]
It appears that the applicant discharged his obligations under
the award because the arbitrator issued a supplementary award in
terms of which his back pay was quantified and set at the amount of
R90 747 excluding tax.  Metrobus was directed to pay
him
within 14 days from the date of receipt of the supplementary award.
[7]
But Metrobus failed to pay the amount fixed by the
arbitrator.  When the applicant reported for duty within five
days as required
by the award, Metrobus sent him home telling him
that it had decided to challenge the award in review proceedings.
Metrobus
instituted its review application on 21 October 2009.
The applicant opposed the review and eventually pleadings in the
matter
were closed.  It was ripened for hearing but no date was
sought and fixed for the hearing.  As a result the review is

still pending in the Labour Court, seven years later.
[8]
Out of desperation and frustration arising from Metrobus’s
inaction, the applicant approached the Labour Court in August 2013

with the request that the award be made an order of court.
Metrobus opposed his request, advancing two grounds.  First,
it
was asserted that the award could not be made an order of court
whilst the review application was still pending.  Second,

Metrobus argued that the award had prescribed on the expiry of three
years under the
Prescription Act, on
16 September 2012.
In response the applicant submitted that the award did not constitute
a debt envisaged in the
Prescription Act and
consequently it did not
prescribe.
[9]
The Labour Court held that the present award for reinstatement
constituted a “debt” for purposes of prescription and

that it prescribed on the expiry of three years from the date of
publication.  The fact that an arbitration award issued in
terms
of the LRA amounted to administrative action, the Court concluded,
did not preclude the application of the
Prescription Act.
[3
]
[10]
The applicant appealed to the Labour Appeal Court.
His appeal was considered together with two other similar matters
involving orders by two other Judges of the Labour Court.  In
two of the three matters, the Labour Court had held that arbitration

awards prescribed after three years and in one matter the Labour
Court had held that the
Prescription Act was
not applicable to awards
made in terms of the LRA.
[11]
In defining the issues it was called upon to determine the
Labour Appeal Court listed the following:
(a) Whether the
Prescription Act applies
to arbitration awards made
in terms of the LRA;
(b) What the relevant period of prescription was;
(c) Whether the institution of an application to review an award
interrupts the running of prescription; and
(d) Whether a review application constitutes an impediment to the
completion of prescription as contemplated in
section 13
of the
Prescription Act.
[12
]
The Labour Appeal Court proceeded to review its decisions and
those of the Labour Court which applied the
Prescription Act to
claims that arose from the LRA.  Rightly that Court commenced
the enquiry by considering whether the
Prescription Act should
be
applied to claims arising from the LRA.  The point at which it
started its analysis was whether the
Prescription Act was
inconsistent with the LRA.  For the
Prescription Act itself
excludes its operation in the event of inconsistency with provisions
of another Act of Parliament.
[4]
[13]
But as this judgment shows, while the Labour Appeal Court
began at the correct point, it erred by holding that the
applicability
of the
Prescription Act depended
on whether an
arbitration award such as the present is a debt contemplated in
section 10
of the
Prescription Act.
[5
]
Proceeding from this premise the Labour Appeal Court placed heavy
reliance on
Desai
[6]
which construed the word “debt” to include any obligation
to do something or refrain from doing something.
[14]
Based on this construction the Labour Appeal Court held:
“
Treating a compensation
award differently from a reinstatement award appears to be erroneous
in light of the wide general meaning
to be given to the term ‘debt’.
Both those kinds of award impose obligations on the person or
entity against
whom the award is made.  That person or entity
has an obligation to pay compensation and/or to reinstate as stated
in the
award.  The award creates a ‘debt’ for that
person and/or entity.
In my view any arbitration award
that creates an obligation
to pay or render to another, or to do
something, or to refrain from doing something,
does meet the
definitional criteria of a ‘debt’ as contemplated in the
Prescription Act.
Generally
, arbitration awards
pertaining to unfair dismissals, in which compensation and/or
reinstatement, with or without back pay are awarded,
shall constitute
‘debts’ as contemplated in the
Prescription Act.”
[7
]
[15]
Having concluded that an arbitration award made in terms of
the LRA is a debt envisaged in the
Prescription Act, the
Labour
Appeal Court considered whether the LRA prescribed time limits within
which an award must be enforced.  In that process
the Court got
entangled in the debate on whether an award is a “judgment
debt” to which a 30-year prescription period
applied or a
simple debt in relation to which the prescription period was three
years.  With reference to various provisions
of the LRA, the
Court concluded that an award is not a judgment debt but a simple
debt that prescribes on the expiry of three years.
[8]
[16]
Relying on
section 15
of the
Prescription Act,
[9
]
the Labour Appeal Court concluded that the institution of a review
application does not interrupt the running of prescription because
a
review application is not a “process whereby the creditor
claims payment of the debt”.  Accordingly, the Court
held
that the award issued in favour of the applicant in September 2009
had prescribed and dismissed the appeal.
Leave to appeal
[17]
It cannot be gainsaid that this matter raises a constitutional
issue.  It concerns the applicant’s right to enforce an

arbitration award issued in his favour in terms of the LRA.  It
is now settled that the interpretation and application of
legislation
like the LRA, which was enacted to give effect to rights entrenched
in the Bill of Rights, constitutes a constitutional
issue.  This
case is about whether the application of the LRA to enforce the award
is excluded by the intervention of the
Prescription Act.
[18
]
Moreover, it is beyond controversy that the application of the
Prescription Act alone
constitutes a constitutional issue.  As
this Court observed in
Mdeyide
:
“
The
Prescription Act
deals
with prescription in general.  In terms of
section 10
a
debt is extinguished by prescription after the lapse of the period
which applies in respect of the prescription of the debt.
A
claim is thus after a certain period of time no longer actionable and
justiciable.  It is a deadline which, if not
met, could deny a
plaintiff access to a court in respect of the specific claim.”
[10]
[19]
There are good prospects of success on the merits and, as a
result, it is in the interests of justice to grant leave.  This

is borne out by the divergent views held by the Labour Courts on
whether the
Prescription Act applies
.  In addition, the decision
of this Court on the issue would benefit employers and employees who
may have awards issued in
terms of the LRA.  They need to know
whether, for example, an award converted into a court order is
enforceable for as long
as 30 years has not lapsed as contemplated in
the
Prescription Act or
whether other awards are enforceable up to
three years.  Workers and their employers also need to know when
prescription starts
running against an award and whether the
institution of a review application or an application to convert the
award into a court
order interrupts prescription.  These issues
are of fundamental importance to the entire labour market.
[20]
But before considering them, I need to mention that Cellucity
(Pty) Limited and the Congress of South African Trade Unions were
permitted to join and participate in the proceedings as third and
fourth respondents, respectively.
Issues
[21]
As mentioned, the core issue is whether the award that was
issued in favour of the applicant in terms of the LRA has prescribed
under the
Prescription Act.  The
antecedent question is whether
the
Prescription Act applies
to such award.  Two subsidiary
issues arise from the latter question.  They are whether the
award constitutes a debt
envisaged in
section 10
of the
Prescription
Act and
whether the running of prescription was interrupted.
Applicability of
the
Prescription Act
[22]
Since the
Prescription Act limits
rights in the Bill of
Rights, when interpreting it we are obliged by section 39(2) of the
Constitution “to promote the spirit,
purport and objects of the
Bill of Rights.”
[11]
In
Makate
this Court affirmed this principle thus:
“
Since the coming into
force of the Constitution in February 1997, every court that
interprets legislation is bound to read a legislative
provision
through the prism of the Constitution.  In
Fraser
, Van
der Westhuizen J explained the role of section 39(2) in these terms:
‘
When
interpreting legislation, a court must promote the spirit, purport
and objects of the Bill of Rights in terms of section 39(2)
of the
Constitution. This Court has made clear that section 39(2) fashions a
mandatory constitutional canon of statutory interpretation.’
It is apparent from
Fraser
that section 39(2) introduced to our law a new rule in terms of which
statutes must be construed.  It also appears from the
same
statement that this new aid of interpretation is mandatory.  This
means that courts must at all times bear in mind the
provisions of
section 39(2) when interpreting legislation.  If the provision
under construction implicates or affects rights
in the Bill of
Rights, then the obligation in section 39(2) is activated.  The
court is duty-bound to promote the purport,
spirit and objects of the
Bill of Rights in the process of interpreting the provision in
question.
The objects of the Bill of
Rights are promoted by, where the provision is capable of more than
one meaning, adopting a meaning that
does not limit a right in the
Bill of Rights.  If the provision is not only capable of a
construction that avoids limiting
rights in the Bill of Rights but
also bears a meaning that promotes those rights, the court is obliged
to prefer the latter meaning.
For, as this Court observed in
Fraser
:
‘
Section
39(2) requires more from a court than to avoid an interpretation that
conflicts with the Bill of Rights.  It demands
the promotion of
the spirit, purport and objects of the Bill of Rights.’
It cannot be disputed that
section 10(1) read with
sections 11
and
12
of the
Prescription Act
limits
the rights guaranteed by section 34 of the Constitution.
Therefore, in construing those provisions, the High Court was
obliged
to follow section 39(2), irrespective of whether the parties
had asked for it or not.  This is so because the operation of

section 39(2) does not depend on the wishes of litigants.  The
Constitution in plain terms mandates courts to invoke the section

when discharging their judicial function of interpreting legislation.
That duty is triggered as soon as the provision under

interpretation affects the rights in the Bill of Rights.”
[12]
[23]
Section 34 of the Constitution does not only guarantee access
to courts.
[13]
But also safeguards the right to have a dispute resolved by the
application of law in a fair hearing before an independent
and
impartial tribunal or forum.  There can be no doubt that the
Commission for Conciliation, Mediation and Arbitration (CCMA)
and
bargaining councils established in terms of the LRA constitute
independent and impartial forums contemplated in section 34
of the
Constitution.  Notably, these forums, just like courts, perform
the function of resolving labour disputes in arbitration
by applying
the law.
[24]
An award issued at the conclusion of an arbitration represents
the resolution of the dispute.  It defines the parties’

rights and obligations in the same way a court order would.  It
is issued after affording parties on both sides the opportunity
to
lead evidence and present argument just like in a court hearing.
As a result section 143 of the LRA proclaims that such
award “is
final and binding and it may be enforced as if it were an order of
the Labour Court in respect of which a writ
has been issued”.
[14]
[25]
This means that, once the award is certified by the relevant
functionary, it may be enforced without the need to obtain a writ.

However, an arbitration award in terms of which a party is required
to pay an amount of money is treated as an order of the Magistrate’s

Court for purposes of enforcing or executing it.
[26]
The other route through which an award may be enforced is
having it made an order of the Labour Court in terms of section
158(1)(c)
of the LRA.  Once the award is made a court order,
then it becomes enforceable as a court order.
[27]
Significantly, this outline demonstrates that the LRA creates
special dispute resolving forums that operate separately from the
courts except where an award is reviewed or converted into a court
order.  Even so, the review or conversion takes place in
a
specialist court established in terms of the LRA.
[28]
All of this could never have been contemplated when the
Prescription Act was
enacted in 1969.  The differences between
it and the LRA are vast and run deep.  The two Acts differ in
the objectives
each one of them seeks to achieve and the manner in
which each operates.  The purpose of the
Prescription Act is
to
prompt creditors to institute legal proceedings without inordinate
delays which may adversely affect the quality of adjudication
if
witnesses are no longer available or their memories have faded.
Unquestionably the focus here is on having a claim settled
without
undue delay.  It is a legitimate government purpose.
[29]
In
Uitenhage Municipality
Mahomed CJ said:
“
One of the main purposes
of the
Prescription Act is
to protect a debtor from old claims
against which it cannot effectively defend itself because of loss of
records or witnesses caused
by the lapse of time.  If creditors
are allowed by their deliberate or negligent acts to delay the
pursuit of their claims
without incurring the consequences of
prescription that purpose would be subverted.”
[15]
[30]
That the protection of debtors and the preservation of quality
and reliable evidence is the objective of the
Prescription Act was
reaffirmed in
Mdeyide
, where Van der Westhuizen J
stated:
“
This Court has repeatedly
emphasised the vital role time limits play in bringing certainty and
stability to social and legal affairs
and maintaining the quality of
adjudication.  Without prescription periods, legal disputes
would have the potential to be
drawn out for indefinite periods of
time bringing about prolonged uncertainty to the parties to the
dispute.  The quality
of adjudication by courts is likely to
suffer as time passes, because evidence may have become lost,
witnesses may no longer be
available to testify, or their
recollection of events may have faded.  The quality of
adjudication is central to the rule
of law.  For the law to be
respected, decisions of courts must be given as soon as possible
after the events giving rise to
disputes and must follow from sound
reasoning, based on the best available evidence.”
[16]
[31]
It is apparent from the various prescription periods in
section 11
of the
Prescription Act that
, where there is no risk of
losing evidence or having its quality diminished, the Act affords
longer prescription periods.
For example, a debt secured by a
mortgage bond prescribes after 30 years and a debt arising from a
bill of exchange or negotiable
instrument prescribes after six
years.  In respect of the former, a creditor may beat
prescription by instituting an action
on the last day of 30 years.
In contrast, it is unjustifiable that a party to a labour dispute
governed by the LRA may wait
that long before seeking to enforce its
rights.
[32]
All prescription periods fixed by
section 11
of the
Prescription Act are
at odds with the scheme of the LRA.  Even
the shortest period of three years is way out of line with the speed
and periods
within which the LRA requires disputes to be resolved.
The period of three years is far too long to have an award enforced.

Without condonation granted on good cause, a party who sits on an
award until the last day of three years allowed by the
Prescription
Act, would
be barred under the LRA from enforcing the award on the
basis that such party did not act within a reasonable time.
[33]
Employment disputes by their very nature are urgent matters
that require speedy resolution so that the employer’s business

may continue to operate and the employees may earn a living.
Undue delays, even of a period of three years, may have catastrophic

consequences to the employer’s business and the employee whose
only source of income is remuneration received from the employer.

Such employees can hardly survive for three years without a salary.
[34]
In
Equity Aviation
this Court lamented delays in
resolving labour disputes despite the speedy framework provided by
the LRA.  Nkabinde J expressed
the Court’s disapproval in
these words:
“
I should add in this
regard that it is a matter of great concern that the system of
expedited adjudication of unfair dismissal disputes
which the LRA
sought to establish often operates far from expeditiously.  The
case at hand is a good example of how labour
disputes are taking far
too long to reach finality.  The adverse effects of these delays
impose burdens both on employers
and on workers, as this case again
illustrates.”
[17]
[35]
In similar vein the Supreme Court of Appeal in
Shoprite
Checkers
declared:
“
The entire scheme of the
LRA and its motivating philosophy are directed at cheap and easy
access to dispute resolution procedures
and courts.  Speed of
result was its clear intention.  Labour matters invariably have
serious implications for both employers
and employees.  Dismissals
affect the very survival of workers.  It is untenable that
employees, whatever the rights
or wrongs of their conduct, be put
through the rigours, hardships and uncertainties that accompany
delays of the kind here encountered.
It is equally unfair that
employers bear the brunt of systemic failure.”
[18]
[36]
All of this underscores the differences between the LRA and
the
Prescription Act.  It
is in this context that the
interpretation of
section 16
of the
Prescription Act must
be
approached.
Meaning of
section 16
[37]
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 inconsistent
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.
(2) The provisions of any law—
(a)
which immediately before the commencement of this Act applied to the
prescription of a debt which arose before such commencement.”
[38]
What plainly emerges from this text is that the section
recognises the fact that there were other pieces of legislation which
regulated
prescription and were in force before the Act came into
force.  Section 16(2) safeguards the continued application of
the
legislation concerned in certain defined circumstances.  But
what is important for present purposes is section 16(1) which

delineates the reach of the prescription regime established by the
Act.  Significantly, it states that the whole Chapter III
shall
not apply to matters regulated by an Act of Parliament that is
inconsistent with it and which prescribes a period within
which to
claim or institute an action in respect of a debt.  Crucial to
the operation of this exclusion is the meaning of
“inconsistent”.
[39]
Bearing in mind the judicial obligation in section 39(2) of
the Constitution, we must ascribe to this word a meaning that avoids

limiting the right of access to dispute resolution forums established
by the LRA to give effect to the guarantees in section 23
of the
Constitution.  But if “inconsistent” is reasonably
capable of an interpretation which over and above that
promotes those
guarantees, we are duty bound to choose the latter construction.
In the context of the Constitution, inconsistency
is given a wider
meaning which goes beyond contradiction or conflict.
Legislation or conduct is taken to be inconsistent
with a provision
in the Constitution if it differs with a constitutional provision.
Sometimes this arises from the overbroad
language of a statute.
[40]
In conformity with this approach this Court in
Mdeyide
held
that the differences between the
Prescription Act and
the Road
Accident Fund Act
[19]
established the inconsistency that excluded the application of the
Prescription Act to
claims under the Road Accident Fund Act.
This Court stated:
“
There is therefore a
clear reason for the difference between the
Prescription Act and
the
RAF Act.  The
Prescription Act regulates
the prescription of
claims in general and the RAF Act is tailored for the specific area
it deals with, namely claims for compensation
against the Fund for
those injured in road accidents.  The legislature enacted the
RAF Act – and included provisions
dealing with prescription in
it – for the very reason that the
Prescription Act was
not
regarded as appropriate for this area.  Looking for consistency
in this context, is a quest bound to fail.”
[20]
[41]
Elaborating on the differences between the two Acts, the Court
continued:
“
To argue that the
Prescription Act and
the RAF Act are not inconsistent, because the
RAF Act says nothing about the issue of knowledge, and that knowledge
of the identity
of the debtor could thus be read into the RAF Act,
would amount to circular reasoning.  The argument would ignore
the essential
difference between the two Acts. Practically the
meaning of the two different provisions would be the same. Section
23(1) of the
RAF Act would be rendered meaningless.  This is not
logically tenable.
Furthermore, while section 12(3)
stipulates prescription to begin to run as soon as the debt is due,
in other words in terms of
a claimable debt, section 23(1) states
that prescription is to start running as soon as the cause of action
has arisen, which generally
refers to the date of the accident.  The
very fact that sections 12(3) and 23(1) define the point at which
prescription begins
to run in different terms gives rise to an
inconsistency.
The
Prescription Act and
RAF Act
are thus inconsistent.
Section 12(3)
of the
Prescription Act cannot
apply to claims under the RAF Act. The finding of the High Court
in this regard was correct.”
[
21]
[42]
According to
Mdeyide
section 16(1)
of the
Prescription
Act does
not contemplate that there should be conflict of the nature
that renders the two Acts mutually exclusive.  It is enough if

there are material differences between them.  The meaning of
inconsistency adopted in
Mdeyide
imposes less restriction on
the guarantee to have access to cheaper and expeditious dispute
resolution forums established specifically
for settling labour
disputes in a manner that promotes the objects of the Bill of
Rights.  If a word or provision under interpretation
carries
only a construction that intrudes on constitutional rights, it must
be interpreted in a manner least intrusive of the rights

concerned.
[22]
Is the LRA
inconsistent with the
Prescription Act?
[43
]
As illustrated above, there are fundamental differences
between the two Acts.  The
Prescription Act envisages
civil
courts as the only forums at which claims or debts may be enforced.
In contrast, in terms of the LRA the CCMA and bargaining
councils are
forums that must resolve labour disputes and do so far more
expeditiously than the time taken in courts.  Secondly,
the
Prescription Act bars
creditors who fail to enforce their debts by
instituting legal actions within specified periods which are far
longer than the periods
prescribed by the LRA at pre-arbitration
stage.  Thirdly, an arbitration award constitutes an outcome in
terms of which a
claim or dispute is finally settled between the
parties.  On the other hand, apart from a judgment debt that
prescribes after
30 years, the
Prescription Act is
designed to
extinguish the right to enforce a claim that is still to be
determined by a court.
[44]
The
Prescription Act does
not cater for a situation where the
claim or dispute has been adjudicated and an outcome binding on the
parties has been reached
but before that outcome is made an order of
court.  In terms of
section 143
of the LRA, a certified
arbitration award is deemed to be an order of court and is enforced
as if it were an order of the Labour
Court, except an arbitration
award for payment of money, which is executed as if it were an order
of a Magistrate’s Court.
Since an award is a final and
binding remedy, it is difficult to determine a prescription period
applicable to it under the
Prescription Act.  The
three year
period is meant for claims or disputes which are yet to be determined
and in respect of which evidence and witnesses
may be lost if there
is a long delay.
[45]
The LRA constitutes a legal framework for resolving labour
disputes and not debt collection.  The role played by the CCMA
and
the bargaining councils in that process was aptly described in
Sidumo
in these terms:
“
Its statutory task is to
resolve disputes that arise in the workplace by implementing the
provisions of the
Labour Relations Act read
in the light of the
provisions, in particular, of section 23 of the Constitution.
Section 23(1) of the Constitution provides
that workers and
employers are entitled to fair labour practices.  The
adjudicative task performed by the CCMA involves the
determination of
disputes often involving the question of fair labour practices that
are of importance to the litigants before
the CCMA.  It is not
an institution for private, agreed arbitration but a state
institution established for the resolution
of disputes.  The
procedures provided for in the
Labour Relations Act make
plain that
the disputes are to be speedily and cheaply resolved by the CCMA.  No
appeal lies from the CCMA, but the
Labour Relations Act expressly
requires that the Labour Courts are to scrutinise the decisions of
the CCMA.”
[23]
[46]
The other difficulty in seeking to apply the
Prescription Act
to
arbitration awards relates to determining the time from which
prescription begins to run.  In terms of
section 12
of the Act,
prescription commences to run when the debt becomes due.  In
Mdeyide
it was proclaimed:
“
Section 12(1)
of the
Prescription Act stipulates
that [prescription] begins as soon as the
debt is due.  A debt is due when it is ‘immediately
claimable or recoverable’.
In practice this will often
coincide with the date upon which the debt arose, although this is
not necessarily always so.
In terms of
section 12(3)
of the
same Act, a debt is deemed to be due when a creditor has knowledge of
the identity of the debtor and of the facts from which
the debt
arose.”
[24]
[47]
It is apparent that the incidents mentioned in
section 12
do
not apply to an award because there the underlying debt becomes due
before the dispute is referred to arbitration and even before
it is
submitted to conciliation.  Prescription can also not run from
the date the award is published because
section 145
of the LRA
affords the party against whom the award is made a period of six
weeks within which to challenge the award on review.
Although
section 145(3)
of the LRA empowers the Labour Court to stay
enforcement of an award pending a review application, this does not
mean that automatically
the award is enforceable.  If this were
to be so, applicants for review would be prejudiced, in the event
that the award is
set aside.  In some instances the harm would
be irreparable.
[48]
Moreover, under the LRA the creditors may not interrupt
prescription “by service on the debtor of any process whereby
the
creditor claims payment of the debt” while review
proceedings are pending.  If the award is challenged on review
and
the respondent opposes the review, service of opposing papers
upon the applicant may not interrupt prescription because it is not
a
process by which the respondent may claim payment.  Furthermore
the creditor cannot obtain an order making the award an
order of
court so that it may be enforced.  This is because the
conversion would defeat the very purpose of the review.
Once an
award is made an order of court, it ceases to be an award and becomes
a court order which cannot competently be reviewed.
[49]
The structure of
section 15
of the
Prescription Act
underscores
the fact that the judicial interruption envisaged there
relates to claims that are still to be prosecuted to final judgment
or
where the judgment is abandoned or set aside.  This does not
accord with an arbitration award which is itself a final and binding

decision.
[50]
Furthermore, the LRA scheme reveals shorter periods for the
enforcement of awards.  A party in whose favour an award was
made
must enforce it without delay unless the party against whom the
award was issued challenges it on review.  Ordinarily such

review must be instituted within six weeks from the date on which the
award was served on the applicant for review.
Section 145(5)
requires that the review must be heard within six months from the
date it was launched.  Of course, the Labour Court
may
extend this period on good cause.
[51]
This scheme shows that even where there is a review challenge,
an award that has survived the challenge must be enforced within one

year.  If the
Prescription Act were
to apply, it would mean that
the award may not be enforced within a year.  The party in whose
favour it was issued may wait
for almost three years and only seek to
enforce it on the last day of the third year to interrupt
prescription.  If this were
to happen such party may find out
that it is no longer open to it to enforce the award under the LRA,
owing to a long delay.
This would be the position despite the
fact that the award would not have prescribed.  Consequently, it
would serve no purpose
to apply the
Prescription Act to
awards which
are not enforceable under the LRA.  This is because an
unenforceable award is as good as a prescribed one.
Both cannot
be enforced.
[52]
In addition, since an award made in terms of the LRA
constitutes administrative action,
[25]
applying the
Prescription Act to
it would defeat the primary purpose
of the LRA which is to provide expeditious finality in resolving
labour disputes.  And
this would also mean that a party who has
failed to challenge the award by means of a review may still invoke
the
Prescription Act to
avoid obligations arising from the award.
This would seriously undermine the purpose of the six-week period
within which
a review must be instituted by rendering the
unchallenged award nugatory.
[53]
But more importantly the LRA, unlike the
Prescription Act, is
not designed to regulate time limits that apply to the enforcement of
debts.  On the contrary, it was enacted to give effect
to the
rights entrenched in sections 23 and 33 of the Constitution.
The effective resolution of labour disputes is one of
the primary
objects of the LRA.  Both the CCMA and bargaining councils,
which are unquestionably organs of state, were established
with the
aim of achieving this objective speedily and cheaply.  And
therefore awards issued by these bodies resolve labour
disputes and
do not enforce debts.  Hence these awards constitute
administrative action and not claims capable of being enforced.
[54]
Affirming the last proposition in
Sidumo
O’Regan
J said:
“
It is clear that the CCMA
has been established to expedite the resolution of labour disputes in
an efficient and cost effective
manner.  Special procedures
have been created to avoid the delays and costs associated with
dispute resolution in the ordinary
courts.  In this sense, the
CCMA is properly understood as an administrative tribunal.  Our
Constitution recognises the
need for the conduct of administrative
agencies to be scrutinised, to ensure that they act lawfully,
reasonably and procedurally
fairly.  As the
Labour Relations Act
already
provides for the scrutiny on review of decisions of the CCMA
by the Labour Court, no further delay will be caused by that scrutiny

being on the basis of the constitutional standards established in
section 33.
So the need for speedy and cheap resolution of
disputes does not mean that the CCMA should not be held accountable
for its
decisions, nor that it should not be monitored by the Labour
Court to ensure that it acts lawfully, reasonably and procedurally

fairly.  Indeed, as Sachs J has reasoned, it is entirely
consistent with our constitutional order that the procedures and

decisions of the CCMA should be lawful, reasonable and procedurally
fair and that this should be ensured by appropriate scrutiny
by the
Labour Courts.”
[26]
[55]
Lastly, a debt contemplated in the
Prescription Act cannot
be
reviewed or appealed against, except if it is a judgment debt.
Again, apart from a judgment debt, debts that prescribe
under the
Prescription Act do
not earn interest unless it is by agreement
between parties to a contract.  But an arbitration award earns
interest from the
date it is made according to
section 143(2)
of the
LRA.  It can be reviewed in terms of
section 145
and may be
appealed against in terms of
section 24(7)
of the LRA.
[56]
All these differences support the proposition that the LRA is
not consonant with the
Prescription Act.  But
the inconsistency
does not flow from the fact that the LRA and the
Prescription Act
prescribe
different time periods only.  It also arises from the
fact that
section 158
of the LRA empowers the Labour Court to make an
award an order of court for purposes of enforcement.  The
application of the
Prescription Act to
such awards effectively
achieves the opposite outcome.  Once prescribed, an award
becomes unenforceable and the Labour Court
may not exercise its power
to make the award an order of court.  In these circumstances the
Prescription Act defeats
the LRA process that was specifically
designed to enforce the right to fair labour practices.
[57]
Section 210
of the LRA resolves this conflict by declaring
that the LRA takes precedence over legislation with which it is in
conflict.
[27]
The reason for this is not hard to find.  The LRA, as its long
title declares, was passed to give effect to section 23
of the
Constitution.
[28]
It was enacted to promote and regulate the exercise of the rights
entrenched in the Bill of Rights.  It establishes
the framework
within which the rights contained in section 23 including the right
to fair labour practices, may be enforced.
Moreover, it is
inherently implausible that old-order legislation like the
Prescription Act may
displace the LRA that was passed in compliance
with an obligation imposed by the Constitution to give effect to
fundamental rights.
Applying the
Prescription Act here
also
disables the Labour Court from exercising its jurisdictional power
under
section 158(c)
of the LRA.
[58]
The LRA establishes the CCMA and bargaining councils as some
of the mechanisms for enforcing the right to fair labour practices.

In addition, the LRA prescribes remedies which may be granted to
vindicate the right to fair labour practices.
[29]
If an arbitrator in the CCMA or bargaining council finds, as it
happened here, that a dismissal was unfair he or she must
issue an
award in terms of which reinstatement of the dismissed employee may
be ordered.  The award constitutes the means
of enforcing the
employee’s right to fair labour practices.  But the LRA
requires a further step to be taken before
the award can be
enforced.  One such step is to make it an order of court.
Once it is made an order of court, execution
can be effected and this
constitutes the last stage in the enforcement chain.  Therefore,
the
Prescription Act, which
is the apartheid era legislation, should
not be invoked to frustrate the wishes of the democratic Parliament
set out in the LRA.
[59]
But even if the
Prescription Act were
to apply, the main award
granted in favour of the applicant could not prescribe because it is
not an obligation to pay money or
deliver goods or render services by
Metrobus to the applicant.
Desai
, on which the Labour
Appeal Court relied for holding that “debt” means an
obligation to do something or refrain from
doing something, was
overruled by this Court in
Makate
.
[30]
[60]
I have had the benefit of reading judgments by my colleagues
Froneman J and Zondo J.  I agree with Zondo J that the
Prescription Act does
not apply to arbitration awards issued in terms
of the LRA and I embrace the additional reasons in his judgment
supporting this
conclusion.
[61]
What remains for consideration, albeit briefly, is the new
section 145(9)
of the LRA which came into force in January 2015.
It provides that an application to set aside an arbitration award
interrupts
the running of prescription.  This provision does not
apply to the present arbitration award which was made and challenged

on review long before it was enacted.  But it is doubtful that
the amendment supports sufficiently an indication that the
Prescription Act was
intended to apply to arbitration awards.
It seems to me that the amendment constitutes a response by
Parliament to many decisions
of the Labour Court and the Labour
Appeal Court which applied the
Prescription Act to
labour disputes
and arbitration awards.
[31]
However, we need not express a final view on the matter in present
proceedings because
section 145(9)
does not apply here.
[62]
It follows that the appeal must succeed and that the orders of
the Labour Court and the Labour Appeal Court should be set aside.

Since the review application has not been prosecuted to finality even
though the pleadings were closed a long time ago, it would
be just
and equitable to grant an order which the Labour Court should have
granted.  That order is to make the award an order
of the Labour
Court.  In terms of
section 145(5)
of the LRA, Metrobus was
obliged to apply for a date for the review to be heard within six
months of lodging the review, subject
to the rules of the
Labour Court.  Its unduly long delay in this regard
undermines the LRA’s object of speedy resolution
of disputes
and has seriously prejudiced the applicant who we were informed
during the hearing has been without income since his
unfair dismissal
in 2009.
[63]
Metrobus, as an organ of state under an obligation to
“respect, protect, promote and fulfil the rights in the Bill of
Rights”,
[32]
has conducted itself in pursuit of this matter in a manner not
befitting an exemplary employer.  It has put the applicant

through untold hardships by denying him a livelihood in circumstances
where Metrobus had conceded that the dismissal was procedurally

unfair.  It persisted to do so even after the arbitrator had
issued an award that declared the dismissal to have been both

substantively and procedurally unfair.
[64]
Were it not for the intervention of Legal Aid South Africa,
the applicant could not have afforded to bring his matter to this
Court.
Metrobus’s conduct warrants an adverse costs
order.
Order
[65]
The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Labour Court and the Labour Appeal Court are set
aside and that of the Labour Court is replaced with the following:
“
The
arbitration award issued on 17 September 2009 in favour of Mr Sizwe
Myathaza is made an order of the Labour Court.”
4. Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
is ordered to pay costs in the Labour Court, Labour Appeal
Court and
this Court, including costs of two counsel where applicable.
FRONEMAN J (Madlanga
J, Mbha AJ and Mhlantla J concurring):
Introduction
[66]
I have had the privilege of reading the judgment of Jafta J
(first judgment) and agree that leave to appeal must be granted and
that the appeal must succeed.  I also agree that the
Prescription Act
[33
]
must be re-interpreted in order to give proper constitutional effect
to, amongst others, the right of access to justice.
[34]
I disagree, however, that this necessitates a finding that its
provisions are inconsistent with the provisions of the
Labour
Relations Act (LRA
).
[35]
The relevant provisions of the two Acts are capable of complementing
each other in a way that best protects the fundamental
right of
access to justice, whilst at the same time preserving the speedy
resolution of disputes under the LRA.
[67]
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.  That is indeed the general
scheme
of the
Prescription Act and
the new dispute resolution
processes under the LRA can comfortably be accommodated within that
framework under a re-interpretation
of the
Prescription Act to
give
effect to constitutional imperatives.
[68]
The
building blocks of that re-interpretation are that:
(a) The general principle underlying the
Prescription Act is
that the
running of prescription is interrupted from the commencement of
adjudicative proceedings until their final conclusion;
(b) The Commission for Conciliation, Mediation and Arbitration (CCMA)
established under the LRA,
[36]
is an “independent and impartial forum” that can resolve
disputes before it by “the application of law”
in terms
of section 34 of the Constitution;
(c) The initiation of proceedings before the CCMA under the LRA
amounts to the commencement of adjudicative proceedings that
interrupts
prescription under the Prescription Act; and
(d) Review of an arbitration award under the LRA fulfils the same
role in the finalisation of court proceedings as an appeal does
in
cases heard by the Labour Court.
Prescription
interrupted until proceedings finalised
[69]
Prescription under the
Prescription Act is
“interrupted
by the service on the debtor of any process whereby the creditor
claims payment of the debt”.
[37]
Once the judicial process commences it proceeds in terms of the court
rules and any delays within that process do not affect
the statutory
interruption of prescription.
[38]
Interruption lapses if, for whatever reason, the judgment is not
pursued to become a “final judgment”.
[39]
The interruption lasts until the “final” judgment becomes
executable.
[40]
Pending an appeal the judgment is not usually executable in terms of
court rules.
[41]
Even if it becomes executable if special application is made, that
does not make the judgment finally executable, because
if the
judgment on appeal is unfavourable the execution cannot stand.
Hence, the judgment only becomes final and executable
when the appeal
is finally disposed of.
[42]
[70]
In
Van der Merwe v Protea
[43]
Smalberger J stated
“
The ‘process in
question’ [in
section 15(2)]
is clearly that by which
prescription was originally interrupted.  It is that process
which must be successfully prosecuted
to final judgment by the
creditor, and not any other.  The reference to ‘final
judgment’, in the context, contemplates
judgment in the court
in which the process is instituted or, if the creditor is
unsuccessful in such court, any higher tribunal
in which the creditor
is ultimately successful on appeal in relation to the ‘process
in question’.  Where a creditor
is successful in the court
in which the process in question commences legal proceedings
prescription stands interrupted unless
the judgment is abandoned or
set aside on appeal.
It seems to me that the whole
purpose of
section 15(2)
is that, if a creditor fails to prosecute
successfully his claim under the process which interrupts
prescription, either in the
court in which such process commences
legal proceedings, or on appeal to a higher tribunal, or, having been
successful in the initial
prosecution of his claim, abandons the
judgment in his favour, or it is set aside on appeal at the instance
of the debtor, the
running of prescription is deemed not to have been
interrupted.”
[44]
[71]
Where a debt is the object of a dispute subjected to
arbitration the period of prescription is delayed.
[45]
The award of an arbitrator in terms of an arbitration agreement has
the status of a court order between the parties and the
applicable
prescription period is that which is applicable to a judgment
debt.
[46]
There seems little reason why parties subjected to statutory
arbitration should not enjoy similar protection in respect of

arbitration awards in their favour.
The CCMA –
an independent and impartial judicial tribunal
[72]
Section 34 of the Constitution provides:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
[73]
It is not necessary to belabour the point that the CCMA is an
independent and impartial tribunal
[47]
that falls within the purview of section 34, nor that it resolves
disputes in accordance with the provisions of the LRA.
[48]
In this regard I agree with the first judgment.
[49]
CCMA process:
commencement of adjudicative proceedings?
[74]
In terms of
section 15(1)
of the
Prescription Act prescription
is interrupted by the service on the debtor of “any process
whereby the creditor claims payment of the debt”.  Two

questions thus arise: The first is whether the means of commencing
proceedings before the CCMA is a “process” under
the Act;
and the second is whether a claim before the CCMA is for payment of a
“debt”.
[75]
Unfair dismissal disputes must be referred to the CCMA
[50]
or bargaining councils and if conciliation fails can then be referred
to arbitration or the Labour Court.
[51]
The CCMA Rules provide for service of referrals and the further steps
when arbitration follows.
[52]
Section 15(6)
of the
Prescription Act defines
“process”
as including 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”.  In
Mountain Lodge Hotel
[53]
Georges CJ held in relation to a similar provision in Zimbabwean
legislation that:
“
The definition of
‘process’ in subsection (6) is not exclusive in its
scope.  The section merely enumerates some
documents which fall
within the ambit of the word.  It clearly contemplates that
other documents may fall within that ambit.”
Given the CCMA’s
constitutionally compliant status as an independent and impartial
tribunal resolving judicial disputes I
can see no reason why the
service of a referral under the provisions of the LRA and the CCMA
Rules should not fall within the ambit
of
section 15(1)
of the
Prescription Act.
[76
]
Is a claim for unfair dismissal under the LRA a “debt”
for the purposes of
section 15
of the
Prescription Act?  The
first judgment appears to hold that the reinstatement order is
incapable of being a “debt” under the
Prescription Act.
I
must confess that I find it difficult to follow the reasoning in
coming to that conclusion.
[77]
There has been some recent debate in this Court on the meaning
that should be given to the word “debt” in the
Prescription Act, it
being contended that a more restrictive meaning
better accords with the right of access to justice in section 34 of
the Constitution.
This is said to be necessary because a less
restrictive meaning of the word will give less room for infringement
of the right of
access to justice.
[54]
I will adopt this point of departure, namely that the meaning of
“debt” must be in closest harmony to the demands
of
section 34 of the Constitution.
[78]
Section 34 guarantees the right of access to justice for “any
dispute that can be resolved by the application of law”.

So, for a start, the meaning of “debt” under the
Prescription Act must
be restricted to a claim that can be resolved
by the application of law.  That means only a claim for the
enforcement of legal
obligations should qualify as a “debt”
under the
Prescription Act.  Legal
obligations may take
different forms.  They may entail a positive obligation to do
something or a negative obligation to refrain
from doing something.
A positive obligation may involve rendering performance of a legal
obligation in the form of payment
of money in the case of a debt
sounding in money, or performing some other act where the obligation
does not sound in money.
A negative legal obligation to refrain
from doing something will obviously also not sound in money.
All this is not new and
the different ways of enforcement of these
different kinds of legal obligations have long been recognised in our
law: execution
by writ for money debts (claims or orders
ad
pecuniam solvendam
) and enforcement by way of contempt
proceedings for claims or orders to do something or refrain from
doing something (claims or
orders
ad factum praestandum
).
[79]
An unfair dismissal claim under the LRA seeks to enforce three
possible kinds of legal obligations against an employer:
reinstatement,
re-employment and compensation.
[55]
Each one of them enjoins the employer to do something positive.
In the case of reinstatement, as was claimed and ordered
here, it
means the resuscitation of the employment agreement with all the
attendant reciprocal rights and obligations.
[56]
The employer must provide employment and pay remuneration.  Both
fall within the meaning of a “debt” under
the
Prescription Act, however
narrowly interpreted.
[57]
[80]
This approach in no way contradicts that of the majority in
Makate
.
[58]
In that case the Court did not take issue with the idea that there
may be debts beyond a claim for payment.  It accepted
that other
types of obligations may constitute debts.  What it rejected was
the “broad construction” – in
Desai
[59]
– of the word “debt”.
[60]
Plainly accepting a definition of the word in
Escom
,
[61]
Jafta J said:
“
The absence of any
explanation for so broad a construction of the word ‘debt’
[in
Desai
] is significant because it is inconsistent with
earlier decisions of the same [C]ourt that gave the word a more
circumscribed meaning.
In
Escom
the Appellate Division
said that the word ‘debt’ in the
Prescription Act should
be given the meaning ascribed to it in the
Shorter Oxford
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.’
Escom
was cited and followed in subsequent cases. It was also cited as
authority for the proposition in
Desai
NO
.  It is
unclear whether the [C]ourt in
Desai
intended to extend the meaning of the word ‘debt’ beyond
the meaning given to it in
Escom
.”
[62]
[81]
On the authority of
Escom
, which was accepted in
Makate
, obligations to reinstate, re-employ or compensate in
terms of
section 193
of the LRA are each “[a] liability . . .
to . . . render something”.
[63]
[82]
Service of process setting in motion the dispute resolution
process under CCMA auspices in terms of the LRA thus serves to
interrupt
prescription under
section 15
of the
Prescription Act.
>
Review: final
step in arbitration process
[83]
The principle that prescription should not run until court
proceedings are finalised under the
Prescription Act has
, as we have
seen, been applied in relation to finalisation of the process on
appeal.
[64]
Logically there is little reason to say that instituting review
proceedings does not also have the effect of extending the

finalisation of a judgment until the review is decided.  But
there are no statutory time limits for bringing a common law
review
and court rules do not make provision for the automatic default
position of suspending execution as they do in the case
of appeals.
The position is, however, somewhat different for the review of
arbitration awards under the LRA.
[84]
The broad general scheme of dispute resolution under the LRA
is that the process commences in the same way, namely by an initial

referral to conciliation.
[65]
If conciliation fails, however, adjudication of justiciable disputes
under the LRA takes two different routes.
[66]
The one is through arbitration by the CCMA or bargaining
councils,
[67]
the other is through adjudication by the Labour Court.  Unfair
dismissal disputes about an employee’s conduct or capacity;

continued employment made intolerable by the employer; or where the
employee does not know the reason for her dismissal, go the

arbitration route.  Those where it is alleged that the dismissal
is automatically unfair; based on the employer’s operational

requirements; the employee’s participation in an unprotected
strike; and union or closed shop membership disputes, go to
the
Labour Court.
[68]
[85]
It is important to note that this division of adjudicative
labour is not premised on a substantive distinction between the
nature
of the different disputes: all are disputes “that can be
resolved by the application of law”.  A pragmatic choice

was made that certain disputes should preferably be resolved through
the possibly speedier process of arbitration and that choice
was
fortified by not allowing appeals against arbitration awards, only
review.
[69]
In contrast, Labour Court judgments are subject to appeals to the
Labour Appeal Court and further up the judicial hierarchy.
[70]
Arbitration under the LRA is merely adjudication without a right of
appeal.  Instead of a right of appeal only a right
to review
exists.
[86]
The restriction to review only provides a cogent and
compelling reason for re-interpreting the
Prescription Act to
include
statutory reviews under
section 145
of the LRA as included in the
judicial process that interrupts prescription until finality is
reached under
section 15
of that Act.  The restriction infringes
the right of access to courts more severely than where a right of
appeal is allowed.
An interpretation that best protects the
right of access should be preferred.
[71]
That can be achieved by allowing the right of review to play the same
role of finality as the right of appeal does in ordinary
matters.
[87]
Just as there are statutory provisions and court rules
regulating the lodging and prosecution of appeals, the LRA provides
that
the review of an arbitration award must take place within six
weeks of the date of service of the award, or within six weeks of
the
date that the applicant discovers corruption where the defect
involves corruption.
[72]
This avoids the difficulty that the absence of certain time limits
may have in the case of common law review.  And,
to reiterate,
logically a judgment cannot be final and executable under
section 15
of the
Prescription Act while
it is still subject to a final
pronouncement by a court.
[88]
The institution of a review of the arbitration award by the
employer in this case was thus part of the process that interrupted
prescription in terms of
section 15(1)
of the
Prescription Act.
Until
the review was finally determined prescription did not run.
The new
section 145(9)
of the LRA, which came into force in January
2015, merely confirms what I consider to have been the legal position
before its enactment.
It provides that an application to set
aside an arbitration award interrupts the running of prescription.
[89]
There are also alternative ways to achieve the same result.
The applicant’s opposition to the review proceedings could
be
seen as interrupting
prescription anew, because
a defence to a claim may also be regarded as “commencing
process for payment of a debt” under
section 15(1).
[73]
And the arbitration award could, as in private arbitration, be
regarded between the parties as having the status of a judgment

debt.
[74]
[90]
Whichever way, until the review is finalised the applicant’s
claim cannot prescribe.
Other
considerations
[91]
Although the fundamental differences between the approach in
this judgment and that in the first judgment should be apparent from

what has been stated, it is necessary, briefly, to allude to other
aspects of difference.
[92]
In
Mdeyide
this Court stated:
“
This Court has repeatedly
emphasised the vital role time limits play in bringing certainty and
stability to social and legal affairs
and maintaining the quality of
adjudication.  Without prescription periods, legal disputes
would have the potential to be
drawn out for indefinite periods of
time bringing about prolonged uncertainty to the parties to the
dispute.”
[75]
[93]
The first judgment finds material inconsistency between the
shorter time periods that the LRA provides, in contrast to those of
the
Prescription Act.
[76
]
Unfair dismissal referrals must be done within 30 days of the date of
dismissal.
[77]
On the face of it these shorter time periods under the LRA thus
present a more drastic infringement of the right to access
to justice
than the provisions of the
Prescription Act.  It
seems to me
that an interpretive approach that seeks to give best effect to
recognition to the right of access to justice would
then lean in
favour of the provisions of the
Prescription Act, rather
than the
other way around.  But fortunately this stark choice can be
avoided.
[94]
Our law distinguishes between time-bars and true prescription
periods.
[78]
The former may admit of amelioration through condonation, the latter
not.
[79]
It is conceptually quite feasible to have time-bar limits operating
in tandem with the provisions of the
Prescription Act.  The
Institution of Legal Proceedings Against Certain Organs of State
Act
[80]
is an example.  It enjoins a person who wishes to sue the State
to give six months’ notice from the date on which the
debt
becomes due, with provision for condonation of the late giving of the
notice.
[81]
This notice period does not replace the extinctive prescription
periods under the
Prescription Act.
[82
]
There is no reason why the specific periods for the institution of,
for example, unfair dismissal proceedings cannot co-exist
in the same
manner with the provisions of the
Prescription Act.
[83]
[95]
Unlike the provisions of the Road Accident Fund Act
[84]
(RAF Act) that were at issue in
Mdeyide
, the LRA contains no
specific prescription periods comparable to those of the
Prescription
Act.
[85
]
Section 23(1) of the RAF Act is stated to apply
“[n]otwithstanding anything to the contrary in any law”.
Section
23(2) of the RAF Act provides protection for
minors, persons detained on the grounds of their mental health and
persons under
curatorship.
[86]
Once again the LRA contains none of these provisions.
[96]
Ordinary statutory interpretation thus also points to the
conclusion that the 30 day period for the referral of unfair
dismissal
disputes in the LRA is a time-bar clause that exists in
conjunction with the normal prescription periods under the
Prescription Act.  There
is no express indication that
these time-bar limits are intended as prescription periods to replace
those of the
Prescription Act.  To
replace the general time
within which rights must be further enforced under the LRA as merely
subject to reasonable limits undermines
the certainty and speedy
resolution of disputes.  The same applies to the lack of
provisions in the LRA allowing for the delay
of completion of
prescription,
[87]
interruption of prescription by acknowledgement of liability,
[88]
and the judicial interruption of prescription.
[89]
There is no need for the wheel to be reinvented under the LRA to deal
with these kinds of situations.
[97]
After the completion of this judgment I also had the
opportunity of reading the judgment prepared by Zondo J.  Our
differences
in approach need no further clarification, except that I
disagree that interpretation of legislation in attempted conformity
with
the Constitution under section 39(2) of the Constitution
infringes upon the separation of powers.  Re-interpretation in
conformity
with the Constitution is demanded by the Constitution
itself.  We may disagree on the reasonableness of each other’s

interpretation, but the difference does not necessarily
translate into infringement of separation of powers.
Conclusion
[98]
For these reasons I agree with the order proposed in the first
judgment.
ZONDO J:
Introduction
[99]
The first issue for determination in this matter is whether
the
Prescription Act
[90
]
applies to the dispute resolution system concerning dismissals under
the
Labour Relations Act
[91]
(LRA).  If the answer is that it does not apply, that is the end
of the matter and the appeal must succeed.  If the answer
is
that it does apply, the next question will be whether an arbitration
award issued under the LRA in regard to a dismissal dispute
and
requiring the employer to reinstate a dismissed employee is a “debt”
as contemplated in
section 11(d)
of the
Prescription Act.  If
it
is not, that is the end of the matter and the appeal must succeed.
If the answer is that it is, then the next question
will be whether
that debt had prescribed by the time the applicant instituted an
application in the Labour Court to have the arbitration
award made an
order of that court in terms of
section 158(1)(c)
of the LRA.
If it had prescribed, the appeal falls to be dismissed.  If it
had not prescribed, the appeal stands to
succeed.
Background
[100]
After the applicant had obtained an arbitration award in his
favour in a dismissal dispute between himself and the first
respondent
in terms of which the first respondent was ordered to
reinstate him with retrospective effect from the date of his
dismissal, he
reported for duty.  The first respondent turned
him away and told him that it intended bringing an application for
the review
and setting aside of the arbitration award.  He had
been dismissed on 9 July 2008.  The arbitration award was issued
on 17 September 2009.  The first respondent instituted the
review proceedings on 21 October 2009.
[101]
The review application remained pending before the Labour
Court without the first respondent setting it down for hearing for
over
three years.  Then, the applicant instituted an application
in the Labour Court in terms of
section 158(1)(c)
of the LRA for an
order making the arbitration award an order of  that Court.
[92]
Although the LRA provides that such an arbitration award is
binding,
[93]
it cannot be enforced until it has been made an order of the Labour
Court in terms of
section 158(1)(c).
Once it has been made an
order of the Labour Court, in law it ceases to be an arbitration
award and becomes an order of the
Labour Court and may then be
enforced as an order of that Court.
[102]
When the applicant instituted his application to have the
arbitration award made an order of the Labour Court, a period of
three
years had lapsed from the date on which the arbitration award
was issued.  The first respondent took two points against the
section 158(1)(c)
application.  The first was that the
arbitration award could not be made an order of court because the
review application
was still pending.  The second was that the
arbitration award was a “debt” as contemplated in Chapter
III of the
Prescription Act.  Under
Chapter III of that Act
certain debts prescribe upon the expiry of three years from the date
on which they became due unless the
running of prescription is
interrupted in the manner contemplated in the
Prescription Act.
The
first respondent contended that the arbitration award was one of
those debts.  It argued that, as three years had lapsed since

the arbitration award had been issued, the arbitration award, as a
debt under the
Prescription Act, had
prescribed.  In other
words, the first respondent’s second defence to the
section
158(1)(c)
application was that the arbitration award could not or
should not be made an order of court because the first respondent did
not
owe the applicant that debt anymore.
[103]
The Labour Court upheld the first respondent’s second
defence.  The Labour Appeal Court did the same in a subsequent
appeal.  The question that has arisen for determination by this
Court is whether these two courts were right in this conclusion.
[104]
I have had the opportunity of reading the judgment by my
Colleague, Jafta J (first judgment) and the judgment by my Colleague,
Froneman
J (second judgment).  I concur in the first judgment.
However, I write separately to add to the reasons why the Labour

Appeal Court and Labour Court erred in their conclusions.  Some
of the reasons I propose to add may go to show that the
Prescription
Act is
not applicable or that, even assuming that the
Prescription
Act is
applicable to matters dealt with under the LRA, the provisions
of the
Prescription Act relied
upon for the conclusion that the
arbitration award had prescribed had no application to the
arbitration award.  Indeed, I
also write to deal with the
question whether an arbitration award such as the one involved in
this case is a “debt”
under the
Prescription Act.
[105
]
The point of departure for the prescription point that was
raised by the first respondent against the applicant and upheld by
the
Labour Court and Labour Appeal Court is that the arbitration
award issued in favour of the applicant was a debt as contemplated
in
Chapter III of the
Prescription Act.  The
second point was that
the period of prescription applicable to the arbitration award as a
debt was three years from the date when
the arbitration award was
issued.  The first question that, therefore, arises is whether
the arbitration award was a debt
as contemplated in Chapter III.
Does the
Prescription Act apply
to the LRA dispute resolution system?
[106]
In the context of this case, the first issue that requires
consideration in regard to whether the
Prescription Act applies
to
the dispute resolution system concerning dismissal disputes under the
LRA (LRA dispute resolution system) is the question whether
an
arbitration award issued under the LRA in the context of a dismissal
dispute is a debt as contemplated in the
Prescription Act.
[107
]
The word “debt” is not defined in the
Prescription
Act.  However
, there have been a number of judicial
pronouncements on the meaning of this word.  The first judgment
deals with this aspect
of the matter from a certain perspective.
In this judgment I deal with it from another perspective.
[108]
The heading to Chapter III is: “PRESCRIPTION OF DEBTS”.
It consists of
sections 10
to
16
.
Section 10
deals with the
extinction of debts by prescription.
Section 10(1)
provides:
“
(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.”
Section 11
deals
with periods of prescription.  It reads:
“
11. Periods of
prescription of debts
The periods of prescription of
debt 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.”
Since the first
respondent linked the arbitration award to a prescription period of
three years, its contention has to be that the
arbitration award is a
debt as contemplated in
section 11(d).
[109]
A careful reading of the list of debts in
section 11
reveals
that, except for the judgment debt, all the debts listed therein are
debts in respect of which there is no judgment as
yet that has
determined the liability of the debtor for the debt.  In other
words, except for the judgment debt, the other
debts are debts in
respect of which no proceedings have been instituted to determine
whether the debtor is liable for the debt
or to determine the
creditor’s claim against the debtor.
Section 12
bears the
heading: “When prescription begins to run”.
Section
12(1)
reads:
“
(1) Subject to the
provisions of subsection (2), (3) and (4), prescription shall
commence to run
as soon as the debt is due
.”
This provision
supports the point I made in the first sentence of this paragraph
because it requires a debt to be due before prescription
can start
running and a debt must be due before proceedings may be instituted
to recover it by way of legal proceedings.
One cannot issue a
summons before a debt is due.
[110]
Section
12(2)
to (4) reads:
“
(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.
(4) Prescription shall not
commence to run in respect of a debt based on the commission of an
alleged sexual offence as contemplated
in sections 3, 4, 17, 18(2),
20(1), 23, 24(2) and 26(1) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act,
2007, and an alleged offence as
provided for in sections 4, 5, and 7 and involvement in these
offences as provided for in section
10 of the Prevention and
Combating of Trafficking in Persons Act, 2013, during the time in
which the creditor is unable to institute
proceedings because of his
or her mental or psychological condition.”
[111]
Section 14 also supports the point I made that, except in
respect of a judgment debt, the debt contemplated in Chapter III is a
debt in respect of which liability has not been settled.
Section 14 reads:
“
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.”
[112]
Section 14(1) says that in respect of a debt the running of
prescription is interrupted by an express or tacit acknowledgement of

liability by the debtor.  Once you have obtained an arbitration
award or a judgment, acknowledgement of liability by the debtor
is
irrelevant because that has been settled.  However, before that,
an acknowledgement of liability by the debtor makes a
difference.
[113]
Section 14(2) is to the effect that, if the debtor has
interrupted prescription by an acknowledgement of liability,
prescription
will start running 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”.

Quite clearly, this refers to a case where liability has not been
determined in a manner that is binding upon the debtor.
Where
an arbitration award has been issued such as the one in issue in this
case, liability has been decided and that decision
is binding upon
the debtor.  At that stage there can be no arranging another due
date.  That was settled by the arbitration
award.  What
remains for the “debtor” is to comply with the
arbitration award.
[114]
The provisions of section 15 make it quite clear that Chapter
III does not deal with the situation where an arbitration award has

been issued under the LRA and the employee institutes a section
158(1)(c) application to make the arbitration award an order of

court.  The heading to section 15 is: “Judicial
interruption of prescription”.  Section 15(1) reads:
“
(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
.”
This provision must
be read with section 15(6) which defines what “process”
in this provision means.  Section 15(6)
reads:
“
(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.”
Section 15(2) to (5)
reads:
“
(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.”
[115]
The heading to section 15 makes it clear that the interruption
of prescription that section 15 deals with is “judicial
interruption”.
Judicial interruption can only mean
interruption by way of a judicial process.  A judicial process
is a court process.
That this is what section 15 deals with is
also supported by the appearance of either the word “process”
or “judgment”
or both in each of the subsections to
section 15.  That the word “judgment” supports
the proposition that
section 15 is about the interruption of
prescription by way of a court process needs no elaboration or
clarification.  In
section 15(4) we find the words: “judgment
of the court” where the provision says: “. . . on the day
on which
the judgment of the court becomes executable”.
This is the clearest indication that the “process” with
which the running of prescription is required to be interrupted in
terms of section 15(1) is not only a court process but also it
is a
court process that, if the claim is successfully prosecuted, must
lead to a “judgment of the court”.  However,
the
reference to “process” may need elaboration.
Section 15(6) defines the word “process” used in
section
15 as follows:
“
(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.”
[116]
It will be noticed that all the processes that are specified
in subsection (6) are processes that are used in court and are
provided
for in the rules of courts.  Except for the pleading in
reconvention and the third party notice, they are all normally used

for commencing legal proceedings in courts.  I accept that
subsection (6) uses the word “includes” and not the
word
“means” to say what the word “process” refers
to.  This means that it does not only refer to
the processes
specified in subsection (6) but may also refer to other documents not
mentioned in subsection (6).  However,
I think that such other
document would have to be a document by which legal proceedings are
commenced.  That is made clear
by the last portion of
subsections (4) and (6).  Section 15(4) makes it clear that
the “process” contemplated
in section 15(1) is a process
that leads to a “judgment of the court” if the creditor
successfully prosecutes his or
her claim.  So, interruption of
prescription has to be by way of the commencement of legal
proceedings or a third party notice
or a pleading in reconvention.
[117]
It seems to me that the
Prescription Act provides
for only two
ways of interrupting the running of prescription, one by the debtor
and the other by the creditor.  The one is
the acknowledgement
of liability by the debtor.  That is provided for in
section
14(1).
The second is judicial interruption in terms of
section
15(1)
by way of proceedings launched by the creditor in terms of
which “the creditor claims payment of the debt”.
[118]
Section 15(1)
tells us how the running of prescription is
interrupted.  It says:
“
(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
.”
So, the process that
a creditor serves on the debtor within the specified period provided
for in the
Prescription Act, such
as three years, in order to
interrupt prescription must be a “process whereby the creditor
claims payment of the debt”.
In the present case the
first respondent contends that the applicant failed to institute the
section 158(1)(c)
application within three years, which would have
interrupted the prescription of the arbitration award.  However,
section 15(1)
reveals that that cannot be correct because the
section
158(1)(c)
application was not a “process whereby” the
applicant “claim[ed] payment” of the alleged debt which
is
a requirement of subsection (1) read with subsection (6).
[119]
To the extent that it can be said that, after the first
respondent had dismissed the applicant unfairly, it owed the
applicant a
debt as contemplated in Chapter III of the
Prescription
Act, by
the time the arbitration award was issued, the applicant had
already served upon the first respondent a document whereby he
claimed
payment of such debt and an arbitrator had upheld his claim
by issuing the arbitration award.  This shows that the debt
contemplated
in
section 11(d)
of the
Prescription Act is
a debt which
can still be interrupted by the service on the debtor of a process
whereby the creditor claims payment.  A debt
as contemplated in
section 11(d)
– which is the debt to which the prescription
period of three years applies – does not include an arbitration
award.
[120]
That what interrupts the running of prescription in terms of
section 15(1)
of the
Prescription Act is
the service of a process
commencing legal proceedings by which the creditor claims payment of
the debt is supported by various
indications.  Subsections (2),
(3) and (4) of
section 15
provide many indications that support the
proposition that the “process” contemplated by
section
15(1)
is a court process that initiates proceedings that must lead to
a judgment on the debt.
[121]
Section 15(2)
deals with the lapsing of the interruption of
the running of prescription and the resumption of the running of
prescription thereafter.
Subject to one qualification,
section
15(2)
provides that the interruption of the running of prescription
contemplated in subsection (1) lapses if either—
(a) the creditor does not successfully prosecute his claim under the
process in question (i.e the process by which the running
of
prescription was interrupted in terms of subsection (1)) to final
judgment; or
(b) he does prosecute his claim under the process referred to in
subsection (1) to final judgment but abandons the judgment
or
the judgment is set aside.
[122]
The qualification is when the debtor acknowledges liability.
So, if, having interrupted the running of prescription by means
of
the process contemplated in subsection (1) read with subsection (6),
a creditor fails to successfully prosecute his claim under
that
process to final judgment, or, if, having successfully prosecuted his
claim to final judgment, he abandons the judgment or
the judgment is
set aside and the debtor does not acknowledge liability, the
interruption of the running of the prescription lapses
and the
prescription is deemed not to have been interrupted in the first
place.
[123]
Then there is
section 15(3).
This provision deals with
what happens when the running of prescription is interrupted as
contemplated in subsection (1)
and the creditor acknowledges
liability and the creditor fails to prosecute his claim to final
judgment.
Section 15(3)
says that in that case prescription
commences 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.
[124]
Section 15(4)
deals with a situation where the running of
prescription has been interrupted as contemplated in
section 15(1)
and the creditor successfully prosecutes his claim under the process
in question to final judgment and the interruption does not
lapse.
Section 15(4)
provides that in that case prescription will only
commence to run afresh on the day on which the
judgment of the
court
becomes executable.
[125]
There are three important principles on which the
Prescription
Act is
based.  The first is that, once a debt is due to a
creditor by a debtor, prescription starts running.  The second
is
that the creditor must interrupt the running of prescription
before it runs for the whole period of prescription applicable to
that debt.  The third is that, if the creditor fails to
interrupt prescription in the manner contemplated in the
Prescription
Act before
the relevant prescription period expires and the debtor
has not acknowledged liability during that period, the debt
prescribes
upon the expiry of the prescription period.  What
these principles reveal is that, once prescription has commenced
running,
unless the debtor acknowledges liability or the creditor
interrupts the running of prescription in the manner prescribed by
section 15(1)
read with subsection (6) before the expiry of the
period prescribed for that debt, the debt is extinguished upon the
expiry of
the period.  The running of prescription is one side
of the coin and the interruption of the running of prescription is
the
other.  This is evident from
section 10(1)
read with
sections 12
,
14
and
15
.
[126]
The types of debt and the prescribed periods of prescription
appear in
section 11.
One of them is a judgment debt.
A judgment debt is one of the debts the prescription period of which
is thirty years.
Another prescription period is three years and
it applies to any debt other than those listed in
section 11(a)
to
(c) if no Act of Parliament provides otherwise.  Both the debtor
and creditor may interrupt prescription.  The debtor
may
interrupt prescription in one way only.  That is by
acknowledging liability for the debt.  The creditor also has
one
way of interrupting the running of prescription.  The prescribed
manner is provided for in section 15(1) read with section
15(6).
That is “by the service on the debtor of any
process
whereby
the creditor
claims
payment of the debt”.
[127]
I have said that the arbitration award in this case was not a
debt as contemplated in the
Prescription Act.  However
, assuming
that the first respondent was right in its contention that the
arbitration award was a debt as contemplated in the
Prescription Act
and
that it became due on the date when the arbitration award was
issued, the question that would arise is whether an application to

make an arbitration award an order of the Labour Court is a process
contemplated in
section 15(1)
read with subsection (6).  That is
a process to “commence legal proceedings” by which “the
creditor claims
payment of debt” which claim, it is expected,
the creditor would prosecute till final judgment as can be seen from
subsections
(2), (3) and (4) of
section 15.
[128]
The answer is no.  A
section 158(1)(c)
application or a
notice of motion that accompanies a
section 158(1)(c)
application is
not a “process whereby the creditor claims payment of the debt”
as contemplated in
section 15(1).
By the time of the launch and
service of a
section 158(1)(c)
application by an applicant, his claim
for reinstatement or for the payment of compensation for unfair
dismissal has long been
prosecuted by way of arbitration which
resulted in the arbitration award in his or her favour.  The
applicant in such a case
– invariably an employee or his or her
trade union or representative – cannot be said to be commencing
proceedings
to prosecute his claim to final judgment.  All that
he or she seeks to do by way of a
section 158(1)(c)
application
is to have the arbitration award made an order of court for purposes
of enforcement.
[129]
Section 15
contemplates a creditor who has a claim that must
still be prosecuted by way of litigation to final judgment and not a
creditor
who has pursued his or her claim through arbitration.
This, therefore, means that service of the
section 158(1)(c)
application on the first respondent by the applicant within three
years of the issuing of the arbitration award could not have

interrupted the running of prescription even if the applicant had
instituted it within the three year period.  If that is
so, that
means that prescription would have commenced running when the
arbitration award was issued but the applicant would not
have had any
way of interrupting the running of prescription as contemplated in
section 15(1).
Of course, that prescription runs against
someone’s claim or debt and in law he or she cannot interrupt
the running
of prescription is simply untenable.  That that is
what the legal position would have to be in the case of a
section
158(1)(c)
application if we agree with the first respondent that the
Prescription Act applies
after the issuing of an arbitration award
and that the award is a debt as contemplated in the
Prescription Act
is
a clear indication that the
Prescription Act does
not and cannot
apply in such a case and before the arbitration award has been made
an order of court.
[130]
The second judgment is to the effect that the
Prescription Act
is
applicable to the LRA dispute resolution system in respect of
dismissal disputes.  It goes on to say that the Commission for

Conciliation, Mediation and Arbitration (CCMA) is “an
independent and impartial forum” as contemplated in section 34

of the Constitution.
[94]
It further holds that the document used to refer a dismissal
dispute to the CCMA or a bargaining council for conciliation
is a
process such as is contemplated in
section 15(1)
of the
Prescription Act.  By
reason of that, continues the second
judgment, service of the referral document on the employer by a
dismissed employee interrupts
the running of prescription.  The
second judgment, therefore, concludes that “the initiation of
proceedings before the
CCMA under the LRA amounts to the commencement
of adjudicative proceedings that interrupts prescription under the
Prescription Act&rdquo
;.
[131]
While I agree that the CCMA is an “independent and
impartial forum” as contemplated in section 34 of the
Constitution,
I disagree with the second judgment that the
Prescription Act has
any role to play in, or is applicable to, the
LRA dispute resolution system.  The LRA dispute resolution
system is a special
self-standing dispute resolution system with its
own prescribed periods within which various steps are required to be
taken.  It
is a system for specific disputes which is based on
special processes and principles underlying the LRA and fora
specially created
for their appropriateness to that system.  The
Prescription Act, with
its own prescription periods, has no
application between the dismissal and the handing down of a judgment
of the Labour Court making
an arbitration award an order of that
Court.  Whether or not the
Prescription Act has
any application
after a judgement of the Labour Court or after an order of the Labour
Court making an arbitration award an order
of that Court is an issue
that does not arise for decision and should rather be left for
another day and another case.
[132]
When an employee has been dismissed and seeks to institute
civil action for wrongful dismissal or unlawful dismissal in the
civil
courts to secure damages or reinstatement or for an order
declaring that the dismissal is unlawful, invalid and of no legal
force
and effect, the
Prescription Act may
be applicable but it has
no application if the employee seeks to refer a dismissal dispute to
the CCMA or a bargaining council
for conciliation.  There are a
number of reasons why the
Prescription Act has
no application between
the dismissal and the last step of the LRA dispute resolution system.
The first statutory step in
the LRA dispute resolution system
concerning dismissal disputes is the referral of a dismissal dispute
to either the CCMA or a
bargaining council for conciliation in terms
of
section 191(1)
of the LRA.
[95]
The last step is either a judgment of the Labour Court in
regard to a dismissal dispute in respect of which the Labour Court

has jurisdiction or an order of the Labour Court making an
arbitration award an order of that Court if the dispute is one that

had to be referred to arbitration after an unsuccessful conciliation
process.
[133]
After a dismissal dispute has been referred to a conciliation
process, no adjudication takes place during the conciliation process.

The parties may hold a conciliation meeting that is chaired by
a conciliator.  The conciliator has no power to make
any
decision on the merits of the dispute.  His or her role is
simply to facilitate the conciliation process between the parties

and, at the end of the process, certify that the dispute remains
unresolved if that is the case, or, if the dispute has been resolved,

make a note to the effect that the dispute has been resolved or help
the parties formulate an agreement that reflects the terms
of the
agreement between them.  Accordingly, the conciliation process
that the referral document initiates does not culminate
in a judgment
at the end of the conciliation process.  If the parties held a
conciliation meeting but failed to resolve the
dispute, then the
conciliator would issue a certificate to the effect that the dispute
remains unresolved.  That certificate
then marks the end of the
conciliation process initiated by the referral of the dispute.  If
they reach an agreement by which
the dispute is resolved, that
agreement marks the end of the conciliation process.  If the
parties do not hold a conciliation
meeting and do not make any
attempts at conciliation within the prescribed period of 30 days
after the referral, the expiry of
the 30 day period marks the end of
the conciliation process initiated by the referral of the dispute.
[134]
The proposition that the
Prescription Act applies
to the LRA
dispute resolution system relating to dismissal disputes, which the
second judgement adopts, has difficulties.  The
prescription
period which the second judgment says applies to a dismissal which
must then be taken to be a “debt” under
the
Prescription
Act would
be the three years contemplated in
section 11(d)
of the
Prescription Act.  Under
the
Prescription Act the
fact that a
particular debt is subject to a particular prescription period, for
example three years, means that the creditor does
not have to serve
on the debtor the process contemplated in
section 15(1)
“whereby
[he] claims payment of the debt” until just before the expiry
of that period.
[135]
In the case of a debt to which the three year period applies,
that means just before the expiry of three years from when the debt

became due.  So, assuming that the LRA did not have any
prescribed periods within which the various steps have to be taken

under the LRA dispute resolution system, this would have meant that a
dismissed employee would have three years within which to
refer the
dispute to the conciliation process.  That would have placed him
or her in the same position as any creditor who
intends instituting
action in the civil courts to recover a debt from his or her debtor.
However, the LRA prescribes various
periods within which steps
must be taken by an employee who seeks to have a dismissal dispute
dealt with in accordance with the
LRA dispute resolution system.
[136]
With regard to referring a dismissal dispute to the CCMA or a
bargaining council for conciliation,
section 191
of the LRA obliges
the employee to refer the dispute within 30 days from the date of
dismissal unless he or she has good cause
to delay beyond that
period.  If he or she has good cause to refer the dispute later
than the 30 day period, he or she may
refer it after that period and
his or her delay will be condoned by the CCMA or bargaining council.
If he or she fails to
refer the dispute to the conciliation
process within the prescribed 30 days and does not have good cause,
he or she loses the right
to refer the dispute to that process.  In
the absence of good cause for the failure to refer the dispute within
that period,
the CCMA or bargaining council has no jurisdiction to
entertain the dispute.  If the dispute is not entertained at the
conciliation
stage, it cannot go to arbitration or to adjudication.
This places the employee in exactly the same position as a
creditor
whose debt has been extinguished by prescription under the
Prescription Act.
[137]
In the case of a dismissed employee this could happen and does
normally happen long before the expiry of the three years envisaged

in
section 11(d)
of the
Prescription Act.  At
this stage an
example may help to illustrate the conflict between the LRA and the
Prescription Act.  Let
us say that, instead of referring his or
her dismissal dispute to the CCMA within 30 days from the date of
dismissal as is required
by
section 191
of the LRA, an employee did
not refer it until after the expiry of two years and he has no good
cause for the delay.  That
employee would be in the same
position as a creditor who failed to serve upon his debtor within
three years from the date the debt
became due the process
contemplated in
section 15(1)
of the
Prescription Act in
respect of
an action in the Magistrate’s Court or High Court.  The
dismissed employee cannot say to the CCMA when it
refuses to
entertain the referral: but the three year prescription period
prescribed by
section 11(d)
of the
Prescription Act has
not expired!
Quite rightly, the CCMA would not be interested in the three
year period.
[138]
If a creditor commenced legal proceedings in a Magistrate’s
Court or High Court within two years from the date on which the
debt
became due, he or she would not have to show any good cause for
taking two years to commence legal proceedings.  In fact,
even
if he or she served the process contemplated in
section 15(1)
of the
Prescription Act just
before the expiry of three years, he or she
would not need to show any good cause for taking so long to do so.
Under the
Prescription Act he
or she is entitled to sit back
and do nothing to recover the debt until just before the expiry of
the three year period.  That
is not the case with a dismissed
employee who wishes to have his or her dismissal dispute dealt with
under the LRA dispute resolution
system.  He or she is obliged
to refer the dismissal dispute to the conciliation process within 30
days from the date of his
or her dismissal in the absence of good
cause justifying taking longer than that period.
[139]
A dismissed employee has no right to sit back and do nothing
about his or her dismissal dispute until just before the expiry of
three years.  If the
Prescription Act applies
to the LRA dispute
resolution system but a dismissed employee is not able to enjoy this
benefit which a creditor in the civil courts
enjoys, namely, of not
needing to do anything for close to three years before commencing
proceedings, what benefit does the application
of the
Prescription
Act to
the LRA dispute resolution system bring for employees?
This comparison of the situation of a dismissed employee who wishes

to use the LRA dispute resolution system and a creditor who wishes to
sue in the civil courts to recover his or her debt shows
a clear
conflict between the LRA and the
Prescription Act, at
least in
respect of the period from the date of dismissal to the date of the
judgment or order of the Labour Court.
[140]
Furthermore, the document that an employee has to use to refer
a dismissal dispute to the CCMA or a bargaining council for
conciliation
is not a “process” such as is contemplated
in
section 15(1)
of the
Prescription Act.  Therefore
, it cannot
interrupt the running of prescription as contemplated by
section
15(1)
read with subsection (6).  This is for two reasons.  The
first is that in terms of
section 15(1)
read with subsection (6) the
process contemplated in
section 15(1)
is a process that commences
legal proceedings whereas conciliation proceedings cannot by any
stretch of the imagination be described
as legal proceedings.  They
are simply proceedings aimed at helping the parties reach an
agreement to resolve their dispute.
Therefore, the referral of
a dismissal dispute to conciliation does not commence legal
proceedings which is what the “process”
referred to in
section 15(1)
is required to do.
[141]
The second is that the proceedings that are commenced by the
“process” contemplated in
section 15(1)
leads to a
judgment.  The referral of a dismissal dispute to conciliation
does not lead to a judgment.  It leads to either
an agreement by
which the dismissal dispute is resolved or to a certificate to the
effect that the dispute remains unresolved or
with neither an
agreement nor a certificate but with the expiry of the 30 day period
within which the parties are required to try
and resolve the dispute.
Therefore, even if it was to be correct that the
Prescription
Act applies
to the LRA dispute resolution system, the service on the
employer of a referral of a dismissal dispute to the conciliation
process
would not interrupt the running of prescription because under
that Act the running of prescription can only be interrupted by the

service on the debtor of the process contemplated in section 15(1)
read with subsection (6).
[142]
I believe that I have shown above why an arbitration award
issued under the LRA pursuant to the arbitration of a dismissal
dispute
is not a debt as contemplated in the
Prescription Act.  It
is also not a judgment debt because an arbitration award is not a
court judgment.
Section 15(2)
, (3), (4) and (5) contemplate
that the process contemplated in
section 15(1)
is a process that
leads to a judgment.  One feature of an arbitration award
requiring the reinstatement of an employee that
shows that it is not
a judgment is that it is not enforceable on its own and has to be
made an order of court in order to become
enforceable.  A
judgment is immediately enforceable unless it contains an order the
terms of which render it not immediately
enforceable.
[143]
The proposition that an arbitration award is a debt as
contemplated in the
Prescription Act serves
as a foundation for the
contention that the prescription period applicable to the arbitration
award is three years after it has
been issued.  On that basis,
the first respondent contended in the Labour Court, Labour Appeal
Court and in this Court that
by failing to institute the
section
158(1)(c)
application within three years from the date when the award
was issued, the applicant failed to interrupt the running of
prescription
as contemplated in
section 15(1)
and that, therefore,
the arbitration award had prescribed by the time the applicant
instituted his
section 158(1)(c)
application.  The
arbitration award in issue here was one that required the first
respondent to reinstate the applicant in
its employ.
[144]
I said earlier that the effect of the provisions relating to
the prescription period under the
Prescription Act is
that a creditor
is entitled to sit back and do nothing to recover his debt or to
enforce his rights until just before the expiry
of the applicable
prescription period.  If an arbitration award is a debt as
contemplated in
section 11(d)
under the
Prescription Act, then
it
means that a dismissed employee in whose favour an arbitration award
requiring the employer to reinstate him or her has been
made must be
able to sit back for close to three years, if he or she so chooses,
before he or she can bring a
section 158(1)(c)
application to enforce
that reinstatement award even when the employer has not lodged any
review.  The proposition that an
employee may sit back for so
long after an arbitration award has been issued requiring his or her
reinstatement before taking steps
to enforce the award is untenable.
No employer would be required to wait for that employee for that
long.
[145]
In conclusion, it seems to me that what the second judgment
says is a reinterpretation of the
Prescription Act to
bring it in
harmony with the provisions of the LRA relating to the LRA dispute
resolution system concerning dismissal disputes
is not really a
reinterpretation but constitutes legislating which is the domain of
the Legislature and not the courts.  For
that reason, I think
that it is in breach of the principle of the separation of powers.
If it is desired that the
Prescription Act should
apply to the LRA
dispute resolution system, Parliament would have to pass appropriate
amendments either to the
Prescription Act or
the LRA.
Otherwise, it is impossible to apply the
Prescription Act to
that
system without doing serious violence to the language of the LRA or
the
Prescription Act or
both which the second judgment does.
Section 145(9)
of the LRA was enacted in January 2015.  It
reads:
“
(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.”
This provision does
not apply to this case.  As the first judgment correctly
observes, this provision was Parliament’s
response to various
judgments of the Labour Court and Labour Appeal Court which were to
the effect that the
Prescription Act applies
to the LRA dispute
resolution system concerning dismissal disputes.  NEDLAC and
Parliament may have to consider whether this
provision should not be
repealed and instead an amendment be enacted which will be to the
effect that the
Prescription Act does
not apply to the LRA dispute
resolution system concerning dismissal disputes between a dismissal
and a judgment of the Labour Court
in matters falling within the
jurisdiction of the Labour Court or an order making an arbitration
award an order of the Labour Court
in dismissal disputes that are
required to be arbitrated.
[146]
For these additional reasons, I support the order in the first
judgment.
For the Applicant: V
Ngalwana SC, N Mbelle and R Naidoo instructed by Ndumiso Voyi
Incorporated
For the First
Respondent: F A Boda SC and L M Maite instructed by Cliffe Dekker
Hofmeyr
For the Second
Respondent: S K Hassim SC and M B Matlejoane instructed by the State
Attorney
For the Third
Respondent: S Snyman instructed by Snyman Attorneys
For the Fourth
Respondent: J G van der Riet SC and A G Mashigo instructed by Cheadle
Thompson & Hayson
[1]
66 of 1995.
[2]
68 of 1969.
[3]
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited
t/a Metrobus
, unreported judgment of the Labour Court, Case No
J1901/13 (17 October 2014) at para 3.
[4]
This exclusion is based on
section 16
of the
Prescription Act.
[5
]
Section 10 of the Prescription Act provides:
“(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.”
[6]
Desai NO v Desai NNO
[1995] ZASCA 113; 1996 (1) SA 141 (SCA).
[7]
Myathaza v Johannesburg Metropolitan Bus Service (SOC) Limited
t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Limited v
CWU
obo Peters
[2015] ZALAC 45
;
2016 (3) SA 74
(LAC) (Labour Appeal
Court judgment) at paras 40-2.
[8]
Id at para 55.
[9]
Section 15(1) provides:
“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.”
[10]
Road Accident Fund v Mdeyide
[2010] ZACC 18
;
2011 (2) SA 26
(CC);
2011 (1) BCLR 1
(CC) (
Mdeyide
) at para 10
.
[11]
Section 39(2) provides that “[w]hen interpreting any
legislation, and when developing the common law or customary law,

every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights”.
[12]
Makate v Vodacom (Pty) Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at paras 87-90.
[13]
Section 34 of the Constitution provides:
“Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing

before a court or, where appropriate, another independent and
impartial tribunal or forum.”
[14]
Section 143 of the LRA provides:
“(1) An arbitration award issued by a commissioner is final
and binding and it may be enforced as if it were an order of
the
Labour Court in respect of which a writ has been issued, unless it
is an advisory arbitration award.
(2) If an arbitration award orders a party to pay a sum of money,
the amount earns interest from the date of the award at the
same
rate as the rate prescribed from time to time in respect of a
judgment debt in terms of section 2 of the Prescribed Rate
of
Interest Act, 1975 (Act No. 55 of 1975), unless the award provides
otherwise.
(3) An arbitration award may only be enforced in terms of subsection
(1) if the director has certified that the arbitration award
is an
award contemplated in subsection (1).
(4) If a party fails to comply with an arbitration award certified
in terms of subsection (3) that orders the performance of
an act,
other than the payment of an amount of money, any other party to the
award may, without further order, enforce it by
way of contempt
proceedings instituted in the Labour Court.
(5) Despite subsection (1), an arbitration award in terms of which a
party is required to pay an amount of money must be treated
for the
purpose of enforcing or executing that award as if it were an order
of the Magistrate’s Court.”
Subsection (5) was
substituted as a result of amendments by section 22 of Act 6 of
2015.
[15]
Uitenhage Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA
735
(SCA) at 742I-743A.
[16]
Mdeyide
above n 10 at para 8.
[17]
Equity Aviation Services (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) (
Equity Aviation
) at para 52.
[18]
Shoprite Checkers (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration
[2009] ZASCA 24
;
2009 (3) SA 493
(SCA)
(
Shoprite Checkers
) at para 34.
[19]
56 of 1996.
[20]
Mdeyide
above n 10 at para 50.
[21]
Id at paras 51-3.
[22]
South African Transport and Allied Workers Union (SATAWU) v
Moloto NO
[2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR
1177 (CC).
[23]
Sidumo v Rustenburg Platinum Mines Ltd
[2007] ZACC 22
;
2008
(2) SA 24
(CC);
2008 (2) BCLR 158
(CC) at para 139.
[24]
Mdeyide
above n 10 at para 13.
[25]
Sidumo
above n 23 at paras 88-94 and 141.
[26]
Id at para 140.
[27]
Section 210 provides:
“If any conflict, relating to the matters dealt with in this
Act, arises between this Act and the provisions of any other
law
save the Constitution or any Act expressly amending this Act, the
provisions of this Act will prevail.”
[28]
Section 23 of the Constitution provides:
“(1) Everyone has the right to fair labour practices.
(2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade
union; and
(c) to strike.
(3) Every employer has the right—
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’
organisation.
(4) Every trade union and every employers’ organisation has
the right—
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer
has the right to engage in collective bargaining. National

legislation may be enacted to regulate collective bargaining. To the
extent that the legislation may limit a right in this Chapter,
the
limitation must comply with section 36(1).
(6) National legislation may recognise union security arrangements
contained in collective agreements. To the extent that the

legislation may limit a right in this Chapter, the limitation must
comply with section 36(1).”
[29]
Section 193 provides:
“(1) If the Labour Court or an arbitrator appointed in terms
of this Act finds that a dismissal is unfair, the Court or
the
arbitrator may—
(a) order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work
in which the employee was employed before the dismissal
or in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal; or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to
reinstate or re employ the employee unless—
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate
or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow
a fair procedure.”
[30]
Makate
above n 12 at para 93.
[31]
Concor Holdings (Pty) Ltd v Mazibuko
[2013] ZALCJHB 141;
(2014) 35
ILJ
477 (LC);
FAWU v Country Bird
[2011]
ZALCCT 28; (2012) 33
ILJ
865 (LC);
Mangengenene v PPC
Cement
(Pty) Ltd
[2011] ZALCJHB 31; (2011) 32
ILJ
2518 (LC);
[2011] 12 BLLR 1198
(LC);
Fredericks v Grobler NO
[2010] ZALC 18
;
National Union of Metalworkers of South
Africa (“NUMSA”) v Espach Engineering
[2009] ZALCJHB
109;
Public Servants Association o.b.o Khanya v Commission For
Conciliation, Mediation and Arbitration
[2008] ZALC 1
; (2008) 29
ILJ
1546 (LC);
Solidarity v Eskom Holdings Limited
[2007]
ZALAC 19
; (2008) 29
ILJ
1450 (LAC);
Mpanzama v Fidelity
Guards
[2000] ZALC 91; [2000] 12 BLLR 1459 (LC).
[32]
Section 7(2) of the Constitution provides:
“The state must respect, protect, promote and fulfil the
rights in the Bill of Rights.”
[33]
68 of 1969.
[34]
Section 34 of the Constitution.
[35]
66 of 1995.
[36]
Section 112 of the LRA.
[37]
Section 15(1)
of the
Prescription Act.
[38
]
Compare
Kuhn v Kerbel
1957 (3) SA 525
(A);
[1957] 3 All SA
365
(A), approved and applied in
Titus v Union and SWA Insurance
Co Ltd
1980 (2) SA 701
(TkS);
[1980] 3 All SA 607
(Tk) at
704F-G.
[39]
Section 15(2)
of the
Prescription Act.
>
[40]
Section 15(4)
of the
Prescription Act.
[41
]
Section 18
of the
Superior Courts Act 10 of 2013
.
[42]
Section 15(4)
of the
Prescription Act.  See
also Loubser
Extinctive Prescription
(Juta & Co Ltd, Cape Town 1996)
at 139.
[43]
Van der Merwe v Protea
Insurance Co Ltd
1982 (1) SA
770
(E) at 773A-C.
[44]
So too Howie J in
Cape Town Municipality v Allianz Insurance Co
Ltd
1990 (1) SA 311
(C) at 334 states:
“A creditor prosecutes his claim under that process to final,
executable judgment, not only when the process and the judgment

constitute the beginning and end of the same action.”
[45]
Section 13(1)(f)
of the
Prescription Act.
[46
]
Blaas v Athanassiou
1991 (1) SA 723
(W);
[1991] 3 All SA 330
(W) at 725H.
[47]
Section 113
of the LRA.
[48]
Section 115
of the LRA.
[49]
First judgment at [23] to [24].
[50]
Section 134
of the LRA.
[51]
Section 138
of the LRA.
[52]
Rules 5
,
10
and
18
of the Rules for the Conduct of Proceedings
before the Commission for Conciliation Mediation and Arbitration
(CCMA Rules).
[53]
Mountain Lodge Hotel v McLoughlin
1984 (2) ZSC 567 (ZSC) at
570H-571A.
[54]
Makate
above n 12 at paras 90-3.
[55]
Section 193 of the LRA.
[56]
As per Nkabinde J in
Equity Aviation
above n 17 at para 36.
[57]
See
Makate
above n 12 at paras 92-3.
[58]
Id.
[59]
Desai
above n 6.  In
Makate
above n 12 at para 84
the Court captured its rejection of the
Desai
definition
thus:
“[E]very obligation irrespective of whether it is positive or
negative, constitutes a debt as envisaged in section 10(1).

This in turn meant that any claim that required a party to do
something or refrain from doing something, irrespective of the

nature of that something, amounted to a debt that prescribed in
terms of section 10(1).  Under this interpretation, a claim
for
an interdict would amount to a debt.”
[60]
Makate
above n 12 para 93.
[61]
Electricity Supply Commission v Stewarts and Lloyds of SA (Pty)
Ltd
1981 (3) SA 340
(A) (
Escom
).
[62]
Makate
above n 12 at para 85.
[63]
The
New Shorter Oxford Dictionary
3 ed (1993) vol 1 at 604 as
quoted in
Makate
id.
[64]
See [69] and [70].
[65]
See, for example, sections 9, 21, 22 and 24 of the LRA.
[66]
There are other byways along the route before adjudication by way of
arbitration or in the courts, but for present purposes these
need
not concern us.
[67]
Or accredited councils; see Parts C and D of the LRA.
[68]
Section 191(5) of the LRA provides:
“If a council or a commissioner has certified that the dispute
remains unresolved, or if 30 days or any further period
as agreed
between the parties have expired since the council or the Commission
received the referral and the dispute remains
unresolved—
(a) the council or the Commission must arbitrate the dispute at the
request of the employee if—
(i) the employee has alleged that the reason for dismissal is
related to the employee’s conduct or capacity, unless
paragraph
(b)(iii) applies;
(ii) the employee has alleged that the reason for dismissal is that
the employer made continued employment intolerable or the
employer
provided the employee with substantially less favourable conditions
or circumstances at work after a transfer in terms
of section 197 or
197A, unless the employee alleges that the contract of employment
was terminated for a reason contemplated
in section 187;
(iii) the employee does not know the reason for dismissal; or
(iv) the dispute concerns an unfair labour practice; or
(b) the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal is—
(i) automatically unfair;
(ii) based on the employer’s operational requirements;
(iii) the employees participation in a strike that does not comply
with the provisions of Chapter IV; or
(iv) because the employee refused to join, was refused membership of
or was expelled from a trade union party to a closed shop

agreement.”
[69]
Section 145(1) of the LRA.
[70]
See section 166 of the LRA.
[71]
Currie and De Waal
The Bill of Rights Handbook
6 ed (Juta &
Co Ltd, Cape Town 2013) at 41, 59-60.
[72]
Section 145(1) reads as follows:
“Any party to a dispute who alleges a defect in any
arbitration proceedings under the auspices of the Commission may

apply to the Labour Court for an order setting aside the arbitration
award—
(a) within six weeks of the date that the award was served on the
applicant, unless the alleged defect involves the commission
of an
offence referred to in Part 1 to 4 or section 17, 20 or 21 (in so
far as it relates to the aforementioned offences) of
Chapter 2 of
the
Prevention and Combating of Corrupt Activities Act, 2004
;
or
(b) if the alleged defect involves an offence referred to in
paragraph (a), within six weeks of the date that the applicant
discovers such offence.”
[73]
Mountain Lodge Hotel
above n 53 at 570H-571C.
[74]
Blaas
above n 46 at 725.
[75]
Mdeyide
above n 10 at para 8.
[76]
First judgment at [33] to [36].
[77]
Section 191(1)
of the LRA.
[78]
Pre-constitutional case law characterised time-bars as forming part
of procedural law, not affecting substantive rights.
See, for
example,
President Insurance Co Ltd v Yu Kwam
1963 (3) SA 766
(A) at 778E-779A.  For a general discussion, doubting the
validity of the distinction, see Loubser
Extinctive Prescription
above n 42 at 3.
[79]
Brummer v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC
3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3.
[80]
40 of 2002.
[81]
Section 3 of the Institution of Legal Proceedings Against Certain
Organs of State Act.
[82]
Sections 2 and 3(4)(b)(i) of the Institution of Legal Proceedings
Against Certain Organs of State Act.
[83]
Under the provisions of the LRA condonation may be sought for
non-compliance with certain time periods.  If the
Prescription
Act applied
in tandem, condonation would not be possible once a
claim has prescribed. Compare
section 3(4)(b
)(i) of the Institution
of Legal Proceedings Against Certain Organs of State Act which
provides that a court may grant an application
for condonation if it
is satisfied that “the debt has not been extinguished by
prescription”.
[84]
56 of 1996.
[85]
Section 23 of the RAF Act had a prescription period of three years,
which, except for the knowledge requirement, is the same
period as
that of an ordinary debt in terms of the
Prescription Act.
[86
]
Section 23(2)
reads:
“Prescription of a claim for compensation referred to in
subsection (1) shall not run against—
(a) a minor;
(b) any person detained as a patient in terms of any mental health
legislation; or
(c) a person under curatorship.”
[87]
Compare
section 13
of the
Prescription Act.
[88
]
Compare
section 14
of the
Prescription Act.
[89
]
Compare
section 15
of the
Prescription Act.
[90
]
68 of 1969.
[91]
66 of 1995.
[92]
Section 158(1)(c)
reads:
“(1) The Labour Court may—
. . .
(c) make any arbitration award or any settlement agreement an order
of the Court.”
[93]
See
section 143(1)
of the LRA which provides:
“(1) An arbitration award issued by a commissioner is final
and binding and it may be enforced as if it were an order of
the
Labour Court in respect of which a writ has been issued, unless it
is an advisory arbitration award.”
[94]
Section 34 of the Constitution reads:
“Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public hearing

before a court or, where appropriate, another independent and
impartial tribunal or forum.”
[95]
Section 191(1) of the LRA reads:
“(a) If there is a dispute about the fairness of a dismissal
or a dispute about an unfair labour practice, the dismissed
employee
or the employee alleging the unfair labour practice may refer the
dispute in writing to—
(i) a council, if the parties to the dispute fall within the
registered scope of that council; or
(ii) the Commission, if no council has jurisdiction.
(b) A referral in terms of paragraph (a) must be made within—
(i) 30 days of the date of a dismissal or, if it is a later date,
within 30 days of the employer making a final decision to dismiss
or
uphold the dismissal;
(ii) 90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,

within 90 days of the date on which the employee became aware of the
act or occurrence.”