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[2017] ZACC 6
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Mogaila v Coca Cola Fortune (Pty) Limited (CCT76/16) [2017] ZACC 6; [2017] 5 BLLR 439 (CC); (2017) 38 ILJ 1273 (CC); 2017 (7) BCLR 839 (CC); 2018 (1) SA 82 (CC) (2 March 2017)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 76/16
In the matter
between:
MARIA JANE
MOGAILA
Applicant
and
COCA COLA FORTUNE
(PTY)
LIMITED
Respondent
Neutral citation:
Mogaila v Coca Cola Fortune (Pty) Limited
[2017] ZACC 6
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ,
Pretorius AJ and
Zondo J
Judgments:
The Court
Decided on:
2 March 2017
Summary:
Direct access —
Labour Relations
Act, 1995
—
Prescription Act, 1969
— dismissal
dispute — arbitration award — order of reinstatement —
prescription of arbitration award
Direct access granted
— meaning of “debt” —
Myathaza
applicable — order of reinstatement did not prescribe
ORDER
Application
for direct access:
The
following order is made:
1.
The application for direct access is
granted.
2.
It is declared that the order of
reinstatement in favour of the applicant, Ms Maria Jane Mogaila,
under arbitration award
LP7202-07, has not prescribed in terms of the
Prescription Act 68 of 1969
.
3.
Coca Cola Fortune (Pty) Limited is ordered
to pay costs in this Court.
JUDGMENT
THE COURT (Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius
AJ and Zondo J
concurring):
Introduction
[1]
This is an application for direct access.
The applicant, Ms Maria Jane Mogaila, seeks in effect an order
[1]
that (a) the Prescription Act
[2]
(Prescription Act) is not consistent with the Labour Relations Act
[3]
(LRA); and (b) an order of reinstatement granted in her favour does
not constitute a “debt” for the purposes of the
Prescription Act.  In
addition, Ms Mogaila seeks an
order directing the respondent, Coca Cola Fortune (Pty) Limited (Coca
Cola), to reinstate her
to her previous employment position.
[2]
The application was lodged in April 2016.
At that stage, the Court had already set down for hearing on 1
September 2016 the
application of Mr Sizwe Myathaza against the
Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and
Others (Myathaza).
[4]
Since the issues in the two applications corresponded, the Court
informed Ms Mogaila that her application would be held in
abeyance
until the determination of Myathaza.  That has now happened.
On 15 December 2016, this Court unanimously upheld
Mr Myathaza’s
appeal.
[5]
[3]
This Court has decided the application
without written submissions or oral argument.
[6]
Background
[4]
From November 2001 to November 2007,
Coca Cola employed Ms Mogaila as a stock controller.  On
26 November 2007,
[7]
after a disciplinary enquiry had found her guilty of assault,
Ms Mogaila was dismissed.  Aggrieved, she approached the

Commission for Conciliation, Mediation and Arbitration (CCMA).
An arbitration hearing took place on 26 March 2008.

It was finalised on 18 April 2008.  On 29 April 2008,
the Commissioner found Ms Mogaila’s dismissal procedurally
fair
but substantively unfair.  The award ordered Coca Cola to
reinstate Ms Mogaila with effect from 2 June 2008.
[8]
Coca Cola was also ordered to pay Ms Mogaila six months’
back pay of R27 899.40.
[9]
[5]
On 2 June 2008, Ms Mogaila applied to have
the arbitration award formally certified in terms of
section 143(3)
of the LRA.
[10]
This was a precursor to enforcing it.  It is unclear whether
certification ever took place.
[11]
When she reported for work, Ms Mogaila was informed by the human
resources department that Coca Cola intended taking
the arbitration
award on review.
[6]
On 9 June 2008, Ms Mogaila was
served with a copy of the review application.
[12]
The Labour Court dismissed the review application.  A petition
to the Labour Appeal Court was dismissed on 2 October 2013.
[7]
After leave to appeal was refused, Ms
Mogaila’s then attorney, Mr Lombard, informed her that she
should report for duty on
4 November 2013.  In
addition, on 31 October 2013, Mr Lombard furnished a letter
to Coca Cola stating
that, since its petition for leave to appeal had
failed, the arbitration award must be implemented and Ms Mogaila
intended to resume
her duties on 4 November 2013.
[8]
Ms Mogaila did as indicated.  But on
arriving at work, she was told that a letter had been sent to
Mr Lombard.  This
informed him that, since the arbitration
award constituted a “debt” for the purposes of the
Prescription Act and
Ms Mogaila had failed to enforce it within
three years after 29 April 2008, the award could no longer be
implemented.
It had prescribed.
[13]
[9]
She was well and truly snookered.  Or
so Coca Cola would have had it.
Direct access
[10]
Ms Mogaila approached this Court directly
in terms of section 167(6)(a) of the Constitution, read together
with rule 18 of
the Constitutional Court Rules.
[14]
Coca Cola opposed her application, supporting the Labour Courts’
jurisprudence that was at issue in
Myathaza
.
[15]
[11]
The considerations relevant to direct
access were first considered in
Bruce v
Fleecytex
:
[16]
“
Whilst
the prospects of success are clearly
relevant to applications for direct access to this Court, there are
other considerations which
are at least of equal importance.
This Court is the highest court on all constitutional matters.
If, as a matter of
course, constitutional matters could be brought
directly to it, we could be called upon to deal with disputed facts
on which evidence
might be necessary, to decide constitutional issues
which are not decisive of the litigation and which might prove to be
purely
academic, and to hear cases without the benefit of the views
of other courts having constitutional jurisdiction.”
[17]
[12]
Since it is ordinarily not in the interests
of justice for a court to sit as a court of first and last
instance,
[18]
“compelling reasons are required to justify a different
procedure and to persuade this Court that it should exercise its

discretion to grant direct access”.
[19]
[13]
On these principles, direct access is
plainly warranted.
Whether an
arbitration award constitutes a “debt” for the purposes
of the
Prescription Act and
whether the
Prescription Act is
consistent with the LRA were both at issue in
Myathaza
.
In material respects, Ms Mogaila’s case corresponds with Mr
Myathaza’s.  It would be pointless and cruel
to send her
back on a quest through the Labour Court and potentially the Labour
Appeal Court when the solution to her complaint
lies right to hand,
in the order recently issued in
Myathaza
.
It is in the interests of justice that Ms Mogaila be
allowed direct access.
Myathaza
[14]
Metrobus employed Mr Myathaza as a bus
driver.
[20]
Aggrieved by a dismissal, he referred a dispute to the relevant
bargaining council, which appointed an arbitrator to adjudicate.

The arbitrator found that the dismissal was unfair and ordered
reinstatement with retrospective effect.
[21]
Metrobus was also ordered to pay Mr Myathaza back pay.
[22]
But Metrobus failed to do so.
[15]
When Mr Myathaza reported for work,
Metrobus told him it intended to have the arbitration award
reviewed.  Mr Myathaza
opposed the review proceedings.
Those proceedings, at the time this Court heard oral argument, were
still pending before
the Labour Court.
[23]
Mr Myathaza then applied to have the arbitration award made an
order of court.
[24]
Metrobus opposed the application on two grounds.  First, it
contended that the arbitration award could not be made an
order of
court whilst the review application was pending.  Second, the
arbitration award had, it said, in any event prescribed.
[25]
[16]
The Labour Court held that the arbitration
award constituted a “debt” for the purposes of the
Prescription Act.
>
[26]
On this basis, the award had prescribed and the application was
dismissed.  On appeal, the Labour Appeal Court upheld
the
Labour Court’s findings.
[27]
That Court held that—
“
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.”
[28
]
Since an arbitration
award constituted a “debt” in terms of the
Prescription
Act, the
Labour Appeal Court found that the award prescribed three
years from the date it was issued.
[29]
Mr Myathaza’s award had thus prescribed, and his appeal
was dismissed.
[30]
[17]
Mr Myathaza sought leave to appeal from
this Court.  His appeal succeeded.  Three judgments were
delivered.  The
first, penned by Jafta J, with Nkabinde ADCJ,
Khampepe J and Zondo J concurring, held that the
Prescription Act was
incompatible with the provisions of the LRA.
[31]
In interpreting
section 16
of the
Prescription Act,
[32
]
the first judgment found that in the context of the Constitution,
“inconsistency” was to be afforded a meaning wider
than
contradiction or conflict.
[33]
Relying on this Court’s decision in
Mdeyide
,
[34]
the first judgment held that “[i]t is enough if there are
material differences between [the two pieces of legislation]”.
[35]
[18]
Based on the fundamental differences
between the LRA and the
Prescription Act,
[36
]
the first judgment concluded that the latter did not apply to the
LRA.  The result was that Mr Myathaza’s arbitration
award
had not prescribed.  In a statement that was additional to the
judgment’s basis of decision (obiter), the first
judgment
further held that, even if the
Prescription Act were
to apply, Mr
Myathaza’s reinstatement award could not prescribe because it
did not constitute a “debt” for the
purposes of the
Prescription Act.
[37
]
This was because the order of reinstatement was “not an
obligation to pay money or deliver goods or render services
by
Metrobus to the applicant”.
[38]
[19]
In a judgment concurring with the approach
of Jafta J, Zondo J wrote separately to underscore why the Labour
Court and the Labour
Appeal Court were mistaken in their approach
(third judgment).
[39]
The third judgment buttressed the first judgment’s finding
that the
Prescription Act was
not applicable to LRA matters.
[40]
It disagreed that a referral of a dismissal dispute to the CCMA
interrupted prescription since that could occur only by the
service
on the debtor of the process contemplated in
section 15(1)
read with
subsection (6) of the
Prescription Act.
[41
]
[20]
The third judgment in addition concluded
that an arbitration award did not constitute a “debt” for
the purposes of the
Prescription Act.
[42
]
[21]
The second judgment in
Myathaza
was penned by Froneman J, with Madlanga J, Mbha AJ and Mhlantla
J concurring.  The second judgment held that the
Prescription
Act was
not inconsistent with the LRA, but complementary to it.
It found that the provisions of the two statutes 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.
[43]
[22]
After finding the two statutes consistent,
the second judgment examined the meaning of “process” and
“debt”
in
section 15
of the
Prescription Act.
[44
]
It held that commencing proceedings before the CCMA interrupted
prescription in accordance with
section 15(1)
of the
Prescription Act.
[45
]
[23]
In determining whether a claim for unfair
dismissal under the LRA constitutes a “debt”, the second
judgment held that
“only a claim for the enforcement of legal
obligations should qualify as a ‘debt’ under the
Prescription Act&rdquo
;.
[46]
An unfair dismissal claim sought to enforce three possible kinds of
legal obligations, namely reinstatement, re-employment
and
compensation.  This meant it was a “debt”, because
each of those obligations “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.  The employer must provide
employment and pay remuneration.  Both fall within
the meaning
of a ‘debt’ under the
Prescription Act, however
narrowly
interpreted.”
[47]
[24]
Since the service of process initiating the
CCMA dispute resolution process interrupted prescription,
prescription remained interrupted
until any review proceedings
seeking to nullify the CCMA outcome were finalised:
“
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.  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.”
[48]
[25]
The referral of the dispute to the CCMA
interrupted prescription, which remained interrupted until the
finalisation of the review
proceedings.
[49]
Hence the second judgment found that Mr Myathaza’s
arbitration award had not prescribed and, like the first and third

judgments, that the appeal should succeed.
[26]
The order the Court in
Myathaza
unanimously granted read thus:
“
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.”
[50]
Analysis
[27]
Because of the parity of votes in
Myathaza
,
in which none of the judgments secured a majority, no binding basis
of decision (ratio) emerges from the Court’s decision.

But, on either approach, that of Jafta J and Zondo J, or that of
Froneman J, Ms Mogaila is entitled to an order declaring that
the
arbitration award ordering her reinstatement has not prescribed.
She is entitled to secure its certification under
section 143(3)
of the LRA, and its enforcement under
section 143(1).
[28]
Whether the arbitration award in her favour
could not have prescribed because the
Prescription Act does
not
apply at all to LRA matters, as the first and third judgments held
(or because, even if that statute were applicable, the reinstatement

order was “not an obligation to pay money, deliver goods or
render services”),
[51]
or because, as the second judgment held, the CCMA referral
interrupted prescription, persisting until the finalisation of the
review proceedings in October 2013, Ms Mogaila must succeed.
[29]
On the second judgment’s approach,
the arbitration award would have prescribed only in October 2016.  Ms
Mogaila filed
her application in this Court timeously, in April
2016.  Prescription was therefore interrupted, again, pending
the finalisation
of these proceedings.  On either approach, Ms
Mogaila is entitled now to proceed with the certification of the
award under
section 143
of the LRA.
[52]
[30]
Ms Mogaila has been successful before this
Court and there is no reason why costs should not follow.
Order
[31]
The following order is made:
1.
The application for direct access is
granted.
2.
It is declared that the order of
reinstatement in favour of the applicant, Ms Maria Jane Mogaila,
under arbitration
award LP7202-07, has not prescribed in terms of the
Prescription Act 68 of 1969
.
3.
Coca Cola Fortune (Pty) Limited is ordered
to pay costs in this Court.
[1]
The applicant’s notice of motion asked for
an order “[t]o decide whether or not” prescription
applied and her
reinstatement award was a “debt”.
[2]
68 of 1969.
[3]
66 of 1995.
[4]
CCT 232/15.
[5]
Myathaza v Johannesburg Metropolitan Bus
Services (SOC) Limited t/a Metrobus
[2016]
ZACC 49
(
Myathaza
).
[6]
Rule 18(5) of the Constitutional Court Rules
provides that:
“
Applications
for direct access may be dealt with summarily, without hearing oral
or written argument other than that contained
in the application
itself: Provided that where the respondent has indicated his or her
intention to oppose in terms of subrule
(3), an application for
direct access shall be granted only after the provisions of subrule
(4)(a) have been complied with.”
[7]
This date, which squares with the relief Ms
Mogaila later obtained, is taken from the arbitration award and from
the applicant’s
founding affidavit, though in the confirmatory
affidavit of Ms Mogaila’s attorney, he says, apparently
mistakenly, that
she was dismissed on 26 November 2008.  Coca
Cola also states Ms Mogaila was dismissed in 2008.
[8]
This judgment deals only with the reinstatement
award and not the back pay.  This is because the relief sought
makes no mention
of back pay, but relates only to the reinstatement
award.
[9]
Ms Mogaila’s monthly salary was R4 649.90.
[10]
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.
(6)
Subsections (1), (4) and (5), as amended by the Labour Relations

Amendment Act, 2014, takes effect on the date of commencement of the
Labour Relations Amendment Act, 2014, and applies to an
arbitration
award issued after such commencement date.”
[11]
From the papers before us, it is not clear
whether certification of the arbitration award has taken place.
In the confirmatory
affidavit of Mr Lombard, Ms Mogaila’s then
attorney, he states that a new application to certify the award was
instituted
in June 2014, which was opposed.  No further details
are provided.
[12]
Section 145(1) of the LRA provides:
“
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.”
[13]
Section 11
of the
Prescription Act provides
:
“
The
periods of prescription of debts shall be the following:
(a)
thirty years in respect of—
(i)
any
debt secured
by mortgage bond;
(ii)
any
judgment
debt;
(iii)
any
debt in
respect of any taxation imposed or levied by or under any law;
(iv)
any debt owed to the State in respect of
any share of the profits, royalties or any similar consideration
payable in respect of
the right to mine minerals or other
substances;
(b)
fifteen years in respect of any debt owed
to the State and arising out of an advance or loan of money or a
sale or lease of land
by the State to the debtor, unless a longer
period applies in respect of the debt in question in terms of
paragraph (a);
(c)
six years in respect of a debt arising
from a bill of exchange or other negotiable instrument or from a
notarial contract, unless
a longer period applies in respect of the
debt in question in terms of paragraph (a) or (b);
(d)
save
where an
Act of Parliament provides otherwise, three years in respect of any
other debt.”
Following correspondence
between Mr Lombard and Coca Cola, Ms Mogaila was instructed to
consult with Mr Lombard in January
2014.  She was informed
that he was waiting for the Labour Court.  The delay
continued.  Mr Lombard allegedly
suffered a personal tragedy in
April 2014 following which he was unable to attend to Ms Mogaila’s
matter.
[14]
Section 167(6) of the Constitution provides:
“
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and
with leave of the
Constitutional Court—
(a)
to bring a matter directly to the
Constitutional Court; or
(b)
to appeal directly to the Constitutional
Court from any other court.”
Rule 18 of the
Constitutional Court Rules governs the procedure for direct access
applications.
[15]
See
Myathaza
above n 5 at para 15.
[16]
Bruce v Fleecytex Johannesburg CC
[1998] ZACC 3; 1998 (2) SA 1143 (CC); 1998 (4) BCLR 415 (CC).
[17]
Id at para 7.
The
Constitutional Court was “the highest court on all
constitutional matters” before the enactment of the
Constitution Seventeenth Amendment Act 72
of
2012, which gave this Court final
appellate jurisdiction in all cases.
[18]
Id at para 8.
[19]
AParty v Minister of Home Affairs; Moloko v
Minister of Home Affairs
[2009] ZACC
4
;
2009 (3) SA 649
(CC);
2009 (6) BCLR 611
(CC) at para 30.
[20]
Myathaza
above n
5 at para 2.
[21]
Id at para 5.
[22]
Id at para 6.
[23]
Id at para 7.
[24]
Section 158(1)(c) of the LRA provides:
“
The
Labour Court may—
. . .
(c)
make any arbitration award or any settlement agreement an order
of
the Court”.
[25]
Myathaza
above n
5 at para 8.  Mr Myathaza applied to have the arbitration award
made an order of court in 2013, more than three
years after the
award was issued.
[26]
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.
[27]
Myathaza v Johannesburg Metropolitan Bus
Service (SOC) Limited t/a Metrobus; Mazibuko v Concor Plant;
Cellucity (Pty) Ltd v Communication
Workers Union on behalf of
Peters
[2015] ZALAC 45
; (2016) 37
ILJ
413 (LAC);
2016 (3) SA 74
(LAC) (LAC judgment) at para 44.  The
Labour Appeal Court considered the appeal together with two matters
which concerned
the same issue, but which had reached different
conclusions.  In
Concor Holdings
(Pty) Ltd v Mazibuko
[2013] ZALCJHB
141; (2014) 35
ILJ
477 (LC), at para 29, the Labour Court held that
the
Prescription Act was
applicable and that the award made in favour of
the employee had prescribed after three years.  In
Cellucity
(Pty) Ltd v Communication Workers Union on behalf of Peters
[2013] ZALCCT 43;
[2014] 2 BLLR 172
(LC), at para
21, the Labour Court held that the
Prescription Act was
inconsistent
with the LRA.  The Court stated that:
“
Its
application to LRA claims would create inequalities between
litigants using different routes for their disputes and furthermore

will be unworkable where disputes move between tribunal and court
and vice versa.”
[28]
LAC judgment id at para 41.
[29]
Id at para 55.
[30]
Id at para 94.
[31]
Myathaza
above n
5 at paras 43-58.
[32]
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; or
(b)
which, if this Act had not come into operation, would have applied

to the prescription of a debt which arose or arises out of an
advance or loan of money by an insurer to any person in respect
of
an insurance policy issued by such insurer before 1 January 1974,
shall
continue to apply to the
prescription of the debt in question in all respects as if this Act
had not come into operation.”
[33]
Myathaza
above n
5 at para 39.
[34]
Road Accident Fund v Mdeyide
[2010] ZACC 18
;
2011 (2) SA 26
(CC);
2011 (1) BCLR 1
(CC).
[35]
Myathaza
above n
5 at para 42.
[36]
Id at paras 43-58 sets out the differences
between the LRA and the
Prescription Act.
[37
]
Id at para 59.
[38]
Id.
[39]
Id at para 104.
[40]
Id at paras 131-9.
[41]
Id at paras 140-1.
[42]
Id at para 119.
[43]
Id at para 66.  Whilst Froneman J
concurred in the order of the first judgment and with the first
judgment’s finding
that the
Prescription Act must
be
re-interpreted in order to give proper constitutional effect to the
right to justice, he disagreed that this necessitated
a finding that
the provisions of the
Prescription Act were
inconsistent with those
of the LRA, thereby excluding the application of the former.
[44]
Section 15
of the
Prescription Act provides
:
“
(1)
The running of prescription shall, subject to the provisions of
subsection
(2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.
(2)
Unless the debtor acknowledges liability, the interruption of

prescription in terms of subsection (1) shall lapse, and the running
of prescription shall not be deemed to have been interrupted,
if the
creditor does not successfully prosecute his claim under the process
in question to final judgment or if he does so prosecute
his claim
but abandons the judgment or the judgment is set aside.
(3)
If the running of prescription is interrupted as contemplated in

subsection (1) and the debtor acknowledges liability, and the
creditor does not prosecute his claim to final judgment,
prescription
shall commence to run afresh from the day on which the
debtor acknowledges liability or, if at the time when the debtor
acknowledges
liability or at any time thereafter the parties
postpone the due date of the debt, from the day upon which the debt
again becomes
due.
(4)
If the running of prescription is interrupted as contemplated in

subsection (1) and the creditor successfully prosecutes his claim
under the process in question to final judgment and the interruption

does not lapse in terms of subsection (2), prescription shall
commence to run afresh on the day on which the judgment of the
court
becomes executable.
(5)
If any person is joined as a defendant on his own application, the

process whereby the creditor claims payment of the debt shall be
deemed to have been served on such person on the date of such

joinder.
(6)
For the purposes of this section, “process” includes
a
petition, a notice of motion, a rule
nisi
, a pleading in
reconvention, a third party notice referred to in any rule of court,
and any document whereby legal proceedings
are commenced.”
[45]
Myathaza
above n
5 at paras 75 and 82.
[46]
Id at para 78.  The second judgment, at para
80, noted that this approach in no way contradicted that of the
majority in
Makate v Vodacom Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC): “In
that case the Court did not take issue with the idea that there may
be debts beyond a claim for payment”.
[47]
Myathaza
above n
5 at para 79.
[48]
Id at para 86.
[49]
Id at para 88.
[50]
Id at para 65.
[51]
Id at para 59.
[52]
See LAC judgment above n 27 at para 62 where the
Court, in discussing the certification in terms of
section 143(3)
of the LRA, stated that:
“
The
certificate is merely required to enforce arbitration awards as if
they were orders of the Labour Court.”
The Court, at para 63,
continued:
“
Certification
. . . is part of the process of executing an award as if it is an
order of the Labour Court.”
Myathaza
above n 5 at paras 25-6 discusses the two methods
of enforcing an arbitration award in terms of the LRA
:
“
This
means that, once the award is certified [in terms of
section 143(3)]
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.
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.”