Fredericks v Grobler NO and Others (C590/2007) [2010] ZALC 18; [2010] 6 BLLR 644 (LC) (3 February 2010)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

Reportable

Case No: C590/2007

In the matter between:

P FREDERICKS

Applicant

and

HILDA GROBLER N.O

First Respondent

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL Second Respondent

DEPARTMENT OF CORRECTIONAL

SERVICES Third Respondent

JUDGMENT

Molahlehi J

Introduction

The applicant in this matter seeks to have the ruling issued by the first respondent reviewed and set aside in terms of section 158(1) (g) of the Labour Relations Act 66 of 1995 (LRA). In terms of the ruling which was issued under case number PSGA 463-0708 and dated 8 October 2007, the third responded dismissed the applicant’s application for condonation for the late referral of his unfair labour practice dispute.

The factual background

The dispute which the applicant sought to have considered by the first respondent concerned the alleged failure by the third respondent to promote him following a recommendation in that regard by one of his supervisors. According to the applicant he discovered during 1997, after having access to his personnel records that he met the required criteria for promotion during 1986, 1987 and 1988 and was in fact recommended for promotion by his supervisor but that the third respondent nevertheless failed to effect such recommendations.

As a result of this discovery the applicant addressed a letter on the 23rd December 1997, to the third respondent wherein he complained about failure to promote him. The applicant’s complaint received attention during December 1997 and those in charge recommended that “the situation regarding his promotion be rectified.”

The situation remained the same but the applicant continued to insist that his complaint be addressed.

The applicant did not give up in his endeavor to have what he regarded as unfair treatment address by the third respondent and this continued into 1998. The third respondent responded to the complaint again on the 24th April 1998, in a letter to the third respondent stating that the situation will not be dealt with any further and that the applicant should consider the situation as finalized.

The applicant again did not accept what he was told by the third respondent and pursued the matter further by addressing a letter to the respondent on 5th March 1999, to which the third respondent replied on the 19th April 1999 and stated that they consider the matter finalized as an objective investigation was not possible and that in terms of the Prescription Act 68 of 1969, the matter has prescribed.

Thereafter, the applicant seems to have done nothing regarding his complaint for a period of about six months. It was only on 1st November 1999, that the applicant made representations to the Minister of Correctional Services ("the Minister"). The Minister replied on the 28th January 2002 and in essence confirmed the decision of the third respondent.

The applicant addressed a further letter to the Minister on the 3rd December 2002 and made further representation. The Minister having not responded to this letter the applicant addressed several more letters thereafter.

The third respondent further to the letter of the applicant of the 14th May 2004, responded by reiterating its position that it regarded the matter as finalized.

Three months thereafter and on the 23rd August 2004, the applicant referred an unfair labour practice dispute to the Public Service Commission (PSC). The PSC in turn and only on the 24 May 2005 referred the matter to the third respondent for their resolution.

In response to the dispute as referred to it by the PSC, the third respondent indicated in a letter to the PSC dated 9th October 2006, that there was no basis for the claim by the applicant that he was entitled to have been promoted during 1986 to 1989.

The intervention of the PSC having not produced the desired result from the perspective of the applicant, he then addressed a letter on the 6th December 2006 to the Human Rights Commission and requested assistance.

The assistance of the Human Rights Commission having also not yielded the desired results the applicant referred his dispute to the bargaining council with an application for condonation for the late referral of the dispute. The referral was done on the 27th July 2007. As indicated earlier the condonation application was dismissed by the commissioner resulting in the applicant instituting these proceedings.

The grounds for review

The essence of the applicant’s attack on the commissioner’s ruling is that the commissioner failed to take into account in arriving at her conclusion, that the applicant is a lay person who filled in the standard form provided by the bargaining council for the purposes of condonation application unassisted by a lawyer. The applicant further contended that the delay of 10 (ten) years was not excessive because as soon as he became aware of the unfair labour practice he “started to lodge complaints and grievances.”

As concerning failure to attach the supporting documentation the applicant attributes this to the fact that he is a lay person and that he was unaware that the annexure had to be attached and further that he was never contacted to furnish the same.

The essence of the applicant’s case in as far as prospects of success were concerned in motivating for the granting of condonation for his late referral of his dispute concerns inconsistent application of promotion policy by the third respondent in that another employee who had found himself in a similar situation like him was promoted. The applicant also attacked the ruling with regard to the approach adopted by the commissioner in dealing with issues of prejudice, the importance of the matter and balance of convenience.

The commissioner in refusing to grant condonation reasoned that the applicant failed to comply with the requirements set out in the standard form which he filed in his application for condonation. The commissioner further found that the applicant in his application failed to satisfied the guidelines set out in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). The commissioner also says in her award that the delay of 10 (ten) years was excessive.

The respondent contended that the applicants’ claim became due at the very latest on 3rd September 2001 when the CCMA issued the certificate that it had not been able to settle the dispute. To this extent the respondent argued that the debt which was due to the individual applicants had become prescribed, as prescription began to run as soon as they acquired the right to institute the proceedings against the respondent in terms of section 191(11) of the Labour Relations Act 66 of 1995 (the LRA).

As concerning the process envisaged in section 15(1) of the Prescription Act 68 of 1969 (the Act), the applicant argued that the running of prescription would only have been interrupted if the applicants had filed their statement of claim in terms of rule 6 of the rules of the Labour Court. The applicant relied on the cases of: Peak v Global Technology Ltd (2003) 24 ILJ 1580 (LC) at 1584, Embling and Another v Two Oceans Aquarium 2000 (3) SA 691 (C), Standard Bank of South Africa Ltd v Oneate Investment (PTY) Ltd (In Liquidation) [1997] ZASCA 94; 1998 (1) SA 811 (SCA) at 826 and Waveley Blankets Ltd v Shoprite Checkers (PTY) Ltd and Another 2002(4) SA 166 (C).

The above authorities do not support the case of the applicant. The facts in Peak v Global Technology are distinguishable from the present case in that the Court in that case dealt with an amendment to a statement of claim. Francis J held that even if the statement of claim was excipiable on the basis that it did not disclose the cause of action, it can nonetheless interrupt prescription. It was on this basis that the Learned Judge granted the application to amend the statement of claim which amendment he saw as clarifying the cause of action.

In Waveley Blankets Ltd v Shoprite Checkers, the court dealt with the issue of whether a joinder application would interrupt prescription. The Court held that where the defendant is joined in its own application, there would be no “process whereby the creditor claims payment of the debt” from the debtor. However, the important principle enunciated by the Court (at page 174H), taken from the Cape Town Municipality and Another v Allianz Insurance Co Ltd 1990 (1) SA 311(C) at 334H, which is apposite to the present case and is discussed later in this judgement is that: “It is sufficient for the purposes of interrupting prescription if the process to be served is one whereby the proceedings begun there under are instituted as a step in the enforcement of a claim for payment of the debt.” It should be noted in this regard that the notion of a “debt” in the Act has been described as referring to an obligation to something either by way of payment or by delivery of goods and services or not to do something. See HMD Properties (PTY) Ltd v King 1981 (1) SA 906 (N) at 909A-B. In Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340(A) at 344F-G, the Court held that a debt is:

“that which is owed or due; anything (as money, goods or services) which one person is under an obligation to pay or render to another.”

It is now well established that extinctive prescription as envisaged Prescription Act applies to employment issues. See in this regards Mpanzama v Fidelity Guards Holding (Pty) Ltd [2000] 12 BLLR 1459 (LC), Cape Town Municipality v Allie NO 1981 (2) SA 1 (C) and Uitenhage Municipality v Mooley 1998 (19) ILJ 757 (SCA). A “debt” would in the context of the present case mean that the respondent had an obligation not to unfairly dismiss the applicant.

Sections 10(1), 11(d) and 12(1) of the Act provide that a debt shall be extinguished by prescription after the lapse of a period of three years from the date upon which the debt becomes due. Section 15(1) provides that the running of prescription shall be interrupted by the service of any process whereby the creditor claims payment of the debt.

Section 12 of the Prescription Act provides that:

‘(1) Subject to the provision of subsections (2) and (3), prescription shall commence to run as soon as the debt is due. . . .

(2) . . . .

(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.'

In Solidarity v Eskom Holdings (Pty)Ltd 2008 ILJ 4150 (LAC) the Labour Appeal Court per Khampepe A J A held that :

“A debt is due in this sense, when the creditor acquires a complete cause of action for the recovery of the debt, that is when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place or in other words when everything has happened which would entitle the creditor to institute action and to pursue his or her claim.”

In Truter v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA), the court had the following to say in respect of s 12(1) of the Prescription Act:

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