Mpumalanga Gambling Board v Commission for Conciliation, Mediation And Arbitration and Others (JR46/2010) [2013] ZALCJHB 329 (15 November 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT

NOT REPORTABLE

CASE NO: JR 46/2010

In the matter between:

MPUMALANGA GAMBLING BOARD Applicant

And

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

GLEN CORMAC Second

Respondent

LUMKA M’BELE

Third Respondent

Heard: 24 May 2013

Delivered: 15 November 2013

Summary: Application to dismiss a claim on the basis of prescription of an arbitration award

JUDGMENT

RABKIN-NAICKER J

[1] In this Rule 11 application the applicant seeks the following relief:

“1.That the third respondent’s claim be dismissed as the Third Respondent’s claim has prescribed;

2. That the respondents who oppose the granting of the relief set out in paragraph 1 pay the costs of this application.”

[2] Ms Lumka M’bele (the employee) was employed as the Departmental Manager of the Communication Department of the applicant until her dismissal on the 12 September 2008. She referred an unfair dismissal dispute to the CCMA on 26 September 2008.

[3] On the 4 December 2009 the applicant received an award in which the second respondent found that the employee’s dismissal was procedurally and substantively unfair. She was awarded three months’ salary, an amount of R120 000 in total, in the award dated 23 November 2009.

[4] The applicant filed a review application at the Labour Court on 15 January 2010 under case number JR46/2010. A record of the arbitration proceedings had to be reconstructed. The employee did not participate in same nor did she oppose the review application.

[5] The review application was set down at the Labour Court on 7 August 2012. The employee attended and asked my sister Basson J for an indulgence in order to file a response to the applicants review application. The following order was handed down.

“1. The matter is postponed sine die.

2. The Third Respondent is ordered to file her opposing papers together with her application for condonation for the late filing of her opposing papers on or before 24 August 2012, failing which the matter will proceed on an unopposed basis.

3. The wasted costs occasioned by the postponement are reserved”.

[6] As of the date of hearing of this application no answering papers were filed. The applicant avers that the arbitration award has expired and moreover that the award was neither certified nor made an order of court. In the result, it was submitted the employees claim has prescribed.

[7] In the matter of Professor A.R.Coetzee & 48 others and The member of the Executive Council of the Provincial Government & Others, a judgment handed down on the 20 March 2013 under case number C751/2008, I found the Prescription Act to be incompatible with the

architecture of the LRA. I reasoned inter alia as follows:

“[14] In Road Accident Fund and Another v Mdeyide[1] the Constitutional Court considered the important question of consistency between the Prescription Act and other statutes –

in that matter, the Road Accident Fund Act. The court found that the Prescription Act 68 of 1969 regulates the prescription of claims in general, and the Road Accident Fund Act 56 of 1996 (RAF Act) is tailored for the specific area it deals with, namely claims for compensation in terms of s 17 against the Road Accident Fund for those injured in road accidents. It found that 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.[2] Dealing with the constitutional and legal framework applicable to that matter, the court had this to say:

“Section 34 of the Constitution enshrines the right of access to courts and states that '(e)veryone 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'. The Constitution also recognises the values of human dignity and the advancement of human rights, and requires the State to respect, protect, promote and fulfil the rights recognised in it……

The Prescription Act deals with prescription in general. In terms of s 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.

Generally under the Prescription Act, prescription applies to a debt. For the purposes of this Act, the term 'debt' has been given a broad meaning to refer to an obligation to do something, be it payment or delivery of goods or to abstain from doing something. Although it may on occasion be doubtful whether an obligation is indeed a debt in terms of the Act, there is no doubt that a claim under the RAF Act constitutes a debt. However, the RAF Act regulates the prescription of claims under it and some of the differences between the two statutes have been placed at the core of this matter……When does prescription begin to run? This question is central to the present enquiry. Section 12(1) of the Prescription Act stipulates that it 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 s 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 arises. A creditor is deemed to have the required knowledge if she or he could have acquired it by exercising reasonable care….”[3]

[15] First respondent’s case in respect of prescription relies on the submission that ‘all claims under the LRA fall under the Prescription Act’. In my judgment the LRA, in its design, is inconsistent with such a submission. Instead of any reference to prescription or the inclusion of a prescription clause, the LRA includes specific time periods for the referral of claims and underscores the use of the tool of condonation by this court when such periods are exceeded in the text of the statute, rather than in the court’s rules.

[16] Further, if the Prescription Act did apply, there should be no distinction as regards its application between the different routes required by the LRA i.e. those that go to conciliation and then to arbitration, and/or those which are adjudicated in the Labour Court after conciliation.

This lack of distinction would accord with our constitutional values, particularly the right to equality and of access to justice. The LRA does not proscribe a hierarchy of dismissal claims litigants may bring.

[17]…………There are various outcomes possible when a referral is made to a bargaining council or the CCMA. One of these occurs when the debtor raises the issue of jurisdiction at conciliation, as happened in this matter, and a ruling ensues in the debtors favour. Should such a finding negate the interruption of prescription by the original referral? First respondent argues that it must even though a referral does provide the creditor with knowledge of the debt and of the facts from which the debt arises.

[18] Under the design of the LRA the same problem may arise for a litigant in the following circumstances: a referral is made to conciliation by the creditor and subsequently is referred to arbitration. At the arbitration, a jurisdictional point is raised by the debtor and it is found that the CCMA had no jurisdiction to conciliate or arbitrate the dispute and the matter must go to the Labour Court. Is the statement of claim subsequently filed in this court the only process that can interrupt prescription of the claim despite the fact that the parties have already appeared at two tribunals together.

[19] Another obstacle to the proposition that the Prescription Act applies to all claims under the LRA is the following: a litigant who has to go the arbitration route and gets an award in her favour will not be able to enforce that award after three years. Another litigant who must go the adjudication route in terms of the LRA will obtain a “judgment debt” in this court which in terms of the Prescription Act prescribes only 30 years after it is handed down.[4]

[20] Further, the LRA, in its design, does not establish an impenetrable wall between proceedings in the CCMA and / or Bargaining Councils and the Labour Court. Indeed proceedings can move across the divide between court and tribunal in both directions. An example is provided by Section 158 (2) and (3) of the LRA which reads as follows:

“(2) If at any stage after a dispute has been referred to the Labour Court, it becomes apparent that the dispute ought to have been

referred to arbitration, the Court may-

(a) stay the proceedings and refer the dispute to arbitration; or

(b) with the consent of the parties and if it is expedient to do so, continue with the proceedings with the Court sitting as an arbitrator, in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make.

(3) The reference to 'arbitration' in subsection (2) must be interpreted to include arbitration-

(a) under the auspices of the Commission;

(b) under the auspices of an accredited council;

(c) under the auspices of an accredited agency;

(d) in accordance with a private dispute resolution procedure; or

(e) if the dispute is about the interpretation or application of a collective agreement.”

[21] In my judgment, for at least the above reasons, I find that the Prescription Act is inconsistent with the LRA. 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. It will be beneficial if these issues are considered by the LAC and I give leave to the parties to appeal and cross appeal the following order together with the main order on the merits.”

[8] The above judgment has not yet come before the Labour Appeal Court. In view of the approach of this court to the issue of prescription, I decline to grant the relief prayed. In the result I order as follows:

1. The application is dismissed.

______________________

H. Rabkin-Naicker

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANT: Ms J Charoux instructed by Yusuf Nagdee Attorney

APPEARANCES APPLICANTS: RESPONDENT:

[1] 2011(2)SA 26 (CC)

[2] At paragraphs 50-53

[3] At paragraphs 6,10, 11 and 13

[4] Section 11(a) iii of the Prescription Act 68 of 1969