National Union of Public Service and Allied Workers v Public Servants Union (D635/05) [2008] ZALC 224 (11 August 2008)
The Court found that it lacked jurisdiction because the respondent was not a trade union but a section 21 association registered under the Companies Act, and was not the entity party to the amalgamation. Even if jurisdiction existed, the applicant's claim had prescribed, as it was aware of the facts giving rise to...
Source-derived case information.
- Citation
- [2008] ZALC 224
- Parties
- Applicant: THE NATIONAL UNION OF PUBLIC SERVICE AND ALLIED WORKERS; Respondent: THE PUBLIC SERVANTS’ UNION
- Court
- Labour Court
- Jurisdiction
- South Africa
- Case Number
- D635/05
- Procedural Posture
- Civil Trial / Trial
- Outcome
- Application dismissed for lack of jurisdiction and prescription; costs awarded to respondent.
- Judges
- Pillay D
- Legal Topics
- Jurisdiction of Labour Court, Prescription of Claims, Amalgamation of Trade Unions
Source-derived case record
Summary, issues, holding and outcome
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Parties
THE NATIONAL UNION OF PUBLIC SERVICE AND ALLIED WORKERS
Applicant
THE PUBLIC SERVANTS’ UNION
Respondent
Procedural Posture
Civil Trial / Trial
Legal Issues
- 1 Does the Labour Court have jurisdiction to determine disputes concerning the assets of amalgamating trade unions when the respondent is not a trade union?
- 2 Has the applicant's claim prescribed under the Prescription Act?
- 3 Is the applicant entitled to launch proceedings by way of action instead of motion?
Ratio Decidendi
The Court found that it lacked jurisdiction because the respondent was not a trade union but a section 21 association registered under the Companies Act, and was not the entity party to the amalgamation. Even if jurisdiction existed, the applicant's claim had prescribed, as it was aware of the facts giving rise to the claim since August 1998 and failed to launch its claim within the three-year prescription period. The applicant's lack of knowledge of the amount of the debt did not suspend or interrupt prescription. The third objection regarding procedure was rendered academic by the findings on jurisdiction and prescription.
Court Disposition
Application dismissed for lack of jurisdiction and prescription; costs awarded to respondent.
Orders
- The Court has no jurisdiction to determine this dispute.
- Insofar as the Court is wrong with regard to its first ruling, the Court also finds that the claim has prescribed.
Full Case Text
Judgment text and source record
36 paragraphs
D635/05-LJP/CD 3 JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO :D635/05
DATE:11 AUGUST 2008
In the matter between:
THE NATIONAL UNION OF PUBLIC SERVICE
AND ALLIED WORKERS Applicant
And
THE PUBLIC SERVANTS’ UNION Respondent
JUDGMENT 11 August 2008
_____________________________________________________________
Pillay D, J This trial is preceded by three points in limine. The first relates to the jurisdiction of the Court, the second to prescription and the third is an objection to the applicant
launching proceedings by way of action instead of motion.
With regard to jurisdiction, the applicant relies on section 102(5) of the Labour Relations Act No 66 of 1995. In terms of section 202(5) read with section 157(1) and section 158(1)(j) of the Labour Relations Act, the Court has jurisdiction to determine disputes that arise concerning the assets of amalgamating trade unions. However, the respondent is not a trade union but a section 21 association registered in terms of the Companies Act No 61 of 1973. It had registered as a trade union; it deregistered after it amalgamated with the applicant. As the respondent is not the entity party to the amalgamation, the Court derives no jurisdiction under section 102(5) of the LRA. The position might have been otherwise if the respondent was cited jointly with the Public Servants’
Union in its capacity as a trade union for purposes of execution. That is not the case here and the Public Servants Union no longer
exists as a union.
With regard to prescription, in terms of section 12(3) of the Prescription Act No 68 of 1969, 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. The applicant was aware of the facts that gave rise to its claim for a declarator as at the 13th of August 1998 because it had directed the respondent to deliver its assets.
The parties had recorded the facts from which the debt arose in the amalgamation agreement. The preamble recorded that prior to amalgamation, each union had acquired certain movable and immovable properties and assets. Paragraph 5 of the agreement recorded that all assets acquired by the parties prior to the signing of the agreement, should be the property of that party, to deal with in terms of its constitution. By inference, therefore, all assets acquired after the amalgamation vested in the applicant.
The agreement was dated 30 March 1998. It is common cause that the period of prescription is three years under the Prescription Act. Hence, the applicant had to launch its claim before 1 April 2001. The applicant’s complaint that it was not aware of the amount
of the debt, is not the basis on which prescription can be suspended or interrupted. It was aware that the Public Servants’ Union, as a union, was indebted to it.
With regard to the third point, in the light of the Court’s findings on the first two points, the third objection falls away and is academic in the circumstances. ORDER The Court grants an order in the following terms: The Court has no jurisdiction to determine this dispute.
Insofar as the Court is wrong with regard to its first ruling, the Court also finds that the claim has prescribed.
The applicant must pay the respondent’s costs. ________________ Pillay D, J Date Edited: 12 November 2008 Appearances: For the Applicant: Adv A Jeffrey SC – instructed by Russell Sobey Attorneys For the Respondent Advocate B Pitman – instructed by Masipa Inc
With regard to the third point, in the light of the Court’s findings on the first two points, the third objection falls away and is academic in the circumstances.
ORDER
The Court grants an order in the following terms:
The Court has no jurisdiction to determine this dispute.
Insofar as the Court is wrong with regard to its first ruling, the Court also finds that the claim has prescribed.
The applicant must pay the respondent’s costs.
________________
Pillay D, J
Date Edited: 12 November 2008
Appearances:
For the Applicant: Adv A Jeffrey SC – instructed by Russell Sobey Attorneys
For the Respondent Advocate B Pitman – instructed by Masipa Inc