Nimro 152 (Pty) Ltd t/a Hennenman Pick 'n Pay Mini Market v Makehetha and Others (JR20/10) [2016] ZALCJHB 217 (14 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR20/10

Not Reportable

In the matter between:

NIMRO 152 (PTY) LTD t/a HENNENMAN PICK’N PAY MINI MARKET Applicant and TSEHPANG GEORGE MAKEHETHA First Respondent SELLO MOPHAKI Second Respondent COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION Third Respondent

Heard: 24 February 2016

Delivered: 14 June 2016

RABKIN-NAICKER, J

[1] This matter was set down as an opposed review application. On the 19th of February a supplementary affidavit was filed wherein the applicant raised the point that the award sought to be reviewed had prescribed on the 25th of January 2012 and sought a declarator in those terms. Answering papers were filed in respect of the issue before the matter came before me.

[2] The basis for the contention that the award in question has prescribed is as follows:

2.1 On 6 December 2009 the Second Respondent issued an arbitration award in terms of which applicant was directed to pay the amount of R18 170-84 to the first respondent on or before 25 January 2009;

2.2 After 25 January 2009 a period of 3 years elapsed on 25 January 2012, within which period the arbitration award was not made an order of court.

2.3 A writ of execution was issued on 29 November 2012 approximately 10 months after the award had become prescribed.

[3] In terms of the law as set out in Myathaza v Johannesburg Metropolitan Bus Service (SOC) Ltd t/a Metrobus Mazibuko v Concor Plant Cellucity (Pty) Ltd v Communication Workers Union on behalf of Peters (2016) 37 ILJ 413 (LAC), by which this court is bound[1], the prescription point taken by the applicant is sound.

[4] Section 17 of the Prescription Act provides:

“17. Prescription to be raised in pleadings.—

(1) A court shall not of its own motion take notice of prescription.

(2) A party to litigation who invokes prescription, shall do so in the relevant document filed of record in the proceedings: Provided that a court may allow prescription to be raised at any stage of the proceedings.”

[5] The meaning of a ‘relevant document filed of record’ in section 17(2) has been considered by this court and found to encompass a special plea in trial proceedings or an answering affidavit in motion proceedings.[2] In this matter the point has been raised by the applicant in the review application by means of a supplementary affidavit. Although

the issue will be most usually raised by a respondent, the Constitutional Court in considering section 17(2) of the Prescription

Act has reflected that the point must be raised in documents to be considered in the proceedings as follows:

“No party to this litigation is invoking prescription in any document before us. The affidavit in which the trustee sought to invoke

prescription ceased to be counted among documents to be considered in these proceedings when the trustee withdrew his opposition. And no party has since raised prescription at any stage of the proceedings.”[3]

[6] In this matter, both parties have dealt with the issue in supplementary affidavits before me. The issue serves as a point

in limine that stands to be upheld. I therefore make the following order:

Order

1. The arbitration award under case number FS2293-09 has become prescribed and is no longer enforceable.

_________________

H. Rabkin-Naicker

Judge of the Labour Court of South Africa

Appearances:

Applicant:

Mr H Wissing of Henk Wissing Attorney

First Respondent: Mr A Goldburg of Goldburg Attorneys

[1] The first respondent submits that because the Myathaza matter is being appealed to the Constitutional Court, the Labour Court is not so bound. This is incorrect in terms of the trite

principles of stare decisis.

[2] In Technikon Pretoria (now Tshwane University of Technology) v Nel NO & others (2012) 33 ILJ 293 (LC) at paragraphs 25-27 inter alia

[3] Sarrahwitz V Maritz NO And Another 2015 (4) SA 491 (CC) at paragraphs 12-15