NUMSA obo Masipa v Go Suspensions and Axles (Pty) Ltd and Others (JR3349/09) [2014] ZALCJHB 515 (12 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case No: JR 3349/09

DATE: 12 DECEMBER 2014

Not Reportable

In the matter between:

NUMSA obo WELCOME MASIPA.....................................................................Applicant

And

GO SUSPENSIONS AND AXLES (PTY) LTD...........................................First Respondent

METAL AND ENGINEERS INDUSTRIES...........................................Second Respondent

BARGAINING COUNCIL COMMISSIONER

BONGANI KHUMALO.........................................................................Third Respondent

Date of Ruling: 12 December 2014

Decided in chambers

JUDGMENT: LEAVE TO APPEAL

MTHOMBENI AJ

[1] This judgment concerns an application by the first respondent for leave to appeal against a judgment by this Court handed down on 26 March 2014. I refer to the parties as they were in the main application.

[2] The main application was in terms of Section 158 (1) (c) of the Labour Relations Act 66 of 1995 (“the LRA”) to make an arbitration award issued by the third respondent on 9 November 2009 under the auspices of the second respondent an order of court.

[3] In its judgment the Court made the arbitration award, ordering the reinstatement of Welcome Masipa (“Masipa”), an order of court. In arriving at this, the Court opined that the Prescription Act 68 of 1969 (“the Prescription Act”) does not find application to arbitration awards.

Grounds for leave to appeal

[3] The first respondent seeks leave to appeal on the following grounds:

3.1 The court erred in accepting the dicta of Rabkin-Nicker J in the unreported judgment of Prof AR Coetzee v The Member of the Executive Council of the Provincial Government of the Western Cape: Case Number C751/2008.

3.2 The Court erred in finding that the Prescription Act is inconsistent with the LRA.

3.3 The Court erred in finding that the applicant’s right to reinstatement is immune to the Prescription Act.

Applicant’s submissions

[4] The applicant made the following submissions:

4.1 There are no reasonable prospects of success that another Court might come to a different conclusion.

4.2 If a right to reinstatement could be capable of expiration or prescription in terms of the Prescription Act, it would offend against Section 23 of the Constitution which entrenches the right to fair labour practices.

4.3 There are judgments of this court where it was found that the Prescription Act does not apply to awards of reinstatement.

Determination

[5] The test to be applied is whether another Court; namely the Labour Appeal Court, might reasonably come to a different conclusion.

[6} The question raised in this application, that is whether the Prescription Act applies to arbitration awards ordering reinstatement, is important for this Court, given the different decisions handed down by this Court.

[7] It is my considered view that this constitutes a compelling reason why leave should be granted so that the Labour Appeal Court settles the question.

[8] In the light of the above reasons, leave to appeal is granted.

I, accordingly, make the following order:

1. Leave to appeal is granted.

2. I make no order as to costs.

Mthombeni AJ

Acting Judge of the Labour Court of South Africa