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South Africa Order

Labour Court Johannesburg

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1326/12) [2016] ZALCJHB 383 (6 October 2016)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court granted leave to appeal against its earlier review judgment and costs order, acknowledging that the Constitutional Court was considering the prescription issue and that its decision could affect the correctness of the Labour Appeal Court's interpretation. The court found that there was a reasonable prospect that another court might reach a different conclusion on the costs award, given its discretionary nature. The court did not find merit in the challenge to the admission of the supplementary affidavit but allowed the appeal on both the prescription and costs issues in light of the pending Constitutional Court decision.

Court disposition

Leave to appeal is granted against the review judgment and the costs order.

Orders

  • Leave to appeal is granted against the judgment in the review application handed down on 18 May 2016 and against the costs order.
  • Costs of the appeal shall be costs in the cause.

02

Material facts

Parties

Woolworths (Pty) Ltd

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Lerato Sikwane N.O

Respondent

Reuben Lucas Podile

Respondent

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Review Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the arbitration award sought to be reviewed had prescribed in terms of the Prescription Act, and that neither the review application nor the warrant of execution interrupted prescription. The applicant also maintained that its supplementary affidavit was properly admitted to support its plea of prescription.
Respondent
The third respondent contended that the court erred in finding that the award had prescribed, referencing the pending Constitutional Court appeal in Myathaza. He further argued that the court should have awarded him costs for opposing the applicant's belated prescription plea and challenged the admission of the applicant's supplementary affidavit.

05

Court’s reasoning

  1. 01

    Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Ltd v CWU obo Peters (JA122/14) [2015] ZALAC 45; [2016] 1 BLLR 24 (LAC) (6 November 2015)

    The Prescription Act applies to arbitration awards made under the LRA, whether compensatory or reinstatement awards, and neither a review application nor a warrant of execution interrupts prescription.

  2. 02

    General principles of South African civil procedure

    The award of costs is a discretionary matter for the court.

06

Ratio, limits and disposition

Ratio decidendi

The court granted leave to appeal against its earlier review judgment and costs order, acknowledging that the Constitutional Court was considering the prescription issue and that its decision could affect the correctness of the Labour Appeal Court's interpretation. The court found that there was a reasonable prospect that another court might reach a different conclusion on the costs award, given its discretionary nature. The court did not find merit in the challenge to the admission of the supplementary affidavit but allowed the appeal on both the prescription and costs issues in light of the pending Constitutional Court decision.

Obiter and limits

  • The outcome of the Constitutional Court appeal in Myathaza may have significant implications for the prescription of arbitration awards under the LRA.
  • The discretionary nature of costs awards means that reasonable prospects exist for a different outcome on appeal.

Court disposition

Leave to appeal is granted against the review judgment and the costs order.

  • Leave to appeal is granted against the judgment in the review application handed down on 18 May 2016 and against the costs order.
  • Costs of the appeal shall be costs in the cause.

Source and reliance status

Labour Court Johannesburg

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Judgment reading view

Judgment text

The complete available source text.

Source document

Labour Court Johannesburg

Order

[2016] ZALCJHB 383

Not reportable

THE LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG

JUDGMENT

Case no: JR 1326/12

In the matter between:

WOOLWORTHS (PTY) LTD Applicant (Respondent in application for leave to appeal) and

COMMISSION FOR CONCILIATION,

MEDIATION AND

ARBITRATION First Respondent

COMMISSIONER LERATO

SIKWANE N.O Second Respondent

REUBEN LUCAS PODILE Third Respondent (Applicant in application for leave to appeal)

JUDGMENT

ON APPLICATION FOR LEAVE TO APPEAL

LAGRANGE J

Introduction

[1] The citation of the parties in the review proceedings are retained subject to their new status in this application as indicated above.

[2] In the review application hearing on 18 may 2016, I upheld the belated special plea by the applicant in the review proceedings that the arbitration award it sought to review had prescribed. I further decline to make an order of costs.

[3] The third respondent appeals against both the finding that the award had prescribed and the cost order.

[4] The Labour Appeal Court in Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Ltd v CWU obo Peters[1] held that the Prescription Act applies to arbitration awards made in terms of the LRA regardless of whether it is a compensatory or reinstatement award with or without back-pay and that a review application and a warrant of execution do not interrupt prescription. However, that judgement recently went on appeal before the Constitutional Court which heard argument on the matter on 1 September 2016.[2] Consequently, I cannot rule out the possibility that the Constitutional Court may come to a different conclusion from the Labour Appeal Court which would naturally have implications for the correctness my ex tempore judgement in this matter on the prescription issue.

[5] The third respondent also contends that the court erred in not awarding him his costs incurred in opposing the applicant’s belated plea of prescription. Moreover, he contends that the court erred in allowing the applicant to file its supplementary affidavit in support of its prescription plea. While I do not believe there is any merit in the last mentioned point, I agree there is a reasonable prospect that another court might come to a different view on the cost award even though the award of costs is a discretionary matter.

Order

[6] Leave to appeal is granted against the judgement in the review application handed down on 18 may 2016 and against the costs order.

[7] Costs of the appeal shall be costs in the cause.

_______

Lagrange J

Judge of the Labour Court of South Africa

(In Chambers)

6 October 2016

[1] (JA122/14) [2015] ZALAC 45; [2016] 1 BLLR 24 (LAC) (6 November 2015)

[2] Sizwe Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and another and Another CCT 232/15

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Ltd v CWU obo Peters (JA122/14) [2015] ZALAC 45; [2016] 1 BLLR 24 (LAC) (6 November 2015)

Case cited

Sizwe Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and another and Another CCT 232/15

Case cited

Prescription Act

Legislation

Legislation referenced in the available case record.

Labour Relations Act

Legislation

Legislation referenced in the available case record.

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