Page 1 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CONCOURT CASE NO: CCT 232/2015 LAC CASE NO: JA122/2014 LC CASE NO: J1901/2013 In the appeal of:
MYATHAZA, SIZWE Applicant and:
JOHANNESBURG METROPOLITAN BUS
SERVICES (SOC) LTD t/a METRO BUS First Respondent MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Second Respondent
CELLUCITY (PTY) LTD Third Respondent
CONGRESS OF SOUTH AFRICAN TRADE UNIONS Intervening Party _____________________________________________________________________
APPLICANT’S PRACTICE NOTE
1 Counsel appearing for the applicants
V Ngalwana SC Tel: (011) 282 3700 Mobile: 082 328 9400 N Mbelle
R Naidoo
2 Nature of the proceedings
This is an appeal of the whole judgment and order of the Labour Appeal Court in Myathaza v Johannesburg Metropolitan Bus SOC LTD t/a Metrobus 2016 (3) SA 74 (LAC) delivered on 6 November 2015. The Labour Appeal Court dismissed the appeal on the grounds that an arbitration award constituted a debt as contemplated
Page 2 in the Prescription Act, 68 of 1969. The applicant could not make the arbitration award an order of court in terms of section 158(1)(c ) of the Labour Relations Act, 66 of 1995 as amended as the Labour Court found that the claim had prescribed.
3 Issues that will be argued
It will be argued on behalf of the applicant that:
An arbitration award for re-instatement does not constitute a debt in the terms of the Prescription Act.
If the arbitration award is indeed a debt, it has not prescribed.
Since the failure of the employer to re-instate the applicant in terms of the arbitration award is a continuous wrong, prescription runs month to month
The application of the Prescription Act to arbitration award where re- instatement is the primary remedy is contrary to public policy and the interests of justice.
4 Portion of the record necessary for determining the matter
The three volumes the applicant filed
5 Estimated duration of oral argument
Argument on behalf of the Applicant should not take longer than 1 hour
6 Summary of Argument
An arbitration award for re-instatement does not constitute a debt in the terms of the Prescription Act.
Page 3
The Prescription Act does not apply in relation to an arbitration award for re-instatement of an employee. The applicant’s claim is beyond the scope of the word “debt”. The applicant does not seek to enforce an obligation for the payment of money or delivery of goods.
If the arbitration award is a debt, it has not prescribed as the review proceedings continue to interrupt the running of prescription until they have been completed. Even if the Court were to find that the arbitration award for re-instatement with back-pay constitutes a ‘debt’, prescription runs from month to month in relation to each monthly back-pay that was ordered to be paid consequent to the re-instatement award.
The applicant seeks to enforce his right to fair labour practice as enshrined in section 23(1) of the Constitution read together with section 5(2)(b) of the Labour Relations Act. Applying the Prescription Act to an arbitration award would unreasonably and unjustifiably limit the applicant’s right to access to courts under section 34 of the Constitution.
7 Authorities on which the applicant relies
The Constitution of the Republic of South Africa, 1996 as amended Labour Relations Act 66, of 1995 as amended
Prescription Act, 68 of 1969 as amended
Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A)
National Education Health and Allied Workers Union v University of Cape Town 2003(3) SA 1 (CC)
Makate v Vodacom (Pty) Ltd [2016] ZACC 13
Njongi v MEC, Department of Welfare, Eastern Cape 2008 (4) SA 237 (CC) Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC)
