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IN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA (Held at Johannesburg)
CC Case No: CCT 232 / 15 LAC Case no: JA 122 / 14
In the matter between:
SIZWE MYATHAZA Applicant and
JOHANNESBURG METROPOLITAN BUS SERVICE
(SOC) LTD t/a METROBUS First Respondent MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES Second Respondent
CELLUCITY (PTY) LTD Third Respondent CONGRESS OF SOUTH AFRICAN TRADE UNIONS Intervening Party
THIRD RESPONDENT’S PRACTICE NOTE
1. Appearance for the third respondent
Sean Snyman Tel: (011) 532 8803 Cell: 082 442 7746
2. Nature of proceedings
The applicant filed an appeal against a judgment of the Labour Appeal Court in Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Limited v CWU obo Peters (2016) 37 ILJ 413 (LAC). This appeal judgment concerned three
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appeals that were consolidated into one hearing before the Labour Appeal Court, and thus the judgment the applicant appeals against applies to all three matters, and thus the third respondent as well. The Labour Appeal Court held that the Prescription Act 68 of 1969 applied to arbitration awards issued in terms of the Labour Relations Act 66 of 1995, that such an
arbitration award would constitute a ‘debt’ under the Prescription Act that prescribes in three years, and that a pending review application under the LRA did not interrupt of stay the running of prescription. Consequently, and in the case of the third respondent, the Labour Appeal Court upheld its appeal and granted its application for declaratory relief in the Labour Court to the effect that the arbitration award against it had become prescribed.
3. Issues to be argued
The issues on appeal succinctly are:
The application of the Prescription Act to the dispute resolution proceedings under the LRA.
Whether an arbitration award under the LRA constitutes a ‘debt’ for the purposes of the Prescription Act.
Whether there is an inconsistency between the dispute resolution process under the LRA and the provisions of the Prescription Act, in particular with regard to the date when the debt is due.
Whether a pending review application constitutes an impediment for the purposes of interrupting prescription in terms of the Prescription Act.
Whether the non compliance with an arbitration award for
reinstatement constitutes a continuous wrong, causing prescription to run from month to month.
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4. Portion of record necessary for determining the matter
The third respondent is of the view that considering that this matter turns on legal point(s) alone, the content of the record is of very little relevance in deciding this matter.
5. Duration of argument
1(one) hour by third respondent.
6. Summary of argument
Summary of the argument of the third respondent:
The application of the Prescription Act is consistent with processes, and objectives, of the dispute resolution processes under the LRA.
The Prescription Act supplements the LRA.
There are no policy or constitutional considerations standing the way of the application of the Prescription Act to arbitration awards issued under the LRA.
The relief of reinstatement, reemployment or compensation awarded in arbitration awards issued in terms of the LRA constitutes a right /
obligation which is a debt as contemplated by the Prescription Act.
The debt created by the arbitration is a debt distinct and separate from the claim for unfair dismissal, the latter being determined by the
arbitration proceedings. The outcome of such arbitration proceedings is a distinct and separate debt, created by the arbitration award.
The debt created by the arbitration award is immediately enforceable
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on date of issue of the award. Prescription accordingly starts to rum form that date. If process as contemplated by the Prescription Act is not instituted within three years form that date, the debt created by the arbitration award will become prescribed.
Where an employer party seeks to challenge the arbitration award by way of review proceedings under the LRA, this has no consequence to the enforceability of the arbitration award. The review does not
constitute an impediment to such enforcement. The award remains enforceable, prescription continues to run, and all the employee must do to stop this is file enforcement process.
In the case of an award for reinstatement, the debt created by the award is the right, and corresponding obligation, to reinstate the employee. This simply means the reinstatement of the contract of employment, as if the employee was not dismissed. Any so-called
‘back pay’ payable to the employee between the due date of
reinstatement and when the employee is ultimately reinstated, is not a claim arising out of the arbitration award, but is a distinct and separate claim under the employment contract that was restored. There can thus be no continuous wrong.
In the end, and having received an arbitration award in his or her favour, and no matter what pending challenge there may be to such award, all an employee has to do is file simple process to enforce the award, and the running of prescription stops. This is nothing onerous or complex in this, and the employee has three years to do so.
7. List of authorities
Attached
