Motsoaledi v Mabuza

In August 2009, HOSPERSA and other unions reached a settlement with the Mpumalanga Department of Health (fourth appellant) requiring translation of certain nurses to specific salary notches as at 30 June 2007. The respondent, Ms Zandile Mabuza, had been acting as Deputy Manager: Nursing since 2005. When she was not translated to salary notch PN-A8, she referred an unfair labour practice dispute to the Public Health and Social Development Sectoral Bargaining Council on 11 September 2010. On 30 September 2010, an arbitrator issued an award that the failure to translate the respondent constituted an unfair labour practice and ordered the fourth appellant to translate her to Deputy Manager: Nursing with effect from 1 July 2007, to be completed by 1 November 2010. The fourth appellant did not comply. On 3 October 2013, the respondent had the award certified. On 4 October 2013, she served a statement of case to enforce the award. When this was not pursued, on 17 April 2015, the respondent launched an urgent ex parte contempt application. The four appellants (the Minister of Health, the MEC for Health in Mpumalanga, and the national and provincial Departments of Health) opposed on grounds that they were not responsible for compliance, the award was not implementable, and that the debt had prescribed.

• Whether an alleged unfair labour practice constitutes a debt to which the Prescription Act 68 of 1969 applies
• Whether an application to a bargaining council to certify an award interrupts prescription
• Whether prescription of the debt had occurred
• Whether it was competent for the Labour Court to make the arbitration award an order of court
• Whether the award was implementable
• Whether the first and third appellants (national government officials) could be bound by an award relating to a provincial employee

The appeal was upheld as regards the first and third appellants (Dr Motsoaledi in his capacity as Minister and the National Department of Health). The appeal was dismissed as regards the second and fourth appellants (the MEC for Health in Mpumalanga and the Mpumalanga Department of Health). The Labour Court order was amended to: (1) dismiss the application against the first and third appellants; (2) confirm the award as an order of court binding only on the second and fourth appellants; (3) compel the second and fourth appellants to translate the respondent to Deputy Manager Nursing (PN-A8) with effect from 1 July 2007 within two weeks; (4) grant the respondent leave to re-enroll the contempt application if the order is not complied with; (5) make no order as to costs in the Labour Court. The second and fourth appellants were ordered to pay the costs of the appeal.

The binding legal principles established are: (1) An unfair labour practice claim constitutes a debt as defined in the Prescription Act to which a three-year prescription period applies. (2) The Prescription Act applies to debts arising from labour disputes governed by the LRA and there is no conflict between the two statutes. (3) Prescription is interrupted when a dispute is referred to the CCMA or bargaining council and continues to be interrupted until any review proceedings are finalized. (4) Where an arbitration award is not reviewed, it gives rise to a new prescription period of 30 years. (5) An application to certify an arbitration award does not interrupt prescription under section 15(1) of the Prescription Act because it is not served on the debtor and does not constitute a "process whereby the creditor claims payment of the debt." (6) In South Africa's multi-tier government system, only officials and departments at the employing level of government have the power and responsibility to implement labour awards; they cannot be imposed on a different tier of government. (7) It is competent for the Labour Court to make an arbitration award an order of court as alternative relief even where a specific application to that effect has not been moved, provided the requirements of fairness are met.

The Court made several obiter observations: (1) The Court noted the difference between the Supreme Court of Appeal's approach in Brompton Court Body Corporate v Khumalo regarding the effect of section 13(1)(f) of the Prescription Act and the Constitutional Court's approach in Myathaza and Gaoshubelwe, but held it was bound by the Constitutional Court. (2) The Court observed that where a corporate body or organ of state is required to perform an act, it may be salutary to order the natural persons responsible to comply with the order so they are apprised of their responsibilities, even though contempt proceedings can be brought against those who aid disobedience even if not named in the original order. (3) The Court commented that the respondent was remiss in not moving her application to make the award an order of court but that the court a quo was entitled to grant alternative relief. (4) The Court noted that while the second and fourth appellants succeeded on appeal against the prescription finding based on certification, they should bear the costs because they acted unfairly by failing to comply with the award, failing to seek review, making no attempt to resolve the issue, and simply taking a technical prescription point.

This case is significant because it clarifies the application of the Prescription Act to labour law disputes, particularly unfair labour practice claims. It confirms that: (1) unfair labour practice claims constitute debts subject to prescription; (2) arbitration awards create a new 30-year prescription period; (3) certification of awards does not interrupt prescription; and (4) there is no conflict between the LRA and Prescription Act when read harmoniously. The judgment also clarifies that in South Africa's multi-tier government system, only the employing sphere of government can be held responsible for implementing labour awards - national officials cannot be held liable for provincial employment matters. The case follows the Constitutional Court's developing jurisprudence on prescription in labour matters and provides important guidance on the interplay between labour dispute resolution mechanisms and prescription law.