NUM obo Mayime Dalton Majebe v Civil & General Contractors

Mr Majebe was dismissed by the respondent on 8 December 2006 for alleged misconduct. The appellant union (NUM) referred an unfair dismissal dispute to the CCMA on 2 January 2007. On 19 June 2007, a CCMA commissioner issued an arbitration award finding the dismissal substantively unfair and ordering retrospective reinstatement with back-pay. In August 2007, the respondent brought an application to review and set aside the CCMA award, which remained pending for almost seven years. On 14 January 2014, while the review was still pending, the appellant brought an application under section 158(1)(c) of the LRA to make the CCMA award an order of court. The respondent opposed on grounds that the award had prescribed. The Labour Court (Lallie J) dismissed the application on 20 November 2015, finding that the award had prescribed, applying the decision in Myathaza (LAC) which was subsequently overturned by the Constitutional Court.

• Whether an arbitration award for reinstatement and back-pay constitutes a 'debt' for purposes of section 16(1) of the Prescription Act 68 of 1969
• Whether prescription of an arbitration award made in terms of the LRA is interrupted by a review application under section 15(6) of the Prescription Act
• Whether the Prescription Act applies to arbitration awards made under the LRA
• Whether the CCMA arbitration award had prescribed by the time the application to make it an order of court was brought

1. The late delivery of the notice of appeal and of the record are condoned and the appeal is reinstated on the roll. 2. The appeal is upheld. 3. The order of the Labour Court dismissing the appellant's application to make the award an order of court on the basis that the award has prescribed is set aside and substituted with: "The point of prescription raised by the respondent is dismissed." 4. Unless the parties agree otherwise, or the appellant elects not to proceed with its application, the parties are referred back to the Labour Court to deal with the merits of the application to make the arbitration award an order of court. No order as to costs.

An arbitration award made under the LRA ordering reinstatement and back-pay constitutes a 'debt' as contemplated in the Prescription Act 68 of 1969, as it seeks to enforce a legal obligation and enjoins the employer to do something positive (resuscitate the employment agreement and pay back-pay). A review application brought under section 145 of the LRA interrupts the running of prescription in terms of section 15(1) of the Prescription Act, and prescription remains interrupted until the review proceedings are finalized. The referral of an unfair dismissal dispute to the CCMA interrupts prescription, which remains interrupted throughout the arbitration and any subsequent review proceedings until finalization.

The court observed that while the facts in Pieman's were slightly different (dealing with prescription of claims rather than awards), it would be artificial to conclude that a claim for reinstatement is a 'debt' under the Prescription Act but an award granting such relief is not. The court noted that certainty is an essential aspect of the rule of law and that those required to comply with the law should have reasonable certainty about what it is. The court also observed that the Mogaila 'either/or' approach was not ideal and should no longer be applied following the clarity provided by Pieman's. The court commented that an interpretation protecting the right of access to court is preferable to one that does not, and allowing the right of review to play the same role of finality as the right of appeal in ordinary matters achieves this purpose.

This judgment provides crucial clarity on the prescription of arbitration awards made under the LRA following the Constitutional Court's decision in Pieman's. It establishes that: (1) the Prescription Act applies to labour arbitration awards; (2) awards for reinstatement and back-pay constitute 'debts' for purposes of the Prescription Act; (3) review applications under section 145 of the LRA interrupt the running of prescription; and (4) prescription remains interrupted until review proceedings are finalized. The judgment resolves uncertainty that existed after Myathaza (CC) produced no binding ratio and moves away from the unsatisfactory "either/or" approach adopted in Mogaila. It confirms the applicability of the amendment to section 145(9) of the LRA, which provides that review applications interrupt prescription. The decision is significant for ensuring that parties' rights to pursue reviews are not undermined by prescription running during the review process, thereby protecting access to justice.