PTAWU obo Xoloani & Others v Mhoko's Waste & Security Services

On 29 April 2012, a CCMA commissioner issued an arbitration award finding that 51 applicants were unfairly dismissed and awarded their reinstatement with retrospective effect to 22 January 2012, with limited back pay. The award was certified on 8 May 2014 in terms of section 143(3) of the LRA. The respondent initially indicated it would pursue a review application but did not do so. On 15 November 2012, a settlement agreement was concluded regarding monetary claims. The applicants claimed the settlement did not supersede the arbitration award and their right to reinstatement remained. A first contempt application filed on 23 March 2015 was dismissed by Steenkamp J on 26 October 2016 due to defective service. The second contempt application was launched on 17 August 2017 to compel compliance with the reinstatement award. The respondent raised a special plea of prescription.

• Whether the Prescription Act 68 of 1969 applies to arbitration awards issued under the LRA
• Whether an arbitration award constitutes a 'debt' for purposes of the Prescription Act
• Whether the arbitration award of 29 April 2012 had prescribed by the time the contempt application was launched on 17 August 2017
• What effect certification of an award under section 143(3) of the LRA has on prescription
• Whether the first contempt application interrupted prescription and, if so, when prescription resumed running

The special plea of prescription was upheld. The contempt application was dismissed. No order as to costs was made.

The Prescription Act 68 of 1969 applies to arbitration awards issued under the LRA. An arbitration award ordering reinstatement constitutes a 'debt' as contemplated by the Prescription Act and is subject to the three-year prescription period prescribed by the Act. The prescription period runs from the date the award is issued, not from the date of certification under section 143(3) of the LRA. Certification under section 143(3) is merely a procedural mechanism to streamline enforcement and does not transform the award into a court order or affect prescription. Where a contempt application is brought to enforce an award, it interrupts prescription until judgment is delivered on that application, whereafter prescription resumes running. An award that has prescribed cannot be enforced through contempt proceedings.

The court noted that the award in question was handed down before the 2015 amendments to section 143 of the LRA, and accordingly the application of prescription on the facts of this case might not be applicable to awards issued after those amendments were promulgated. The court also observed that the settlement agreement concluded on 15 November 2012 and whether it superseded the arbitration award was irrelevant for determining the special plea of prescription. The court further noted that the first contempt application could just as well have been struck off the roll rather than dismissed, given the fatal defect of lack of personal service.

This judgment applies the Constitutional Court's decision in Pieman's Pantry to the enforcement of arbitration awards, confirming that arbitration awards under the LRA constitute 'debts' subject to prescription under the Prescription Act 68 of 1969. It establishes that the three-year prescription period applies from the date of the award, not from the date of certification. The judgment clarifies that certification under section 143(3) of the LRA is merely a procedural step to streamline enforcement and does not alter the nature of the award or affect prescription. This has significant practical implications for employees seeking to enforce CCMA arbitration awards, as they must act within the prescription period or risk losing the ability to enforce favorable awards. The judgment also provides guidance on how prescription operates where multiple enforcement attempts are made.