In law, if something ‘prescribes’ it becomes final. The process is most commonly related to debts. However, the question was raised – in Xoloani and Others v Mhoko’s Waste & Security Services (C202/15) [2018] ZALCCT 32 (5 October 2018) – as to whether or not prescription applies in unfair dismissal cases and to arbitration awards.

The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) found that the 51 individual applicants had been unfairly dismissed and were awarded their reinstatement with retrospective effect to 22 January 2012. However, payment of back pay was limited to two month’s remuneration.

The arbitration awards were certified on 8 May 2014 as a binding award in terms of section 143(3) of the Labour Relations Act (LRA) and prescribed before this contempt application was launched on 17 April 2017. The first application for contempt of court regarding the same arbitration awards was dismissed by Steenkamp J on 26 October 2016.

The Constitutional Court (CC) has deliberated – on three occasions – about if the Prescription Act 68 of 1969 applies to dispute concerning unfair dismissals:

  • The matter of Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus & Others contained three separate judgements and did not yield any majority ratio.
  • The CC’s subsequent unanimous decision in Mogaila v Coca Cola Fortune (Pty) Ltd characterised the effect of the outcome in Myathaza as follows:

    “on either approach, Ms Mogaila is entitled to an order declaring that the arbitration award ordering her reinstatement has not prescribed. She is entitled to secure its certification under s 143(3) of the LRA; and its enforcement under s 143(1).”
  • The third decision bearing on the application of prescription to claims under the LRA is that of Food & Allied Workers Union on behalf of Gaoshubelwe v Pieman’s Pantry (Pty) Ltd:

The majority held that the Prescription Act was not inconsistent with the LRA. In addition and that a claim of unfair dismissals that sought to enforce three possible kinds of obligations against an employer – namely reinstatement, re-employment and compensation – amounted to an obligation to pay or render something .

In the case under discussion, it was concluded that the special plea of prescription was to succeed.

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