R

REPORTABLE

EPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: HC-MD-LAB-MOT-GEN-2020/00227

In the matter between:

MINEWORKERS UNION OF NAMIBIA APPLICANT

and

NAMDEB DIAMOND CORPORATION (PTY) LTD FIRST RESPONDENT

PHILIP MWANDINGI SECOND RESPONDENT

Neutral citation: Mineworkers Union of Namibia v Namdeb Diamond Corporation (Pty) Ltd (HC-MD-LAB-MOT-GEN-2020/00227) [2022] NALCMD 33 (8 June 2022)

Coram: GEIER J

Decided on the papers

Delivered: 8 June 2022

Flynote: Prescription – Extinctive prescription – Interruption of – By service of counter-application – Act 68 of 1969 section 15(1) – Lapsing of such interruption in terms of section 15(2) – Failure by the applicant to 'successfully prosecute its claim under the process in question to a final executable judgment’.

Labour law – Arbitration proceedings – Settlement Agreement/Award – Prescription – Whether Prescription Act applying to a claim sounding in money based on a settlement agreement made consequentially to a referral of a dispute under the Labour Act 2007.

Prescription – Extinctive prescription – Debt – What constitutes – Whether a claim sounding in money founded on the terms of a settlement agreement made consequent to a referral of a dispute in terms of the Labour Act 2007 constituting 'debt' for purposes of Prescription Act – Meaning of 'debt' – Prescription Act 68 of 1969.

Summary: Section 15(1) of the Prescription Act 68 of 1969 provides that prescription will be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt – if a creditor fails in his claim, ie if he does not successfully prosecute his claim under the process in question to final judgment or the judgment is abandoned or set aside, the provisions of section 15(2) come into play in that the interruption of prescription which has occurred in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted.

In casu the Applicant had instituted two applications for the enforcement of the same debt, a claim for the payment of housing allowances plus interest against the first respondent. The first was by way of a counter-application to an application in which the first respondent sought the setting aside of the registration of the underlying ‘settlement agreement/award’ as an Order of the Labour Court in terms of section 87(1)(b)(i) of the Labour Act 2007 under case Namdeb Diamond Corporation (Pty) Limited v Mineworkers Union of Namibia (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019). The applicant’s counterclaim delivered in that case for the payment of housing allowances and interest was however dismissed on 4 November 2019 and the dismissal was never taken on appeal and thus became final.

The current application, HC-MD-LAB-MOT-GEN-2020/00227, which was instituted in September 2020 was instituted on essentially the same cause of action – and on substantially similar facts – and essentially for the same relief as the said counter-application.

The applicant was thus attempting to claim payment of the original – and substantially the same debt – through the institution of the said two applications.

Held also: As the applicant’s cause of action was actually based in contract – and not on any award it seemingly was irrelevant how the relied upon agreement came about, i.e. whether the dispute which led to the conclusion of the agreement was labour-related and was initially pursued in terms of the applicable labour legislation or had any other commercial cause and was pursued in terms of the applicable commercial law. Fact of the matter was that a seemingly valid agreement was concluded and that valid agreements – generally – can become enforceable and that the courts – inclusive of the Labour Court – are empowered to enforce them, if appropriate. Such claims are also generally liable to prescription particularly if such claims sound in money and clearly constituted a ‘debt’.

Held that; the relevant process in question, ie the counter-application instituted under case HC-MD-LAB-MOT-GEN-2019/00056, had a final outcome ie that reflected in the court order on 4 November 2019, which was one of dismissal.

This result determined the question whether or not the applicant was able to prosecute its claims successfully to a final executable judgment, as required by section 15(2).

This outcome was clearly not successful, so much was signified by the dismissal of the counter-application.

Held that it had to follow in such circumstances – that the interruption of prescription - achieved through the service of the counter-application under case HC-MD-LAB-MOT-GEN-2019/00056 on 4 April 2019 – lapsed once the counter-application was dismissed on 4 November 2019.

In such circumstances the deeming provisions contained in section 15(2) of the Prescription Act 1969 came into play, with the result that the interruption of prescription, which had occurred on 4 April 2019 – July 2004 was deemed not to have occurred, thus in turn resulting in the situation that the applicant’s claim, against the first respondent had already become prescribed during or about July 2020, the applicant’s cause of action having arisen on 1 July 2017 or during or about July 2017 or even earlier and the current proceedings - which were only instituted on 29 September 2020 – where thus instituted more than three years after the applicant’s claim/case of action had arisen. The applicant’s claim for the payment of housing allowances and interest had thus prescribed in terms of section 11(d) of the Prescription Act 1969 as read with section 12(1).

In the result the special plea of prescription was upheld.

Summary: The facts appear from the judgment.

ORDER

1. The plea of prescription is upheld.

2. The application is thus dismissed.

JUDGMENT

GEIER J:

[1] The applicant, the Mine Workers Union of Namibia, referred to hereinafter as (the ‘MUN’) continues to seek the enforcement of a settlement agreement concluded before the second respondent subsequent to the MUN’s referral of a dispute of interest as countered by NAMDEB, the first respondent in this instance, with the registration of a dispute of right - both lodged with the Office of the Labour Commissioner during 2016 – and – which disputes culminated in the conclusion of a ‘settlement agreement/award’ – on 19 October 2016.

[2] On 25 January 2019 the MUN had this settlement agreement/award registered as an Order of the Labour Court in terms of section 87(1)(b)(i) of the Labour Act 2007¹.

[3] NAMDEB in turn applied – on 28 February 2019 – to the Labour Court – to have this registration of the ‘award’ and the order itself declared to be null and void.

[4] The MUN lodged a counter-application in that case in which it sought the following orders:

‘(a) the first respondent (NAMDEB) is directed to pay Housing Allowance to all affected employees with effect of 1 June 2016 to 30 June 2017.

(b) Interest at the rate of 20% per annum on the amount due and payable to all affected employees calculated from 1 June 2016 to 30 June 2017.’

[5] NAMDEB’s application was granted and the counter-application was dismissed.²

[6] More particularly the court ordered on 4 November 2019:

‘IT IS HEREBY ORDERED FOR THE REASONS GIVEN EX-TEMPORE THAT:

1. The registration of the settlement agreement as an ‘award’ in terms of Section 87(1)(b)(i) of the Labour Act 2007, on 25 January 2019, under case HC-MD-LAB-AAA-2019/00024, is hereby declared null and void.

2. The said registration is accordingly set aside.

3. The First Respondent’s counter-application is hereby dismissed.

4. The matter is removed from the roll: Judgment delivered, case accordingly regarded as finalised.’

[7] The dismissal of the counter-application was not taken on appeal.

[8] Instead a fresh application was launched on 29 September 2020 in which the MUN as applicant now/again applied for an order enforcing the arbitration agreement reached between the parties on 19 October 2016 and in particular:

‘… that the first respondent (NAMDEB) is directed to pay housing allowance to all affected employees with effect from 1 June 2016 to 30 June 2017…

and pay:

Interest at the rate of 20% per annum on the amount due and payable to all affected employees calculated from 1 June 2016 to 30 June 2017…’

[9] On this occasion the MUN’s renewed quest was met by a plea of prescription.

[10] Reliance was placed in this regard on the provisions of section 15 of the Prescription Act, Act 68 of 1969, which provides:

‘(1) The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(2) Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.’

…

(6) For purposes of this section, “process” includes a petition, a notice of motion, a rule nisi, a pleading in convention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.’

The argument on behalf of Namdeb:

[11] The written argument in support of the special plea was crisp and to the point. It was formulated by Adv Heathcote SC assisted by Adv Dicks as follows:

‘The applicant seeks the enforcement of a purported settlement agreement cobbled together by the parties’ non-legal representatives before the second respondent on 19 October 2016.³ Essentially, the applicant attempts to enforce an unenforceable agreement for the payment of housing allowances to its qualifying members for the period 1 June 2016 to 30 June 2017.

The issue for determination by the Court at this stage is whether the applicant’s claim has become prescribed by virtue of section 15(2), read with sections 15(1) and 11(d) of the Prescription Act, 68 of 1969 (“the Act”).⁴ The alleged agreement is an ordinary debt for purposes of prescription.’

[12] Counsel then went on to outline the relevant background to the determination of the issue of prescription, as has already been set out above. It will serve no purpose to repeat those facts again.

[13] In addition counsel referred to the fact that:

‘On 12 March 2020 this court made the following further order:

“The interlocutory matter is removed from the roll: Ex-Tempore judgment delivered on 4 November 2019 – case finalised on that date.” ’

[14] It was highlighted that the applicant did not appeal the dismissal of its counter-application and it was accordingly submitted that:

‘The effect of the order puts paid to the applicant’s application on the basis of res judicata as well. However, at this stage only prescription is at stake.’

[15] Counsel for NAMDEB then pointed out that it should be noted that the Prescription Act had remained unchanged in all relevant respects in both Namibia and South Africa since the date of Namibian Independence and that the jurisprudence of the South African courts on the Act would therefore be helpful in interpreting its provisions.⁵

[16] Counsel noted, and thus also cited the unreported decision of Kehrmann v Gradtke (I 25/2016) [2018] NAHCMD 141 (01 February 2018), in which the relevant South African case law was already adopted and applied and in which the following further relevant authorities and principles where also considered:

‘ … The purpose and effect of section 15(2) has been held to be the following:

“…the whole purpose of s 15(2) was that, if a creditor fails in his claim, in other words if he does not successfully prosecute his claim under the process in question to final judgment, then the provisions come into force concerning the interruption of prescription lapsing and the running of prescription not being deemed to have been interrupted. The practical effect of this is that should a plaintiff, eg, have absolution granted against him at the end of his case, then he cannot be said to have successfully prosecuted his claim to final judgment or, if an exception is taken to his claim and he cannot amend but has to issue fresh summons or a fresh declaration, then the process by which he commenced the proceedings is deemed not to have interrupted prescription and the running of prescription is deemed not to have been interrupted thereby. In other words…he is not allowed to have two bites at the cherry. It is not unreasonable to assume that what the legislator had in mind was the following: It is necessary that there should be finality in litigation. The plaintiff is given reasonable time within which to institute his action, thereafter he is in the hands of the administration of the Courts.⁶” ‘

In the matter of Van der Merwe v Protea Insurance Co Ltd 1982 (1) SA 770 (E), Smalberger J stated that:

“…the whole purpose of s 15(2) is that, if a creditor fails to prosecute successfully his claim under the process which interrupts prescription, either in the court in which such process commences legal proceedings, or on appeal to a higher tribunal, or, having been successful in the initial prosecution of his claim, abandons the judgement in his favour, or it is set aside on appeal at the instance of the debtor, the running of prescription is deemed not to have been interrupted.⁷”

Regarding the interpretation of the expression ‘process in question’ as contained in sections 15(1) and 15(2), Smalberger J also stated that:

“Section 15(1) provides for the interruption of prescription by the service on the debtor ‘of any process whereby the creditor claims payment of the debt’. In terms of section 15(6) ‘process’ is the document whereby legal proceedings are commenced, in the present instance, the summons in the magistrate’s court. The provisions of section 15(1) are, however, subject to those of ss(2). The ‘process in question’ is clearly that by which prescription was originally interrupted. It is that process which must be successfully prosecuted to final judgment by the creditor, and not any other. The reference to ‘final judgment’, in the context, contemplates judgment in the court in which process is instituted or, if the creditor is unsuccessful in such court, any higher tribunal in which the creditor is ultimately successful on appeal in relation to the ‘process in question’.⁸”

The expression was also briefly considered in Cape Town Municipality and Another v Allianz Insurance Co Ltd 1990 (1) SA 311 (C) by Howie J who, with reference to section 15(2) of the Act, stated that:

“To return to the expression ‘under the process in question’, clearly a final executable judgment will be obtained ‘under’ a process where process and judgement constitute the beginning and end of one and the same action.⁹”

Policy considerations underlying extinctive prescription

The main object of extinctive prescription is to create legal certainty and finality in the relationship between creditor and debtor after the lapse of a period of time, and the emphasis is on protection of the debtor against a stale claim that has existed for such a long time that it becomes unfair to require the debtor to defend himself against it. The primary consideration is therefore one of fairness to the debtor.¹⁰

The emphasis is on the protection of the debtor because the debtor with the passage of time ought to become secure in his reasonable expectation that the slate has been wiped clean of obligations towards his creditor.¹¹

Other policy considerations underlying extinctive prescription are that delayed enforcement of a debt causes evidence to disappear and witnesses to forget; that certainty in dealings between persons requires a fixed time after which old disputes will be forgotten; and that judicial economy and the smooth functioning of the legal system is best served when the parties are obliged to bring their disputes to the courts promptly, so that they can be swiftly resolved while evidence is available and fresh in the memory of the witnesses.¹²

Extinctive prescription ensures that there comes a time between a creditor and debtor when the books are closed.’¹³

[17] In respect of the MUN’s main defenses against NAMDEB’s contention that the MUN’s further claim had not become prescribed, namely:

‘That the first respondent only “officially pronounced” itself on the back payment of housing allowances on 3 November 2017. Applicant contends that its “cause of action only then arose”. At all relevant times and prior thereto the parties had not reached consensus on the back-pay matter and it was always a matter that remained to be dealt with and agreed upon. The letter confirmed the internal deadlock on the matter¹⁴ and

The applicant attempts to rely on its counter-application served on the first respondent on 4 April 2019 under Case No HC-MD-LAB-MOT-GEN-2019/00056. ¹⁵ …’ …

it was submitted that it was trite that a lack of consensus does not interrupt the running of prescription, nor does prescription only run once an ‘internal deadlock on the matter’ is reached as section 12(1) of the Act reads as follows:

‘Subject to the provisions of sub-sections (2), (3) and (4), prescription shall commence to run as soon as the debt is due.¹⁶ …’

and

that it was further trite that a creditor cannot ‘either in his wisdom or when he thinks that he ought to bestir himself”¹⁷ defer the running of prescription by relying on purported negotiations and failing to serve process on the debtor as:

‘Considerations of policy require that a creditor should not be able to rely on his own failure to perform in order to delay the running of prescription. This policy consideration has been stated as follows: 'A creditor is not able by his own conduct to postpone the commencement of prescription.' (Benson and Another v Walters and Others 1981 (4) SA 42 (C) at 49G and the authorities cited therein.)¹⁸’

[18] It was then forcefully argued in conclusion that:

‘ … It is common cause that the cause of action on which the applicant relies arose on 19 October 2016.¹⁹ Nothing prevented the applicant from interrupting the running of prescription by the service of process on the first respondent, as it did on 4 April 2019. The applicant did not prosecute its claim to final judgment under the process in question as stipulated in section 15(2) of the Act. The interruption of prescription therefore lapsed and the running of prescription is deemed not to have been interrupted. The applicant therefore had until 18 October 2019, at the very latest, to interrupt the running of prescription by the service on the first respondent of process. This it failed to do. As per Colman J in Van Vuuren v Boshoff:²⁰

“….. the Act was designed to penalise the person who can enforce his claim by action, but does not do so, and not the person who delays taking action because he is not yet able to do so.” …’

and that :

‘In the premises the applicant’s claim has become prescribed in terms of section 11(d) of the Act and first respondent prays that the application be dismissed.’

Argument on behalf of the MUN

[19] This was unfortunately not as structured and to the point. It became clear however that – in the main – issue was taken with the point that the MUN’s claim had purportedly prescribed.

[20] The legal practitioners for MUN, Ms Angula, assisted by Ms Kandjella, then argued their client’s case as follows:

1. ‘ISSUE(s) FOR DETERMINATION

1. Does the prescription Act 68 of 1969 apply to arbitration awards? The applicant’s claim is the enforcement of a settlement agreement that was made a binding award in terms of the Labour Act.

2. The Applicant’s only remedy to enforce the award is by the registration thereof in terms of section 87(1)(b) of the Labour Act, alternatively on application to Court in terms of the aforesaid section.

3. The effect of an arbitration award made in terms of the Namibian Labour Act is binding unless it is advisory²¹; section 87(2)(b) provides, in no ambiguous terms, that an arbitration award becomes and order of the Labour Court on filing the award in the Court by any party affected by the award; or by the Labour Commissioner.

4. The award was made in terms of the Namibian Labour Act and is as such binding.

2. …

3. THE PRESENT APPLICATION, AND THE LAW

1. On 29 September 2020 the Applicant brought this application for an order to enforce the arbitration agreement reached between the parties on the 19^th of October 2016, and in particular, that the First Respondent be directed to pay housing allowance to all affected employees with effect from 1 June 2016 to 30 June 2017, as well as interest thereon at the rate of 20% per annum due and payable to all affected employees calculated from 1 June 2016 to 30 June 2017.

…

4. In order to assess whether the applicant’s claim has prescribed, the court needs to determine whether the arbitration agreement dated 19 October 2016 is a “debt” possible of prescription under section 11 (d) of the Prescription Act and, whether the Prescription Act applies to arbitration awards.

5. The court must be mindful of the fact that the 4 April 2019 application differs in essence from the present application, in that in the 4 April 2019 application, the Applicant sought for the Court to direct the First Respondent to pay the Housing Allowance as was agreed to in the housing allowance agreement dated 22 April 2016²², whereas in the present application, the applicant seeks to enforce the arbitration agreement reached on 19 October 2016.

6. The Prescription Act provides for the Prescription of debts, in that “a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt and that the running of prescription shall, subject to the provisions of subsections (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. The application for the relief that the Applicant seeks before court now is not that of a debt as envisioned in the Prescription Act and as does not fall within the ambit of prescribing. We say so for the following reasons:

7. The agreement that the Applicant seeks to enforce relates to the unfair labour practices and the interpretation / application of the Housing allowance agreement.²³ What the parties in essence agreed to was their commitment to the already existing housing allowance agreement in that it was expressly recorded and signed by the parties that:

“1. The parties re-affirm their commitment to the Accommodation Strategy and Related Issues Agreement signed on the 22^nd of April 2016 and thus remains valid”…

3. That the agreement mentioned in 1 above is yet to be implemented and that the effective date of implementation remaining 1 June 2016.

4. The applicant commits to implement this agreement on 1 April 2017.

5. the applicant undertakes to in a transparent manner keep the respondent informed on developments and any constraints in complying with the deadline of implementation (1 April 2017),

6. The agreement also resolves the issues referred per Case SROR 10-16 by the respondent which is pending before the Labour Commissioner.

Continuing with,

8. This agreement is final an binding and resolve all disputes between the parties and it shall become an order of the Labour Court upon filing it with that Court by either party in terms of section 87(1)91)(b)(i) of the Labour Act, (Act 11 of 2007).

9. In the matter of Myathaza v Johannnesburg Metropolitan Bus Service Soc Ltd T/A Metrobus In re: Mazibuko v Concor Plant²⁴, it was held that an arbitration award is a ‘debt’ as per the Prescription Act 68 of 1969 and, as such, prescribes after three years. That decision was overturned by the Constitutional Court in terms of which, four judges found that the Prescription Act is incompatible with the Labour Relations Act 66 of 1995 (LRA), and the remaining judges found that it did not contradict the LRA, but that referring a dispute to the CCMA interrupted prescription.

10. In the case of Mr Myathaza, he obtained an arbitration award reinstating him to his employment. When he approached the Labour Court some four years later to have the arbitration award made an order of court, the employer relied on prescription. It was also found that a reinstatement arbitration award under the LRA did not constitute a ‘debt’ in terms of the Act. The other four held that the Act was applicable to proceedings under the LRA and that a claim for unfair dismissal under the LRA was a ‘debt’ in terms of the Act, but that referral of the dispute to the CCMA interrupted prescription in terms of s 15(1) of the Act which remained interrupted until the finalisation of the review proceedings. The judgment found that Mr Myathaza’s arbitration award had not prescribed and, like the first and third judgments that the appeal should succeed.

11. In the event that the court find the current application to be a debt, it must be considered when the cause of action arose.

12. It was only the 3^rd of November 2017 that the First Respondent officially pronounced itself on the back pay.²⁵ This was by communication which reads as follows:

“…Housing Allowance backdate

As has been discussed in various platforms, the company has never at any stage agreed to back date payment of housing allowance. As per the Joint Special Brief dated the 21 June 2017, the payment of the Housing Allowance has always been dependent on the two conditions namely:

• the signing of a Memorandum of Agreement (MoA) between Namdeb and Oranjemund Town Council. This signed MoA would allow for land to be sold and employees would be able to buy property.

• Confirmation that there will be no adverse tax implications on Namdeb due to the transfer of infrastructure to OTC.

The decision to delink housing the payment of housing allowance in June 2017 was a gesture of good will on the part of management, and therefore cannot be used as a basis for creating an expectation of back pay. Consequently, the company’s position as communicated earlier remains.”

1. As a result of aforesaid communication only have been made on 3 November 2017, the applicant’s cause of action only then arose. At all relevant times and prior thereto the parties had not reached consensus on the back-pay matter and it was always a matter that remained to be dealt with and agreed upon. The letter confirmed the internal deadlock on the matter as such it only then when the applicant’s cause of action arose. Prescription would only become applicable three years from 3 November 2017, i.e. up to 2 November 2020.

2. It was thus only on the 3^rd of November 2017 when the entire set of facts which the creditor (Applicant) must prove in order to succeed with his or her claim against the debtor (First Respondent) is in place or, in other words, when everything has happened which would entitle the creditor (Applicant) to institute action and to pursue its claim. So, only if nothing was done until 2 November 2020, then it could have been said that the Applicant abandoned its claim and that it may have become prescribed.

13. Similarly, in this instance, the issue in question, even after the agreement was reached at the Office of the Labour Commissioner and made an award, was still under discussion and negotiations pending its execution and it was only as at 3 November 2017 that it can be said that all internal remedies have been resolved, which left Applicant no choice but to have the arbitration agreement enforced, which it attempted to do as it was so entitled.

14. It is submitted that on a strict application and if the court finds that the Applicant’s current claim is a debt as contemplated in the Act, capable of prescription after the expiration of a period of 3 years (which we submit should be counted from 3 November 2017), then such prescription was interrupted on more than one occasion;

1. On 25 January 2019 when the applicant made the arbitration agreement an order of the Labour Court which it was entitled and able to do.

2. On 28 February 2019 when the First Respondent made application under case number Case number HC-MD-LAB-MOT-GEN-2019/00056 to declare the registration of the award dated 19 October 2016, to be null and void, and in the alternative to issue a declaratory order that such award has become superannuated.²⁶ It is common cause that the First Respondent upon filing aforesaid application to have the court order set aside, conceded its indebtedness to the Applicant. The only issue was and is, whether the agreement reached was an award and if so, whether the ejustice system could have made the award an order of court without human intervention and without prior notice to it.

3. On 4 April 2019 when the Applicant filed its counter-application.²⁷ Accordingly, the service on the First Respondent of the Applicant’s counter application in the form of a notice of motion in the judicial proceedings served to interrupt prescription in relation to the payment of housing allowance to all affected employees with effect from 1 June 2016 to 30 June 2017 in this case. This conclusion makes it unnecessary to consider the remainder of the arguments raised by the First Respondent.

4. On 4 November 2019 when the Labour Court ruled in favour of the First Applicant and dismissed the counter-claim of the Applicant.

5. On 16 March 2020 when the court released its reasons for dismissing the application.

15. It is further submitted that if the court finds that the Applicant’s current claim is a debt as contemplated in the Act, capable of prescription after the expiration of a period of 3 years, the court should consider when the claim arose. The agreement is clear in that the implementation date of the housing allowance back pay would only be on 1 April 2017. Calculating three years from then the Applicant would then have until 31 March 2020 to enforce the claim, which it did. The Applicant instituted the court process of registering the agreement so as to enforce it on 25 January 2020, i.e. prior to 31 March 2020. Prescription, therefore only began to run from the date that it accrued to the Applicant (being the date of implementation being 1 April 2017).

16. A further new cause of action arose when the First Respondent did not comply with the Labour Court order that was registered on 25 January 2019, and instead brought an application for it to be declared null and void. Any period of prescription could then be calculated from such date, bringing it up and until 24 January 2022 to enforce the ‘debt’ by the issue of process.

17. The registration of the settlement agreement as an order of the Labour Court was set aside as outlined in paragraph 3.11 above. It is of crucial importance to note and understand the reasons why the court set aside the said registration. It is not because the award had prescribed as is now only averred by the First respondent.

1. The court had ruled that the filing of an arbitration agreement on the ejustice system does not and could not replace the functions of the court- in that the ejustice system does not have the capacity to consider and decide whether a settlement agreement should be sanctioned or not.²⁸

2. It is emphasised that the First Respondent never denied liability of paying the housing allowance to the affected employees and in fact, assumed same, save for the fact that the ejustice system should not have generated the Labour court order and that the application had to be served on the First Respondent and served before a judge who would be able to apply his or her mind to the application.

3. The Applicant never abandoned the judgment and did not fail to successfully prosecute its claim under process. What the applicant concede is that it was on advise of its legal representatives to abide by the Labour Court judgment wherein it was ruled that the filing of the arbitration agreement on the ejustice system does not and could not replace the functions of the court in that the ejustice system does not have the capacity to consider and decide whether a settlement agreement should be sanctioned or not. In as much as the ejustice system did and still does make provision for this, it is submitted that the forum used by the Applicant to enforce the arbitration agreement was reasonable and within the confines of what the current ejustice system and in essence Namibian court system provides for.

4. Immediately upon receipt of the judgment, the Applicant filed an application to have the arbitration agreement enforced within the confines of judicial scrutiny as was outlined in the judgment with reasons that followed on 16 March 2020.²⁹

18. It is indeed so that the Applicant did not appeal the dismissal of its counter-application. It is submitted that that is not the only remedy the Applicant has to enforce its claim and by the Applicant’s conduct throughout above, it is clear that the Applicant at all times had no intention to abandon its claim and to rest by the Labour Court judgment. The Applicant instead took steps to have an application lodged so as to have the arbitration agreement reached between the parties reached on 19 October 2016 enforced, and the date of prescription cannot run out by 18 October 2019 since:

1. The Labour Court has power and jurisdiction to enforce the settlement agreement or award. Even if the court finds against the Applicant in that the arbitration agreement that it seeks to enforce, does not constitute an award, the court is empowered to enforce the settlement agreement reached between the parties during conciliation/ arbitration proceedings as far as it relates to the effective date of payment of housing allowance to qualified employees.

2. The Act draws a clear distinction between a debt which may become into existence and when it becomes due. It is now well established that a debt is only “due” in the sense contemplated in the Act when the “creditor acquires a complete cause of action for the recovery of the debt, that is, when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place or, in other words, when everything has happened which would entitle the creditor to institute action and to pursue his or her claim.³⁰ That the Applicant could only possibly have succeeded to enforce a debt claim amount as of 1 April 2017.³¹

3. In the matter of The National Disability Council of Namibia vs Ben Shikolalye and 6 Others³² it was held that Internal remedies available to employees must be exhausted before a dispute is referred to the Office of the Labour Commissioner and that in that instance the arbitrator had no jurisdiction to hear the dispute until and unless all internal remedies have been exhausted. The Labour Court then ruled on appeal that the matter be referred back to the appellant to attend and finalise the respondent’s grievances as per internal grievance procedure.

4. The same sentiment was expressed in the matter of National Housing Enterprise v Maureen Hinda Mbazira³³ where it was held that “the requirement that domestic remedies be exhausted before a court of law is approached has been justified because it is unreasonable for a party to rush to court before his domestic remedies are exhausted; the domestic remedies are usually cheaper and more expeditious that the judicial remedies, and the fact that, until a final decision has been given against an applicant by a domestic tribunal, any irregularity complained of may still be put right and justice done.”

5. The court in above matter even held so far as to write its view of the decision in the Edgars Stores Case³⁴ of the rule requiring domestic remedies to be exhausted when it opined that “If a party were to rush off to court after the dismissal and before his appeal was dealt with it would not only be expensive but counterproductive.” To hold the view that the applicant should have rushed to court whilst there was continuous discussion on the issue internally and when no final decision has been given, would be to suggest that keeping the matter open as an agenda item is a fallacy on behalf of the company and only meant to waste time and delay payment to the money the affected members are entitled to.

6. In the matter of The National Disability Council of Namibia v Ben Shikolaye & Others³⁵ it was held that the arbitrator was correct to find that the internal remedies had not been exhausted. That case pertains a matter wherein the respondents lodged a grievance concerning the reduction of their housing allowance during February 2018 however the grievance was not resolved since then. Various meetings were held and correspondence were exchanged between the parties regarding the said allowance. It was pointed out that meetings were held between the parties, where the issue of the change of housing allowance was discussed. The respondents thereafter addressed a letter to the appellant to provide them with a copy of the ministerial directive in terms whereof the housing allowance was changed of which the appellant failed to do. When a point in limine was raised during arbitration, in that, the dispute arose during October 2017 and was only filed in November 2019, it had been filed out of the prescribed time period and has therefore become prescribed in terms of section 86(2) of the Labour Act, 2007.³⁶ Also, that it follows therefore, that the arbitrator lacked the jurisdiction to adjudicate the dispute. The arbitrator’s decision that she had the jurisdiction to hear the matter, was then the subject matter of the appeal.

1. The arbitrator in that matter reasoned that because there was no evidence that the correspondence addressed by the respondents to the appellant had received any feedback, that the internal remedies had not been exhausted. The appeal court held that the arbitrator was correct to find that the internal remedies had not been exhausted and that she indeed had the necessary jurisdiction hear the matter.³⁷

2. It is submitted that similarly in this instance, the Applicant had not received feedback until 3 November 2017 and as such it’s right to enforce the arbitration agreement only then commenced.

19. The reasons for the time period (from October 2016) in an attempt to make the award and order of the Labour Court in terms of section 87(1) of the Labour Act, are extremely material as a grave injustice would result if the award were to be rendered prescribed, particularly where the First Respondent who now pleads prescription has been responsible for the delay. The First Respondent on 28 February 2019, upon its application to the Labour Court to declare the registration of the award, to be null and void, conceded indebtedness by admitting the terms and conditions of the award save, for its discontent for the fact that the ejustice system could not have made the award an order of court. The aforesaid application by the First Respondent on its own, interrupted prescription. It must be kept in mind that the Applicant’s counterclaim filed 4 April 2019 did not fail because the court granted absolution, but it failed since the court ruled that the application should be made affording the other party an opportunity to be heard and for the Labour Court to exercise its judicial discretion by considering the application, which the ejustice system is unable to do as there is no human intervention in terms of exercising judicial scrutiny.

20. It is further submitted that only upon the Labour Court setting aside the registration of the award in terms of section 87(1)(b)(i) of the Labour Act on 4 November 2019, did the Applicant had recourse and/or an alternative remedy to enforce the award by other means. Since January 2019 when the award was registered as a Labour court order, in terms of what the mechanisms afforded to it, and what the Labour Court Act still provides for, the First Respondent did not raise the issue of prescription as it was simply unable to do so, and is no more than an afterthought in the present instance.

Does prescription apply to an arbitration award?

21. The respondent’s opposition to the Applicant’s claim to have the arbitration award made an order of court is not a ‘debt’ in terms of the Prescription Act and thus cannot hold water as it cannot be said to be a debt that prescribes after three years.

22. In the matter of Brompton Court Body Corporate SS 119/2006 vs Christina Fundiswa Khumalo, it was held that the appellant’s claim to make the arbitration award an order of court did not require the respondent to perform any obligation at all, let alone to pay money, deliver goods or render services. The appellant merely employed a statutory remedy to it. This is exactly what has happened herein, in that the Applicant applied the remedy it had in terms of section 87 (1)(b) of our Namibian Labour Act. It was further held that the remedy available and applied is not entirely dissimilar to a claim for rectification of a contract, which has been held not to constitute a ‘debt’ in terms of the Act in the South African Supreme Court.³⁸

23. The aforesaid position was also considered in the South African Court in the matter of Maria Mogaila v Coca Cola Fortune (Pty) Limited [2017] ZACC 6; 2018 (1) SA 82 (CC), where it was mentioned that different considerations apply to arbitrations under the Labour Relations Act 66 of 1995 (the LRA). Therein it was held that since service of process initiating the CCMA dispute resolution process interrupted prescription, prescription remained uninterrupted until any review proceedings seeking to nullify the CCMA outcome were finalised.³⁹

1. The restriction to review only provides a cogent and compelling reason for re-interpreting the Prescription Act to include statutory reviews under section 145 of the LRA as included in the judicial process that interrupts prescription until finality is reached under section 15 of that Act. The restriction infringes the right of access to courts more severely than where a right of appeal is allowed. An interpretation that best protects the right of access should be preferred. That can be achieved by allowing the right of review to play the same role of finality as the right of appeal does in ordinary matters.

Does prescription apply to an arbitration agreement or bargaining agreement.

24. It is submitted that prescription does not apply to an arbitration agreement whereby the Applicant as exclusive bargaining agent of its members at the Respondent enters into a valid and binding agreement, and following that, same was in fact reached during or at conciliation/arbitration proceedings which finally settled the two disputes that the parties referred on the same subject matter for adjudication by the arbitrator.

25. The respondent’s claim, that to make the agreement reached during conciliation/ arbitration proceedings a debt that prescribes after three years, is mistaken and untenable. A claim that an arbitration award be made an order of court is not automatically a ‘debt’ in terms of the Act. In this regard the South African Constitutional Court has clearly endorsed the decision in relation thereto in the matter of Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd⁴⁰, namely that a debt in terms of the Act is an obligation to pay money, deliver goods or render services. It is not the case in the present application before court.

26. In the matters of Makate v Vodacom Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC) and Off-Beat Holiday Club and another v Sanbonani Holiday Spa Shareblock Limited and others [2017] ZACC 15; 2017 (5) SA 9 (CC) ⁴¹ it surfaced that for the appellant to have made the arbitration award an order of court did not require the respondent to perform any obligation at all, let alone one to pay money, deliver goods or render services. In this instance the Applicant (MUN) merely employed a statutory remedy available to it. This is not entirely dissimilar to a claim for rectification of a contract, which this court has held not to constitute a ‘debt’ in terms of the Act. The 19 October 2016 agreement that the Applicant seeks to enforce can be said to have the same legal effects of a Collective agreement as contemplated in section 710 of the Labour Act, in that it binds the parties to the agreement (the affected employees and the First Respondent); the members of any registered trade union that is a party to the agreement and it binds for the whole period of the agreement every person bound at the time it became binding. It would not make sense to suggest that such an agreement is subject to the Prescription Act if there are clear time periods for the duration of it application.

27. The enforcement of the collective agreements by bargaining council (like Applicant herein) is governed by s38 of the Labour Act which provides that if there is a dispute about the non-compliance with, contravention, application or interpretation of the Chapter concerning disputes, any party to the dispute may refer the dispute in writing to the Labour Commissioner.⁴² Agreements then reached thereto, are not subject to the Prescription Act, as it remains effective and governing of the employment relationship for as long as it endures and in respect of the affected members to the collective agreement.

28. Similarly, a new employer is also bound by any arbitration award or collective agreement that was binding on the old employer immediately before the transfer. This confirms findings by the South African Labour and Labour Appeal courts that reinstatement orders against the old employer are enforceable against the new employer if same is contained in a collective agreement or award, and a prescriptive period of 3 years is not applicable.⁴³ There is no basis why this position should not be followed in our jurisdiction. In the matter of Makate v Vodacom ltd [2016] ZACC 13;2016(4) SA (CC) the court did not take issue with the idea that there may be debts beyond a claim for payment.

29. Further, reference is made to the decision in Blaas v Athanassiou⁴⁴. The arbitration agreement in that matter provided that the award of the arbitrator ‘. . . shall be deemed to be treated as if a judgment delivered by a Judge in the Supreme Court of South Africa’. The court held, no doubt correctly, that inter parties the award had the status of an order of court. The judgment has been understood to hold that the prescription period of 30 years applicable to a judgment debt in terms of the Act, applied to the arbitration award in that matter. The effect of the 2016 signed arbitration agreement has the effect that for a 30 year period the MUN affected members and Namdeb Diamond Corporation (Pty) Ltd contracted themselves out of a right to rely against the other on the defence of prescription.⁴⁵

30. It is submitted that instead of seeking to set the matter down for adjudication on the alleged purported vagueness of the settlement agreement that was made an award, the First Respondent has deemed it fit to bring an application for the registration of the award to be declared a nullity on the basis that the parties’ consent to have their settlement agreement made an order of court through the mere registration of such agreement on a computer court system, it agreed to a mechanism that would bypass judicial scrutiny and approval. Apparently also that it would be done without proper exercise of the Labour Court’s discretion. It can thus be said that the First Respondent is now attempting to obtain several bites at the cherry, which would be unfair in the proper administration of justice.

31. The Applicant conceded (albeit with much hesitation) that the effected registration, as made on 25 January 2019, infringed on Article 12(1)(a) of the Constitution which did not pass ‘constitutional muster’ and rendered the registration thereof null and void which so became liable to be set aside. It was on that basis that the Applicant’s counter- application filed on 4 April 2019 failed. The Applicant thus now filed this application so as to allow for judicial discretion, and yet still the First Respondent opposes same, which was its only basis for not wanting to accept the Labour Court order after registration thereof.

32. In the matter of Thomas Ignatius Ferreira vs Deon Rademeyer,⁴⁶ it was held that the ‘one and for all’ rule which prohibits further proceedings to obtain recovery of the money, and should bar ‘double litigation’ occasioned by an initial judgment on liability only, should be rejected. The Court held that: ‘If further proceedings are instituted by plaintiffs in due course to exact payment from defendant pursuant to judgment in the present case, such further action will be necessary by reason of the fact that the present action is only concerned with the issue of liability, and the further action will cover elements of the plaintiff’s claim not canvassed in the current action.⁴⁷

33. In the present context, the only issue for consideration that the court had decided upon, was the fact that the award was made an order of the Labour Court by the mere registration thereof on ejustice and as such it was not afforded judicial scrutiny. Further proceedings to enforce the payments that are due to the Applicants are permissible on the basis that the initial proceeding was only concerned with the issue of whether the ejustice system could have awards made enforceable orders of court by the mere registration thereof. Nowhere in the application filed by the First Respondent on 28 February 2019 did it mention the issue of prescription. Because same is simply not logical.

34. It would not have made judicial sense to appeal the judgment of the Labour Court as judicial reasoning dictates that the Supreme Court would have came to the same conclusion as did Justice Geier. The court’s decision did not have the effect of disposing of a key issue being the payment of housing allowances for the affected employees from 1 July 2016 to 30 June 2017. In the matter of Cape town Municipality and Another v Allianz Insurance Co Ltd⁴⁸ the SCA held that the notice of motion in Cadac ‘was a process whereby proceedings were instituted as a step in the enforcement of a claim for payment of a debt’, so that prescription was interrupted in terms of s 15(1) of the Act. The court dealt specifically with the argument that prescription had not been interrupted and that the claim had therefore prescribed because of the wording of s 15(2), on the basis that the applicant had not timeously prosecuted its claim to final judgment. It was argued in the matter of Thomas Ignatius Ferreira matter, that the claim had prescribed three years after the judgment of Schwartzman J. That argument was unequivocally rejected, with a reference to the matter of Titus⁴⁹, on the basis that section 15(2) contains no time limit within which a claim must be prosecuted with success.⁵⁰ We are in agreement.

35. Legal practitioners have a duty to duly consider judgments handed down even if they were unsuccessful, or not in their favour and to advise their clients on the best way forward. To simply appeal a judgment, because it’s the next step in terms of the First Respondent’s interpretation of section 15(2) of the Prescription Act, is at times not the best advice to pursue for unsuccessful parties especially not parties who are short at finances and who are in dire need for the monies that are due and owed to it, like that by the First Respondent to the Applicant. It can even be said to be tantamount to straightforward negligence.

36. It is submitted that extinctive prescription limits the time within which proceedings must be instituted, but once instituted its continuance is governed by the rules of court and subsequent actions of the party seeking relief.

Conclusion and analysis

37. Based on the aforesaid and comparative authorities it is submitted that the Applicant are entitled to an order declaring that the arbitration agreement reached between the parties on 19 October 2016, did not relate to an enforcement of as debt as is envisioned in the Prescription Act, but to the interpretation of the housing allowance agreement (dated 22 May 2016). In terms of that agreement the implementation of any money (debt) would only accrue from 1 April 2017, and technically, prescription, if found to be applicable, would only commence to run from then.

38. The parties then entered into negotiations and reached a binding and lawful settlement agreement on 19 October 2016.⁵¹ The affected members are entitled to enforce the agreement so reached and the First Respondent is to be held accountable for its commitment made towards the affected employees.

Ad all grounds of the application

39. It is respectfully submitted that the point of law raised is an afterthought of First Respondent and a bold attempt to escape its obligation and indebtedness to the Applicant.

40. As highlighted in the pleadings already filed herein, the Applicant submits that this is a point raised to frustrate the Applicant and is a delaying tactic in fulfilling its obligations towards the affected members and it appears, until now, that the First Respondent remains successful with delaying the implementation of the housing allowance agreement since 1 April 2017. The First respondent continues to act in a vexations manner and Applicant submits that its conduct warrants a cost order as contemplated in terms of section 118 of the Labour Act.

41. On the basis of the above, we submit that the point in limine of prescription be dismissed with costs.’

Replying argument

[22] The written reply ran as follows:

‘The applicant attempts to escape the obvious and glaring fact that its relief / claim is for payment of money and interest thereon, and that such claim therefore is for a debt. The first respondent’s notice of motion prays for an order:

“1. ….. to enforce the arbitration agreement reached between the parties on the 19th of October 2016 and in particular, that the first respondent is directed to pay the housing allowance to all affected employees with effect from 1 June 2016 to 30 June 2017.

3. Interest at the rate of 20% per annum on the amount due and payable …..”. (emphasis added)

The period of prescription for debts of this nature is 3 years in terms of the Act, whereafter the debt is extinguished.⁵²

It is also plain from paragraph 1 of the notice of motion that such money debt arises from an alleged agreement entered into on 19 October 2016. Although the first respondent attempted to make the purported settlement agreement of 19 October 2016 an order of the Labour Court in terms of section 87(1)(b)(i) of the Labour Act, 2007, on 4 November 2019 this court declared such an attempt null and void and set the registration aside accordingly.

The first respondent’s reliance on the Myathaza matter ⁵³ is misconstrued and irrelevant for purposes of this matter. In that matter four judges of the Constitutional Court found that the reinstatement award does not constitute a ‘debt’ for the purposes of the Act. We point out that the first respondent’s claim is not to enforce an award, for reinstatement into a former position of the employ, but to enforce a purported settlement agreement by claiming monies allegedly owing under such agreement.

The Act does not provide any mechanism whereby the Labour Court can enforce an arbitration award otherwise than by compliance with section 87(b). This has not occurred. We, in any event, point out that the relief the applicant seeks is enforcement of an arbitration agreement, and not an arbitration award. The first respondent contends that the so-called arbitration agreement was in any event novated, alternatively overtaken by the events as set out in paragraph 20 of the answering affidavit. ⁵⁴

There is no substance in the applicant’s contention that its cause of action only arose on 3 November 2017. Evidently on such date the first respondent, once again, contested any agreement to backdate payment of housing allowance. That was made plain in its letter. ⁵⁵ Ten denials of a debt, on ten different dates, does not cause the debt to become a new debt - ten times over - with respect.

The first respondent has never conceded any indebtedness to the applicant, whether by filing its application under case HC-MD-LAB-MOT-GEN-2019/00056 on 28 February 2019 or otherwise. Any allegation by the applicant that such a concession is common cause is simply not borne out by the papers in the aforementioned matter, wherein the first respondent also contended that the so-called settlement agreement / award was null and void for various reasons. ⁵⁶

The applicant’s reliance on so-called internal or domestic remedies in its attempt to avoid prescription is misconstrued. It does not state what remedies these were, nor how the obligation to exhaust such remedies arose - whether by legislation or otherwise. ⁵⁷

Disposal

[23] Before determining the central issue of prescription – and on a consideration of the arguments – I believe that it will be apposite to first lay to rest a number of clear misconceptions – as apparent from the submissions made in the heads of argument filed of record on behalf of the MUN. They are the following:

1. the submission that ‘the applicant’s claim is the enforcement of the settlement agreement concluded between the parties on 19 October 2016 that was made a binding award in terms of the Labour Act;⁵⁸ is incorrect when it is common cause that the said settlement agreement was never made a binding award in terms of the Labour Act as the attempted registration in terms of the Labour Act and subsequent attempt at enforcement – by way of a counterclaim – ended in dismissal;

2. the submission that ‘ …the applicant’s only remedy to enforce the award⁵⁹ is by the registration thereof in terms of section 87(1)(b) of the Labour Act, alternatively on application to Court in terms of the aforesaid section …’, is incorrect when the applicant’s claim in the current application is expressly based on the enforcement of the terms of the settlement agreement concluded on 19 October 2016 in terms of section 117(1)(f) of the Labour Act as opposed to the registration of the award in terms of section 87(1)(b)(i) and the consequent enforcement thereof;⁶⁰

3. the submission that ‘ … the application, which had been brought by NAMDEB under case HC-MD-LAB-MOT-GEN-2019/00056 on the basis that MUN’s registration of the award was null and void and that the award was superannuated, which alternative cause was not persisted with…’, is incorrect when it becomes clear from the papers and heads of argument filed in that case that this cause was not abandoned – and – where it should further have become clear from the judgment delivered in that case that the basis on which the case was determined did no longer require the determination of the issue of superannuation;⁶¹

4. the submission that ‘… NAMDEB conceded its indebtedness to MUN and its members …’, is clearly incorrect when this was never so;⁶²

5. the submission that ‘ … the applicant had not resolved … all internal remedies …’ , was seemingly baseless, when the allegation was sweepingly made without particularity and in respect of which it was correctly pointed out that it was not specified what internal remedies these were, or how the obligation to exhaust such remedies arose ie. whether by legislation or otherwise;

6. The submission that ‘ … on 4 November 2019 the Court merely … ‘ruled’ in favour of the first applicant …’ – (when there was only one applicant in case HC-MD-LAB-MOT-GEN-2019/00056) – ‘ … and dismissed the counter-claim of the applicant …’, ⁶³ - when these submissions were inaccurate and also blatantly wrong when it was in fact the first respondent’s counter-application that was dismissed in that case, the applicant herein.

7. also MUN’s counsels’ submission that only a ‘ruling’ was delivered on 4 November 2021 was patently incorrect as the court delivered a fully reasoned ex-tempore judgment on 4 November 2019 - a judgment that was delivered in open Court – and incidentally – also in the presence of MUN’s legal practitioner’s Angula Co Inc.⁶⁴ Importantly also – and if MUN’s legal practitioner would have made any notes of the judgment and the reasons so given on 4 November 2019 – or would have obtained a copy of the transcript of the record - this should have sufficed for an initial and immediate consideration of the delivered reasons for purposes of noting an appeal and also for rendering any advice to the client, which grounds and notice, if required and also any advice rendered, could always have been amended/changed subsequently once the court’s written reasons where released on 16 March 2020. Fact of the matter remains that the dismissal of the counter-application was not appealed against. Any reliance on the ‘release date’ of the judgment is manifestly misconceived;

8. that the submission that- ‘ … immediately upon receipt of the judgment the MUN filed the current application …’ – is demonstrably false in view of what has already been set out in para g) above and where the current application was actually launched many months later – namely only on 29 September 2020.⁶⁵

9. that the submission that ‘ … the court must be mindful of the fact that the 4 April 2019 application differs in essence from the present application, in that in the 4 April 2019 application, the Applicant sought for the Court to direct the First Respondent to pay the Housing Allowance as was agreed to in the housing allowance agreement dated 22 April 2016⁶⁶, whereas in the present application, the applicant seeks to enforce the arbitration agreement reached on 19 October 2016 …’⁶⁷ - is also inaccurate when on a reading of the counter-application filed in case HC-MD-LAB-MOT-GEN-2019/00056 it becomes clear that the settlement agreement was actually relied upon there as well.⁶⁸

[24] Also the submissions made by counsel for MUN on most of the relied upon case law was not very helpful and did not really advance MUN’s case as many of the cited cases where actually irrelevant for purposes of the resolution of this matter. For example:

1. It becomes clear that the cited case Myathaza v Jhb Metro Bus Services (SOC) Ltd t/a Metrobus 2018 (1) SA 38 (CC) ((2017) 38 ILJ 527; 2017 (4) BCLR 473; [2016] ZACC 49) had to be distinguished on the facts and on the basis of the applicable underlying legislation as the decision was essentially based on the South African labour dispensation and was factually also not of application or of assistance as the case related to Mr Myathaza's reinstatement award which – according to the majority judgment - could not prescribe because it was held that such award should not be regarded as constituting a 'debt' for the purposes of the Prescription Act.⁶⁹ This, inter alia, was so because the courts had restricted the meaning of the word ‘debt’ to 'an obligation to pay money or deliver goods or render services', which an order of reinstatement was not in the strict sense. The purported reliance on this authority, was thus seemingly misconceived as was pointed out by NAMDEB’s counsel as MUN’s present claim is one for the payment of money and is not one for reinstatement;

or

2. It is not understood how the The National Disability Council of Namibia v Shikolalye (HC-MD-LAB-APP-AAA-2020/00047) [2021] NALCMD 30 (16 June 2021) and National Housing Enterprise v Hinda-Mbazira NASC (SA 42-2012) 4 July 2014 cases - relating to the exhaustion of internal remedies - can be of application or advances the MUN’s case in circumstances where it was not even specified what internal remedies these were, or how the obligation to exhaust such remedies arose in this case ie. whether by legislation or otherwise;

or

3. How could the relied upon decisions in Brompton Court Body Corporate SS 119/2006 vs Christina Fundiswa Khumalo, Makate v Vodacom Ltd 2016 (4) SA 121 (CC) or even Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2017 (5) SA 9 (CC)⁷⁰ be of any assistance in the circumstances of the present matter - where the MUN claim is no longer one for the registration of the ‘award’ – and - thus clearly cannot be a claim, akin to a claim for rectification, as was carelessly submitted, but where the present claim is clearly one for the payment of housing allowances with interest;

or

4. How the case of Thomas Ignatius Ferreira vs Deon Rademeyer⁷¹ - which seemingly held that if a case concerns- and only determines the issue of liability further proceedings may consequentially be instituted to exact payment once the aspect of liability has been determined⁷² - can be of application where the current claim is simply one for the payment of housing allowances and interest and where clearly no further enforcement proceedings are contemplated or required, (save for a possible appeal), once a determination has been made.

[25] Finally it should be said that it was extremely disappointing to note that Ms Angula with Ms Kandjella, with reference to Kehrmann v Gradtke (I 25/2016) [2018] NAHCMD 141 (01 February 2018) – a decision of this court – nevertheless brazenly certified that ‘… after (a) diligent search, they were not able to find any Namibian authority on the proposition of law under consideration …’ – when the Namibian authority of Kehrmann v Gradtke clearly dealt with the central legal considerations regarding prescription also underlying this case.

Does the Prescription Act apply to labour claims sounding in money

[26] Here it would have been noted that MUN’s counsel have formulated their defence to the prescription point with reference to the question whether ‘prescription applies to an arbitration award’.

[27] I believe however that this formulation is inaccurate. I say so for the following reasons:

1. It would have emerged by now that not all arbitration awards result in awards that sound in money and that this distinction may have to be kept in mind also with reference to the referred to Myathaza v Jhb Metro Bus Services (SOC) Ltd t/a Metrobus decision, a persuasive authority in this jurisdiction at this stage;⁷³

2. It is also clear that no actual award was made in this instance although the underlying settlement agreement was headed ‘Settlement Agreement/Award’;⁷⁴

3. The relied upon agreement also regulates how it is to become an order of the Labour Court. The attempt to have the ‘settlement agreement/award’ registered as an order of the Labour Court in terms of section 87(1)(b)(i) however failed;⁷⁵

4. It is clear that the applicant now simply relies on- and wishes to enforce the terms of the settlement agreement;⁷⁶

5. For this purpose express reliance is now placed on section 117(1)(f) of the Labour Act 2007, which section empowers the Labour Court to ‘grant an order to enforce an arbitration agreement’.⁷⁷

[28] It becomes clear from all this that the applicant’s cause of action is actually based in contract – pure and simple – and not on any award.

[29] If - considered from this angle - it seemingly becomes irrelevant how the relied upon agreement came about, ie. whether the dispute which led to the conclusion of the agreement was labour- related and was initially pursued in terms of the applicable labour legislation or had any other commercial cause and was pursued in terms of the applicable commercial law. Fact of the matter is that a seemingly valid agreement was concluded and that valid agreements – generally – can become enforceable and that the courts – inclusive of the Labour Court – are empowered to enforce them, if appropriate. Such claims are also generally liable to prescription.

[30] Can it then be said – that in such circumstances - particularly if the claim pursued also sounds in money, and quite apparently constitutes a ‘debt’⁷⁸, ie. when it is a claim through which the MUN seeks that NAMDEB do something positive, ie. to pay housing allowances and interest – and - where such claim is surely also a claim for something that is allegedly owed in terms of the relied upon agreement - and in respect of which NAMDEB is – allegedly - under an obligation to pay - that such a claim cannot prescribe and should not be subject to the prescription regime? I believe not.

[31] I take into account here further that save for using the ‘shotgun approach’ by simply referring the court to persuasive authority from a foreign jurisdiction, counsel for the applicant failed to meaningfully refine their reliance on the Myathaza v Jhb Metro Bus Services (SOC) Ltd t/a Metrobus decision in any way. For instance no comparative analysis was conducted in regard to the Namibian Labour legislation and the South African Labour regime for purposes of establishing whether or not the majority- or minority decision in Myathaza should be considered persuasive for purposes of adoption in our jurisdiction. No argument addressed the issue whether or not the Namibian Labour Act 2007 is inconsistent with the Prescription Act of 1969 or the Constitution and if so, in what respects, if at all. No argument was addressed to the court on the appropriate interpretation of the Prescription Act in order to give proper constitutional effect to it and how, amongst other aspects, that act might or might not affect the right of access to justice. No argument was made on whether the two Acts were also capable of complementing each other or could be interpreted in a way that would best protect the fundamental right of access to justice, whilst at the same time preserving the speedy resolution of disputes under the Labour Act and the other underlying legitimate considerations pertaining to the Prescription Act as expounded in the various authorities referred to by counsel for NAMDEB, as quoted above. Importantly it should also be mentioned in this regard that the applicant’s pleaded case did in any event not address any of these aspects. In such premises I believe it would be unwise ‘to sail into uncharted waters’. I am thus not persuaded that the Prescription Act 1969 is not of application in this instance ie. in instances where the claim – although labour related – sounds in money and clearly relates to the enforcement of a debt. It follows that sections 11(d) of the Prescription Act 1969 as read with section 12(1) find application.

When did MUN’s cause of action arise/ when did the debt become due?

[32] In this regard the MUN advances the following dates:

1. the 1^st April 2017, the implementation date for the housing allowance back pay;

2. the 3rd November 2017, as prior to that date the parties had not reached concensus on the ‘back pay matter’;

3. the 25th January 2019, when the NAMDEB did not comply with the registered Labour Court order;

4. the 28^th February 2019 when the application was made in case Namdeb Diamond Corporation (Pty) Limited v Mineworkers Union of Namibia (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019);

5. the 4^th April 2019 when the MUN filed its counter-application in case (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019);

6. the 4^th November 2019 when the Court ruled in favour of NAMDEB in case (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019);

7. the 16^th March 2020, when the Court released its written reasons in case (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019)

[33] In contra-distinction it was contended by counsel for NAMDEB that the cause of action, on which the MUN relies, arose on 19 October 2019.

[34] Counsel for the MUN accept that for a cause of action to arise ‘… the entire set of facts which the creditor (Applicant) must prove in order to succeed with his or her claim against the debtor (First Respondent) is in place or, in other words, when everything has happened which would entitle the creditor (Applicant) to institute action and to pursue its claim …’.⁷⁹ I agree.⁸⁰

[35] In order then to resolve whether or not the date relied upon by NAMBEB or any of the dates advanced on behalf of the MUN are of application in order to determine from which date the applicable prescriptive period relating to MUN’s claims is to run, the pleaded case of the MUN will require consideration.

[36] From the pleaded case - apparent from the founding affidavit deposed to Mr Shavuka Ligameneni Mbidhi - the following salient aspects emerge:

1. that the purpose of the application was self-declared to be ‘… the enforcement of the Settlement Agreement/Award annexed as ‘F’ to the founding papers …’;⁸¹

2. that in terms of the settlement agreement ‘F’ it was agreed that NAMDEB would implement the payment of housing allowances on 1 April 2017 with effective date of implementation to be 1 June 2016;⁸²

3. that NAMDEB commenced with payment of the housing allowances on 1 July 2017 but refuses to pay for the housing allowance from 1 June 2016;⁸³

4. that to date NAMDEB is in non-compliance and total disregard of the agreement reached on 22 April 2016 and reaffirmed on 19 October 2016;⁸⁴

5. that the MUN is therefore seeking an order to have the agreement of 19 October 2016 enforced in terms of section 117(1)(f) of the Labour Act 2007;⁸⁵

6. that NAMDEB is in breach of the arbitration agreement. Despite the parties unequivocally reaffirming the effective date of the housing allowance agreement to be 1 June 2016 NAMDEB fails and refuses to pay housing allowances to all qualified employees without basis from 1 June 2016 to 30 June 2017.⁸⁶

[37] It so appears that MUN’s case was pleaded somewhat nebulously. On my analysis however – and if I interpret the pleaded case correctly - it seems that the relied upon breach of the settlement agreement apparently occurred either on 1 July 2017 or during or about July 2017 when NAMDEB commenced with the payment of housing allowances but refused to pay (backpay?) for the housing allowances backdated to 1 June 2016. This was unfortunately not pleaded with any clarity. Also the actual terms of the relied upon agreement are not of any further assistance, save to state that they confirm that NAMDEB was to implement the agreement even earlier, namely already on 1 April 2017.⁸⁷ It is thus conceivable that the breach occurred even earlier. Nothing turns on this however.

[38] In the premises it seems to me therefore that the MUN’s cause of action arose either on 1 July 2017 or during or about July 2017, as that would have been the date or the period when ‘ … the entire set of facts was in place - which the creditor - (the ‘MUN’) had to prove - in order to succeed with its claim against the debtor (NAMDEB) – or - in other words - when everything had happened – (ie when the conclusion of the settlement agreement and the relied upon breach of its terms had occurred) – which then would have entitled the creditor - (the ‘MUN’) - to institute action and to pursue its claims based on the settlement agreement at any time thereafter, subject to prescription.

[39] It is here that the MUN’s prior attempt - at the enforcement of the settlement agreement - through the launching of its counterclaim in case Namdeb Diamond Corporation (Pty) Limited v Mineworkers Union of Namibia (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019) - comes into play - in which the MUN claimed essentially the same relief it seeks in the current proceedings, which counterclaim was however dismissed.

[40] It is this dismissal and its effect which occurred on 4 November 2019 that triggered NAMDEB’s reliance on section 15 of the Prescription Act of 1969 once it was faced with the current application and the MUN’s renewed attempt at enforcing the payment of housing allowances.

The impact of section 15 of the Prescription Act 1969

[41] The relevant provisions read as follows:

‘15 Judicial interruption of prescription

1. The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

2. Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.

…

(6) For purposes of this section, “process” includes a petition, a notice of motion, a rule nisi, a pleading in convention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.’

[42] As mentioned above the applicable South African case law – cited again by counsel for NAMDEB above – was already referred to and applied in Kehrmann v Gradtke (I 25/2016) [2018] NAHCMD 141 (01 February 2018). In that case the court also summarized the scheme created by sections 15(1) and (2) of the Prescription Act as follows:

‘[19] It now becomes apposite to call to mind the provisions of Section 15(2). The salient components set by the section, as relevant to this case, in which there is no acknowledgment of liability by the debtor, which aspect can thus be ignored for present purposes, are the following:

1. the judicial interruption of any prescriptive period shall lapse - that is the interruption brought about by the service of summons, i.e. by the service of any ‘process’ in which a ‘creditor claims payment of a debt’ - if the creditor does not successfully prosecute his claim under that process in question to final judgment, which is a final and executable judgment, or if he does so prosecute his claim, that is successfully, but then abandons the judgment or the judgment is set aside;

2. in such circumstances - it shall be deemed - that the service of summons, which, until the listed outcomes, has interrupted the running of the applicable prescriptive period - shall lapse;

3. that all this must have occurred under the ‘process’ in question, i.e. that is the action, as in this case, or as in the other types of proceedings, as defined in Section 15(6) of the Act.’

[43] Counsel for NAMDEB’s argument on this was crisp and to the effect that nothing prevented the MUN from interrupting the running of prescription from 19 October 2016 by the service of process on NAMDEB, as it did on 4 April 2019, when it filed its counter-application in case (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019). The MUN did not prosecute its claim to final judgment under case (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019), as stipulated in section 15(2). The interruption of prescription, which had occurred with the institution of the counterclaim, lapsed when such claim was dismissed on 4 November 2019 and when such dismissal was not taken on appeal, which caused the deeming provision set in section 15(2) to come into play in terms of which- and where in such circumstances - prescription is deemed not to have been interrupted.

[44] It was thus submitted that the MUN had until 18 October 2019 to interrupt the running of prescription by service of process on NAMDEB, which it failed to do timeously.

[45] On the other hand - and in this regard it is to be noted firstly that counsel for the MUN – conspicuously – failed to address the impact of the relied upon sections of the Prescription Act consequent to the dismissal of MUN’s counterclaim in case Namdeb Diamond Corporation (Pty) Limited v Mineworkers Union of Namibia (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019) and MUN’s failure to appeal such dismissal - save for their submissions relating to when the MUN’s cause of action arose aimed at demonstrating that their client’s claim had not fallen foul of the applicable three year period.

[46] This aspect of the case was however disposed of by my finding that the MUN’s cause of action arose either on 1 July 2017 or during or about July 2017 and that the ‘debt’ became due then.

[47] By the same token it will have become clear that I am also not in agreement with the submissions made by counsel for NAMDEB on this aspect. Nothing turns on this disagreement however as the current proceedings where only instituted on 29 September 2020, which in any event is more than three years after the MUN’s claims herein arose and became due. I do however uphold the remainder of the submissions made on behalf of NAMDEB on this facet of the case where it has become clear – in circumstances where NAMDEB has never acknowledged its liability to pay the claimed housing allowances in all the legal proceedings aimed at enforcing the settlement agreement and where MUN has clearly failed to successfully prosecute this claim, by way of the lodged counterclaim in (HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019) to a final and executable judgment.

[48] The applicant’s claim for the payment of housing allowances and interest has thus prescribed in terms of section 11(d) of the Prescription Act 1969 as read with section 12(1).

[49] In the premises the plea of prescription is upheld and in the result the application is thus dismissed.

__________________

H GEIER

Judge

APPEARANCES:

APPLICANT: EM ANGULA (with her R KANDJELLA)

From AngulaCo. Inc., Windhoek

FIRST RESPONDENT: R HEATHCOTE SC (with him G DICKS)

Instructed by Köpplinger-Boltman Legal Practitioners, Windhoek