Uitenhage Municipality v Molloy

• Jurisdiction: South Africa
• Judge: Mahomed CJ, Smalberger JA, Howie JA, Scott JA, Streicher JA
• Judgment Date: 27 November 1997
• Citation: 1998 (2) SA 735 (SCA)
• Docket Number: 332/96
• Hearing Date: 13 November 1997
• Counsel: C J Mouton SC for the appellant R B Wade for the respondent
• Court: Supreme Court of Appeal

Mahomed CJ:

During February 1995 the respondent in this appeal J

Mahomed CJ

brought an action in the Court a quo against the appellant for payment of the sum of R148 317, 98. In the A particulars of claim, it was averred that during the period 22 August 1983 to 30 June 1989 the respondent was employed by the appellant. It was further alleged that the amount claimed was owed to the respondent because B the appellant had, in contravention of ss 9(1) and 10(2)(a)(ii) respectively of the Basic Conditions of Employment Act 3 of 1983 ('the Employment Act'), failed to remunerate the respondent for work performed by him during the relevant period on Sundays and in respect of overtime.

In addition to certain other pleas, the appellant lodged a special plea in which it was contended that the claims of C the respondent were prescribed in terms of s 11 of the Prescription Act 68 of 1969 ('the Prescription Act'). By agreement between the parties the Court a quo was requested to determine whether this defence was sound in law. For this purpose only, it was accepted by the parties that:

1.

During the relevant period the appellant was the 'employer' of the respondent, and the respondent D was an 'employee' of the appellant, within the meaning of those expressions as defined in s 1 of the Employment Act.

2.

The appellant had contravened the provisions of ss 9(1) and 10(2)(a)(ii) of the Employment Act, by failing respectively to remunerate the respondent (in accordance with the formulae prescribed by the E Employment Act), for work performed on Sundays and for overtime work.

3.

These contraventions had occurred between the period 22 August 1983 to 30 June 1989.

4.

At no stage prior to the issue of summons on 9 February 1995, had the respondent satisfied or taken F any steps to procure the satisfaction of the conditions contained in s 30(3)(a) or (b) of the Employment Act. [1]

5.

The respondent had sought and obtained a certificate in terms of s 30(3)(c) of the Employment Act for the first time on 8 February 1995. G

It was common cause between the parties that any remuneration for Sunday or overtime work (to which the respondent was entitled in terms of ss 9(1) and 10(2)(a)(ii) of the Employment Act) was payable at the

Mahomed CJ

end of the month during which such work had been performed. Counsel for the parties were also agreed that in A terms of s 10 of the Prescription Act read with s 11(d), any debts of the appellant to the respondent became prescribed three years after they became due; that more than three years had elapsed between the time when the remuneration became payable to the respondent in terms of ss 9(1) and 10(2)(a)(ii) and the time when the B respondent instituted action for the recovery of such remuneration; and that more than three years had also elapsed between the time when the respondent became aware of the existence of his claims and the time when he so instituted action.

The Court a quo held that the claims of the respondent had, in these circumstances, not become prescribed and C that the special plea of prescription should therefore be dismissed.

The correctness of that conclusion depends on the proper application and meaning of s 12(1) of the Prescription Act which provides that subject to ss (2) and (3) (which do not affect the debate in the present case) D

'. . . prescription shall commence to run as soon as the debt is due'.

It follows that, if the appellant's debts to the respondent for overtime and Sunday work became 'due' at the end of each month, during which the respondent so worked on a Sunday or on overtime, they are indeed prescribed E and the appeal must succeed. If, on the other hand, these debts only became 'due' when they were 'recoverable' in terms of s 30(3) of the Employment Act they would not be prescribed and the appeal must fail because these debts cannot, in terms of s 30(3), be recoverable until s 30(3)(a) or (b) is satisfied and it is common cause that neither of these subsections were satisfied when proceedings were instituted by the respondent. (The certificate in terms of s 30(3)(c) was obtained the day before the institution of the respondent's F action but it was agreed that if the debts concerned had become prescribed in the interim because of the lapse of the prescriptive period of three years, a certificate in terms of s 30(3)(c) obtained thereafter could not revive such a prescribed claim.)

The essential premise upon which the respondent's case must therefore rest is that a debt in terms of ss 9 or G 10(2)(a)(ii) of the Employment Act is not 'due' for the purposes of s 12(1) of the Prescription Act, until it is 'recoverable' in terms of s 30(3) of the Employment Act.

In my view, this is an erroneous premise...