De Villiers J.:
At the commencement of this hearing I informed the representatives of both parties that I only had one assessor D to sit with me on that day, as no assessor, nominated by Botswana Federation of Trade Unions, was available to sit on the days allocated for this case. As both representatives had no objection to me sitting with only one assessor, I could see no good reason for postponing this matter. I therefore directed, in terms of the proviso to section 17 (6) of the Trade Disputes Act (Cap. 48:02) that this matter could proceed with only one assessor. E
On 4 September 2000 Mr. Vergeer, for the respondent, applied for an adjournment to the following day. As Mr. Mthunzi, for the applicant, had no objection to such adjournment, the said application was granted.
On 5 September 2000 Mr. Vergeer applied for leave to hand up an amended statement of defence which now included a special plea of prescription. As Mr. Mthunzi is not a legal practitioner the court asked him if he required F an adjournment to study this newly introduced special plea or to get legal advice thereon. Mr. Mthunzi replied that the case could proceed on that day on the special plea but should he encounter a problem along the way, he would ask for an adjournment. The respondent's application to amend its statement of defence was consequently granted.
To understand this plea of prescription it is necessary to first mention the applicant's two claims against the G respondent. The first claim is for a shift allowance. He alleges that he worked for the respondent as a security guard from 15 May 1990 to 31 May 1995 when he resigned. During this whole period he worked shifts. On 7 October 1991 the shift workers and management reached an agreement that management would pay shift workers a shift allowance as from that date to 31 March 1995. The applicant avers that he however never H received this shift allowance and he is now claiming the shift allowance for the period 7 October 1991 to 31 March 1995.
The applicant's second claim is for pension fund benefits, based on the respondent's compulsory pension contributory scheme.
Mr. Vergeer made it clear that this special plea relates only to the applicant's first claim for a shift allowance. It does not affect the applicant's second claim.
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Mr. Vergeer submitted that the applicant's claim for a shift allowance is , a claim for remuneration for services A rendered or work done for the said period from 7 October 1991 to31 March 1995, which period was confirmed by Mr. Mthunzi. He referred the court to the definition of "remuneration" as set out in the Concise Oxford Dictionary and in Claassen, Dictionary of Legal Words and Phrases, volume 3, and submitted that the applicant's claim for a shift allowance is therefore undoubtedly a claim for "remuneration . . . for services rendered or work done". A shift allowance will therefore fall within the definition of remuneration. It is not restricted to wages or salary. B
As this shift allowance was paid monthly, the first payment was due and payable on 31 October 1991. Each monthly claim for this period therefore accrued at the end of each succeeding month thereafter in which the said services were rendered or work was done. C
He therefore submitted that extinctive prescription began running against these claims at the end of each month from 31 October 1991 and at the end of each month thereafter, in terms of section 6 (1) (b) of the Prescriptions Act (Cap. 13:01). The said section provides that extinctive prescription shall begin to run in respect of such claims "from the date when the right of action first accrued against the debtor." He said the period for prescription in respect of services rendered or work done is three years in terms of section 4 (2) (b) (ii) of the D Prescriptions Act.
The applicant's most recent claim for a shift allowance was, according to the applicant, due and payable on 31 March 1995, on which date extinctive prescription therefore started running. That claim would therefore have been rendered unenforceable three years thereafter which would have been on 30 March 1998, unless such E prescription was interrupted.
Mr. Vergeer submitted that the only possible way it could have been interrupted could have been in terms of section 7 (1) (b) of the Prescriptions Act, namely by "service on the debtor of any process whereby action is instituted." He submitted that the applicant's statement of case, which instituted the action in the Industrial Court was only served on the respondent for the first time on 25 January 2000, which was long after 30 March 1998 F when the applicant's whole claim for a shift allowance had prescribed. His claim could therefore not have been interrupted by the service of the applicant's statement of case on the respondent.
Mr. Vergeer submitted in the alternative that, should the court find that section 4 (2) (b) (ii) is not applicable but that section 4 (2) (c) is, because the applicant had an initial written contract of employment, then a portion of his G claim for a shift allowance has prescribed. Section 4 (2) (c) provides that in the case of a written contract, the period of prescription would be six years. That being so, he submitted that all the applicant's claims for a shift allowance from 31 October 1991 to 31 December 1993 would therefore have prescribed. H
In reply Mr. Mthunzi submitted that the applicant is relying on interruption of prescription. He had a two pronged argument. First, he said the way he understood section 7 of the Prescriptions Act is that if this claim for a shift allowance had been brought to the attention of the respondent within the said period of three years, it would have interrupted prescription.
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Secondly, if it had been brought to the attention of the district labour officer within the said period of three years, it A would also have interrupted prescription.
He said from the moment the applicant had resigned in 1995 he started writing to the respondent complaining of the non-payment of the said shift allowance. This correspondence was later taken over by the union. It was a long ongoing process which lasted the whole of the said three year period and thereafter. This he submitted, B interrupted prescription and the applicant therefore still has a valid claim for payment of a shift allowance.
He said the applicant reported this dispute to the district labour officer for the first time in 1996, when the applicant was advised first to seek assistance through the union, of which he was a member. The union then took this matter up with management and when no progress was made the applicant again reported this dispute to the district labour officer in 1997. C
Mr. Mthunzi said his office also formally referred this matter to the district labour officer in writing in 1998. He submitted that a dispute like the present one, cannot be referred directly to the Industrial Court. It has to be referred to the district labour officer first and if he cannot settle the dispute, he must refer it to the Commissioner of Labour, who must also first attempt a settlement before he issues a section 7 certificate, which enables the D parties to refer the dispute to the Industrial Court.
This then being the position, it follows, so he submitted, that the referrals to the said labour officers form part of the eventual referral to the Industrial Court. The court should therefore not look at the date on which an applicant's statement of case is served on the respondent but at the date it was first referred to the district labour officer. This was done within the said three year period and therefore prescription was also interrupted for this E reason.
Mr. Mthunzi also submitted that payment of a shift allowance should not fall within the meaning of "remuneration", which he said should only refer to an employee's normal salary or wages.
The court was satisfied that the plea of prescription had been properly raised. In terms of section 16 of the F Prescriptions Act, a plea of prescription must be raised in the pleadings and it can be raised at any stage of the proceedings.
Section 4 of the Prescriptions Act deals with extinctive prescription and the relevant portions thereof for purposes of this judgment, provide as follows: G
"(1) Extinctive prescription is the rendering unenforceable of a right by the lapse of time.
(2) The periods of extinctive prescription shall, subject to the provisions of section 14 (2), be the following. . .
(b) three years in respect of - H
(i) any oral contract;
(ii) any remuneration whatever or disbursement due to any person for or in connection with services rendered or work done by him;. . .
(c) six years in respect of written contracts including bills of exchange and other liquid documents but excluding mortgage
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bonds unless a shorter period is applicable under any provision of paragraph (b);. . ." A
Section 14 (2), referred to here above, is not applicable as it only applies to claims by the government. Before dealing with extinctive prescription, the court must first establish which of the aforesaid subsections are applicable in this case. Is it subsection 4 (2) (b) (ii) or is it subsection 4 (2) (c)? B
The court accepts that the applicant's claim for payment of a shift allowance was "in connection with services rendered or work done by him", whilst he was performing shift duties. The only question is, does a shift allowance fall within the meaning of "remuneration" as used in subsection 4 (2) (b) (ii)?
There is no definition of "remuneration" in the Prescriptions Act, nor in the Interpretation Act (Cap. 01:04), the C Employment Act (Cap. 47:01) or the Trade Disputes Act (Cap. 48:02). According to the Concise Oxford Dictionary (10th ed.) "remunerate" means "pay for services rendered". In Firestone South Africa (Pty.) Ltd. and Others v. Gentiruco A.G. 1968 (1) S.A. 611 (A) at p. 628 G, Steyn C.J. said:
"'Remuneration' has a similar meaning of a quid pro quo, reward or return for services rendered or some other consideration D given."
From the above definitions it is quite clear, and the court so finds, that "remuneration" cannot be given the restrictive meaning to include only wages or salary as submitted by Mr. Mthunzi. It must also include other E payments such as an allowance, a bonus, overtime, etc. This is supported by the following definition of "wages" in section 2 of the Employment Act (Cap. 47:01):
'"wage' or 'wages', in relation to any contract of employment, means the aggregate of basic pay and all other forms of remuneration payable to an employee by an employer by virtue of that contract, including overtime payments and other F special remuneration arising out of the particular circumstances under which work is carried out or from other considerations attaching thereto, whether by way of production bonus, cost-of-living allowance or otherwise:
Provided that the expression shall not include - G
(i) the value of any house, accommodation, supply of light, water, medical attention or other amenity provided free under this Act or of any service designated, either generally or specifically, as may be prescribed for the purposes of this definition,
(ii) any ex gratia payment or gift or the value of a travelling allowance or concession, H
(iii) any contribution paid by the employer on his own account to any pension fund or provident fund; or
(iv) any severance benefits;. . ." (The emphasis is mine.)
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The court therefore finds that a shift allowance, as claimed by the applicant, does fall within the meaning of A "remuneration", as used in section 4 (2) (b) (ii) of the Prescriptions Act.
The extinctive prescriptive period for claims, which fall within the purview of the said section 4 (2) (b) (ii), is three years. It was common cause that the applicant's contract of employment was a written contract. The extinctive prescription period for written contracts, in terms of section 4 (2) (c), is six years. What extinctive prescriptive B period in respect of the applicant's claim for a shift allowance should therefore be applied, three or six years?
The court finds that the prescriptive period as regards the applicant's said claim should be three years and not six years for the following reasons: C
(i) No mention is made of a shift allowance in the applicant's written contract of employment. This allowance was only introduced some 17 months after the applicant had signed the said written contract. The applicant's claim for a shift allowance is therefore not based on his written contract of employment.
(ii) Section 4 (2) (c) relates to written contracts in general whereas section 4 (2) (b) (ii) relates specifically D to employment agreements. The court finds that where there is specific legislation in respect of a specific matter then such specific legislation should be applied in preference to the general legislation on such matter, should there be a conflict between the said two legislative provisions. In this case there is a conflict. E
Having found that the applicant's claim for payment of a shift allowance falls within the purview of section 4 (2) (b) (ii), the court finds that such claim would therefore have prescribed three years after each monthly payment had accrued, unless such prescription was interrupted in terms of section 7 of the Prescriptions Act or unless it was suspended in terms of section 8 of the said Act. F
Before a period of prescription can be calculated, it is important to know from when extinctive prescription shall begin to run. Section 6 of the Prescriptions Act deals with the commencement of extinctive prescription and the relevant portions thereof, for purposes of this judgment, provide as follows: G
"6. (1) Extinctive prescription shall begin to run -
(a) in respect of any action for damages . . .
(b) in respect of an action, other than an action for damages, from the date when the right of action first accrued against the debtor; ... H
(2) For the purposes of this Act a right of action in respect of a claim referred to in section 4 (2) (b) (ii) shall be deemed first to have accrued when the work or services in question have been completed or when the relationship of employer and employed has ceased in regard to the particular matter, whichever is the earlier date."
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DE VILLIERS J
Here again we have general legislation in section 6 (1) (b) as to the commencement of extinctive prescription in A actions in general and specific legislation in section 6 (2) in respect of actions arising from an employment agreement. In this case there is however no conflict between these two legislative provisions as both will give the same result.
The court will only deal with the applicant's last claim for payment of a shift allowance, which is for March 1995. This claim accrued on 31 March 1995 and in terms of section 40 (3) of the Interpretation Act, the three year B prescriptive period for this last claim would have commenced on 1 April 1995. In terms of section 41 (2) of the Interpretation Act, that period of three years would have ended on 31 March 1998.
The meaning of "creditor" and "debtor", as used in the Prescriptions Act, is set out as follows in section 2 of the said Act: C
"'creditor' means a person by whom a right is enforceable by action;. . ."
"'debtor' means a person against whom a right is enforceable by action; . . ."
The applicant's last claim for a shift allowance, namely for March 1995, would therefore have prescribed on 31 D March 1998 unless such prescription was suspended or interrupted in terms of the Prescriptions Act. That is of course also the position with all the other earlier claims for a shift allowance, as all such claims would have prescribed before 31 March 1998.
Extinctive prescription can in certain circumstances be suspended in terms of section 8 (1) of the Prescriptions Act, which provides as follows: E
"8. (1) Extinctive prescription shall be suspended -
(a) so long as performance of an obligation is delayed by vis major or the debtor is lawfully entitled to delay performance on any other ground;
(b) during the period of disability of the creditor; F
(c) during the absence of the debtor from Botswana for a period exceeding six months;
(d) until the date when the creditor might reasonably have been expected to discover the true facts in respect of his right of action if, by the fraud of the debtor, the creditor has been prevented from discovering such facts;
(e) in an action founded upon the fraud of a debtor, until the date when the creditor might reasonably have been G expected to discover the said fraud."
The Court of Appeal of Botswana in the matter of Letsebe v. Water Utilities Corporation  B.L.R. 4, C.A., Schreiner J.A. stated that when a court deals with the prescription of a claim it should consider every factor that H could possibly suspend or interrupt prescription.
Mr. Mthunzi was not relying on suspension of prescription nor did he mention any of the above-mentioned factors that could possibly have suspended prescription, but the court will nevertheless consider such factors.
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Mr. Vergeer, however, very fairly, referred the court to the case of Motswagae v. Bergers Stores (Pty.) Ltd. A  2 B.L.R. 91. In this case the plaintiff filed with the High Court a writ of summons. The defendant pleaded prescription. The plaintiff submitted that the three year prescriptive period had lapsed because of vis major (an irresistible force or an act of God or a superior force) and that prescription had therefore been suspended. The vis major relied on was that for a certain period the labour officers had no jurisdiction to deal with trade disputes because of defective legislation, which has since been rectified. The section 7 certificate issued by the B Commissioner of Labour was therefore invalid and the dispute was therefore not properly before the Industrial Court. Thereafter the plaintiff filed a writ of summons with the High Court.
Mwaikasu J. held that in the circumstances of that case, namely legislative impediments, the plea of vis major had successfully been raised and it had therefore, effectively suspended the extinctive prescription of three C years.
In the present case Mr. Mthunzi stated that when the applicant reported this dispute to the district labour officer in 1996 and in 1997 he was told to seek advice through his union officials, who dragged their feet for long periods before attending to this dispute again. Nothing was said why this dispute was referred to the district labour officer D by Mr. Mthunzi only in April 1998. It cannot be said that the parties were negotiating about this matter from 1995 to 1998, because from documentary evidence it is clear that right from the start management contended that the applicant did not qualify for the said shift allowance. It was all along and still is the respondent's case that when this shift allowance was introduced in October 1991 it applied to all shift workers except security guards. The E applicant was a security guard.
The court therefore finds that the long delay in the present case cannot be ascribed to any irresistible force or a superior force. It seems highly probable that the said delay was caused by negligence, either on the part of the applicant and/or the union officials. The said period of prescription could therefore not have been suspended by F vis major.
There were no allegations of any disability suffered by the applicant nor that the respondent was during the prescriptive period absent from Botswana for longer than six months. There was also no allegation of any fraud on the part of the respondent.
In the circumstances the court finds that the said extinctive prescription period of three years has not been G suspended in terms of section 8 (1) of the Prescriptions Act.
Extinctive prescription can also in certain circumstances be interrupted in terms of section 7 (1) of the said Act, which provides as follows:
"7. (1) Extinctive prescription shall be interrupted by - H
(a) acknowledgement by the debtor by -
(i) part payment,
(ii) payment of interest,
(iii) the giving of security, or
(iv) admitting liability in any other manner, whether express or implied, and whether verbal or in writing;
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(b) service on the debtor of any process whereby action is instituted; A
(c) submission to arbitration;
(d) the filing of a claim against -
(i) an insolvent estate,
(ii) a company in liquidation, or
(iii) the estate of a deceased person,
and shall begin to run de novo from the date when the interruption occurred: B
Provided that no period of prescription so beginning to run as a result of an admission of liability, other than an acknowledgement in writing, shall extend beyond three years after the date upon which the period of prescription which has been interrupted would have expired." C
The court finds that the factor referred to in section 7(1) (a), namely an acknowledgment by the respondent, is not applicable in this case. Firstly, no such allegation was made in the pleadings nor in court and secondly, the documentary evidence does not reveal such allegation either. Thirdly, as stated above, the respondent has all along denied and is still denying any liability as to the payment of a shift allowance to the applicant. D
The factor relied on by Mr. Vergeer that extinctive prescription had not been interrupted, is set out in section 7 (1) (b), namely service on the respondent of any process whereby action is instituted. (The emphasis is mine.) "Action" is defined as follows in section 2 of the Prescriptions Act:
"'action' means any legal proceedings of a civil nature brought in a competent court in Botswana for the enforcement of a E right but does not include any legal proceedings founded on customary law; . .."
As to the aforesaid definition, the court confirms its following findings set out in the case of Direng v. Furniture Mart (Pty.) Ltd.  B.L.R. 826 (I.C.): F
(1) The proceedings in the Industrial Court are neither civil nor criminal proceedings but are "legal proceedings of a civil nature."
(2) Actions in the Industrial Court are "for the enforcement of a right" in terms of the relevant labour laws of Botswana.
(3) The Industrial Court is "a competent court in Botswana." G
In the case of Botswana Railways' Organisation v. Setsogo and Others  B.L.R. 763, C.A. (Full Bench), the Court of Appeal of Botswana had to decide on the status of the Industrial Court and found that the Industrial Court is a competent court.
The court therefore finds that in order to interrupt prescription in terms of section 7 (1) (b) of the Prescriptions H Act, there must be service on the respondent of process commencing legal proceedings of a civil nature in a competent court. Service of an applicant's statement of case on the respondent whereby action is instituted in the Industrial Court can therefore interrupt extinctive prescription.
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In the present case the applicant's statement of case was served on the respondent only on 25 January 2000. A As the three year extinctive prescription period had already run to an end on 31 March 1998, the aforesaid service of the applicant's statement of case on the respondent could therefore not have interrupted the said prescription.
The court therefore finds that there is no merit in Mr. Mthunzi's submission that the said prescription would have been interrupted if this dispute had been brought to the attention of the respondent and/or the district labour B officer within the said period of three years.
The third factor, mentioned in section 7 (1) (c) that could interrupt prescription is submission to arbitration. Although this point was not argued by Mr. Mthunzi, the court will nevertheless consider whether the referral of a trade dispute to a district labour officer or the Commissioner of Labour amounts to submission to arbitration. C
In the Bergers Stores (Pty.) Ltd. case, supra, it was also pleaded that a referral of a trade dispute to the said labour officers does amount to submission to arbitration and therefore did interrupt the prescription period of three years.
In dealing with this plea, Mwaikasu J. said the following at pp. 95F-96D of Bergers case (supra): D
"Now, the word 'arbitration' is defined in the Dictionary of Legal Words and Phrases by Classen, vol. 1, in the following terms:
'The reference, by agreement, of a matter in dispute to one or more impartial persons for their decision or settlement of the dispute.' E
And Jourbert, in his publication, The Law of South Africa, First Reissue, vol. 1, para. 406, defines the word 'arbitration' thus:
'An arbitration is the reference of a dispute between parties for a final determination in a quasi judicial manner by a person or persons other than a court of competent jurisdiction.'
The learned author goes on to explain in para. 411, of the aforementioned publication thus: F
'An arbitration involves the reference of a dispute between two or more parties for determination after a quasi-judicial hearing of all sides by a person oher than a court of competent jurisdiction.'
And in para. 412 of above cited work, the author explains the word 'mediation', thus: G
'Mediation is the process whereby an impartial and neutral person acceptable to all parties to a dispute, intervenes between them for the purpose of assisting them in reaching a voluntary agreement. Unlike the arbitrator, the mediator has no decision making powers and may not impose a binding settlement or finding on the parties.'
That, in my view, appears to be clearly the role of labour officers in attempting to settle a labour dispute. They are there to H promote a voluntary agreement or settlement of a labour dispute between parties who have a labour dispute, as provided for under section 5 and section 7 of the Trade Disputes Act (Cap. 48:02) as amended by the Trade Disputes (Amendment) Act, 1992 (No. 23 of 1992). With respect I rule, therefore, that a reference of a labour dispute to a labour officer
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is not a submission to an arbitration, but it is a submission for mediation, by such labour officer, who, upon failure to reach A a settlement, has through the hand of the Commissioner of Labour, to refer the dispute to the Industrial Court. As such, it does not fall under section 7 (1) (c) of the Prescriptions Act, as to interrupt extinctive prescription, as provided for under section 4 (2)(b) of the Prescriptions Act (Cap. 13:01), which is a three year period." B
This court agrees with the aforesaid and therefore finds that a referral of a trade dispute to a labour officer is a submission to mediation and not arbitration, because the said labour officers cannot make "a final determination in a quasi-judicial manner." They can only make recommendations. Referrals to the said labour officer can therefore not interrupt extinctive prescription. C
The court finds that the factors which could also interrupt extinctive prescription, mentioned in section 7(1) (d), are not applicable in this case and need therefore not be considered.
The court consequently makes the following determination: D
1. The respondent's special plea of prescription is upheld.
2. The extinctive prescription period of three years has not been interrupted.
3. The applicant's whole claim for payment of a shift allowance prescribed on 31 March 1998. E
4. The applicant therefore has no claim against the respondent for payment of a shift allowance.
5. The applicant can now approach the Registrar to have this matter re-enrolled for a hearing in respect of his claim for pension fund benefits only.
6. No order is made as to costs. F
I agree on the facts: C.S.M. DAMBE (Nominated Member (BOCCIM)).
Point in limine upheld.