SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 696/2023
In the matter between:
SANOJ JEEWAN APPELLANT
and
TRANSNET SOC LIMITED FIRST RESPONDENT
ERNEST & YOUNG (EY) SECOND RESPONDENT
Neutral citation: Sanoj Jeewan v Transnet SOC Limited and Another (696/2023)
[2024] ZASCA 108 (4 July 2024)
Coram: MOLEMELA P and WEINER and MOLEFE JJA and KOEN and
SEEGOBIN AJJA
Heard: 3 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for hand -down of the judgment is deemed to
be 11h00 on 4 July 2024.
Summary: Civil procedure – prescription – whether the high court was correct
in finding that the appellant’ s claim for contractual and delictual damages had
prescribed – whether s 39(2) read with s 34 of the Constitution should be invoked in
order to re-interpret the Prescription Act 69 of 1969 – whether the Biowatch principle on
the issue of costs should apply in this case.
2
ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Mabuse J sitting as a
court of first instance):
1 The appeal is dismissed, save to the extent set out below.
2 The appeal in relation to the orders upholding the special pleas of jurisdiction and
res judicata is upheld.
3 The order of the High Court is set aside and replaced with the following order:
‘3.1 The special plea of prescription is upheld.
3.2 The special pleas of jurisdiction and res judicata are dismissed.
3.3 The plaintiff’s claim is dismissed.
3.4 There is no order as to costs.’
4 There is no order as to costs in this Court.
JUDGMENT
Seegobin AJA (Molemela P and Weiner and Molefe JJA and Koen AJA
concurring):
Introduction
[1] This appeal lies against the judgment and order of the Gauteng Division of the
High Court , Pretoria, (the high court) (per Mabuse J) . The high court upheld three
special pleas in respect of jurisdiction, prescription and res judicata raised by the first
respondent against the appellant’s claim for damages arising out of his alleged unfair
dismissal which occurred on 14 May 2010 . Leave to appeal was refused b y the high
court on 14 March 2023 but granted by this Court on 13 June 2023.
Background facts
[2] The appellant, Mr Sanoj Jeewan (Mr Jeewan), was employed by the first
respondent, Transnet SOC Limited (Transnet), as a Corporate Governance Manager, in
terms of a written contract of employment (the employment contract) which came into
effect on 2 October 2006. Transnet had a Fraud Prevention Plan which included such
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policies as a Code of Ethics, a Policy on Declaration of Interest and Related
Disclosures, a Gift Policy and an Anti-Fraud Policy.
[3] As Corporate Governance Manager, Mr Jeewan was regarded as the forensic
champion of Transnet. His duties included the co -ordination of investigations, forensic
fraud prevention and detection, the taking of remedial and corrective action, reporting
non-compliance with the Fraud Prevention Pla n to Transnet’s Fore nsic Working Group
and ensuring that everyone in his division was familiar with the contents of the plan and
all concomitant policies. Mr Jeewan also oversaw the internal control and compliance
functions at Transnet. Following a forensic investigation cond ucted by the second
respondent, Ernest & Young (EY), Transnet preferred charges of misconduct against Mr
Jeewan. The essence of the charges w as that he had breached his contract of
employment and code of ethics by establishing and participating in a fraudu lent scheme
with an external recruitment service provider.
[4] After interviewing him in connection with such charges on 20 April 2010,
Transnet suspended Mr Jeewan on 21 April 2010. On the same date he submitted a
letter of resignation. Despite the lette r of resignation , Transnet decided to institute
disciplinary proceedings against him. Mr Jeewan was notified on 7 May 2010 that he
was required to attend a disciplinary hearing on 14 May 2010. The hearing commenced
on 14 May 2010 and was thereafter postponed to 17 May 2010. Mr Jeewan was
subsequently found guilty. He was dismissed with immediate effect in terms of a letter
signed by Transnet on 14 May 2010.
[5] The termination letter further informed Mr Jeewan that he had the right to refer
his dismissal to either the Commission for Conciliation, Mediation and Arbitration
(CCMA) or to the Transnet Bargaining Council (TBC) within thirty days of his dismissal.
Mr Jeewan indeed referred a dispute of unfair dismissal to the TBC in terms of s 191 of
Mr Jeewan indeed referred a dispute of unfair dismissal to the TBC in terms of s 191 of
the Labour Relations Act 66 of 1995 (LRA) on the grounds that his dismissal was
procedurally and substantively unfair. The relief he sought before the TB C was
reinstatement to his former employment.
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[6] Arbitration of the dispute between Mr Jeewan and Transnet took place before the
TBC on 1 and 2 September 2011 , and thereafter on 24 and 25 January 2012 before
Commissioner, Ms Esther van Kerken (Ms Van Kerken). On the last day of the hearing ,
Mr J eewan withdrew the ground predicated on substantive unfairness, but persisted
with the ground that his dismissal was procedurally unfair. On 1 February 2012 Ms Van
Kerken issued an award in terms of which she held that Mr Jeewan’s dismissal was
procedurally fair. Neither Mr Jeewan nor Transnet sought to review the arbitration award
or make it an order of court.
[7] On 29 January 2015, Mr Jeewan served summons on Transnet and EY claiming
damages in the amount of R57 374 996.02 for breach of his employment contract,
alternatively, for delictual damages in the same amount in terms of the common law.
The damages claimed were calculated to run from 2010 to 2034, the latter date being
the year when Mr Jeewan would have retired upon turning sixty-three years of age as
provided for in clause 15.1.3.1 In essence, Mr Jeewan’s delictual claim against Transnet
was premised on the fact that Transnet had acted wrongfully and unlawfully when it
dismissed him prematurely on 14 May 201 0. In response, Transnet delivered a detailed
plea which incorporated three special pleas. The first concerned an absence of
jurisdiction on the part of the high court to entertain the matter, the second was that Mr
Jeewan’s claim had prescribed in terms of s 11 (d) of the Prescription Act 68 of 1969
(Prescription Act), and the third related to res judicata.
[8] The parties subsequently agreed that the three special pleas should be
adjudicated by the high court before all else. This was achieved through a special case
based on an agreed set of facts in terms of rule 33(1) of the Uniform Rules. As alluded
to already, the high court upheld each of Transnet’s special pleas and dismissed Mr
1 Clause 15 of the employment contract deals with termination of employment. It provides as follows:
‘15. TERMINATION OF EMPLOYMENT
15.1 This contract of employment will terminate:
15.1.1 At the instance of the employee (resignation); or
15.1.2 At the instance of Transnet if Transnet terminates the Employee’s employment for reasons relating
to the employee’s conduct, capacity or the operational requirements of Transnet or any other reason that
is recognised by law as being sufficient; or
15.1.3 At the end of the month in which he turns sixty-three years of age, unless the Employee and
Transnet agree otherwise in writing, or the Employee’s employment has been terminated for any other
lawful reason.’
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Jeewan’s claim with costs. EY, although cited as a second defendant in the action, did
not participate in the special case before the high court, nor does it participate in this
appeal. In this Court Mr Jeewan represents himself as he did in the high court.
Issues on appeal
[9] In the heads of argument filed in this Court, Transnet conceded, correctly, that it
could no longer defend the high court’s judgment on the special pleas of jurisdiction and
res judicata. In oral submissions before us, counsel for Transnet effectively abandoned
the high court’s judgment on these two issues. What effect this late abandonment wil l
have on the issue of costs in this appeal, will be dealt with below. In the result, t he
central issue to be determined herein is whether Mr Jeewan’s claim against Transnet
had prescribed within a period of three years from his alleged unfair dismissal on 14
May 2010 in terms of s 11 (d) of the Prescription Act, as contended for by Transnet, or
whether, the debt which Mr Jeewan relies on for the relief claimed in his action against
Transnet, only arose on 1 February 2012 when the arbitration award was issue d, as
contended for by Mr Jeewan.
The special case
[10] After a brief introductory paragraph, t he agreed special case placed before the
high court for adjudication, was the following:
‘A. THE PARTIES
1. The plaintiff is SANOJ JEEWAN (aka MARK) , an adult male wh ose residential
address is at 1[…] W[…] E[…] Street, A[…] C[…], R[…] N[…], C[…], PRETORIA.
2. The first defendant is TRANSNET SOC LIMITED, a state -owned company, duly
established in terms of the Legal Succession to the South African Trans port Services
Act 9 of 1989 and incorporated with share capital in accordance with the company laws
of the Republic of South Africa, and operating through its TRANSNET ENGINEERING
division, with its principal place of business at 160 Lynette Street, Kilner Park,
PRETORIA.
3. The second defendant is ERNEST & YOUNG (‘EY’) , South Africa, a registered
PRETORIA.
3. The second defendant is ERNEST & YOUNG (‘EY’) , South Africa, a registered
firm of accountants and auditors with full legal capacity, with its principal place of
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business at 1[…] R[…] Road, S[…], JOHANNESBURG. At all material [times] hereto EY
rendered internal audit and forensic services to the first defendant.
B. AGREED FACTS
Plaintiff’s employment until dismissal on 14 May 2010
4. The plaintiff was employed by the first defendant as Corporate Governance
Manager and the related contract of employment came into effect on 2 October 2006.
5. At all material times hereto, the first defendant had a Fraud Prevention plan
which included such policies as Code of Ethics, Policy on Declaration of Interest and
Related Disclosures, Gift Policy and Anti-Fraud Policy.
6. As Corporate Governance Manager the plaintiff was the forensic champion of the
first defendant and his duties included the coordination of Investigations, forensic fraud
prevention and detection, taking remedial and corrective action, reporting to the first’s
defendant’s Forensic Working Group and ensuring that everyone in his division knew
the contents of the Fraud Prevention Plan and all the concomitant policies. The plaintiff
also oversaw the internal control and compliance function at the first defendant.
7. Following a forensic investigation conducted by the second defendant, the first
defendant laid charges of misconduct against the plaintiff. The charges against the
plaintiff were mainly that he had breached his contract of emplo yment and the Code of
Ethics in that he had established and participated in a fraudulent scheme with an
external recruitment service provider.
8. Subsequent to the disciplinary hearing, the plaintiff was found guilty and was
summarily dismissed on 14 May 2010.
Dispute at Transnet Bargaining Council
9. The plaintiff referred a dispute of unfair dismissal to the Transnet Bargaining
Council in terms of section 191 of the Labour Relations Act 66 of 1995 (“LRA”) on the
grounds that his dismissal was procedurally and substantively unfair.
10. Arbitration of the dispute between the plaintiff and the first defendant took place
10. Arbitration of the dispute between the plaintiff and the first defendant took place
at the Transnet Bargaining Council on 1 and 2 September 2011 and on 24 and 25
January 2012 before Commissioner Ms Esther Van Kerken (“Van Kerken”).
11. With regard to his allegation that his dismissal was procedurally unfair, the
plaintiff raised five objections but dropped two and persisted with three, namely
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11.1. Lack of impartiality on the part of the chairperson of the disciplinary hearing
evidenced by statements he had made during the course of the disciplinary hearing;
11.2. Inadequate time given to the plaintiff to prepare for the disciplinary hearing; and
11.3. Failure on the part of the first defendant to call viva voce evidence at the
disciplinary hearing, thereby depriving the plaintiff of any opportunity to cross -examine
witnesses.
12. On the last day of the arbitration, namely 25 January 2012, the applica nt
withdrew the dispute as regards substantive unfairness of his dismissal, and remained
with procedural unfairness. The plaintiff did not testify.
Award of Commissioner
13. On 1 February 2012, Commissioner Van Kerken issued an award in terms of
which she held, amongst others, that the first defendant effected the dismissal of the
plaintiff with a fair procedure. Copy of the award is attached hereto duly marked as
“SC1”.
14. Neither the plaintiff not the first defendant made application for the review of th e
arbitration award nor application to make the award an order of the Court.
Plaintiff’s current civil action
15. On 29 January 2015, the plaintiff served summons on the first defendant,
claiming damages in the amount of R57 374 996.02 for breach of his co ntract of
employment, alternatively a delictual claim for the same amount of money in terms of
common law. Copy of the amended particulars of claim is attached hereto duly marked
as Annexure “SC2”.
16. The essence of the plaintiff’s claim in delict against the first defendant is that the
first defendant acted wrongfully when it prematurely dismissed him on 14 May 2010.
First defendant’s plea
17. The first defendant delivered a plea, comprising of three special pleas and a
plea-over to the plaintiff’s claim, copy whereof is attached hereto and duly marked as
Annexure “SC3”. The first defendant’s three special pleas, which appear in paragraphs
1 to 14 of its plea, are the following: –
1 to 14 of its plea, are the following: –
17.1. Absence of Jurisdiction of this Honourable Court;
17.2. Prescription of the claim; and
17.3. Res judicata
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18. The parties have agreed that the three special pleas which the first defendant
has raised be decided separately by this Honourable Court as each of them has the
potential to dispose of this case, thereb y saving the Court time and the parties time and
costs. Accordingly, the parties have also agreed that the determination of the merits of
the plaintiff’s claim be stayed pending the determination of the three special pleas.
C. QUESTIONS OF LAW IN DISPUTE
19. The questions of law in dispute to be adjudicated by this Honourable Court are
the following:
19.1. Whether this Honourable Court has jurisdiction to hear the claim of the plaintiff.
19.2. Whether the claim of the plaintiff has become prescribed in term s of sections
11(d) of the Prescription Act 68 of 1969.
19.3. Whether the plaintiff’s claim stands to be dismissed on the basis of the principle
of res judicata.
D. CONTENTIONS OF THE PARTIES
First defendant’s contentions
20. As regards the special plea of absence of jurisdiction , the following are the
contentions of the first defendant: –
20.1. This Honourable Court has no jurisdiction to hear the plaintiff’s claim for
damages because: –
20.1.1. The basis of the plaintiff’s claim i s that the first defendant dismissed him
substantively and procedurally unfairly on 14 May 2010 ( Vide paragraphs 3.6, 4.1.1,
4.21, 4.2.2, 5.2 and 5.7 of the plaintiff’s particulars of claim).
20.1.2. In terms of section 191 of the Labour Relations Act 66 o f 1995 ( “LRA”),
the power to determine whether a dismissal is procedurally or substantively unfair lies
with the Commission for Conciliation, Mediation and Arbitration ( “CCMA”) or the
relevant bargaining council.
20.1.3. In the case of the plaintiff the po wer lies with the Transnet Bargaining
Council.
20.2. Accordingly, the first defendant contends that this Honourable Court does not
have jurisdiction to hear the plaintiff’s claim and that the plaintiff’s claim be dismissed
with costs.
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21. With regard to th e special plea of prescription, the first defendant contends as
follows: –
21.1. The basis of the plaintiff’s claim for damages against the first defendant is his
alleged unfair dismissal from employment which took place on 14 May 2010.
21.2. The claim con stitutes a debt for purposes of sections 11(d) and 12 of the
Prescription Act 68 of 1969.
21.3. The debt was due and owing by the first defendant on 14 May 2010, the date on
which the first defendant dismissed the plaintiff.
21.4. The plaintiff commenced a ction by means of summons which he served on the
first defendant on 29 January 2015 which is more than three years after the date on
which the debt arose.
21.5. In the premises the Plaintiff’s claim has become prescribed in terms of section
11(d) of the Prescription Act 68 of 1969.
21.6. Accordingly, the first defendant contends that the plaintiff’s claim be dismissed
with costs.
22. With regard to the special plea of res judicata the first defendant contends as
follows: –
22.1. The basis of the plaintiff’s claim is that he was procedurally and substantively
unfairly dismissed by the First Defendant from his employment on 14 May 2010.
22.2. The plaintiff referred a dispute to the Transnet Bargaining Council ( “Council”) in
terms of section 191 of the Labour R elations Act 66 of 1995 ( “LRA”), alleging that his
dismissal was substantively and procedurally unfair. ( Vide paragraph 3.7 of the
plaintiff’s particulars of claim).
22.3. On 1 February 2012 a Commissioner of the Council issued an award to the effect
that the dismissal of the plaintiff was procedurally and substantively fair.
22.4. In terms of section 143 of the LRA the arbitration award issued by the
Commissioner is final and binding on the parties.
22.5. The plaintiff’s current claim for payment of damag es suffered as a result of his
alleged unfair dismissal by the first defendant is a claim for the same thing on the same
ground and against the same party.
10
22.6. The first defendant accordingly pleads that the plaintiff’ s claim was finally
adjudicated by the Council, a forum of competent jurisdiction and should therefore be
dismissed with costs.
Plaintiff’s contentions
23. The contentions of the plaintiff appear in paragraphs 1 to 9 his replication to the
first defendant’s plea, copy whereof is attached hereto duly marked as Annexure “SC4”.
24. The following are the contentions of the plaintiff as regards the first defendant’s
special plea of absence of jurisdiction.
24.1. The plaintiff’s claim is not for relief available to him in terms of the Labour
Relations Act, Act 66 of 1995 ( “the LRA”). The plaintiff seeks no relief in terms of the
LRA.
24.2. The plaintiff’s claim is premised on common law breach of his contract of
employment, and alternatively delict.
24.3. Accordingly, this Honourable Court does have jurisdiction to hear the plaintiff’s
claim.
25. With regard to the first defendant’s special plea of prescription, the plaintiff’s
contentions appear in paragraphs 4 to 6 of his replication to the first defendant’s plea
and are the following: –
25.1. It is denied that the debt was due and owing by the first defendant on 14 May
2010.
25.2. The plaintiff’s claim arose on 1 February 2012 when the arbitration award was
issued.
25.3. The plaintiff’s claim is therefore not prescribed.
26. With regard to the first defendant’s special plea of re judicata , the plaintiff’s
contentions appear in paragraphs 7 to 9 of his replication to the first defendant’s plea
and are the following:
26.1. The plaintiff’s claim is for damages on th e basis of his unlawful dismissal, and
alternatively delict.
26.2. The plaintiff’s cause of action in his present cases is different to the cause of
action at the arbitration.
26.3. The plaintiff’s present claim is, accordingly, not for the same thing, and on the
same ground.
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E. RELIEF SOUGHT BY THE PARTIES
27. The parties seek the following relief: –
27.1. The first defendant seeks an order upholding all or any of its three special pleas
and dismissing the plaintiff’s claim against it with costs.
27.2. The plaintiff prays for an order dismissing first defendant’s three special pleas
with costs in the cause.
F. HEADS OF ARGUMENT
28. For the purpose of the hearing of this Special Case, the first defendant is to
deliver a paginated index and its heads or argument by 23 April 2021.
29. The plaintiff is to deliver his heads of argument by 23 May 2021.’
[11] As the special case indicates, the pleadings that formed the basis of the agreed
facts and issues to be determined, were attached to the document. The pleadings
included the amended particulars of claim, Transnet’s plea and Mr Jeewan’s replication
to the special pleas.
High Court’s findings on the special pleas raised by Transnet
[12] In summary, the high court made the followin g findings regarding the issue of
jurisdiction. It held that the focal point of this matter relates to the unfair dismissal of Mr
Jeewan by Transnet, which is in essence an employment related matter. In order for the
high court to deter mine whether Transnet breached the employment contract, the court
would have to apply the requirements found in the LRA to determine if Mr Jeewan was
unfairly dismissed. Therefore, Mr Jeewan cannot distance himself from the application
of the LRA. It furth er held that Mr Je ewan had misdirected himself by attempting to
resolve his dispute with Transnet via the high court instead of making use of the
mechanisms set out in the LRA. He should have, according to the high court, first
started with the LRA instead of bringing the matter to the high court for adjudication as it
did not have jurisdiction regarding this matter.
[13] Regarding the issue of prescription the high court made the following findings . It
[13] Regarding the issue of prescription the high court made the following findings . It
accepted that in respect of both of Mr Jeewan’s contractual and constitutional rights, the
high court retained its jurisdiction in terms of the Constitution. It further accepted that,
12
based on his particulars of claim, Mr Jeewan had two claims arising from the same set
of facts. The one arises from an infrin gement of his rights in terms of the LRA over
which the labour forums have exclusive jurisdiction to the exclusion of the high court.
The other arises from an infringement of his common law rights or, since he was
employed in the public sector, an infringe ment of his constitutional rights over which
both the high court and the labour court have concurrent jurisdiction. The high court
accordingly concluded that, having regard to the allegations contained in his particulars
of claim, Mr Jeewan should have asserted his claim based on an infringement of his
common law or constitutional rights, within three years of 14 May 2010. The fact tha t he
did not do so meant that any claim he had was extinguished by prescription.
[14] On the issue of res judicata, the high court held that Transnet had managed to
prove res judicata in that on 1 February 2012, the Commissioner of the TBC (a forum of
competent jurisdiction) had delivered an award to the effect that the dismissal of Mr
Jeewan was procedurally and substantively fair. Therefore, his current claim for
payment of damages suffered as a result of his alleged unfair dismissal by T ransnet, is
a claim for the same relief based on the same ground and against the same party. The
court further held that Mr Jeewan’s matter had fully and finally been adjudicated upon.
Furthermore, as held by the high court, Transnet managed to show that t he matter
brought before it constituted the same matter that Mr Jee wan had brought before the
TBC and therefore Transnet’s special plea of res judicata was upheld.
Mr Jeewan’s case
[15] Mr Jeewan contends that his claim against Transnet became due only on 1
February 2012 when the arbitration award was issued, and not on 14 May 2010 when
he was dismissed. He proffers three arguments in this regard. The first is that the debt
he was dismissed. He proffers three arguments in this regard. The first is that the debt
was not immediately claimable by him on 14 May 2010. The second is that there was no
immediate obligation on Transnet to perform, in relation to the debt, on 14 May 2010.
The third is that the high court, in dealing with the issue of prescription, failed to apply
the provisions of s 39(2)2 read with s 343 of the Constitution.
2 Section 39(2) compels every court, trib unal or forum, when interpreting any legislation, and when
developing the common law, to promote the spirit, purport and objects of the Bill of Rights.
13
[16] In advancing his first argument, Mr Jeewan relies on this Court’s judgment in
Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty)
Ltd4 (Deloitte Haskins) which held, with regard to s 12(1) 5 of the Prescription Act, that
‘prescription shall commence to run as soon as the debt is due. This means that there
has to be a debt immediately claimable by the creditor or, stated in another way, that
there has to be a debt in respect of which the debtor is under an obligation to perform
immediately. It follows that prescription cannot begin to run against a creditor before his
cause of action has fully accrued ie before he is able to pursue his claim’.
[17] With regard to s 12(1) of the Prescription Act, Mr Jeewan contends that no debt
was due on 14 May 2010 because he was advised by Transnet to refer his dismissal for
arbitration to either the CCMA or the TBC. He contends that by referring the dispute to
the TBC, prescription of his claim was not interrupted but merely delayed or postponed
until the proceedings before the TBC were finalised. As authority for that proposition, he
relied on a dictum in Chirwa v Transnet Limited and Others 6 (Chirwa) which held that
‘[w]here an alternative cause of action can be sustained in matters arising o ut of an
employment relationship, in which the employee alleges unfair dismissal or an unfair
labour practice by the employer, it is in the first instance through the mechanisms
established by the LRA that the employee should pursue her or his claims ’. Relying on
Deloitte Haskins, he argue d that since the proceedings before the TBC were finalised
on 1 February 2012, this was the date when Transnet became under an immediate
obligation to perform. In other words, this was when all the necessary elements of his
cause of action came into existence, thus entitling him to enforce his claim.
cause of action came into existence, thus entitling him to enforce his claim.
3 Section 34 accords to every person the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.
4 Deloitte Haskins & Sells Consultants (Pty) Ltd. v Bowthorpe Hellerman Deutsch (Pty) Ltd [1990] ZASCA
136; 1991 (1) SA 525 (A); [1991] 1 All SA 400 (A) at 532H-I.
5 Section 12(1) of the Prescription Act provides that ‘subject to the provisions of subsection (2), (3), and
(4), prescription shall commence to run as soon as the debt is due’.
6 Chirwa v Transnet Limited and Others [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251
(CC); [2008] 2 BLLR 97 (CC); (2008) 29 ILJ 73 (CC) para 41.
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[18] With regard to the third argument advanced by Mr Jeewan, he conten ds that
since the provisions of the Prescription Act limit rights guaranteed by s 34 of the
Constitution, the high court was obliged to invoke the provisions of s 39(2) of the
Constitution when interpreting the Prescription Act , as was done by Froneman J i n
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and
Others7 (Myathaza). One of the findings made by Fronem an J was that since
arbitrations under the LRA were in fact adjudicative proceedings as contemplated by s
34 of the Constitution, prescription would commence to run only on finality of such
proceedings. On this basis, Mr Jeewan argues that the referral of his dismissal to the
TBC for arbitration constituted ‘adjudicative proceedings’ which involved the ‘service of
a process’ that interrupted pres cription in terms of s 15(1) 8 of the Prescription Act.
Furthermore, his unfair dismissal constitutes a ‘debt’ for purposes of the Prescription Act
and in the circumstances, prescription was delayed in terms of s 13(1) (f).9 Finally, on
the issue of co sts, Mr Jeewan argues that since he raises fundamental issues which
have a bearing on an infringement of his rights guaranteed in s 39(2) and s 34 of the
Constitution, the principles laid down in Biowatch Trust v Registrar Genetic Resources
and Others10 (Biowatch) should apply.
Transnet’s case
[19] In broad terms, Transnet contends that whereas before the TBC Mr Jeewan was
asserting his rights in terms of the LRA not to be unfairly dismissed, his claim before the
high court is one for damages arising from an alleged breach of his employment
contract and an infringement of his rights in terms of the common law. Relying on this
Court’s judgment in Makhanya v University of Zululand ,11 (Makhanya) Transnet argues
7 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others [2016]
ZACC 49; (2017) 38 ILJ 527 (CC); [20 17] 3 BLLR 213 (CC); 2017 (4) BCLR 473 (CC); 2018 (1) SA 38
(CC).
8 Section 15(1) of the Prescription Act provides that 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.
9 Section 13(1)(f) of the Prescription Act provides that if the debt is the object of a dispute subjected to
arbitration, the period of prescription shall not be completed before a year has elapsed after the day
referred to in paragraph (i).
10 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC).
11 Makhanya v University of Zululand [2009] ZA SCA 69; 2010 (1) SA 62 (SCA); [2009] 8 BLLR 721
(SCA); [2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539 (SCA) paras 12-13.
15
that the service of any process on it by Mr Jeewan for the enforcement of his LRA rights
could not, in the c ircumstances, interrupt the running of prescription involving his rights
in terms of the common law. On this basis, so it argues, his claim for damages, which
arise from an alleged breach of his employment contract, constitutes a ‘debt’ which
arose as soon as he was dismissed on 14 May 2010.
[20] As far as the provisions of s 39(2) and s 34 of the Constitution are concerned,
Transnet argues that there would be no need for this Court to interpret the provisions of
the Prescription Act as was d one by Froneman J in Myathaza. It contends that the two
cases are clearly distinguishable. In Myathaza the applicant had secured an arbitration
award in his favour which became the subject of review proceedings before the labour
court when his former emplo yer, Metrobus, made application for the award to be
reviewed and set aside. This meant that the applicant could not implement or execute
the award whilst the review proceedings were still pending in the labour court. When the
applicant subsequently applied to have the award made an order of court, he was faced
with a plea by Metrobus that the arbitration award had prescribed in terms of the
Prescription Act three years after it was issued. Mr Jeewan’s case is different, so it is
argued. S ince he is assertin g his rights in terms of his employment contract and the
common law, nothing prevented him from instituting his action for damages on
termination of his employment on 14 May 2010.
[21] As to the applicability of the Biowatch principle on the issue of cos ts, Transnet
contends that Biowatch is not intended to protect every private individual who sues or
litigates against the State. In Mr Jeewan’s case, it is argued that he was not asserting
rights protected by the Constitution and as such, Biowatch finds no application.
Discussion and findings
[22] Since the primary issue in this appeal is one of prescription, it is perhaps
[22] Since the primary issue in this appeal is one of prescription, it is perhaps
convenient to preface this discussion with what was said by the Constitutional Court in
16
Road Accident Fund and Another v Mdeyi de12 (Mdeyide) regarding the important role
that time limits play in litigation. The Court said the following:
‘In the interests of social certainty and the quality of adjudication, it is important though
that legal disputes be finalised timeously. The realities of tim e and human fallibility
require that disputes be brought before a court as soon as reasonably possible. Claims
thus lapse, or prescribe, after a certain period of time. If a claim is not instituted within a
fixed time, a litigant may be barred from havin g a dispute decided by a court. This has
been recognised in our legal system – and others – for centuries.’13
The Court also said the following:
‘This Court has repeatedly emphasised the vital role time limits play in bringing certainty
and stability to social and legal affairs and maintaini ng the quality of adjudication.
Without prescription periods, legal disputes would have the potential to be dr awn out for
indefinite periods of time bringing about prolonged uncertainty to the parties to the
dispute. The quality of adjudication by courts is likely to suffer as time passes, because
evidence may have become lost, witnesses may no longer be availabl e to testify, or
their recollection of events may have faded. 14 The quality of adjudication is central to
the rule of law. For the law to be respected, decisions of courts must be given as soon
as possible after the events giving rise to disputes and must follow from sound
reasoning, based on the best available evidence.’15
[23] In order to decide the issue of prescription in this appeal, it is necessary, I
believe, to first examine the nature of the claim that Mr Jeewan seeks to assert in the
high court. As the agreed facts in the special case show , he seeks no relief in terms of
the LRA. His claim is one for damages arising from an alleged unlawful termination (by
Transnet) of his employment contract. In other words, his claim is based on an
Transnet) of his employment contract. In other words, his claim is based on an
infringement of his common law rights and not the LRA. The contractual basis for the
12 Road Accident Fund and Another v Mdeyide [2010] ZACC 18; 2011 (1) BCLR 1 (CC); 2011 (2) SA 26
(CC); See also the remarks of Didcott J in Leach Mokela Mohlomi v Minister of Defence 1996 (12) BCLR
1559; 1997 (1) SA 124.
13 Mdeyide para 2.
14 See Mohlomi v Minister of Defence 1997 (1) SA 124 (CC); 199 6 (12) BCLR 1559 (CC) para 11. See
also Engelbrecht v Road Accident Fund and Another [2007] ZACC 1; 2007 (6) SA 96 (CC); 2007 (5)
BCLR 457 (CC) para 29 and Brümmer v Minister for Social Development and Others [2009] ZACC 21;
2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC) paras 64-67.
15 Mdeyide fn 12 para 8.
17
relief he seeks is that his employment contract was terminated wrongfully and unlawfully
on 14 May 2010. Had this not occurred, his contract would have terminated naturally
when he retired at the age of sixty-three in 2034.
[24] It is perhaps convenient to briefly set out the current state of the law in
circumstances where a litigant, such as Mr Jeewan, may be faced with several different
causes of action arising from the same set of facts. In Makhanya,16 this Court said the
following:
‘The LRA creates certain rights for employees that include “the right not to be unfairly
dismissed and [not to be] subjected to unfair labour practices ”.17 I will refer to those
rights interchangeably as ‘LRA rights’. Yet employees also have other rights, in common
with other people generally, arising from the general law. One is the right that everyone
has (a right emanating from the common law) to insist u pon performance of a contract.
Another is the right that everyone has (a right emanating from the Constitution and
elaborated upon in the Promotion of Administrative Justice Act) to just administrative
action.18
Thus there is the potential (I emphasise that I refer only to the potential) for three
separate claims to arise when an employee’s contract is terminated. One is for
infringement of his or her LRA right. Another is for infringement of his or her common
law right. And where it occurs in the public sector, a third is for infringement of his or her
constitutional right.
An LRA right is enforceable only in the Commission for Conciliation, Mediation and
Arbitration (CCMA)19 or in the Labour Court. 20 (I will refer to t hem interchangeably as
the ‘Labour Forums’ except where it becomes necessary to distinguish them). The
16 Makhanya fn 11 paras 11-13.
17 Section 185 of the LRA.
18 Section 33(1) of the Constitution: ‘Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.’ The Interim Constitution provided a right in comparable terms in s 24.
19 Created by s 112 of the LRA.
20 So far as disputes fall within the jurisdiction of the CCMA the exclusivit y of its powers is implicit in the
procedures for resolution of such disputes. As for the Labour Court, s 157(1) of the LRA provides: ‘. . .
[T]he Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act
… are t o be determined by the Labour Court.’ (see Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49
(SCA) ( Fedlife), on the meaning of that subsection, approved in Fredericks v MEC for Education and
Training, Eastern Cape 2002 (2) SA 693 (CC)).
18
common law right is enforceable in the high courts21 and in the Labour Court.22 And the
constitutional right is enforceable in the high courts23 and in the Labour Court.’24
[25] Whilst some confusion and uncertainty may have existed with regard to the issue
of jurisdiction, 25 exclusive or otherwise, between the high court and the labour court
arising from certain relevant provisions of the Constitution, 26 the LRA27 and the Bas ic
Conditions of Employment A ct28 (BCEA), when dealing with certain labour related
matters, this was authoritatively put to rest by the Constitutional Court in Baloyi v Public
Protector and Others29 (Baloyi).
[26] The facts in Baloyi were the following: Ms Baloyi was employed by the Office of
the Public Protector on a five -year contract with effect from 1 February 2019. The
contract provided for a six -month probation period (ending on 31 July 2019), which
21 Section 169 (b) of the Constitution. The section assigns judicial authority to the high courts in the
following terms:
‘A High Court may decide –
(a) any constitutional matter except a matter that:
(i) only the Constitutional Court may decide; or
(ii) is assigned by an Act of Parliament to another court of a status similar to a High Court; and
(b) any other matter not assigned to another court by an Act of Parliament.
22 Section 77(3) of the Basic Conditions of Employment Act: ‘The Labour Court h as concurrent jurisdiction
with the civil courts to hear and determine any matter concerning a contract of employment …’
23 Section 169(a)(ii) quoted above.
24 Section 157(2) of the LRA: ‘The Labour Court has concurrent jurisdiction with the High Court in respect
of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the
[Constitution] and arising from … employment and from labour relations.’
25 Fredericks and Others v MEC for Education and Training Eastern Cape and Others 2002 (2) BCLR
113; 2002 (2) SA 693; [2002] 2 BLLR 119 (CC) (Fredericks).
26 Section 169(1) of the Constitution provides:
‘The High Court of South Africa may decide –
(a) any constitutional matter except a matter that –
(i) the Constitutional Court has agreed to hear directly in terms of section 167 (6) (a); or
(ii) is assigned by an Act of Parliament to another court of a status similar to the High Court of South
Africa; and
(b) any other matter not assigned to another court by an Act of Parliament.’
27 Section 157(1) of the LRA reads:
‘Subject to the Constitutio n and section 173, and except where this Act provides otherwise, the Labour
Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of
any other law are to be determined by the Labour Court.’
28 Section 77(1) of the BCEA provides:
‘Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in res pect of all matters in terms of this
Act.’
29 Baloyi v Public Protector and Others [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325
(CC); (2021) 42 ILJ 961 (CC); 2022 (3) SA 321 (CC).
19
could be extended for not more than twelve months. At the end of the probationary
period, the Office of the Public Protector would be entitled to either terminate Ms
Baloyi’s employment in terms of clause 5.3 or confirm her appointment if it was satisfied
with her ‘level of performance’ in terms of clause 5.5.
[27] Ms Baloyi’s six -month probation period ended on 31 July 2019. On 8 October
2019, Ms Baloyi received a letter from Mr Mahlangu, the Chief Executive Officer of the
Public Protector, inviting her to make representations on the confirmation of her
employment contract. She did so in writing on 15 October 2019. On 21 October 2019,
Ms Baloyi received another letter from Mr Mahlangu, stating that the Office of the Public
Protector was unable to confirm her permanent employment and that her contract would
terminate on 31 October 2019. The reasons provided were that she was ‘not suitable for
the role of COO taking into account her overall capability, skills, performance and
general conduct in relation to the position’.
[28] Ms Baloyi launched an urgent ap plication in the Pretoria high court, on the basis
that the termination of her employment was unlawful and that Ms Mkhwebane, in her
capacity as the Public Protector, had not complied with her constitutional obligations in
terms of s 181(2) of the Constitu tion. The alleged unlawfulness of the termination had
two aspects: first, the termination amounted to a breach of contract and, secondly, it
amounted to an exercise of public power that breached the principle of legality, a
standard to which all exercises of public power are measured. Ms Baloyi founded her
case on ‘contract, the Constitution and the Public Protector’s public duties as an organ
of state’.
[29] The relief sought by Ms Baloyi in the high court was three -fold. First, a
declaratory order that the decision to terminate her employment contract was
unconstitutional, unlawful, invalid and of no force and effect . Second, flowing from that,
unconstitutional, unlawful, invalid and of no force and effect . Second, flowing from that,
an order setting aside the termination decision. Third, a declaratory order to the e ffect
that Ms Mkhwebane, in her official capacity, had failed to fulfil her obligations under s
181(2) of the Constitution.
20
[30] The high court dismissed Ms Baloyi’s application on the basis that it did not have
jurisdiction over the dispute and that it should have been brought before the labour
court. The high court reasoned that Ms Baloyi’s contention that her employment
contract had been terminated unlawfully rested on the allegation that it was terminated
contrary to the Policy on Probation and Discip linary Policy of the Office of the Public
Protector and was taken by an official without the necessary authority. It also attributed
significance to the fact that Ms Baloyi’s employment contract contained a clause stating
that the employment relationship c ould be terminated at the end of the probationary
period in accordance with the requirements of the LRA. The high court also noted that
Ms Baloyi’s employment contract incorporated the Policy on Probation of the Office of
the Public Protector, which stipul ates that ‘following the recommendation to annul the
appointment, Human Resource Division should take the necessary steps as per the
provisions of the [LRA]’.
[31] The high court concluded that not only did Ms Baloyi make allegations that in
essence raised ‘a labour dispute as envisaged by the LRA, the employment contract
itself point[ed] to the LRA as the vehicle for vindicating the rights under it’. Relying on
dicta from the Con stitutional Courts judgments in Chirwa30 and Gcaba v Minister of
Safety and Security ,31 (Gcaba) the high court concluded that it was precluded from
hearing the matter. The high court did not consider whether the d ecision to terminate
Ms Baloyi’s employment was taken for an ulterior purpose, nor did it consider whether
the conduct of Ms Mkhwebane was otherwise unconstitutional insofar as it allegedly fell
short of what is required by s 181(2) of the Constitution. It made no ruling regarding the
declaratory relief.
[32] Significantly in Baloyi, the Constitutional Court found, amongst others, that s
[32] Significantly in Baloyi, the Constitutional Court found, amongst others, that s
157(1) of the LRA does not afford the labour court with general jurisdiction in
employment matters and, as a result, the high court’s jurisdiction will not be ‘ousted by s
157(1) simply because a dispute is one that falls within the overall sphere of
30 Chirwa fn 6 para 161.
31 Gcaba v Minister of Safety and Security and Others [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1)
BCLR 35 (CC); (2010) 31 ILJ 296 (CC); [2009] 12 BLLR 1145 (CC) para 8.
21
employment relations’.32 It found that both the LRA and the BCEA expressly recognise
that there are certain matters in respect of which the labour court and the high court
enjoy concurrent jurisdiction. In relevant part, s 157(2) of the LRA provides:
‘The Labour Court has co ncurrent jurisdiction with the High Court in respect of any
alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the
Constitution of the Republic of South Africa, 1996, and arising from –
(a) employment and from labour relations;
(b) . . .
(c) . . . .’
[33] It recognised that similarly, s 77(3) of the BCEA 33 provides that the Labour Court
‘has concurrent jurisdiction with the civil courts to hear and determine any matter
concerning a contract of employment , irrespective of whether any basic condition of
employment constitutes a term of that contract’. It found that disputes arising from
employment contracts do not, without more, fall within the exclusive jurisdiction of the
labour court is further made clea r by s 77(4) of the BCEA, which emphasi ses that the
exclusive jurisdiction of the labour court referred to in s 77(1) –
‘does not prevent any person relying upon a provision of [the Employment Act] to
establish that a basic condition of employment constit utes a term of a contract of
employment in any proceedings in a civil court or an arbitration held in terms of an
agreement.’
[34] Apart from its other findings relating to the exclusive jurisdiction of the labour
court to hear labour related matters as w ell as the concurrent jurisdiction of both the
labour court and the high court to deal with other rights of employees arising from the
general law, the following passage from Baloyi insofar as it is relevant to the nature of
the right being asserted by Mr Jeewan, is instructive:
32 Fredericks fn 25 para 40. See also Fedlife fn 20 para 25, in which Nugent JA held that : ‘s 157 (1) does
not purport to confer exclusive jurisdiction upon the Labour Court generally in relation to mattes
concerning the relationship between employer and employees’ . The approach endorsed in Fredericks
and FedLife was also followed in various judgments of the High Court, including Jacot-Guillarmod v
Provincial Government 1999 (3) SA 594 (T) at 600E -G and Runeli v Minister of Home Affairs 2000 (2) SA
314 (TKH) at 323-324.
33 While reference is made herein to the BCEA as it was done in Baloyi, it finds no application in th is
matter.
22
‘The mere potential for an unfair dismissal claim does not obligate a litigant to frame her
claim as one of unfair dismissal and to approach the Labour Court, notwithstanding the
fact that other potential causes of action exist. In other words, the termination of a
contract of employment has the potential to found a claim for relief for infringement of
the LRA, and a claim for enforcement of a right that does not emanate from the LRA (for
example, a contractual right). The followin g dictum of the Supreme Court of Appeal in
Makhanya, which squarely addressed a contractual cause of action in the employment
context, is apposite in this regard:
“The LRA creates certain rights for employees that include the right not to be unfairly
dismissed and [not to be] subjected to unfair labour practices. . . . Yet employees also
have other rights, in common with other people generally, arising from the gene ral law.
One is the right that everyone has (a right emanating from the common law) to insist
upon performance of a contract.
When a claimant says that the claim arises from the infringement of the common -law
right to enforce a contract, then that is the claim, as a fact, and the court must deal with
it accordingly. When a claimant says that the claim is to enforce a right that is created
by the LRA, then that is the claim that the court has before it, as a fact. When he or she
says that the claim is to enforce a right derived from the Constitution, then, as a fact,
that is the claim. That the claim might be a bad claim is beside the point.”’34
Although these remarks were made in the context of a jurisdiction issue, they are
equally apposite in relation to the plea of prescription that was raised in this matter.
[35] As the Constitutional Court accepted in Baloyi,35 the approach endorsed in
Makhanya aligns with a series of judgments of this Court36 that have confirmed that a
contractual claim arising from a breach of a contract of employment falls within the
contractual claim arising from a breach of a contract of employment falls within the
ordinary jurisdiction of the high court, notwithstanding the fact that the contract is one of
employment.
34Baloyi fn 29 para 40.
35 Baloyi fn 29 para 41.
36 Lewarne v Fochem International (Pty) Ltd [2019] ZASCA 114; (2019) 40 ILJ 2473 (SCA); [2020] 1
BLLR 33 (SCA) para 9; South African Maritime Safety Authority v McKenzie [2010] ZASCA 2; 2010 (3)
SA 601 (SCA); [2010] 3 All SA 1 (SCA) para 7 ( McKenzie). Manana v King Sabata Dalindyebo
Municipality [2010] ZASCA 144; [2011] 3 All SA 140 (SCA); [2011] 3 BLLR 215 (SCA); (2011) 32 ILJ 581
(SCA) para 23 (Manana); and Fedlife fn 20 paras 4-5 and 24.
23
[36] The following further extracts from Baloyi confirm that employees are not
deprived of their common law remedies on termination of a contract of employment:
‘Indeed, contractual rights exist independently of the LRA. As the Supreme Court of
Appeal has on numerous occasions emphasized, section 23 of the Constitution does
not deprive employees of a common law right to enforce the terms of a fixed -term
contract of employment and the LRA, in turn, does not confine employees to the
remedies for “unfair dismissal” provided for in the Act. 37 Chapter VIII of the LRA is “not
exhaustive of the rights and remedies that accrue to an employee upon termination of
contract of employment.”38
Matters “concerning a contract of employment, irrespective of whether any basic
condition of em ployment constitutes a term of that contract”, are expressly noted in
section 77(3) of the Employment Act as falling within the concurrent jurisdiction of the
High Court and the Labour Court. The question whether contractual claims arising from
employment contracts fall within the concurrent jurisdiction of the High Court and the
Labour Court has not explic itly arisen before this Court. However, as noted above, the
Supreme Court of Appeal has explained on numerous occasions, with reference to the
reasoning of this Court regarding jurisdiction over claims based on administrative action
in the labour sphere, that the High Court retains its jurisdiction in respect of claims
arising from the enforcement of contractual rights in the employment context. 39 This
finding is borne out by the plain language of section 77(3) of the Employment Act,
quoted above, and sections 157(1) and 157(2) of the LRA.’40
[37] On the above reasoning, the Constitutional Court held that:
‘A claim for contractual breach, absent reliance on any provision of the LRA, can be
identified on Ms Baloyi’ s papers. The LRA does not extinguish contractual remedies
37 Fredericks fn 25 para 40. See also Fedlife fn 20 para 25, in which Nugent JA held that:‘s 157(1) does
not purport to confer exclusive jurisdiction upon the Labour Court generally in relation to mattes
concerning the relationship between employer and employees’. The approach endorsed in Fredericks
and FedLife was also followed in various judgments of the High Court, including Jacot-Guillarmod v
Provincial Government 1999 (3) SA 594 (T) at 600E -G and Runeli v Minister of Home Affairs 2000 (2) SA
314 (TKH) at 323-324, see fn 32 above.
38 Fedlife fn 20 para 22.
39 See, for example, Makhanya fn 11 paras 12-13 and 18; Fedlife fn 20 paras 4-5 and 24; Manana fn 36
para 23; and McKenzie fn 36 paras 7-9.
40 Baloyi fn 29 paras 46-47.
24
available to employees following a breach of their contract of employment, or unlawful
termination thereof. While she may also have a claim for unfair dismissal in terms of the
LRA, Ms Baloyi has elected not to pursue this claim. Nothing in the LRA, or the BCEA,
required her to advance that claim in the Labour Court.’41
[38] Against the backdrop of the legal principles enunciated by this Court in the
number of decisions referred to a bove, and as confirmed by the Constitutional Court in
Baloyi, there can be no doubt that Mr Jeewan’s claim as well, which is located in the
common law, falls within the ordinary jurisdiction of the high court. It follows that t he
high court’s conclusion on the issue of jurisdiction was incorrect. Furthermore, since the
LRA does not extinguish contractual remedies available to employees following a
breach of or unlawful termination of a contract of employment, 42 it further follows, by
parity of reasoning, that the high court’s finding that the matter was res judicata on
account of the claim pursued at the TBC and finalised in terms of the arbitration award
was similarly incorrect. In the circumstances, Transnet’s concession s on the issue of
jurisdiction and res judicata , albeit late, are nonetheless correct. The real issue of
course is whether his claim has prescribed in terms of s 11 (d) of the Prescription Act. It
is to this issue that I now turn.
[39] Section 12(1) of the Prescription Act provides that ‘subject to the provisions of ss
(2), (3) and (4), prescription shall commence to run as soon as the debt is due’. For
purposes of the Act, the term ‘debt due’ means a debt, including a delictual debt, wh ich
is owing and payable. A debt is due in this sense 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 t he debtor is in
creditor must prove in order to succeed with his or her claim against t he 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. 43 A ‘cause of action’ for purposes of
prescription means –
41 Ibid para 48.
42 Ibid.
43 See, for example, Truter and Another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA) para 16
(Truter); Evins v Shields Insurance Co. Ltd 1980 (2) SA 814 (A) ( Evins) at 838D-H, and Deloitte Haskins
fn 4 at 532H-I.
25
‘. . . every fact which it would be necessary for the plaintiff to prove, if traversed, in order
to support his right to the judgment of the Court. It does not comprise every piece of
evidence which is necessary to prove each fact, but every fact which is n ecessary to be
proved.’44
[40] A close examination of the allegations set out in his amended particulars of claim
as well as the agreed facts contained in the special case, indicates that Mr Jeewan
pursues a claim for contractual breach alternatively delictual damages arising from the
unlawful termination of the contract. The series of allegation s he relies on in para graph
4 of the particulars of claim for a contractual breach are precisely the same as for his
delictual claim in para graph 5, save that he now pleads wrongfulness, intention and/o r
negligence on the part of Transnet.
[41] As correctly pointed out by Transnet’s counsel, Mr Jeewan makes the following
concession:
‘It is common cause that my LRA claim at the TBC is not the same as my contractual
claim in the High Court.’
The significance of this concession is that whilst he pursued a claim for reinstatement
before the TBC, his claim before the high court is for damages arising out of a breach of
his contract of employment alternatively delictual damages for unlawful termination of
his contract in terms of the common law. As the background facts indicate, Mr Jeewan
was fully aware of the sequence of events that led to the holding of the disciplinary
hearing against him on 14 and 17 May 2010. He was also fully aware of the fact that
despite the hearing being postponed to 17 May 2010, he was effectively dismissed on
14 May 2010 when Transnet had signed the termination letter. He was consequently
aware, on 14 May 2010, of the fact that his dismissal was unlawful. And, of course, he
was aware of the identity of the debtor. All this points to the fact that his ‘cause of action’
for contractual damages arose on 14 May 2010.
for contractual damages arose on 14 May 2010.
44 McKenzie v Farmers’ Co -operative Meat Industries Ltd 1922 AD 16 at 23, cited with approval in Evins
at 838D-F.
26
[42] For his delictual claim, the requirements of fault and unlawfulness do not
constitute factual ingredients of the ‘cause of action’, but amount to legal conclusions to
be drawn from the facts:
‘A cause of action means the combination of facts that are material for the plaintiff to
prove in order to succeed with his action. Such facts must enable a court to arrive at
certain legal conclusions regarding unlawfulness and fault , the constituent conclusions
regarding the unlawfulness of a delictual cause of action being a combination of factual
and legal conclusions, namely, a causative act, harm, unlawfulness and culpabilit y or
fault.’45 (Emphasis added.)
[43] Mr Jeewan’s argument that there was no immediate obligation on th e part of
Transnet to perform, in relation to the debt, on 14 May 2010, is not born e out by the
agreed facts contained in the special case. In the special case, Transnet admitted firstly
that Mr Jeewan’s claim constituted a ‘debt’ for purposes of s s 11(d) and 12 of the
Prescription Act. And secondly, that the debt was due and owing by it on 14 May 2010
when it dismissed him. The fact that Mr Jeewan referred his unfair dismissal to the TBC
for arbitration, as he was advised to do by Transnet, is an election that he made at the
time. This does not, in any way, detract from the fact that his contractual debt became
due on 14 May 2010 and as such was hit by the provisions of s 11 (d) of the Prescription
Act.
[44] The final submission to consider is whether the high court was obliged to
re-interpret the provisions of the Prescription Act having regard to s 39(2) and s 34 of
the Constitution on the basis that the Prescription Act limits rights in terms of the Bill of
Rights. Inasmuch as the high court’s judgment is silent on this aspect, we were
informed by Mr Jeewan that this issue was raised by him in his heads of argument
before that court. Counsel for Transnet did not contend otherwise. Whilst it is true that
before that court. Counsel for Transnet did not contend otherwise. Whilst it is true that
the Prescription Act does limit rights i n the Bill of Rights, I do not believe, for the
reasons set out herein, that s 12 of the Prescription Act needs to be interpreted any
differently in respect of the claim being asserted by Mr Jeewan in these proceedings. As
45 See M M Loubser Extinctive Prescription 1 ed (1996) para 4.6.2 at 80 -81; Evins fn 43 at 838D -H;
Deloitte Haskins fn 4 at 532H-I; Truter fn 43 para 17.
27
mentioned already, his present cl aim is for damages arising out of a contractual breach
that took place on 14 May 2010. This claim was not dependent on the outcome of any
other claim for relief arising out of an infringement of the LRA. As the ratios both in
Makhanya and Baloyi confirm, o n the termination of a n employment contract an
employee can find a claim for relief for infringement of the LRA, and a claim for
enforcement of a right that does not emanate from the LRA, for example, a contractual
right. It is clear from Baloyi that there is no obligation on such a litigant to wait for the
LRA processes to be exhausted before invoking common law remedies. In Mr Jeewan’s
case, the route he elected to follow was to seek re-instatement of his employment. From
the date of dismissal, the runnin g of prescription was triggered . It was only when the
award was made against him that he decided to follow a different route, that is, sue for
damages. By then it was already five years down the line and his claim had already
prescribed.
[45] I am accordingly of the view that Mr Jeewan’s reliance on the judgment of
Froneman J in Myathaza is misconceived. As Transnet correctly argues, the two cases
are distinguishable in the manner already alluded to in paragraph 18 above.
[46] As alluded to earlie r, the facts in Myathaza are clearly distinguishable from the
present matter. Mr Myathaza was asserting rights solely in terms of the LRA whereas
Mr Jeewan, having failed with his dispute before the TBC, then decided to pursue a
claim for damages arising o ut of a contractual breach and in terms of the common law.
Mr Jeewan was aware of every fact which it would be necessary for him to prove, if
traversed, in order to support his litigation in the high court. Whilst there may have been
a need to re -interpret the Prescription Act in terms of s 39(2) and s 34 of the
Constitution in Mr Myathaza’s case, no such need arises in Mr Jeewan’s case. As
Constitution in Mr Myathaza’s case, no such need arises in Mr Jeewan’s case. As
observed by the Constitutional Court in Baloyi, where more than one potential cause of
action arises because of a dismissal dispute, ‘a litigant must choose the cause of action
she wishes to pursue and prepare her pleadings accordingly ’.46 Thus, pursuant to Mr
Jeewan’s dismissal, nothing stopped him from approaching the high court sooner for
purposes of pursuing his common law clai m. All in all, I am of the view that none of the
46 Baloyi fn 29 para 38.
28
arguments advanced by Mr Jeewan regarding the issue of prescription in this appeal
are sustainable. The appeal directed to that leg of the appeal must accordingly fail.
[47] However, as stated before, Transnet’s concessions in respect of the special
pleas pertaining to jurisdiction and res judicata, respectively, were correctly made, and
the appeal directed at th e orders of the high court upholding those two special pleas
must succeed, as these orders were not formally abandoned and therefore still stand .
This, however, does not detract from the fact that in the stated case, Transnet sought
an order ‘upholding all or any of its three special pleas’. Thus, Transnet would have
been entitled to the dismissal of Mr Jeewan’s claim. This brings me to the issue of
costs.
Costs
[48] As I pointed out at the outset of this judgment, Mr Jeewan represents himself in
these proceedings. Ordinarily he would not have incurred any legal costs except for
certain out of pocket expenses for travel and accommodation, etc. and certain
disbursements for procuring the record. The general rule for the award of costs in
constitutional litigation between a private party and the State is that, if the private party
is successful, costs should be paid by the State, and if unsuccessful, each party should
pay its own costs.47 This is known as the ‘Biowatch principle’. Mr Jeewan contends that
the principles in Biowatch48 should apply. Relying on Makate v Vodacom (Pty) Ltd 49
(Makate), he contends that courts must always bear in mind the provisions of s 39(2)
when interpreting legislation. If the provision under consideration implicates the rights in
the Bill of Ri ghts, then the obligation to apply s 39(2) is activated, t hus enjoining the
court to promote the purport, spirit and objects of the bill of rights when interpreting the
specific provision. In that judgment, the Constitutional Court found that it could not be
disputed that s 10 read with ss 11 and 12 of the Prescription Act limit s the rights
disputed that s 10 read with ss 11 and 12 of the Prescription Act limit s the rights
guaranteed by s 34 of the Constitution. 50 It went on to find that in construing those
47 Biowatch fn 10 para 43.
48 Biowatch fn 10.
49 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC).
50 Ibid para 90.
29
provisions, the high court ‘was obliged to follow s 39(2) irrespective of whether the
parties had asked for it or not’.
[49] There are, however, exceptions to the Biowatch principle as set out in Affordable
Medicines Trust v Minister of Health ,51 a case decided before Biowatch, in which
Nqcobo J (as he then was) observed that there may be circumstances which justify the
departure from the general rule on costs in constitutional litigation, such as where the
litigation is frivolous or vexatious. Later on, in Lawyers for Human Ri ghts v Minister in
the Presidency and Others ,52 the Constitutional Court explained the exceptions to the
Biowatch principle as follows:
‘What is “vexatious”? In Bisset this Court said this was litigation that was frivolous,
improper, instituted without sufficient ground, to serve solely as an annoyance to the
defendant”. And a frivolous complaint? That is one with no serious purpos e or value.
Vexatious litigation is initiated without probable cause by one who is not acting in good
faith and is doing so for the purpose of annoying or embarrassing an opponent. Legal
action that is not likely to lead to any procedural result is vexatious.’53
[50] Should Mr Jeewan be held liable for any costs now that he is unsuccessful?
Considering the dictum in Chirwa, which has been alluded to earlier, I do not believe
that the litigation that Mr Jeewan embarked upon can be said to be improper, frivolous
or vexatious. In my view, the Biowatch principle is applicable both in respect of this
appeal and the high court litigation.
[51] There is a further reason why I do not believe that Mr Jeewan should be liable for
any costs. This arises from Transnet’s late abandonment of the issues of jurisdiction
and res judicata in this Court. Having concluded, correctly, that the high court was
wrong on these issues and that it could no longer defend the app eal in that regard,
Transnet could have abandoned the judgment on these issues at a much earlier
Transnet could have abandoned the judgment on these issues at a much earlier
51 Affordable Medicines Trust v Minister of Health [2005] ZACC; 2006 (3) SA 247 (CC); 2005 (6) BCLR
529 (CC) para 138.
52 Lawyers for Human Rights v Minister in the Presidency and Others [2016] ZACC 45; 2017 (1) SA 645
(CC); 2017 (4) BCLR 445 (CC).
53 Ibid para 19.
30
stage.54 Instead it put Mr Jeewan to the inconvenience of having to prepare his heads of
argument on these issues as well. As a result, two of the orders granted by the high
court fall to be set aside. In all the circumstances, I consider that it would be fair if both
parties carried their own costs herein.
Order
[52] In the result, the orders I make are the following:
1 The appeal is dismissed, save to the extent set out below.
2 The appeal in relation to the orders upholding the special pleas of jurisdiction and
res judicata is upheld.
3 The order of the High Court is set aside and replaced with the following order:
‘3.1 The special plea of prescription is upheld.
3.2 The special pleas of jurisdiction and res judicata are dismissed.
3.3 The plaintiff’s claim is dismissed.
3.4 There is no order as to costs.’
4 There is no order as to costs in this Court.
R SEEGOBIN
ACTING JUDGE OF APPEAL
Appearances
For the appellant: S Jeewan (in person)
For the first respondent: Adv M K Mathipa
Instructed by: Ningiza Horner Incorporated, Sandton
McIntyre van der Post, Bloemfontein
54 Rule 41(2) of the Uniform Rules.