IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Appeal Case : A225/2024
Magistrates Court Case No: 6359/2019
In the matter between:
RESOURCE AFRICA TRUST APPELLANT
And
FRANCISCO MIJA RESPONDENT
Coram: Cloete J and Siyo AJ
Delivered: This Judgment was handed down electronically by circulation to the legal
representatives by email. The date and time for hand -down is deemed to be 10h00
on 7 March 2025.
ORDER
On appeal from: The Magistrates Court for the District of Cape Town (Magistrate ,
Ms. MJE Kgorane sitting as court of first instance):
1. The appeal is upheld with costs .
2. The order of the Magistrates Court is set aside and replaced with the
following :
“a. The defendant’s special plea of prescription is upheld.
b. The plaintiff’s claim is dismissed with costs, including the costs
of counsel where so employed .”
JUDGMENT
SIYO AJ (CLOETE J concurring) :
Introduction
1. This is an appeal against the whole judgment and order of the learned
Magistrate, Ms. MJE Kgorane , of the Magistrates Court for the District of Cape
Town (“court a quo ”). This matter concerns the prescription of a claim which Mr.
Francisco Mija (“responden t”) had instituted against Resource Africa Trust
(“appellant”) for unpaid wages for the period January 2016 to 12 July 2016 .
2. Before the court a quo the appellant raised a special plea of prescription on the
basis that summons was served on it more than 3 years after the date on which
the respondent alleges the claim fell due. The special plea was separated from
the merits of the matter and was set do wn for adjudication on 29 April 2024 . After
argument on 29 April 2024, the matter was adjourned for judgment.
3. Although judgment was handed down by the court a quo on 13 May 2024, the
written judgment was only availed to the parties for collection on 27 June 2024. In
its judgment, the court a quo found that the respondent ’s claim had not
prescribed.
Factual background
4. The respondent was employed by the appellant as a project manager on a fixed
term con tract, which expired on 31 December 2015.
5. Whilst the respondent contended that his employment with the appellant
continued after the expiry of the fixed -term contract and was terminated by the
appellant on 12 July 2016, the appellant however contended that after the expiry
of the fixed -term contract, the respondent agreed to work for the appellant as a
volunteer and to receive an honorarium subject to the appellant ’s ability to secure
funding thereof. That notwithstanding, it is common cause that the respo ndent
ceased working for the appellant on 12 July 2016.
6. On 11 August 2016, the respondent referred a dispute to the Commission for
Conciliation, Mediation and Arbitration (“CCMA”) wherein he claimed
reinstatement and financial compensation from the appellant on the basis that he
had been dismissed on 12 July 2016 and that his dismissal was substantively
and procedurally unfair.
7. A dispute arose between the parties as to whether the respondent was required
to apply for condonation for the late referra l of his dispute to the CCMA. The
genesis of this dispute was a disagreement as to when the employment
relationship between the appellant and the respondent had terminated.
8. On 28 October 2016 , the CCMA issued a ruling which found that the employment
relationship between the appellant and respondent terminated on 12 July 2016
and that the respondent had referred the dispute within 30 days of such
termination. Consequently, the CCMA found that co ndonation was not necessary.
There was no further hearing of this matter after th is ruling.
9. On 2 December 2016, the CCMA issued a further ruling which read as follows
“the Applicant party has decided not to pursue this matter as a dismissal dispute
and thus the remedy of compensation but rather approach the Department of
Labour, or the Civil Courts to pursue a claim for under/non -payment of salary for
the period January 2016 to 12 July 2016 .”
10. The respondent issued summons against the appellant for unpai d wages for the
period January 2016 to 12 July 2016. Summons were served on the appellant on
26 August 2019. It is this claim that forms the subject of this appeal.
Court a quo’s judgment
11. Faced with this common cause factual background, the court a quo characterized
the issue for determin ation as a “ simple question ” as follows: “has the claim by
the Plaintiff prescribed? Even after the referral and the ruling of the CCMA?”
12. In determining this issue, the court a quo emphasized the binding nature of the
CCMA’s rulings on the parties. In the court a quo’s view, the CCMA ’s ruling of 28
October 2016 made definitive findings on two crucial issues: first, that the
employment relationship between the appellant and respondent terminated on 12
July 2016; second, and as a consequence of the first finding, that the respondent
was indeed an employee of the appellant.
13. The court a quo reasoned that if the binding nature of the CCMA’s ruling is
accepted, it cannot be held on the other hand that “ those proceedings were not
finalized to the point of informing further proceedings in continuation based on the
CCMA’s ruling …”
14. Relying on the Constitutional Court’s judgment in Food and Allied Workers Union
obo Gaoshubelwe v Pieman's Pantry (Pty) Ltd1 (“Pieman’s Pantry ”) in dismissing
the special plea and concluding that the respondent’s claim ha d not prescribed,
the court a quo held as follows:
“… this court finds that the determination contained in the ruling of the CCMA
made on the 28th October 2016, carried finality to the relevant issues of the
1 Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Ltd (2018) 39 ILJ 1213
(CC) para 199. (“Pieman’s Pantry”)
position of the Plaintiff as employee and that the date the dispute arose is 12
July 2016. Having considered case law (paragraph 14 of this judgment) [such
proceedings before the CCMA constitute the commencement of legal
proceedings in an independent and impartial forum. For th ose reasons I
would conclude on this aspect that the referral of disputes to the CCMA
for conciliation constitutes the service of a process commencing legal
proceedings ] this court finds that the nature of the proceedings in this regard
impacted prescription. Especially with the ruling being made for the matter to
go ahead for hearing. The decision was made by the Plaintiff to proceed with
action out of this court (which is a matter for trial). He instituted the
proceedings and the summons was served on the Defendant in August 2019.
This was done within the period of 3 years after the important and relevant
determinations were made by the CCMA.”
15. Dissatisfied with the outcome , the appellant lodged an appeal before this court.
Grounds of Appeal
16. The appellants grounds of appeal as outlined in the notice of appeal can be
articulated as follows:
16.1. First, the appellant allege s that t he learned Magistrate erred in
conflating the claim lodged by the respondent for reinstatement and
compensation which was referred to CCMA on 11 August 2016 with
the claimed instituted by the respondent before the court a quo on
26 August 2019 for the paym ent of the amount alleged to be
outstanding in respect of his salary.
16.2. Second, the appellant allege s that t he learned Magistrate erred in
finding that the referral by the respondent of an unfair dismissal
dispute to the CCMA on 11 August 2016 interrupted pr escription in
respect of his subsequent claim for unpaid salary as contemplated
in section 15 of the Prescription Act 68 of 1969 (“Prescription Act”).
16.3. Third, the appellant allege s that t he learned Magistrate erred in
finding that the effect of the CCMA’s r uling, that it had the requisite
jurisdiction to entertain the respondent’s unfair dismissal dispute,
constituted a prosecution of the respondent’s claim to final
judgment as contemplated in section 15 (2) of the Prescription Act.
16.4. Fourth , the appellant all eges that t he learned Magistrate further
erred in finding that prescription commenced to run afresh upon the
ruling handed down by the CCMA on 28 October 2016 in respect of
the points in limine raised by the appellant.
16.5. Fifth, t he appellant alleges that the learned Magistrate erred in
failing to consider that the respondent expressly abandoned his
unfair dismissal dispute before the CCMA on 2 December 2016,
electing to instead pursue a contractual claim for the alleged non -
payment of his salary.
16.6. Sixth, th e appellant alleges that t he learned Magistrate erred in
finding that the Respondent’s claim for unpaid salary had not
prescribed.
Evaluation of the Appeal
17. It has now become trite that the remedies of an employee whose contract of
employment has been termi nated can be found in either the concept of breach of
contract under common law or unfair dismissal under the Labour Relations Act 66
of 1995 (“LRA”).2 In terms of section 191 of the LRA, the LRA rights are
enforceable only through the Commission for Conc iliation Mediation and
Arbitration (“CCMA”), Bargaining Council or the Labour Court. On the other hand,
common law rights are generally enforceable in the High Court and Labour
Court.3
2 Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) para 22 ; Mangope v SA Football
Association [2011] JOL 26612 (LC) para 17.
3 Makhanya v University of Zululand 2010 (1) SA 62 (SCA) para 13 (“Makhanya”) .
18. In endorsing the approach adopted in Makhanya , the Constitutional Court in
Baloyi vs Public Protector & Others (“Baloyi ”) held :
“The mere potential for an unfair dismissal claim does not obligate a litigant to
frame her claim as one of unfair dismissal an d 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 en forcement of a right
that does not emanate from the LRA (for example, a contractual right).”4
19. The Constitutional Court in Baloyi emphasized that contractual rights exist
independently of the LRA. Furthermore, the Constitutional Court held that 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.5
20. However, in terms of section 11 (d) of the Prescription Act , a claim in common law
must be instituted within three years from the date upon which the cause of
action, which is dismissal in this case, occurred.
21. In the analogous case of Jeewan v Transnet S OC Limited and Another
(“Jeewan”) , the Supreme Court of Appeal (“SCA”) was called upon to consider
whether Mr Jeewan’s claim against Transnet had prescribed within a period of
three years from the date of his alleged unfair dismissal on 14 May 2010 in terms
of section 11 (d) of the Prescription Act, as contended for by Transnet, or
whether, the debt which Mr Jeewan relie d on for the relief claimed in his action
against Transnet, only arose on 1 February 2012 when the arbitration award was
issued, as con tended for by Mr Jeewan.6
4 Baloyi v Public Protector and Others 2022 (3) SA 321 (CC) para 40 (“Baloyi”) .
5 Baloyi above n 4 para 46.
6 Sanoj Jeewan v Transnet SOC Limited and Another (696/2023) [2024] ZASCA 108 para 9
(“Jeewan”).
22. Following the outcome of disciplinary proceedings that were instituted against
him, Mr Jeewan was dismissed with immediate effect in terms of a letter that was
signed by Transnet on 14 May 2010.7
23. The termination letter further informed Mr Jeewan that he had the right to refer
his dismissal to either the 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 ection 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 TBC was reinstatement to his former
employment.8
24. 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 Jeewan 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 revi ew the arbitration award or make it an order of court.9
25. Relying on established authority on the provisions of section 12 (1) of the
Prescription Act, the SCA held that:
“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, which is owing and payable. A debt is due in thi s 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 the debtor is in place or, in other words, when
7 Jeewan n 6 above para 4.
8 Jeewan n 6 above para 5.
9 Jeewan n 6 above para 7.
everything has happened which would entitle the creditor to institute action and to
pursue his or her claim .”10
26. Furthermore, the SCA held that 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. He was aware of the
identity of the debtor. The SCA found that a ll this points to the fact that his ‘cause
of action’ for contractual damages arose on 14 May 2010.11
27. Moreover, the SCA took the view that 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. In the SCA’s view, t his 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 section 11 (d) of the Prescription Act.12
28. Last, the SCA held that the running of prescription was triggered from the date of
dismissal. The court also highlighted that i t was only when the award was made
against him that Mr Jeewan 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.13
29. In argument, Ms. Stein who appeared for the appellant, correctly crystallized the
issue as whether the respondents’ claim before the Magistrates Court for unpaid
wages in terms of his contract of employment with the appellant has prescribed.
10 Jeewan n 6 above para 39 ; Also see: Truter and Another v Deysel 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 & Sells Consultants (Pty) Ltd. v Bowthorpe Hellerman Deutsch (Pty) Ltd [1991] 1 All SA 400
(A) at 532H -I.
11 Jeewan n 6 above para 41.
12 Jeewan n 6 above para 43.
13 Jeewan n 6 above para 44.
30. While Mr. Wh itcomb, who appeared for the respondent, did not dispute that there
is a distinction between the debt pursued by the respondent before the CCMA
and the Magistrates Court, he argued that referral to the Labour Court versus
referral to the Magistrates Court in respect of a claim for unpaid wages is a
distinction without a difference insofar as prescription is concerned.
31. It was further submitted that the respondent ’s claim for “ reinstatement/financial
compensation ” is substantially the same as his claim subsequently lodged before
the Magistrates Court for unpaid wages allegedly owed by the appellant. Thus, so
the argument proceeded, this court should adopt the flexible approach
propounded by the Constitutional Cour t in Food and Allied Workers Union obo
Gaoshubelwe vs Pieman’s Pantry Pty Limited14 (“Pieman’s Pantry ”) to the effect
that the institution of proceedings in a court without jurisdiction will interrupt
prescription.
32. This argument is unsustainable. In terms of section 193 of the LRA,
reinstatement is the primary remedy available to employees who have been
found to have been unfairly dismissed.15 While reinstatement is concerned with
the restoration of the original contract of employment16, damages relate to
monetary award for patrimonial loss , and compensation relates to monetary
award for non -patrimonial loss , including a solatium .17
33. In this regard, the Labour Appeal Court elaborated as follows:
“The purpose of an award of damages for patrimonial loss by means of a
monetary award, is to place the claimant in the financial position he or she would
have been in had he, or she, not been unfairly discriminated against. This is the
common purpose of an award of damages for patrimonial loss i n terms of the
South African law in both the fields of delict and contract. In the case of
compensation for non -patrimonial loss, the purpose is not to place the person in a
14 Pieman’s Pantry n 1 above .
15 Jacobs v CCMA and Others (2024) 45 ILJ 1009 (LC) para 7.
16 Steel Engineering and Allied Workers Union of SA and Others v Trident Steel (Pty) Ltd (1986) 7 ILJ
418 (IC) at 437F.
17 South African Airways (Pty) Ltd v Jansen Van Vuuren and Another (2014) 35 ILJ 2774 (LAC) para
76. (“ Jansen Van Vuuren ”)
position he or she would have otherwise been in, but for the unfair discrimination ,
since that is impossible, but to assuage by means of monetary compensation, as
far as money can do so, the insult, humiliation and dignity or hurt that was
suffered by the claimant as a result of the unfair discrimination.”18
34. Thus, the the debt pursued by the respondent before the CCMA and the
Magistrates Court should be understood within this context . The claim before the
CCMA was in pursuit of remedies outlined in the LRA, namely reinstatement and
compensation, and the claim before the Magistrates Court was in pursuit of
common law remedies , namely, a claim for unpaid wages . They are not the
same. These are distinct and self -standing remedies that should not be conflated.
In my res pectful view, the court a quo erred in failing to appreciate this distinction.
35. The respondent’s reliance on Pieman’s Pantry is, with respect, similarly
misplaced , Pieman’s Pantry being distinguishable from this case. One of the
issue s that the Constitutional Court was called upon to consider in Pieman’s
Pantry was whether the unfair dismissal dispute for reinstatement referred by
Food and Allied Workers Union (FAWU) to the Labour Court on behalf of the
employees of Pieman’s Pantry had prescribed.19 In the matter before us , the
claim before the Magistrates Court was a contractual claim for unpaid wages, not
reinstatement .
36. The Constitutional Court in Pieman’s Pantry held t hat the referral of disputes to
the CCMA for conciliation constitutes the service of a process commencing legal
proceedings.20 In this regard, the Constitutional Court reasoned that referral to
conciliation activate d the jurisdiction of the CCMA, which obliged the CCMA to
conciliate the dispute, and such proceedings may involve a determination of the
facts . Thus the Constitutional Court reasoned that all these processes strongly
point in the direction that those proceedings are indeed the commencem ent of
proceedings for the enforcement of a debt.21
18 Jansen Van Vuuren n 17 above para 80.
19 Pieman’s Pantry n 1 above para 1 and 5.
20 Pieman’s Pantry n 1 above para 199.
21 Pieman’s Pantry n 1 above para 201.
37. For these reasons, the Constitutional Court concluded by holding that although
prescription began to run when the debt became due on 1 August 2001, it was
interrupted by the referral of the dispute to the CCMA on 7 August 2001 and
continued to be interrupted until the dismissal of the review proceedings by the
Labour Court o n 9 December 2003. Thus, when the dispute was referred to the
Labour Court for adjudication on 16 March 2005, it had not prescribed.22
38. Ms. Stein argued that a single set of facts may give rise to more than one debt
for purposes of section 15 (2) of the Prescription Act 68 of 1969 (“Prescription
Act”) , which is the section dealing with judicial interruption of prescription . The
question w hether prescription in respect of each debt has been interrupted will be
determined with reference to the steps taken to enforce the specific debt in
question.
39. In elaboration, Ms Stein also argued that there is a distinction to be drawn
between the debts pursued by the respondent . The first debt, which was referred
to the CCMA, is a claim for reinstatement and compensation arising from the
alleged unfair dismissal of the respondent. The purpose of this relief is to remedy
a breach of an employee’s right to fairness. This remedy operates as “ a solatium
for the harm suffered ” as a result of treatment found to be unfair.
40. The second debt, which was referred to the Magistrates’ Court, is a claim for
unpaid wages arising from the terms of an a lleged contract of employment
between the appellant and respondent . This claim is directed at placing the
respondent in the position he would have been had the contract been honoured.
41. From this it follows, so the argument proceeded, that the referral by the
respondent of his unfair dismissal dispute to the CCMA could have only
interrupted prescription insofar as his claim for reinstatement and compensation
is concerned. There had not been interruption of prescription in respect of the
respondents’ contrac tual claim.
22 Pieman’s Pantry n 1 above para 204.
42. Furthermore, it was also argued that in the event that the referral by the
respondent of an unfair dismissal dispute did interrupt prescription in respect of
the respondents’ contractual claim , the effect of the respondent’s abandonment of
his claim at the CCMA in favour of a claim in the Magistrates’ Court is that
prescription is deemed not to have been interrupted by virtue of section 15(2) of
the Prescription Act.
43. It is an established principle of law that a single set of facts may give rise to more
than one debt as contemplated in section 15 (1) of the Prescription Act. According
to the Appellate Division (as it then was) in Evins vs Shield Insurance (“Evins ”),
the question whether prescription in respect of each debt has been interrupted
will be determined with reference to the steps taken to enforce the specific debt in
question.23 In this regard, the court elaborated as follows:
“Where a creditor has two rights, or causes, of action then there are two
corresponding debts. When it comes to the judicial interruption of prescription in
terms of section 15, then, if the process seeks to enforce two debts (or causes of
action), it will only interrupt prescript ion in respect of both if it is effective as a
means of commencing legal proceedings in respect of both. If it is effective only
in respect of one, then this will not enure for the benefit of the creditor in respect
of the other .”24
44. More recently the Con stitutional Court in Rademeyer v Ferreira endorsed the
abovementioned dictum in Evins as authoritatively setting out the position
regarding judicial interruption of prescription .25
45. In my judgment two separate claims arose when the respondent ’s employment
was terminated on 12 July 2016. One claim related to the infringement of his LRA
rights and the other related to the infringement of his common law rights. It is
common cause that the respondent elected to utilise the LRA remedies at his
disposal by referring his dispute to the CCMA wherein he sought reinstatement
23 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 642. (“Evins”)
24 Evins n 23 at 842C -F.
25 Rademeyer v Ferreira 2025 (1) BCLR 73 (CC) paras 77-78.
and compensation from the appellant on the basis that his dismissal was
substantively and procedurally unfair.
46. By so electing, the respondent was fully aware that his employment had been
terminated by the appel lant on 12 July 2016. In other words, he was aware of the
debt and the identity of the debtor. His referral of a dispute to the CCM A was an
election that he made which did not detract from the fact that his claim for unpaid
wages arose on 12 July 2016 and that the running of prescription was triggered.
47. Although the respondent had taken the decision to abandon the CCMA process
and to rather “ approach [the] Department of Labour, or Civil Courts to pursue a
claim for under/non -payment of salary for the perio d January 2016 to 12 July
2016 ” as far back as 2 December 2016, summons w as only served on the
appellant on 26 August 2019. By then, in my judgment, a period of three years
had lapsed and his claim had prescribed.
48. In conclusion, the court a quo failed to appreciate the distinction between the
different debts pursued by the respondent before the CCMA and the Magistrates
Court . I am in agreement with the appellant. In my judgment the referral by the
respondent of his unfair dismissal dispute to th e CCMA could have only
interrupted prescription insofar as his claim for reinstatement and compensation
is concerned. The referral by the respondent of an unfair dismissal dispute to the
CCMA did not interrupt prescription in respect of the respondents’ co ntractual
claim for unpaid wages.
49. It follows that the court a quo should have upheld the appellant ’s special plea for
prescription. I would therefore allow the appeal with costs, including the costs of
counsel where so employed.
50. It was argued by Ms. Stei n, in the alternative, that in the event that the referral by
the respondent of an unfair dismissal dispute did interrupt prescription in respect
of the respondents’ contractual claim, the effect of the respondent’s abandonment
of his claim at the CCMA in favour of a claim in the Magistrates’ Court is that
prescription is deemed not to have been interrupted as contemplated in section
15 (2) of the Prescription Act. Given the conclusion that I reach on interruption of
prescription, it is unnecessary to consider th is issue .
51. I would therefore make the following order:
1. The appeal is upheld with costs , including the costs of counsel where so
employed .
2. The order of the Magistrates Court is set aside and replaced with the
following:
“a. The defendant’s special plea of prescription is upheld.
b. The plaintiff’s claim is dismissed with costs, including the costs
of counsel where so employed. ”
________________________________
LK SIYO , AJ
Acting Judge of the High Court
Western Cape Division, Cape Town
I agree and it is so ordered.
___________________________________
JI CLOETE , J
Judge of the High Court
Western Cape Division, Cape Town
Date Heard: 1 November 2024
Date Handed Down : 7 March 2025
APPEARANCES
Counsel for the appellant: Ms N Stein
Instructed by: Harris Nupen Molabetsi Inc
Counsel for the Respondents: Mr DG Whitcomb
Instructed by: ODBB Attorneys c/o Harmse Kriel Attorneys