LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable
Case No: JA 91/22
In the matter between:
DIRK WILLEM POTGIETER Appellant
and

SAMANCOR CHROME LIMITED t/a
TUBATSE FERROCHROME Respondent
Heard: 19 September 2023
Delivered: 10 March 2025
Coram: Molahlehi DJP, Smith AJA et Malindi AJA


JUDGMENT

MALINDI, AJA
Introduction

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[1] The appellant , Mr Potgieter, was dismissed by the respondent on
24 October 2006. He referred the matter to the Metal and Engineering Industries
Bargaining Council ( MEIBC) for arbitration , where he obtained an award in his favour
on 25 June 2008.

[2] This appeal lies against the whole judgment and order of the Labour Court
which upheld the respondent’s special plea of prescription. The Labour Court held
that:
2.1. prescription applied in respect of this claim ;
2.2. that the period of prescription commenced to run from the date of the
Labour Appeal Court ’s reinstatement order ;
2.3. that the running of prescription was not interrupted; and
2.4. that the period of three years having elapsed, the debt had prescribed.

[3] The Labour Court refused leave to appeal , but leave was granted on petition
by the Labour Appeal Court . The appeal is opposed by the respondent.
Background
[4] This dispute has a protracted history emanating from the dismissal of the
appellant on allegations of misconduct. A dispute of alleged unfair dismissal was
referred to the MEIBC. On 25 June 2008, the MEIBC issued an arbitration award in
terms of which it found that the dismissal of the appellant was substantively and
procedurally unfair and awarded compensation equivalent to 12 months
remuneration.
[5] After the arbitration award, litigation proceeded in the following chronology:
5.1. The appellant approached the Labour Court seeking the review and
setting aside of the award of compensation and sought an order of
retrospective reinstatement . The review application was dismissed;
5.2. Mr Potgieter , with the leave of the Labour Court , appealed against the
dismissal of the review application ;
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5.3. On 12 June 2014, the L abour Appeal Court (LAC) upheld the appeal
and substituted the Labour Court’s findings with an order that the appellant
was reinstated re trospectively into his position with the respondent ; and
5.4. The respondent, Samancor , appealed the LAC order to the
Constitutional Court, and on 3 September 2014, the Constitutional Court
dismissed the respondent’s appeal against the judgment of the Labour Appeal
Court.

[6] Consequently, the LA C's order of retrospective reinstatement was
implemented by Mr Potgieter’s reinstatement on 23 July 2015. He reported for duty
and was accepted back into the respondent’s employ .

[7] On 30 November 2015, the parties , through a mutual separation agreement ,
terminated the employment relationship.
[8] This matter is about what transpired after the LAC order , which Samancor
unsuccessfully attempted to appeal at the Constitutional Court. Following a dispute between the parties as to the meaning of the Labour Appeal o rder, in particular
whether Mr Potgieter was entitled to retrospective payment for the whole period from
the date of the LAC order on 12 June 2014 (equal to eight years), or only from the
date of his dismissal to the date of the MEIBC a ward on 25 June 2008 (equal to
some one year and eight months).

[9] The chronology of this second round of litigation is as set out below.

[10] On 23 July 2018, Mr Potgieter instituted a claim for the payment of his
outstanding remuneration consequent upon the reinstatement order. He claim ed
payment of monies owing from the date of his dismissal until the reinstatement order
of the LAC. Samancor raised a preliminary point to the effect that the appellant ought
to have instituted contempt proceedings or caused a writ of execution to be issued.

[11] The matter came before the Labour Court on 29 May 2020. On the date of the
hearing, the parties reached an agreement , which was made an order of the Court
by the Labour Court (per van Niekerk J , as he then was ). The order reads as follows:
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‘1. The applicant withdraws the action proceedings filed under the above
case number .
2. The parties will engage with each other during the period 3 to
17 June 2020 with a view to formulating an agreed stated case pertaining to
the effect of paragraph 2.1(ii) of the Labour Appeal Court ’s order under case
number JA 71/12, insofar as it pertains to the respondent’s payment liability
for the period between the days of the applicant’s dismissal and the date of
the delivery of the Labour Appeal Court’s order.
3. If the parties are unable to agree to a stated case by 17 June 2020, the
respondent will deliver an application within 14 days from 17 June 2020
seeking a declaration order pertaining to the effect of paragraph 2.1(ii) of the
Labour Appeal Court’s order under case number JA 71/12 insofar as it
pertains to the respondent’s payment liability for the period between the date
of the applicant’s dismissal and the date of delivery of the Labour Appeal Court’s order, and seeking consequential or associated relief.
4. The parties shall approach the Court to request that it hear the matter
in an expedited manner.
5. There is no order as to costs. ’
[12] The parties could not agree on the stated case contemplated in the
aforementioned order , and on 10 July 2020, Samancor delivered its application for a
declaratory order in accordance with the order of the Labour Court . The issue to be
considered in terms of the application was whether the effect of the reinstatement
order was that the appellant was entitled to his full salary for the entire period despite
having engaged in alternative employment between the date of his dismissal and the
reinstatement order.

[13] On 7 December 2020, the application served before the Labour Court (per
Snyman AJ) .
[14] On 16 February 2021, the Labour Court delivered a judgment wherein it
concluded that the dispute before the Court gave rise to two distinct rights viz. a
judgment debt for the period between the dismissal and the arbitration award, and a
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contractual claim in respect of Mr Potgieter ’s remuneration for the period between
the date of the arbitration award and the reinstatement order of the LAC.

[15] The order of the Labour Court (per Snyman J) read as follows:
‘1. It is declared that for the period between the date of dismissal of the
respondent on 26 October 2006 and the date of the arbitration award on
25 June 2008 under case number MEGA14544, the respondent is entitled to
be paid his full salary by the applicant , as if he was not dismissed, without
moderation or adjustment.
2. It is declared that for a period between 26 June 2008, being the date
following the reinstatement of the respondent in terms of the arbitration award
of 25 June 2008 under case number MEGA14544 and the date of the order of
the Labour Appeal Court on 1 June 2014 under case number JA 71/12, the
respondent is not entitled to be paid his full salary by the applicant , such claim
must still be determined and is subject to moderation and adjustment depending on the damages the respondent is able to prove and any defences raised by the applicant.
3. The respondent is given leave to institute a claim as contemplated by
paragraph 2 of this order within 90 days of this order.
4. The respondent is ordered to make/disclose to the applicant any
information and/or documents in the possession of or known to the applicant,
of any alternative income the applicant may have earned in the period from 26 June 2008 to 12 June 2014, from any third party other than the applicant ,
within 90 (ninety) days of the date of this order. ’
[16] On 2 August 2021, Mr Potgieter instituted a claim for the ar rear remuneration.
This was for the period between the date of the award and the judgment of the LAC.
[17] In those proceedings, the respondent contended that the appellant’s claim
had prescribed. The contention was that the claim accrued each month between the
date of the award and the reinstatement order of the LAC and that in terms of section
12(1) of the Prescription Act
1, the debt became due on 14 June 2014, being the date

1 Act 68 of 2969.
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of the reinstatement order . It would , therefore, have prescribed three years
thereafter , being 13 June 2017.

The Labour Court judgment
[18] The Labour Court held that monies owing consequent upon a reinstatement
order constitute a debt within the contemplation of the Prescription Act and that the period applicable is in terms of section 11(d) of the Act , which stipulates that a debt
prescribes after three years . On the authori ty of National Union of Metalworkers of
SA on behalf of Fohlisa and Others v Hendor Mining Supplies (a division of
Marschalk Beleggings (Pty) Ltd)
2 (Hendor ), it held that a claim in arrears in salaries
constitutes a contractual claim which becomes due once the employment contract
has been restored subsequent to a reinstatement order. This is since , with reliance
on Coca Cola Sabco (Pty) Ltd v van Wyk ,3 the reinstatement order does not include
wages owing between the date of the order or award and the eventual restoration of
the employment.
[19] It found that Mr Potgieter ’s claim between June 2008, being the date of the
reinstatement award, and 12 June 2014, being the date of the LAC order granting
reinstatement , constituted a contractual claim to which prescription applied.
Moreover, that Mr Potgieter was constrained to issue proceedings to enforce the
reinstatement order prior to the conclusion of the appeal processes which the
respondent had pursued. [20] As such, since the LAC restored the employment contract on 12 June 2014,
the debt bec ame due and enforceable on that date. This was even if the order of the
LAC was suspended pending the finalisation of the appeal to the Constitutional
Court ; that application was finalised on 3 September 2014. Thus, the period of
prescription either commenced to run on 12 June 2014 or 3 September 2014.
[21] The Labour Court held that Mr Potgieter instituted his first claim in July 2018,
which was withdrawn and further instituted a second claim on 2 August 2018. It

2 [2017] ZACC 9; (2017) 38 ILJ 1560 (CC).
3 [2015] ZALAC 15; (2015) 36 ILJ 2013 (LAC).
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concluded that the claim was instituted more than three years after the debt bec ame
due and enforceable.

[22] In considering whether the period of prescription was interrupted, the Labour
Court held that in terms of section 15 of the Prescription Act , the running of
prescription shall be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. The Labour Court rejected Mr Potgieter ’s
contention that his claim emanated from the judgment of Snyman AJ of
16 February 2021, which granted the appellant leave to institute the claim for arrears
in salaries. It held that the said judgment was not in relation to the issue of
prescription but rather that it interpreted the LAC order granted on 12 June 2014,
which was subject to any contractual defences . Moreover, t he order granting leave to
initiate a claim could not be construed to eliminate the accrued right of a party to
raise prescription as a defence.
[23] Thus, the Labour Court held that Mr Potgieter did not serve any process
within the meaning of section 15 of the Prescription Act claiming performance from
the respondent , nor were any other legal proceedings initiated within the period of
three years after the debt bec ame due and enforceable. This includes the claim
which was instituted in July 2018, which was initiated subsequent to the expiry of the
three- year period. Effectively, the claim prescribed either in June or September 2017.
Submissions before this Court
[24] It was contended on behalf of Mr Potgieter that a debt is claimable once the
creditor has acquired the right to institute an action for the recovery of the debt . This
entails that there must be a complete cause of action in respect of the debt. In this
case, the cause of action partly arose on 23 July 2015, being the date of his actual
reinstatement by the respondent. Moreover, that the running of the period of prescription was interrupted on 20 July 2018, when he instituted an action for
recovery of the debt , which claim was withdrawn in accordance with the order of the
Labour Court (per van Niekerk J) on 29 May 2020.

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[25] In the alternative, the contention was that prescription commenced after the
judgment of Snyman AJ , which declared that the judgment debt in terms of the LAC
judgment was distinguishable from the claim for a rrears in wages . It was contended
that prior to that judgment, the appellant had not come to the full realisation that he
had to institute a claim separate from the reinstatement claim. Thus, the appellant
became aware of his claim because of the judgment of Snyman AJ.

[26] It was contended on behalf of Samancor that the claim for arrears in wages
accrued on 12 June 2014, being the date of the LAC judgment and the claim
prescribed three years after that date, being 13 June 2017. The appellant having
instituted his claim on 20 July 2018 entails that the claim was initiated 13 months
after the deadline. It was contended that , in any event, these proceedings did not
interrupt prescription as they were never pursued but were withdrawn by agreement between the parties on 29 May 2020. Moreover, to compound matters, the claim was
not instituted in terms of section 77(3) of the Basic Conditions of Employment Act
4
(BCEA) , being the competent procedure for a claim for arrears in wages.
Evaluation
[27] The issue is when the debt bec ame due and payable. The Labour Court found
that the debt became due and payable at the date of the reinstatement order or at the date on which Samancor’s application for leave to appeal was dismissed by the
Constitutional Court.
[28] Emanating from the authority in Hendor
5, a reinstatement order merely
revives the employment contract between the parties and therefrom the reciprocal obligations to tender services , acceptance of the tender and pay ment of wages
arises. This entails that for reinstatement to occur, the employee must tender
services after the reinstatement order , and the employer must accept the employee
back into her previous position. In articulating this position, th is Court in Kubeka
Others v Ni- Da


4 Act 75 of 1997, as amended.
5 Hendor at paras 37 – 51 and 173 - 177.
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[29] Transport (Pty) Ltd6 held the following:
‘[23] In Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
& Arbitration & others (Equity Aviation Services) the Constitutional Court held:
‘The ordinary meaning of the word “reinstate” is to put the employee back into
the same job or position he or she occupied before the dismissal, on the same
terms and conditions. Reinstatement is the primary statutory remedy in unfair
dismissal disputes. It is aimed at placing an employee in the position he or
she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if
employees are reinstated they resume employment on the same terms and
conditions that prevailed at the time of their dismissal.’
[24] These dicta do not clearly affirm that the effect of a reinstatement order
is merely to direct the employer to accept a tender of the employees’ services
and that no right to arrear wages arises until it elects to do so ; though the
‘resuming’ of employment implies that the contract of employment was not
extant during the period of litigation. However, the dicta can be interpreted
equally to mean that the reinstatement order itself ‘puts the employee back
into the same job or position he or she occupied before the dismissal on the
same terms and conditions’. Likewise, the reinstatement order (not the
employer’s acceptance of the tender of services) ‘is aimed at placing an
employee in the position he or she would have been but for the unfair
dismissal’. ’
And –
‘[35] The decision of the Constitutional Court in Hendor therefore leaves
little doubt that a reinstatement order does not restore the contract of
employment and reinstate the unfairly dismissed employees. Rather, it is a
court order directing the employees to tender their services and the employer
to accept that tender. If the employee fails to tender his or her services or the
employer refuses to accept the tender, there is no restoration of the
employment contract. If the employer fails to accept the tender of services in
accordance with the terms of the order, the employee’s remedy is to bring

6 [2020] ZALAC 55; (2021) 42 ILJ 499 (LAC) at paras 23 – 24 and 35 – 38.
10

contempt proceedings to compel the employer to accept the tender of
services and thereby to implement the court order.
[36] As the employees in Hendor in fact tendered their services and were
reinstated, the Constitutional Court was not called upon to decide what the
position would have been had the employees failed to take up reinstatement pursuant to the order. However, it follows plainly from the reasoning in both
judgments that an employee granted retrospective reinstatement is not
entitled to any of the contractual benefits of reinstatement, including backpay,
without the contract being restored through actual reinstat ement .
[37] As pointed out earlier, this seems at first glance to put an unfairly
dismissed employee at a disadvantage when compared to an employee
seeking specific performance at common law. That is not entirely true. The protective scope of the unfair dismissal jurisdiction is of course much wider.
Specific performance is available only for unlawful termination, whereas a lawful dismissal may be held to be unfair under the LRA. But still , at common
law, employees seeking specific performance are not required to tender prospective services to obt ain arrear wages for which they have tendered
services.
[38] A requirement that backpay is only due and payable on reinstatement
is in keeping with the remedial scheme and purpose of s 193 of the LRA. As
Mr Watt -Pringle SC, counsel for the respondents, correctly submitted, if an
employee in receipt of a reinstatement order could on the strength of the order
alone claim contractual payment for the retrospective part of the order without actually seeking reinstatement (tendering prospective services), it would
convert a reinstatement remedy (which requires a tender of services) into a compensation award (which does not), in excess of the statutory limitation on
compensation awards. Such an outcome would be inconsistent with the purpose of ss 193 and 194 of the LRA. An unfairly dismissed employee must
elect his or her preferred remedy and, if granted reinstatement, must tender
his or her services within a reasonable time of the order becoming
enforceable. If reinstatement has become impracticable through the effluxion
of time, for instance where the employee has found alternative employment,
he or she should seek to amend his or her prayer for relief to one seeking
compensation. ’ [Own emphasis]
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[30] It follows that any contractual claim that arises as a result of the reinstatement
order accrues once the employee is actually accepted back into his previous
position. This is because an employee granted retrospective reinstatement is not
entitled to any of the contractual benefits of reinstatement, including backpay, without
the contract being restored through actual reinstatement . In this instance, the LAC
judgment did not ent itle the appellant to contractual claims but rather bestowed them
with the right to restore the contract through a tender and a reciprocal acceptance.

[31] Thus, it follows that any claim in respect of arrear wages only became due
and pay able on 23 July 2015, being the date Mr Potgieter was accepted back into
his previous position. Thus , on the objective facts , the period of three years would
have elapsed on 24 July 2018. It is common cause that the appellant instituted an
action in the Labour Court to recover , inter alia , arrears in wages on 20 July 2018.
Moreover, that the action was withdrawn on 29 May 2020 on account of a question of
whether enforcement procedures were competent in the circumstances.

[32] The provisions of section 15 of the Prescription Act read as follows:
‘15 Judicial interruption of prescription
(1) The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any process
whereby the creditor claims payment of the debt.
(2) Unless the debtor acknowledges liability , the interruption of prescription
in terms of subsection (1) shall lapse, and the running of prescription shall not
be deemed to have been interrupted, if the creditor does not successfully
prosecute his claim under the process in question to final judgment or if he
does so prosecute his claim but abandons the judgment or the judgment is set
aside.
(3) If the running of the prescription is interrupted as contemplated in
subsection (1) and the debtor acknowledges liability, and the creditor does not prosecute his claim to final judgment, prescription shall commence to run afresh from the day on which the debtor acknowledges liability or, if at the time when the debtor acknowledges liability or at any time thereafter the
12

parties postpone the due date of the debt, from the day upon which the debt
again becomes due.
(4) If the running of prescription is interrupted as contemplated in
subsection (1) and the creditor successfully prosecutes his claim under the process in question to final judgment and the interruption does not lapse in terms of subsection (2), prescription shall commence to run afresh on the day on which the judgment of the court becomes executable. ’ [Own emphasis]
[33] Samancor contended that it did not , at any stage, concede to Mr Potgieter ’s
claim and that there were no completed proceedings which interrupted prescription
as the relevant action was abandoned by Mr Potgieter . The effect of this contention
is that in terms of section 15(2) of the Prescription Act , the action instituted on
23 July 2018 did not interrupt prescription.

[34] The Constitutional Court in Food and Allied Workers Union on behalf of
Gaoshubelwe v Pieman's Pantry (Pty) Ltd
7 (Pieman’s Pantry ), held the following in
respect of the commencement of proceedings within the meaning of section 15(1) of the Prescription Act:
‘[202] In addition, given the mandatory nature of conciliation as a requirement
for arbitration or a referral to the Labour Court, it follows, in my view that the proceedings for the recovery of the debt, that arise from an unfair dismissal, commence when a dispute is referred to conciliation. To hold otherwise would simply mean airbrushing the important and legally mandated process of conciliation, from what can only be seen as a continuum in the legal process from conciliation to adjudication that the LRA evidences. In Cape Town
Municipality , the Court held that a process that initiates proceedings for
enforcement of payment of a debt interrupts prescription:
“It is sufficient for the purposes of interrupting prescription if the process to be served is one whereby the proceedings begun there under are instituted as a step in the enforcement of a claim for payment of the debt.
A creditor prosecutes his claim under that process to final, executable
judgment, not only when the process and the judgment constitute the

7 [2018] ZACC 7; (2018) 39 ILJ 1213 (CC) at paras 202 – 203.
13

beginning and end of the same action, but also where the process initiates an
action, judgment in which finally disposes of some elements of the claim, and
where the remaining elements are disposed of in a supplementary action
instituted pursuant to and dependent upon that judgment. ”
[203] What is instructive from this decision is that it recognises that the
judicial process may consist of various steps that are intertwined and that it is
not necessary that the process that commences proceedings must result in a
judgment in the same action. Thus, it matters not that the process that
constitutes a referral to conciliation does not result in a judgment. It may still,
and does indeed, constitute the commencement of proceedings for the
enforcement of a debt .’ [Own empha sis]

[35] It is clear that the Constitutional Court (within the context of conciliation
proceedings ) interpreted section 15(1) of the Prescription Act not to require that the
instituted process must culminate in a judgment in the same proceedings. It is
sufficient for the party to approach the recovery of the debt in a staggered fashion. In this instance, it cannot be said that the proceedings initiated on 23 July 2018 were
not proceedings competent in terms of section 15(1) of the Prescription Act. As
mentioned above, the action was withdrawn for the delivery of a legal question ,
which ultimately served before Snyman AJ. Clearly, the proceedings before van
Niekerk J were aborted with the proviso that the respondent would initiat e
proceedings for declaratory relief within the stipulated timeframes. That relief was
contemplated to discern the form and extent of the claim prosecutable. This evinces proceedings which sought to finally dispose of some element of the claim , that is,
whether the claim for ar rears in wages constituted a judgment debt or a contractual
claim.
[36] This was in line with the order per van Niekerk J , which required that a legal
question as to whether the claim was a judgment debt or a contractual debt should
be resolved first before the appellant could proceed with the action proceedings for the recovery of the debt. Clearly, the proceedings before van Niekerk J and those before Snyman AJ were intertwined, as alluded to in Pieman's Pantry . Thus , it
cannot be said that the appellant did not successfully prosecute his claim within the
meaning of section 15(2) of the Prescription Act when he withdrew the claim. It is
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clear from the reading of the order of the Labour Court (per van Niekerk J) that albeit
the action was withdrawn, nevertheless the appellant did not abandon his claim and
merely sought to crystallise his claim by finally disposing of some of the elements of
the claim .

[37] This is discernible from the fact that when the parties could not agree on a
stated case as mandated by the aforesaid order , the parties hastily initiated the
proceedings , which ultimately served before Snyman AJ. It follows that , as at the
time that declaratory judgment was delivered on 20 May 2020, the period of
prescription was not exhausted on 16 February 2021. Therefore, it cannot be said
that the aborted proceedings did not interrupt the running of prescription. They did.

[38] I conclude , therefore , that the appeal stands to succeed, and that the
following order be made:
Order

1. The late delivery of the respondent’s heads of argument is condoned.
2. The appeal is upheld with no order as to costs .
3. The order of the Labour Court is set aside and substituted with an
order that reads as follows:
‘1. the respondent’s special plea of prescription is dismissed with no order
as to costs .'

G. MALINDI AJA
Molahlehi DJP and Smith AJA concur.

APPEARANCES:
For the Appellant : A. Goldberg, of Goldberg Attorneys Incorporated
For the Respondent : A. Redding SC,
instructed by Solomonholmes Incorporated attorneys