Tebogo Brian Monare v South African Tourism

The applicant was employed by the respondent (a statutory body) on a five-year fixed term contract from 1 February 2010 to 31 January 2015 as Finance and Administration Manager in the United Kingdom at £5,674.23 per month. Seven months into employment, he was dismissed on 30 September 2010 for alleged dishonesty and fraud. He referred an unfair dismissal dispute to the CCMA on 17 November 2010. On 31 August 2011, Commissioner Mooi found the dismissal procedurally fair but substantively unfair, and ordered reinstatement with no loss of salary (£37,509.54) from 23 February 2011. The respondent refused to reinstate and launched review proceedings (JR 2298/11). On 31 March 2014, Van Niekerk J set aside the arbitration award, finding the CCMA lacked jurisdiction. The applicant appealed successfully (JA 45/11), and on 11 November 2015 the Labour Appeal Court dismissed the review application, thereby restoring the arbitration award. By this time, the fixed term contract had expired (31 January 2015). The parties agreed on 19 December 2015 that £69,172.52 was owed under the award, and R1,582,986.83 was paid on 11 January 2016. The applicant then claimed R87,529.54 shortfall and £257,550.42 for salaries from 1 October 2010 to 31 January 2015.

• Whether the applicant's contractual claim for salaries for the unexpired portion of the fixed term contract had prescribed under sections 10-12 of the Prescription Act 68 of 1969
• Whether prescription commenced running from the date of dismissal (30 September 2010) or from the date the Labour Appeal Court judgment restored the arbitration award (11 November 2015)
• Whether the suspension of the arbitration award during review and appeal proceedings interrupted or delayed the running of prescription
• The nature of the applicant's claim: whether it was a judgment debt or contractual debt
• Whether the applicant was entitled to claim salaries for the entire unexpired term of the fixed term contract

1. The special plea of prescription raised by the Respondent is dismissed. 2. The Respondent is ordered to pay the Applicant R87,529.53 together with interest at 9.75% per annum from 11 January 2016 to date of payment. 3. The Respondent is ordered to pay the Applicant £257,550.42 for damages in respect of salaries for the period 1 October 2010 to 31 January 2015. 4. The amount in (3) shall be converted at the Rand/British Pound Sterling exchange rate applicable on 31 January 2015, with interest at the applicable rate from the date payment fell due until final payment. 5. No order as to costs.

For purposes of prescription under the Prescription Act, where an arbitration award ordering reinstatement is set aside on review but subsequently restored on appeal, the employee's contractual claim for salaries does not accrue from the date of dismissal but from the date the appeal court restores the award. Prescription begins running only when the creditor acquires a complete cause of action - when all facts necessary to succeed with the claim are in place. During the period when an arbitration award is suspended pending review and appeal, the employment contract is likewise suspended, and the employee cannot have a complete cause of action for contractual damages. The debt only becomes "due" for prescription purposes when the final appellate judgment revives the contract, but only to the extent the fixed term would have remained in force.

The court observed that it would be manifestly unjust to deprive an applicant of an arbitration award by first avoiding its implementation through review proceedings and then raising prescription based on time wasted by the review. The court noted that an employer cannot be liable for remuneration for periods when an employee would no longer have been in employment for reasons such as death or retirement - similarly, where a fixed term contract expires during litigation, liability is limited to the contract's natural term. The court also commented that there was no requirement for an employee to refer both an unfair dismissal dispute and a BCEA section 77 claim simultaneously, particularly where the employment relationship was suspended pending litigation. The suggestion that this should have been done was impractical given the procedural posture of the case.

This case provides important guidance on when prescription begins to run in complex labour disputes involving review and appeal proceedings. It clarifies that where an arbitration award ordering reinstatement is suspended pending review/appeal, the contractual claim for salaries does not accrue until the final court judgment restores the award. The judgment applies and extends the principles in Hendor Mining Supplies v NUMSA regarding the distinction between pre-judgment and post-judgment claims, and between judgment debts and contractual debts arising from restored employment relationships. It confirms that a complete cause of action is required before prescription can commence running, and that courts should avoid interpretations that would lead to manifest injustice where employers delay implementation of awards through litigation.