In South Africa, employees are legally entitled to receive payment for the work they do, whether it’s a wage, salary, guaranteed bonus, overtime, or leave pay. These obligations are rooted in employment contracts, but even in the absence of a written contract, employees are protected by the Basic Conditions of Employment Act 75 of 1997 (BCEA), the National Minimum Wage Act 9 of 2018, sectoral determinations, and collective agreements.

What Must Be Paid, and When?

Section 32 of the BCEA obliges employers to pay remuneration no later than seven days after the end of the pay period, or on the day that employment ends, if the employment contract is terminated.

This includes:

  • Salaries and wages;
  • Guaranteed Bonuses;
  • Overtime;
  • Annual leave pay; and
  • Sick leave pay.

Once an employee has performed their duties, these payments become legally due.

Section 73A of the Basic Conditions of Employment Act

Introduced in 2019, Section 73A of the BCEA expanded the powers of the Commission for Conciliation, Mediation and Arbitration (CCMA), allowing it to deal with disputes about unpaid monies – even those arising from contracts or collective agreements – provided certain conditions are met. Currently, only employees earning below R21,812.37 per month may use Section 73A to lodge such claims at the CCMA. These figures are adjusted periodically, so it’s important to check the latest thresholds.

Claims under Section 73A may include:

  • Unpaid salaries or wages;
  • Overtime;
  • Public holiday or Sunday pay;
  • Bonuses (if contractually guaranteed); and
  • Leave pay.

However, not all unpaid amounts fall under Section 73A. General contractual disputes, such as breach of contract not related to remuneration, fall outside the CCMA’s jurisdiction under this section and must go through the Labour Court or civil courts.

Key Considerations When Referring Section 73A Disputes

When lodging a Section 73A claim at the CCMA, employees should be mindful of the following:

  1. Representation: Legal representation is generally not allowed, unless permitted under Rule 25(1)(c) of the CCMA Rules.
  2. Proof of Entitlement (Evidence): The claimant must provide clear evidence of the amount owed, how it was calculated, and the contractual or statutory basis for the claim.
  3. Time Limits: While there is no fixed referral deadline, the debt must be claimed within three years to avoid prescription.
  4. Detailed Breakdown Required: Employees should clearly itemise their claim, including – Payment period (dates); Pay rate (daily, weekly, or monthly); Leave details: last leave, period in question, and days claimed; Overtime, Sunday, or public holiday work (dates, hours, and value); Summary of steps taken to recover payment (e.g., prior requests or correspondence).

Employer’s may defend the claim by submitting payslips, bank records, written correspondence; and/or oral evidence or witness testimony.

Selected Case Law on Section 73A and Non-Payment Claims

  • Kgasane v MEC Department of Health: Free State and Another (2025): The Labour Court confirmed its jurisdiction to hear a claim tied to a collective agreement, despite the employee earning above the threshold.
  • Safeguard Chemicals t/a Maris Polymers South Africa v Frydas and Others (2022): The CCMA’s award for bonuses and profit share was overturned by the Labour Court, because the employee’s earnings exceeded the statutory limit.
  • Adapt (Pty) Ltd v Maseko and Others (2023): The CCMA couldn’t award a salary increase or bonus where those benefits were purely contractual.
  • Hollywood Sportsbook Gauteng v CCMA and Others (2023): The Court set aside a CCMA ruling where the commissioner ignored key evidence on overpayments and an incomplete final month.
  • Nieftagodien v Yikusasa Building Contractors (Pty) Ltd (2024): The applicant’s claim was dismissed as they were not legally transferred under section 197 of the Labour Relations Act, and thus not an employee.
  • Nxazonke v CCMA and Others (2022): The Court reaffirmed that financial urgency alone doesn’t justify urgent relief in salary claims.
  • Prestige Campworld (Pty) Ltd t/a Comet Caravans v Botha and Others (2022): The Labour Court held that commission must be included when determining whether an employee falls below the earnings threshold.

Conclusion

Section 73A of the BCEA offers lower-income employees an accessible, cost-effective route to claim unpaid remuneration through the CCMA. But it comes with limits on jurisdiction, representation, and scope. Employees and employers alike should keep meticulous records and seek early advice when payment disputes arise. As case law continues to develop, understanding the practical boundaries of Section 73A is more important than ever.