Gqithekhaya and Others v Amathole District Municipality (EL 601/2021) [2022] ZAECELLC 20; [2022] 4 All SA 106 (ECLD); [2022] 11 BLLR 1066 (ELC); 2023 (2) SA 227 (ECEL); (2023) 44 ILJ 627 (ECL) (5 August 2022)

Gqithekhaya and Others v Amathole District Municipality (EL 601/2021) [2022] ZAECELLC 20; [2022] 4 All SA 106 (ECLD); [2022] 11 BLLR 1066 (ELC); 2023 (2) SA 227 (ECEL); (2023) 44 ILJ 627 (ECL) (5 August 2022)

The court held that while the respondent was entitled in principle to recover remuneration paid to employees for periods during which they participated in an unprotected strike, such recovery must comply with section 34 of the BCEA. This requires either the employees' written consent or a court order, arbitration award, or collective agreement authorizing the deductions. The respondent's unilateral deductions constituted unlawful self-help and violated the applicants' rights to fair labour practices and access to courts. Section 34(5) of the BCEA does not provide a standalone remedy for employers to recover overpayments without following the procedures in section 34(1). The doctrine of...

Citation
[2022] ZAECELLC 20
Parties
Applicant: Thandokazi Amanda Gqithekhaya; Applicant: Thembeka Mbadlayana; Applicant: Busisiwe Nzwane; Applicant: Nandi Yantolo; Applicant: Siyabulela Phinda; Applicant: Tizinini Matshaya-Pityi; Applicant: Olivia Kelly; Applicant: Yvonne Mfukuzo; Applicant: Sibusisiwe Gubevu; Applicant: Siyasanga Wendy Mbanjwa; Applicant: Linda Simakuhle; Respondent: Amathole District Municipality
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
5 August 2022
Case Number
EL 601/2021
Procedural Posture
Urgent Application / Final Determination Under Part B Following Interim Interdict
Outcome
Applicants succeeded in obtaining a declarator that the deductions were unlawful and an order for costs.
Judges
Hartle
Legal Topics
Unlawful Deductions, No Work No Pay, Basic Conditions of Employment Act, Self Help, Set Off, Fair Labour Practices
Labour Law Civil Procedure Unlawful Deductions No Work No Pay Basic Conditions of Employment Act Self Help Set Off Fair Labour Practices

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Parties

Thandokazi Amanda Gqithekhaya

Applicant

Thembeka Mbadlayana

Applicant

Busisiwe Nzwane

Applicant

Nandi Yantolo

Applicant

Siyabulela Phinda

Applicant

Tizinini Matshaya-Pityi

Applicant

Olivia Kelly

Applicant

Yvonne Mfukuzo

Applicant

Sibusisiwe Gubevu

Applicant

Siyasanga Wendy Mbanjwa

Applicant

Linda Simakuhle

Applicant

Amathole District Municipality

Respondent

Procedural Posture

Urgent Application / Final Determination Under Part B Following Interim Interdict

Legal Issues

  1. 1 Whether the respondent's deductions from applicants' salaries for participation in an unprotected strike were lawful.
  2. 2 Whether section 34 of the Basic Conditions of Employment Act permits unilateral deductions without consent or judicial process.
  3. 3 Whether the respondent's conduct amounted to unlawful self-help.

Ratio Decidendi

The court held that while the respondent was entitled in principle to recover remuneration paid to employees for periods during which they participated in an unprotected strike, such recovery must comply with section 34 of the BCEA. This requires either the employees' written consent or a court order, arbitration award, or collective agreement authorizing the deductions. The respondent's unilateral deductions constituted unlawful self-help and violated the applicants' rights to fair labour practices and access to courts. Section 34(5) of the BCEA does not provide a standalone remedy for employers to recover overpayments without following the procedures in section 34(1). The doctrine of...

Court Disposition

Applicants succeeded in obtaining a declarator that the deductions were unlawful and an order for costs.

Orders

  • It is declared that the deductions effected against the applicants' salaries on 25 May 2022 (already reimbursed to them) were not permissible or at the time properly effected in accordance with the provisions of section 34(1) of the BCEA and amounted, in those circumstances, to self-help.
  • The respondent is directed to pay the costs of the application under Part B on the party and party scale.