Holtzhausen v Grandmark International (Pty) Ltd (J817/24) [2024] ZALCJHB 343 (31 August 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 817/2024

In the matter between:

ADRI MARGARITA HOLTZHAUSEN Applicant and GRANDMARK INTERNATIONAL (PTY) LTD Respondent

Heard: 15 August 2024

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website and released to Saflii. The date for hand-down is deemed to be on 31 August 2024

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant approach this Court on an urgent basis seeking that the respondent be interdicted from making any further deductions from her salary in contravention of the provisions of the provisions of sections 34(1)(a), (b) and (2)(d) of the Basic Conditions of Employment Act[1] (BCEA).

[2] The applicant further seeks an order that the respondent reimburse her of any deductions which have already been made from her salary in contravention of the said provisions of the BCEA.

The background and the applicant’s case:

[3] The applicant commenced her employment with the respondent with effect from 1 April 2023 in the position of Head of Supply Chain. She reported directly to Mr Allan Ho, the respondent’s Chief Executive Officer. As per the letter of her appointment, the applicant’s annual costs to company remuneration was R2 200 000.00 subject to deductions. Amongst other conditions /benefits

applicable to her were;

(i) Participation in a short term incentive scheme (Grandmark Performance Accelerator(GPA)) in the amount of R380 000.00;

(ii) A sign-on bonus of R750.000.00 payable in 50% bonus with first salary payment subject to statutory deductions, and the remaining 50% payable with her October 2023 salary. 50% of the sign on bonus was to be offset against the GPA payment for 2023, the balance of the GPA payment if due, payable on receipt of audited financial statements. The sign-on bonus was subject to her remaining in the employ of the respondent for a period of 24 months.

(iii) Costs of studies to a maximum of $2000.00 per quarter on condition that;

(a) she remained in the respondent’s employment for 1 year post completion of her studies, or alternatively, to repay the total value of the bursary granted which would be calculated on a pro rata basis and payable on termination date.

(b) The benefit was also subject to a ‘Workback Contract/Agreement’, in terms of which she confirmed that the respondent granted her a bursary to complete her MBA Program with an institution in the USA.

(c) The period for which the bursary arrangement was applicable for was 1 April 2023 to 30 June 2024. She was required to ensure that certificates obtained on completion of her studies were submitted to the respondent, failing which the agreement would be cancelled with immediate effect. The implications thereof were that she would be obliged to repay the full value of the bursary granted up to the date of cancellation.

(d) In the event that the applicant left the employ of the respondent before she completed her studies; failed to pass, or write a subject; or not complete the course, she would be liable for the repayment of the full value of the bursary;

[4] It was common cause that during April 2024, the respondent advanced to the applicant, a once off interest free loan in accordance with a ‘Loan Agreement’ in the amount of R16 698.00. The loan pertained to the tax which was due and payable by her in respect of her studies with an institution based in the USA. The loan amount was repayable in instalments of R2 783.00 to be offset against her monthly salary payment commencing from May 2024. Any fringe benefit tax resulting from the loan was payable by the applicant.

[5] One year into her employment, the applicant handed in her resignation on 31 May 2024 by giving three months’ notice, with her last day of service being on 31 August 2024. The respondent accepted her resignation and elected to pay her three months’ salary in lieu of the notice. The respondent contends that the applicant’s termination date was on 31 June 2024. From that combined salary, the respondent deducted what was due to it as reflected in the applicant’s payslips for June, July and August 2024.

[6] Following her resignation, the applicant referred an alleged constructive dismissal dispute to the Commission for Conciliation

Mediation Arbitration (CCMA) on 28 July 2024. On 30 July 2024, the applicant launched this application which the respondent promptly

opposed.

[7] The basis upon which the applicant avers that she is entitled to interdictory relief varies. Other than alleging unlawfulness and non-compliance with the provisions of the BCEA in effecting the deductions, her principal complaint is that upon handing her

resignation, she was willing to work out her three months’ notice period, but that the respondent had required her to leave

immediately. She contends that had she been allowed to serve her notice period, this would have enabled her to have any deductions

spread out over the notice period.

[8] Notwithstanding her complaint as above, she had conceded that the respondent had informed her as early as 26 June 2024 that she would be paid in lieu of the notice, and that all the outstanding amounts due and payable by her would be recovered from her combined three months’ notice salary for June, July and August 2024, in the amounts of R114 335 (study costs), R218 750.00 (sign-on bonus), and R16 698 (loan amount).

[9] The applicant had further acknowledged her debts related to the study expenses which were calculated on a pro rata basis for the period which fell short of the 12 months period she was expected to remain in the respondent’s employ. She however contended that since she finished her studies in June 2024 and was only in the respondent’s employ for 2 months after she finished her studies, she therefore had to repay a pro rata amount of the shortfall period of 10 months, which was in the amount of R95 296.00.

[10] The applicant denied that she was obliged to repay the portion of the sign-on bonus as there was no agreement in that regard. She disputed that the contract of employment made any provision for any action to be taken against her in the event that she failed to comply with the requirement of staying in the respondent’s employ for a period of 24 months. She also disputed that there was any workback agreement permitting the respondent to deduct from her salary any amounts in relation to the sign-on bonus, and that the respondent was only permitted to deduct amounts regarding the study and loan costs. She also disputed the respondent’s right to deduct amounts related to ‘Annual bonus’, and contends that the respondent ought to have instead paid her a pro rata bonus.

[11] She contends that after the respondent had made all the deductions, she was left with a nett pay of zero rand for June, and was only remunerated in a nett amount of R58 598.35 for July and August 2024. She disputes the respondent’s right to make the deductions in the light of the provisions of section 34(1)(a) and (2) of the BCEA, and further in the absence of a written agreement between the parties for the deductions to be made.

The respondent’s case:

[12] The respondent denied that it made any unlawful deductions to the applicant’s salary in the light of the reciprocal agreements entered into with her, whereby she had agreed and consented to the deductions being made. Other than opposing the merits of the application, the respondent also raised three preliminary points.

The preliminary points:

(i) Lis pendens:

[13] The respondent pointed out that other than lodging this urgent application, the applicant had two days prior thereto, also referred an alleged constructive dismissal dispute to the CCMA, seeking similar type of relief in the form of reimbursement of monies deducted from her salary.

[14] The requirements for a plea of lis alibi pendens are well-established. There must be proceedings between the parties on the same cause of action, and for the same relief. In Nestlé (South Africa) (Pty) Ltd v Mars Inc[2], it was held that;

‘The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before that tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to revive once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought once and finally.’

[15] It is accepted that a defence of lis alibi pendens is not an absolute defence, and that the Court retains the discretion despite all the elements being present, to allow the second case to proceed, based on considerations of balance of convenience and equity.

[16] In this case, the Court accepts that the matter before the CCMA is between the same parties. The cause of action however before the CCMA is under the provisions of section 186(1)(e) of the Labour Relations Act.[3] The only common denominator between the application before the Court and the dispute before the CCMA is the nature of relief sought, which is the re-payment of the deductions already made. That was in addition to the relief sought under section 193 of the LRA.

[17] The applicant’s response to the defence of lis pendens is curious in that other than contending that the additional relief of payment of the deductions as set out in the referral before the CCMA was in error, her case was also that the CCMA is in any event not a court of law, and thus one could not speak of proceedings

before it as pending litigation for the purposes of a defence of lis pendens. Clearly the applicant’s contention is without merit. The CCMA might not be a court of law, but proceedings before it are held in terms of statute, and the outcome thereof have a legal binding effect.

[18] It is not necessary to address the applicant’s responses to the defence of lis pendens in detail, and it is accepted that under section 74(1) – (2) of the BCEA[4], an employee may jointly institute proceedings for unfair dismissal and also claim amounts owing to her. The applicant elected to do so under her referral to the CCMA for constructive dismissal.

[19] The difficulty however to the extent that the applicant also claimed payments of amounts already deducted, is that the claim will be barred under the provisions of section 73A(2) of the BCEA, to the extent that it is apparent from her package that she earned above the threshold. To this end, even if the same form of relief is sought before the Court as the one before the CCMA, that relief however will not be obtainable at the CCMA for lack of jurisdiction. This therefore makes the defence of lis pendens legally unsustainable.

(ii) Incompetent relief:

[20] The purpose of interdictory relief is to prevent or prohibit future unlawful conduct, and is not an appropriate remedy for the past violation of rights[5]. The respondent contended that the relief sought by the applicant interdicting it from making any further deductions from her salary is moot since those deductions took place at the end of June 2024.

[21] The applicant acknowledged the debts due and payable to the respondent in the light of the various reciprocal agreements between the parties. Her primary complaint is that in making the deductions, the respondent combined all the three months’ pay in lieu of the notice, resulting in her being left out of pocket, rather than those deductions being spread over three months.

[22] The interdictory relief is clearly moot in this case. The employment relationship terminated on 31 June 2024 after the respondent elected to pay the applicant in lieu of notice. The deductions were already made as at the time that she approached this Court for urgent relief, and in the absence of a continued employment relationship, there is no basis for any contention that any alleged unlawfulness on the part of the respondent is of a continuing nature. The applicant cannot even allege that she has a reasonable apprehension that the alleged unlawfulness will be repeated, as she is no longer entitled to any salary from the respondent beyond June 2024.

Urgency:

[23] Aligned to the mootness of the relief sought is the question of urgency. Even though it is not even necessary to deal with this issue in the light of the conclusions on the question of mootness, the Court will nonetheless for the sake of completeness deal with it.

[24] Central to the applicant’s grounds for seeking urgent relief is her financial position and obligations. She is clearly aggrieved by the fact that the respondent deducted what was owed to it from her combined salary over three months. She contends that she had communicated with the respondent’s CEO about the deductions, and that the last communication was on 8 July 2024 after which she did not get a response despite placing the respondent on terms. It was only thereafter that she had instructed her attorneys of record to proceed and launch the application.

[25] The respondent denied that this application deserved the urgent attention of this Court based on her primary ground for urgency, and her failure to lay any legitimate foundation for the application to be heard on an urgent basis, other than her financial position. It was submitted that she nonetheless failed to convince the Court that there were exceptional circumstances given her alleged financial position, to justify the need for urgency.

[26] The principles applicable to urgent applications are trite as can be gleaned from various decisions of this and other Courts[6]. An applicant that approaches the Court on an urgent basis essentially seeks an indulgence, and to be afforded preference in order to prevent prejudice and harm that may materialise or persist if the conduct complained of continues. Central to a determination of whether a matter is urgent is whether the applicant has in the founding affidavit, set forth explicitly, the circumstances which

renders the matter urgent, and the reason why it is said that substantial relief cannot be attained at a hearing in due course.

[27] It is further trite that urgent relief will not be granted where it is apparent from the papers that the urgency claimed is self-created.

Self-created urgency will be evident in circumstances where an applicant failed to bring the application at the first available

opportunity[7]. Effectively, it is expected of litigants to react immediately to remedy or prevent harm and/or prejudice, rather than standing back and doing nothing until it is too late[8].

[28] The facts of this case clearly indicates that the urgency claimed by the applicant is self-created. On her version, the applicant was informed as early as 26 June 2024 that she would be paid in lieu of the notice, and that all the outstanding amounts due and payable by her would be recovered from her combined three months’

notice salary. Notwithstanding that prior warning, which the respondent had in any event carried out at the end of June 2024, the

applicant only approached the Court on or about 30 July 2024, some one month later after the deductions were effected.

[29] Even it might be accepted that a failure to act in haste might not be a basis of refusing to grant urgent relief, the applicant cannot allege that she would not be able to obtain substantial redress in due course if this matter was to be brought on the ordinary roll. There is nothing particularly exceptional with the facts and circumstances of the applicant’s case to entitle her to jump the proverbial litigation queue and be accorded urgent relief. The respondent correctly pointed out that the urgency claimed is self-created in that it was the applicant’s own conduct of handing in her resignation that had created the unenviable position she finds herself in, in that had she not resigned, then no deductions would have taken place from her salary.

[30] Worst still however is that there would be no logic in granting a litigant urgent relief, in circumstances where the very relief sought is not only incompetent but had since been rendered moot as a result of a chain of events prior to the Court being approached.

[31] In the light of the above conclusions that the urgency claimed by the applicant is self-created, and further since it cannot be said that she will not obtain substantial redress in due course, it further follows that in the light of the applicant’s pleaded case, it cannot be argued that she has satisfied the requirements for urgent final relief being a clear right; an injury actually committed or reasonably apprehended, and no other satisfactory remedy[9].

[32] The applicant cannot claim a clear right not to have the deductions effected, when she had bound herself to those deductions in accordance with her contract of employment and other ancillary agreements Equally so, she cannot claim an injury actually committed

or reasonably apprehended if the interdict is not granted, as those deductions already made were due and payable, as evident from her acknowledgements and further contentions that she was either prepared to sign an acknowledgement of debt, or that the respondent could have deducted the debts from her pension. She cannot claim a reasonable apprehension of injury as she is no longer in the respondent’s employ.

[33] Furthermore, she cannot allege to be without a satisfactory remedy, in circumstances where other than pursuing her claim of constructive dismissal dispute currently before the CCMA, she may still pursue the issue of deductions, if there is any merit in it, under the provisions of section 34 read with section 77(3) of the BCEA.

Costs:

[34] The respondent sought an award of costs on the basis that this application was an abuse of court process, as it was meritless. I agree that the application was entirely meritless given the lack of urgency, the mootness of the relief sought and in the end, the failure to make out a case or meet the requirements of interdictory relief sought. Accordingly, upon a consideration of the requirements of law and fairness, it is deemed appropriate that the applicant be liable for the respondent’s costs.

[35] Accordingly, the following order is made;

Order:

1. The Applicant’s urgent application is dismissed.

2. The applicant is ordered to pay the costs of this application, on a party and party scale.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv. L.S. Froneman, instructed by Yolandi Boshoff Attorneys.

For the Respondent: Mr T Anestidis of Eversheds Sutherland (SA) INC.

[1] Act 75 of 1997.

[2] [2001] ZASCA 76; [2001] 4 All SA 315 (A); 2001 (4) SA 542 (SCA) at para 16.

[3] Act 66 of 1995, as amended.

[4] Section74: Consolidation of proceedings (1) A dispute concerning a contravention of this Act or the National Minimum Wage Act, 2018, may be instituted jointly with proceedings instituted by an employee under Part C of this Chapter. (2) If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act or the National Minimum Wage Act, 2018.

[4] Section74: Consolidation of proceedings

(1) A dispute concerning a contravention of this Act or the National Minimum Wage Act, 2018, may be instituted jointly with proceedings instituted by an employee under Part C of this Chapter.

(2) If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act or the National Minimum Wage Act, 2018.

[5] National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008 5 SA 339 (SCA) 346H para 20.

[6] See Mogalakwena Local Municipality vs The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64; Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Jiba v Minister: Department of Justice and Constitutional Development and Others at para 18; Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32. See also East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7, where it was held:- “The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[6] See Mogalakwena Local Municipality vs The Provincial Executive Council, Limpopo and others (2014) JOL 32103 (GP) at para 63 – 64; Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) at para 24; Jiba v Minister: Department of Justice and Constitutional Development and Others at para 18; Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at para 26; Minister of Law and Order v Committee of the Church Summit, 1994 (3) SA 89 (BGD) at 99F-G; Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32.

See also East Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite (Pty) Limited and others (2012) JOL 28244 (GSJ) at para 6 and 7, where it was held:-

“The import thereof is that the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial readdress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial readdress in the application in due course. The rules allow the court to come to the assistance of a litigant because of the latter, were to wait for the normal course laid down by the rules, it will not obtain substantial readdress. It is important to note that the rules require absence of substantial redress. This is not equivalent to irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course, but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in this regard.”

[7] See Association of Mine Workers and Construction Union and others v Northam Platinum Ltd and another [2016] ZALCJHB 309; [2016] 11 BLLR 1151 (LC); (2016) 37 ILJ 2840 (LC) at para 25 – 26.

[8] Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another [2001] ZALC 223 (7 December 2001) at para 8.

[9]Setlogelo v Setlogelo 1914 AD 221 at 227